Datasets:

Yashaswat

/

Indian-Legal-Text-ABS

like 4

iminal Appeal No.100 of 1967. Appeal from the judgment and order dated March 13,1967 of the Gujarat High Court in Criminal Appeal No. 566 of 1965. J. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant. section K. Dholakia, Badri Das Sharma and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Ray, J. This is an appeal from the judgment of the High Court of Gujarat. The appellants were charged with offences under sections 302 and 323 read with section 34 of the Indian Penal Code. Accused Nos. 1 and 2 were charged for the individual offences under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji. The deceased Amarji was the brother in . law (sister 's husband) of Vaghji Mansangji. Two important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji. Amarji 33 was Pabaji 's mother 's sister 's son. Pachanji is the first cousin of Vaghji Mansangji. Accused No. 3 Mulubha is the maternal uncle (mother 's bro ther) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No. 2. Accused No. 2 was residing at Bhalot. Vaghji also resided there. About two months prior to the date of the occurrence on 26 January, 1965 at 8 p.m. there was a quarrel between the children of the house of accused No. 2 Ranubha and the children of the house of Vaghji. There was exchange of words between the members of the two families. Accused No. 2 Ranubha and his father Naranji assaulted the wife of Vaghji. Vaghji then filed a complaint. Ultimately, the complaint was compounded on the intervention of accused No. 3 Mulubha. The prosecution case is that because of the behaviour of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad. The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to, reside in the village. On 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot. They left Bhalot at about 10 a.m. and reached Khedoi at about 1 p.m. The cart loads of fuel wood were sold in Khadoi by about 5 p.m. They made some purchases and then left Khedoi at about 7 p.m. While returning home Amarjis cart was in the front and Pabaji, Pachanji and Vaghji followed him in. that order. There was not much distance between each cart. When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda, the three accused persons were noticed waiting on the roads. All of them caught hold of Amarji and attacked him who was in the first cart. In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji. Mulubha was armed with an axe. Accused Nos. 1 and 2 dealt knife blows to Amarji. The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji. On seeing the attack on vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji any 34 longer as they had already killed Amarji. Thereupon the accused stopped attacking Vaghji. By this time Amarji had come staggering to the spot where Pabaji was standing. Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart. Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji, were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last. The carts were taken to village Khedoi. It is the prosecution case that the three accused persons followed these carts up to a certain distance and then accused Nos '. 1 and 2 left while accused No. 3 disappeared near Khari Vadi. Pabaji took the carts to Moti khedoi and saw police head constable Banesing who had come to Khedoi for patrolling work. Banesing was attached to the police outpost at Bhuvad. Banesing directed these persons to take Amarji to the Khedoi hospital. By that time Amarji had died. Banesing left Khedoi with Pabaji for Anjar police station which is about 8 miles from Khedoi. They reached, Anjar at about 11 p.m. and Pabaji 's F.I.R. was recorded before police sub inspector Khambholja. The police sub inspector then preceded to, Khedoi hospital. Amarji was declared to be dead. The police sub inspector recorded the statements of Vaghji and Pachanji and :then took steps in the investigation of the case. At the trial all the three ' accused denied having committed the offence. , The Sessions Judge acquitted all the three persons under section 302 read with section 34. He however convicted all the accused for the offence punishable under section 304 Part II read,with section 34 and sentenced them to suffer rigorous imprisonment for five years. Accused Nos. 1 and 2 were convicted for the offence under section 323 and accused No. 3 was convicted for the offence under section 323 read with section 34 of the Indian Penal Code. Accused Nos. 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No. 3 was sentenced to suffer rigorous imprisonment for two months. All the sentences were to run concurrent All the accused filed appeals against their convictions. Before the Division ' Bench in the High Court of Gujarat Divan, J. held that accused No. 1 alone was responsible for the fatal injury on Amarji and he was found guilty for the offence under section 302 while accused Nos. 2 and 3 were found, guilty for the offence under section 324 read with section 34. Shelat, J. was of the view that all the accused must acquitted because he ' was not satisfied with the evidence and proof of the identity of the accused. The case was then placed under Section 429 of Criminal ' Procedure Code before Mehta, J. who held that accused No. 1 35 must be Convicted for the offence under section 302 while accused Nos. 2 and 3 must be convicted for the offence under section 302 read with section 34 and all of them should be sentenced to suffer rigorous imprisonment for life. The conviction of accused Nos. 1 and 2 under section 323 and of accused No. 3 under section 323 read with section 34 was upheld. The conviction of all the accused under section 304 Part 11 was altered by convicting accused No. 1 under section 302 and accused Nos. 2 and 3 under section 302 read with section 34 of the Indian Penal Code. Counsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not with the whole case. The same contention had been advanced before Mehta, J. in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him. This Court in Babu and Ors. vs State of Uttar Peadesh (1) held that it was for tic third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit. Mehta, J. here dealt with the whole case. Section 429 of the, Criminal Procedure Code states "that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion". Two things are noticeable; first, that the, case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case. The second and the main contention of counsel for the ap pellants was that there was no common intention to kill Amarji. The finding of fact is, ,that the attack the three accused was a concerted one under prearranged plan. Amarji Was attacked by mistake :but whosoever inflicted, injury in the region of the collar bone of Amarji must be held guilty of murder. under section 302. Amarji was further found to have been attacked by accused Nos. 1 and 2 and accused No. 3 who was armed with an axe caught hold of the hand of Pabaji. The injury on Amarji was an incised wound 1 3/4" *3/4" over the left side of the neck neck just above the left collar bone. The direction of the wound was was towards right and downwards. The other injury was incised (1) ; 36 wound 1" * 1/2" * 1/2" over the chest (right side) near the middle line between the 6th and 7 ribs. The evidence establishes these features; first, that all the accused were related; secondly, they were residing at Bhuvad at the relevant time; thirdly, all the three accused made sudden appearance on the scene of the occurrence; fourthly, they started assault as soon as the carts arrived at the scene of the offence; fifthly, the way in which Amarji was attacked by accused Nos. 1 and 2 and stab wounds were infficted on him and the manner in which accused No. 3 held up Pabaji would show that the three accused were lying in wait under some pre arranged plan to attack these persons when they were returning to Bhalot. It therefore follows that the attack took place in pursuance of the pre arranged plan and the rapidity with which the attacks Were made also shows the pre concerted plan. The attack by accused Nos. 1 and 2 on Amarji and the holding up, of Pabaji by accused No. 3 all prove ,common intention, participation and united criminal behaviour of all and therefore accused No. 3 would be equally responsible with ,accused Nos. 1 and 2 who had attacked Amarji. This Court in the case of Shankarlal Kachrabhai and Ors. vs State of Gujarat(1) said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre arranged plan. The dominant feature of section 34 is the ,element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a pre arranged plan which is proved either from conduct or from circumstances of from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt. Applying these principles to the evidence in the present case it appears that there was pre arranged plan of the accused to commit offences. All the accused were lying in wait to attack the party of Amarji, Vaghji, Pabaji and Pachanji. Amarji was in the forefront. The accused attacked him. Vaghji was also attacked and prevented from going to the relief of Amarji. The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre arranged plan and participation of all the accused in furtherance of common intention. The act might be ,done by one of the several persons in furtherance of the common intention of them all, without each one of them having intended (1) ; 37 to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done. In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder. 'In Shankarlal 's case(1) this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable. But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention. All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their prearranged plan Therefore, all the three accused including the appellant must share the liability of murder under section 302 read with section 34 of the Indian Penal Code. Further, in view of the finding that the the concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait, the liability of the appellant is established. The conclusion of Mehta, J. is correct. The appeal, there fore, fails and is dismissed. The accused must surrender to the bail and serve out the sentences.

The three appellants were charged with offences under sections 302 and 323 read with section 34, of the Penal Code and appellants 1 and 2 were charged with the individual offences under sections 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to V. The Sessions Judge acquitted all the three accused under section 302 read with section 34 but convicted them under section 304 Part 11 read with section 34 and sentenced them to suffer rigorous imprisonment for five years. Appellants 1 and 2 were also convicted for the offence under section 323 and appellant 3 was convicted for the offence under section 323 read with section 34. All three were sentenced for these convictions to rigorous imprisonment for terms. to run concurrently. On appeal to a Division Bench of the High Court one learned Judge held, that the first appellant alone was responsible for the fatal injury on A and found him guilty under section .302, while the second and third appellants were found guilty under section 324 read with section 34. The second learned Judge was of the view that all the accused must be acquitted as he was not satisfied with, the evidence and proof of. the identity. of the accused. The case was then placed before , a, third learned Judge under section 429 Cr. P.C. who held that the first appellant must 'be convicted under section 302 while the second and third appellants must be convicted, under section 302 read with section 34 and all of them must be sentenced to suffer rigorous prisonment for life. The conviction of the first and second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld. In appeal to this Court it was contended (i) that the third learned Judge under section 429 Cr. P.C. could only,.deal with the differences between the two learned Judges and not with the whole case; and (ii) that there was no comnmittee intend on within the meaning of supp I.P.C. on the part of the three appellants to kill A as he was attacked by, mistake. HELD : Dismissing the appeal. (i) Section on of the Criminal Procedure Code.states "that when the judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge, after hearing,if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such before another Judge, and, secondly, the Judgment and order will follow the, opinion of the third learned Judge. It is, therefore, manifest that the third learned Judge can or will deal with the whole case. [35 D F] 32 Babu and Ors. vs State of Uttar Pradesh, [1965] 2 S.C.R. 771; referred to. (ii) The plea that A was mistaken for V would not take away the common intention established by a pre arranged plan and participation of all the accused in furtherance of common intention. The act might be done by one of the several persons in furtherance of the common intention of them all without each one of them having intended to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be don. . [36 H] On the facts, it was clear that the attack took place in pursuance of a pre arranged plan. , The attack by appellants 1 and 2 on A and the evidence showing that appellant 3 held back P during the attack all proved common intention, participation and united criminal behaviour of all; appellant 3 was therefore equally responsible and guilty with appellants 1 and 2 who had attacked A. Shankarlal Kachrabbhai and Ors. vs State of Gujarat, ; ; referred to. The dominant feature of section 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a pre arranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt. [36 E]

Appeal No. 2854 of 1993. From the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No. 534 of 1990. S.D. Bajaj, and P. Mahale for the Appellants. Ms. Kiran Suri for the Respondent. The Judgment of the Court was delivered by VENKATACHALA, J. We grant Special Leave. Since we heard learned counsel for parties on the merits of the appeal. we are finally deciding it. An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural lands comprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol Taluk of Dharwad District. They are the disputed lands in this appeal. The disputed lands were Watans appertaining to hereditary village offices under the Bombay Hereditary Offices Act, 1874 known as Watan Act. Basappa Bheemappa, who was the Watandar of the disputed lands, leased them in the year 1950 in favour of appellant 1 and father of appellant 2, for their personal cultivation. With the coming into force on 25th January, 1951 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, known s the Watan (Abolition) Act, all the Watans were resumed by the State of Bombay resulting in extinguishment of all the rights held by Watandars in such Watans. But, there was a right conferred under the Watan Act on every Watandar the holder of the 782 Watan land, to obtain its regrant subject to payment of occupancy price. After the resumption of the disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa, claiming to be their former holder applied for the irregrant before the Assistant Commissioner. Savannah, as by then, Dharwad District where the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of States under the . Thereafter, by his Order dated 30th November, 1968, the Deputy Commissioner of Dharwad District made the regrant of disputed lands (resumed Watan lands) in favour of their former Watandar, Basappa Bheemappa. The tenancy of the disputed lands had since been regulated by the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 (the BT & Al, Act) from the time Bassppa Bheemappa as their Watandar, had leased them in favour of appellant 1 and father of appellant 2 in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa under the Watan (Abolition) Act, did not entitle him to obtain possession of them except under the BT & AL, Act. Although, the Karnataka Land Reforms Act, 1961 (the KLR Act) which came into force in Karnataka on 2.10.1965, repealed by its section 141 the Watan (Abolition) Act and by its section 143 the BT & A L Act, 1948, nothing thereunder adversely affected the rights of the appellants ' tenancy in the disputed lands. However, the said Basappa Bheemappa sold the disputed lands in favour of their tenants (the appellant 1 and father of appellant 2 on 3 1st March, 1969 under a registered sale deed. The land Tribunal under the KLR Act, before which the appellants sought registration of their occupancy rights in the disputed lands, found it unnecessary to so register them because of its view that the disputed lands had been sold to them by the landlord regrade, Basappa Bheemappa. But, on 8th December, 1976, the respondent filed a suit in the Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa (the seller of the disputed lands) and two other brothers arraying them as defendants 1 to 3. That was a suit for partition of 1/4th share in the disputed lands and putting him ink separate possession of that share. His claim for partition and separate possession of `his share in the disputed lands was based on the plea that the sale deed dated 31st March, 1969 by which defendant 1, his eldest brother, had sold the disputed lands (joint family lands) in favour of the tenants, without the prior consent of his brothers and for no legal necessity of the family, was void ab initio. The impleaded in that suit appellants 1 and 2 as defendants 4 and 5, since they were in possession of the disputed lands. Defendants 1, 4 and 5, resisted the plaintiff 's claim for 783 partition and separate possession of his 1/4th share in the disputed lands urging, inter alia, that he had no right to get any share in them. After trial of the suit, the Munsiff Court ranted a decree in favour of the respondent. That decree of the Munsiff Court was based on its findings (i) that the disputed lands were Hindu joint family properties of the plaintiff and defendants 1 to 3; (ii) that the sale of the disputed lands in favour of defendant 4 and father of defendant 5 had since been made by defendant 1 without the consent of his brothers, the plaintiff and defendants 2 and 3 and without legal necessity of the family, the same was void ab initio; (iii) that the plea of defendants 1, 4 and 5 that the tenancy revived, if the sale by defendant 1 in favour of defendant 4 and father of defendant 5 was found to be vs ' d, was unacceptable ', and (iv) that the sale by defendant ] in favour of defendant 4 and father of defendant 5 of the disputed lands was also void since sale of them (Fragments) was prohibited under the provision. 1 of the Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act, 1966 the Karnataka Prevention of Fragmentation Act. However, defendants 4 and 5 challenged the correctness of the decree of the Munsiff Court, by filing an appeal before the Court of the Civil Judge at Hubli. In that appeal, the Court of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which defendants had sold the disputed lands, was void because of the provisions of the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this situation itself enabled the plaintiff to ignore the sale effected by defendant 1 and claim his share in the disputed lands. Accordingly, it dismissed the appeal. A Regular Second Appeal filed by defendants 4and 5 before the High Court of Karnataka against the decree of the Civil Judge 's Court affirming the decree of the Munsiff 's Court, was dismissed in limine. It is those decrees which are impugnned by defendants 4 and 5 in the present appeal by Special Leave. Shri Padmanabha Mahale, the learned counsel for the appellants, contended that the Courts below ought to have held that the agricultural tenancy of the appellants in respect of the disputed lands revived when, according to them, sale of the disputed lands by defendant 1 in favour of defendants 4 and 5 (appellants 1 and 2) was ab initio void either (i) because the sale was of the joint family lands effected by the eldest brother in the family without the consent of the other brothers and for no legal necessity, or (ii) because the sale was effected when such a sale was prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Had it been so held, it was argued, there would not have been scope for the 784 Munsiff Court to have made a decree in favour of the respondent for partition of his 1/4th share in the disputed lands and putting him in possession thereof to the extent of such share and granting him mesne profits, and that decree to have been affirmed by the Appellate Court. On the other hand, Mrs, Kiran Surj, the learned counsel for the respondent, submitted that the tenancy or lease hold rights in the disputed lands held by the appellants got merged in the sale effected in their favour by defendant 1 on 31st March, 1969. That sale, when was found to be void by the Courts below, such finding did not have the effect of reviving the marked tenancy of the appellants, as would restore their tenancy rights in the disputed lands. This appeal was, therefore, liable to be dismissed. The Court of Munsiff the Trial Court and the Court of Civil Judge the First Appellant Court, have recorded a concurrent finding that the sale by defendant 1 in favour of defendant 4 and father of defendant 5 of the disputed lands by registered sale deed dated 3 1 st March, 1969, was void ab initio that being a sale prohibited under the provisions of the Karnataka Prevention of Fragmentation Act. Besides, the Trial Court has recorded a finding that the said sale deed was void, on its view that the 3/4th share of the plaintiff and defendants 2 and 3 in the disputed lands belonging to there joint family had been sold by their eldest brother defendant 1 without their consent and when there was no legal necessity of the family for such sale. The Trial Court has accordingly, made the decree in the suit in favour of the plaintiff and that decree is affirmed by the Appellate Court, because of the said findings recorded by them. The Second Appeal filed before the High Court by defendants 4 and 5, has been dismissed in limine. That the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under the provisions of the Karnataka Prevention of Fragmentation Act, as is held by the Court of Munsiff and also the Court of Civil Judge, the consequence contained in sub section (3) of section 39 of that Act should have followed, that is "Any person unauthorisedly occupying or wrongfully in possession of any land, the transfer or partition of which is void under the provisions of this Act, may be summarily evicted by the Deputy Commissioner, and after such eviction such land shall be deemed to 785 be in the possession of the person lawfully entitled to such possession". In the instant case, the tenants on the lands (defendants 4 and 5) being the persons deemed to be in possession of the disputed lands and entitled to continue in possession thereof, the Court below ought to have seen that the partition decree sought for by the plaintiff (respondent here) could have been ranted in respect of such tenanted lands, only if the same was permissible in law, and not otherwise. The other finding of the Courts below is, that the sale deed dated 31st March, 1969 was void because defendant 1 could not have sold the undivided interest of his brothers the plaintiff (respondent here) and defendants 2 and 3 in the disputed lands, being their joint family properties, without their consent and without the legal necessity of the family. If that be so, defendant 1 had to be regarded as having sold in favour of defendant 4 and father of defendant 5 under sale deed dated 31st March, 1969 only his 1/4th undivided interest in the disputed lands and not. 3/4th of the undivided interest of the plaintiff and defendants 2 and 3. That means that the lessors ' entire interest or entire reversion in the disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969. From this, it following that the lease hold interests of defendant 4 and father of defendant 5 in the disputed lands and lessors ' entire reversion could not have merged in one and some person. so as to constitute merger envisaged under section 111 (d) of the , in that, for constituting merger under that provision, the interests of the lessee and the interests of the lessor in the whole of the property. had to vest at the same time in one person in the same right. Thus, on the basis of the finding of the Courts below, if it has to be held that defendant 1 had not sold the undivided interest of the plaintiff and defendants 2 and 3 in the disputed lands to the extent of their 3/4th share there could not have been any merger of tenancy rights of defendant 4 and father of defendant 5 in the disputed lands with that of lessors (landlords) whole rights. If so, tenancy rights of the appellants in the disputed lands ought to be regarded as not affected or disturbed by the sale deed of 31st March, 1969. Hence, consideration of the question whether there arose revival of the right of tenancy of the appellants in the disputed lands, is unnecessary In the result, we allow this appeal, set aside the judgments and decrees of the Courts below and remit the case to the Court of Munsiff at Kundgol, Dharwad 786 District of Karnataka State with a direction to it to take back the suit on to its file and decide after affording the parties an opportunity of hearing, the question whether the plaintiff would be entitled to the decree sought for in the suit, if the disputed lands had continued as tenanted lands, as found by us. No costs. U.R. Appeal allowed.

There were two parallel Services of Engineers in the Indian Railways. One was the Indian Railways Service of Engineers (Class (I) who were subjected to competitive written and personality tests and appointed by the President of India. The other Service was the temporary Assistant Engineers (later known as Temporary Assistant Officers) appointed by the Railway Board, on selection based (on interview alone. In addition to the minimum educational qualifications which was the same for both the services three years experience as Civil Engineer was required for the Railway Service of Engineers. The temporary Assistant Officers were gradually absorbed into the Indian Railway Service of Engineers and the Railway Board took a decision that they would be given weightage in seniority on the basis of half the total length of continuous service in working posts in Railways prior to their permanent absorption into Class I subject to a maximum weightage of five years. Writ Petitions were filed in this Court by the Federation of Temporary Officers Association in a representative capacity seeking relief in their seniority status. This Court dismissed the Writ Petitions holding that the classification of temporary, Assistant Officers separate from the Indian Railway Service 1019 Engineers Class I, was neither discriminatory nor violative of Articles 14 and 16 of the Constitution; and that the object of recruitment, methods of recruitment, appointing authority and training imparted being different, no question of their entitlement to equal rights arose fill they were absorbed into the Indian Railway Service of Engineers Class 1. This Court also approved ,the measures of the Railway Board in regard to giving weightage of half the length of service as temporary Assistant Officers subject to a maximum of five years. Their claim for equal status for equal pay and equal work was also rejected. (Katyani Dayal & Ors. vs U.0.1. ; In the present Writ Petitions and Civil Appeals filed in a representative capacity, the relief claimed were on the same lines as in Katyani Dayal,s case. As directed by this Court the affected parties were impleaded in their representative capacity, so that the decision of this. Court would he binding on every member of both the classes of employees. On behalf of the Petitioners/Appellants, it was contended that equal pay for equal work with equality in all other conditions of service including avenues of confirmation, absorption, promotion, pension and security have become inflexible postulates of service jurisprudence. The respondents contended that what was being asked was a virtual review of Katyani Dayal 's case which could not be permitted. It was also contended that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal 's case if not the strict principles of res judicata ; and that when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution was impermissible. Dismissing the matters, this Court HELD: 1. The distinction between the two services was well marked in Katyani Dayal 's case and the important question of equality was once for all settled. To find fault with it, at this juncture again on the touch stone of equality dimension would be to unsettle a settled position. That venture is neither in the interest of justice nor in the interest of service. When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbers is to he reckoned from their date of absorption as stipulated in their appointment letters with weightage of half the length of 1020 service subject to a maximum (of give years, it would otherwise be imprudent now. at this point of time to dig up old issues, The rule or weightage also appears to be reasonable and this is a pattern which has been noticed and approved In many a Service. Similarly when the dispute raised between the Officers in a representative capacity and Engineers riot so represented, still it was a dispute raised before this Court which has been decided finally. (1026 B D) Katyani Dayal Ors. vs Union of India & Ors,[1980] 3 SCR 139 referred to. The dispute now sought to he raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineer.% across also in a representative capacity is barred by principles of res judicata as also by the rule of Constructive res judicata. (1026 D E) 3. It cannot he said that the State is prohibited from creating separate channels of service. Equally when absorption had been made possible and its pace quickened with weight age, it is difficult to find fault with the scheme at this point of time to look for a substitution, as that would unsettle a settled position, established more than a decade ago. (1026 E F) Direct Recruit Class II Engineering Officers Association vs State of Maharashtra & Others ; , followed. Raghunandan Prasad Singh vs Secretary, Home (Police) Department Government of Bihar and Ors. & Dr. O.Z Hussain vs Union of India,[1990] Supp. SCC 688, referred to.

Appeals Nos. 474 to 501, 503 to 505, 508 to 512, 514 and 515 of 1959. Appeals from the judgment and orders dated November, 28, 1956, in O. J. C. No. 213 of 1955 and dated December 4, 1956, of the Orissa High Court in O. J. C. Nos. 214 to 216, 218, 236 to 241, 244 to 248, 251, 261 to 264, 268, 269, 271, 279 to 282, 304 to 306, 318, 323, 324, 353, 357, 363 and 372 of 1955. A. V. Viswanatha Sastri and M. section K. Sastri, for the appellants (in C. As. 474 487, 489 501 503 505 and 508 510 of 1959). M. section K. Sastri, for the appellant ( In C. A. No. 488/1959). G. C. Mathur, for the appellants (In C. As. Nos. ,111, 512, 514 and 515 of 1959.) C. K. Daphtary, Solicitor General of India B. R. L. Iyengar and P.M. Sen, for the respondents. August 22. The Judgment of the Court was delivered by HIDAYATULLAH, J. These are 38 appeals against the judgment and orders of the High Court of Orissa dated November 28, 1956, by which 42 petitions under article 226 of the Constitution filed by the present appellants and some others were dismissed. The High Court certified the cases as fit for appeal to this Court under article 132(1) of the Constitution. The appellants are holders of pre settlement minor inams in the State of Orissa. Their grants art, different both in regard to the time when they were made and the lands involved in them. They were made for performance of services of deities and were classed as Devadayam grants in the revenue papers. The grants in all these cases were not of whole villages but of certain lands and hence their classification as minor inams, and they comprised both the melwaram and kudiwaram rights 252 in the lands. It is not necessary to refer to these cases separately, since a single argument was addressed before us involving the consideration whether Notification No.4971 XV 9154 E.A. dated July 15, 1955, issued by the Orissa State Government, and the Orissa Estates Abolition Act, 1951 (Act 1 of 1952) as amended by the Orissa Estate Abolition (Amendment) Act, 1954 (Act XXVII of 1954) were respectively beyond the competence of the State and the Orissa State Legislature. By the original Act, all estates of the intermediaries were abolished, and on a notification by the Government, such,estates vested in Government. By the amending, Act, the definition of ' "estate" was widened to cover even such;, minor inams, and then the impugned notification was issued. The appellant contend that the original Act and the amending Act were, jointly or severally beyond the competence ,of the State Legislature and that the notification above mentioned was void without any effect. The Bill resulting in the original Act was introduced on January 17, 1950, and the Act was passed by the Legislative Assembly September 28, 1951 It was reserved for the consideration of the president, Who gave his assent on January 23, 1952. In; the Act, before its amendment in 1954, "estate" was defined as follows "2(g) 'Estate ' means any and held by an intermediary and included under; one entry in any of the general registers of revenue paying lands and revenue free lands prepared and maintained under the law for the time being in force by the collector of district , and includes revenue free lands not entered in any register and all classes of tenures or under tenures or an inam estate or part of an estate" By the amending act of 1954 this definition was substituted by another which, read: 253 "2(g) 'Estate ' includes apart of an estate and means any land held by or vested in an intermediary and included under one entry in any revenue roll or any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law relating to land revenue for the time be ing in force or under any rule, order, custom or usage having the force of law, and includes revenue free lands not entered in any register or revenue roll and all classes of tenures or under tenures and any jagir, inam, or muafi or other similar grant. " In the original Act as well as in the Act as amended, there was a general provision in s.2(q) which may be read here : "(q) All words and expressions used in this Act but not defined in it, shall have, with reference to any part of the State of Orissa, the same meaning as defined in the tenancy laws and rules for the time being in force and in the absence of written laws and rules, as recognised in the custom for the time being obtaining in that part of the State of Orissa. " In the original Act, a provision was inserted by s.3 of the amending Act to the following effect "3. For the purpose of removal of all doubts it is declared that such lands and such rights in relation thereto and such persons who hold such lands and such rights as were heretofore covered by the definitions of the words 'estate ' and 'Intermediary ' in the Orissa Estates Abolition Act, 1951, shall not cease "to be so covered merely on the ground that by virtue of the provisions of this Act the said definitions have been amended and widened in scope. " The meaning of the last provision is clear. It takes away nothing from the ambit of the old definition, 254 but only adds thereto, as indeed the new definition of "estate" introduced by the amending Act shows only too plainly in its terms. To complete the survey of the provisions which we way have to refer to in this judgment, we first set down the definition of "estate" as given in the Madras Estates Land Act, 1908, which was applied to Orissa. Section 3(2)(d) of that Act defined " 'estate" as: "Any inam village, of which the grant has been made, confirmed or recognised by the Government, notwithstanding that subsequent to the grant the village has been partitioned amongst the grantees or the successors in title of the grantee or grantees. " The argument in this case is based upon this definition, because in defining an estate ', whole villages which were inam were contemplated and not minor inams of lands only. We shall refer to this later. The amending Act was also reserved for the consideration of the President and was assented to by him. When the Constitution was brought into force, the Bill of the Original Act had already been introduced in the Assembly. On June 18, 1951, before the Act was passed by the Legislative Assembly, the Constitution (First Amendment) Act, 1951 bad been enacted, and article 31A inserted with retrospective operation in the Constitution. Article 31A provided: "31A.(1) Notwithstanding anything contained in article 13, no law providing for (a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights. shall be deemed to be void on the ground that it is inconsistent with, or takes away or sbridges any of the rights 255 conferred by article 14, article 19 or article 31 ; Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the "consideration of the President, has received his assent. (2) In this article (a) the expression "estate ' shall, in relation to any local area. , have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam, or muafi or other similar grant. . Article 31, before it was amended, by the constitution (Fourth Amendment) Act, 1955, provided inter alia that no property shall be acquired for a public purpose unless the law provided for compensation, and either fixed the compensation or specified the principles on which the compensation was to be determined and given. (Cl.2). By cl. (3), it was provided that no law such as was referred, to in cl. (2) was to have effect unless such law having been reserved for the consideration of the President had received his assent. Clause (4) then provided : "(4) If any Bill pending at the commencement of this constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any court on the ground that it contravenes the provisions of clause (2)." The combined effect of these provisions of the Constitution was that there could be no compulsory acquisition of property for public purposes, unless the law provided for payment of compensation; 256 but the law could not be called in question on this ground if it had been reserved for the consideration of the President and had been assented to by him. The assent, of the President was a condition precedent to the effectiveness of the law. By the amendment of the Constitution and the addition of article 31A., no such law was to be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Art.14, Art.19 or Art.31 , provided that it had been reserved for the consideration of the President and had received his assent. By the definition clause, article 31A(2)(a), the expression " 'estate" was to have the same meaning in any local area, which it or its equivalent had in the existing law relating to land tenures in force in that area but was to include among others any. "inam '. The contention of the appellants is really twofold. The first argument is that the benefit of article 31A might have been available to the original Act,. as it was a law for the compulsory acquisition of property for public purposes but? not to the amending Act, which was not such, a law but only amended a previous law by, enlarging the definition of estate". The second argument is that the word "estate" as. defined in s.2(g) before its amendment did. not apply to pre ,settlement minor inams of lands as it applied only to an "inam estate", and an "inam estate" bad the meaning which the definition of "estate" had in the, Madras Estates Land Act. , viz., only whole "inam villages". This, it is urged, follows from the provisions of s.2(q) of the Estates Abolition Act quoted earlier. The first argument is clearly untenable. It assumes that the benefit of Art.31A is only available to those laws which by themselves provide for compulsory acquisition of property for public purposes and not to laws amending such laws, the assent of the President notwithstanding. This means that the whole of the law, original and amending, must be passed again, and be reserved for the 257 consideration of the President, and must be freshly assented to by him. This is against the legislative practice in this country. It is to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect assented to a law for the compulsory acquisition for public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of article 31A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President asserted to such an extension or, in other words, to a law for the compulsory acquisition of property for public purposes. The argument that this was not an acquisition of an inam estate comprising a. *hole village and thus outside the Abolition Act. itself has no substance. No doubt, these minor inams, were not of whole villages but of lands and the grant included both the warms and there were thus no inter mediaries. But they were inams nevertheless, and the Constitution defined and `estate ' an including any inam ', and the amending Act merely followed that definition. The extended definition in the Constitution and a similar extended definition in the Act thus exclude resort to 'the general definition clause in s.2(q), of the Abolition let and the definition of "estate" in the Madras, Estates Land Act. The definition of estate" introduced by the amending Act is sufficiently wide to cover such minor inams, and section 2(q) only applies, if a word or expression used in the Abolition Act is not defined therein. 258 If the minor inams are already within the definition of the word "estate", there is no need to go to s.2(q) or to any local law defining the word. There can be no doubt that if the new definition of "estate" applies to minor inams then they are affected by the Abolition Act. This, indeed, was conceded. Learned counsel for the appellants also urged, through somewhat faintly, that the ejusdem generis rule should be applied to the definition of ",estate" in article 31A(2)(a) as also to the corresponding new definition in the Abolition Act. This argument proceeds upon an assumption for which there is no foundation. The ejusdem generis rule is applicable where as wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words. This rule has hardly any application where certain specific categories are 'included ' in the definition. The ejusdem generis rule may be applicable to the general. words "other similar grant", which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule. Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages. So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the kudiwaram rights. Such a distinction would have significance, if the law abolished only intermediaries and not inams which it did. Section 3 of the Abolition Act says "3(1) The State Government may, from time to time by notification, declare that the estate specified in the notification has passed to and become vested in the State free from all encumbrances. " If the definition of the word "estate" was wide enough to include a minor inam and a notification was issued, the consequences of s.3 of the Abolition 259 Act must follow. Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by articles 14, 19 and 31, if it has been assented to by the President. the notification was thus valid, if the law was valid. In the result, the appeals fail, and are dismissed with costs, one set only. Appeals dismissed.

The respondent who was a former Captain of the Indian Army and was employed in the delegation in India of a French Company was prosecuted along with two others for conspiracy and passing on Official Secrets to a foreign agency under ss.3 and 5 of the Official Secrets Act. His application for bail was rejected by the Sessions judge but the High Court allowed bail on the ground inter alia that his case might fall only under s.5 which was bailable and not section 3 which was not bailable. It did not express any opinion whether the case fell under section 5 or section 3 in view of the commitment proceedings which were going on at the time. On appeal by the State. Held, that the High Court should have proceeded to deal with the application for bail on the assumption that the offence was under section 3 and therefore not bailable. It should have then taken into account the various considerations such as, nature and seriousness of the offence, the character of the evidence circumstances peculiar to the accused, possibility of his absconding, tampering with witnesses larger interests of the public. and the State and similar other considerations Which arise When bail is asked for in a non bailable offence. The fact that the applicant for bail might not abscond was not by itself a sufficient ground for granting bail.

l Appeals Nos. 1494 to 1498 of 1971. Appeals by special leave, from the judgment and order dated November 15, 1967 of the Calcutta High Court in Income tax Reference No. 13 of 1963. section T. Desai, section K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellant (in all the appeals). N. A. Palkhivala, T. A. Ramachandran and D. N. Gupta, for the respondent (in all the appeals). The Judgment of the Court was delivered by Khanna, J. This judgment would dispose of five Civil Appeal Nos. 1494 to 1498 of 1971 by Special Leave filed by the ,Commissioner of Income tax, West Bengal against the judgment of Calcutta High Court whereby the question referred to that ,Court under section 66(1) of the Indian Income tax Act, 1922 (hereinafter referred to as the Act) for five assessment years was answered in favour of the assessee respondent Coal Shipments (P) Ltd. During the pendency of the appeals, the name of the respondent was changed to Heilgers Investment Ltd. The matter relates to the assessment years 1951 52, 1952 53, 1953 54, 1954 55 and 1955 56, the corresponding accounting years for which ended on 31 3 1951, 31 3 1952, 31 3 1953, 31 3 1954 and 31 3 1955 respectively. The respondent was one of the companies which exported coal from India to Burma before the Second World War. Amongst the other exporters were Messrs. Karamchand Thaper & Bros. Ltd., Messrs" Macheill Barry Ltd., Messrs. Andrew Yule & Co. Ltd. and Messrs. R. V. Low & Co. Ltd. The shipment of coal to Burma Railways before the war was the subject of open tender. After the cessation of hostilities in 1946, it became possible to resume the export of coal to Burma. In order to overcome the difficulties in the conduct of the trade following the war, the members of the coal trade in Bengal formed an association styled Coal Exporters and Charters Association. The respondent company as well as M/s. H. V. Low & Co. Ltd. were two of the major members 1091 of the said association. When M/s. H. V. Low & Co. learnt of the, resumption of coal export to Burma by the respondent in 1946, they also expressed intention to export coal to Burma. Thereupon the two companies came to an understanding and arrived at a mutual arrangement or agreement on the following lines : (i) M/s. H. V. Low & Co. Ltd. would not export coal to Burma during the subsistence of the agreement. (ii) M/s. H. V. Low & Co. Ltd. would assist the respondent in procuring coal for shipment to Burma. (iii) The respondent would carry on the coal shipping business and pay M/s. H. V. Low & Co. Ltd. Rs. 151 per ton (subsequently raised to Rs. 1 5 per ton) of coal shipped to Burma. According to the respondent, the last shipment of coal under the above arrangement was made in June, 1954 after which the arrangement came to an end automatically and the Government of Burma made some other arrangement for its coal requirement. The assessee respondent claimed to have made the following payments to M/s. H. V. Low & Co. Ltd. or their nominees in pursuance of the aforesaid agreement during the period of five accounting years from 1st April, 1950 to March 31,1955: Rs. 1951 52. . . . 91,149 1952 53. . . . 1,77,898 1953 54. . . . 3,03,631 1954 55. . . . 2,32,355 1955 56. . . . . 79,917 The amounts mentioned above were taxed in the hands of M/s. H. V. Low & Co. Ltd. The respondent claimed the payment of the above amounts as admissible business expenditure for the assessment years in question. The Income tax Officer held that the expenditures claimed could not be allowed, as there was no written agreement in proof of the alleged arrangement and it was not possible to say that the payments were made for the purpose of the assessee 's business. The Income tax Officer further held that even assuming that the payments were made to keep off M/s. H. V. Low & Co. Ltd. from the Burma trade, they were payments to secure a monopoly and were not, therefore, allowable as revenue expenditure. The Appellate Assistant Commissioner on appeal upheld the order of the Income tax Officer. When the matter came up in second appeal before the Income tax Appellate Tribunal, the Tribunal found that there was some 1092 discrepancy in the facts stated on behalf of the assessee and the Revenue. The Tribunal thereupon required the respondent company to swear an affidavit in support of the facts relied upon by it. In pursuance thereof, Sir Walter Michelmore, Director of Managing Agents of the respondent company filed an affidavit. Sir Walter was also examined orally before the Tribunal. The case was thereupon remanded to the Income tax Officer to verify the facts as stated in the affidavit of Sir Walter and report back to the Tribunal. The Income tax Officer after making further investigation submitted his report. In deciding the appeal, the Tribunal formulated two points for its decision : (1) Were the payments made for the purpose of the assessee 's trade in terms of the alleged agreement? (2) If the answer to the above question is in the affirmative, did the assessee acquire a monopoly by such payment ? Both the questions were answered in favour of the respondent by the Tribunal. It was held that the payments were made in pursuance of the alleged agreement in the interest of the respondent 's trade. The version of the respondent about its agreement with M/s. H. V. Low & Co. Ltd. was accepted. According to the agreement, M/s. H. V. Low & Co. Ltd. agreed to assist the respondent in procuring coal for export to Burma whenever asked to do and further agreed not to export coal to Burma during the subsistence of the arran gement. The agreement was found to have been acted upon and it was held that M/s. H. V. Low & Co. Ltd. supplied varying quantities of coal to the respondent for shipment to Burma. It was further held that the respondent company did not acquire any monopoly rights to carry on Burma trade and the impugned payments were made to carry on the trade in a more facile and profitable manner. The Tribunal found that the arrangement arrived at verbally between the respondent and M/s. H. V. Low & Co. Ltd. was a temporary measure liable to be terminated ,at will and the respondent company did not derive any advantage of an enduring character by such payments. The expenditures in question were, in the opinion of the Tribunal, attributable to revenue and not to capital. As such, they were held to be permissible expenditures under section 10(2) (xv) of the Act. On application filed by the Revenue, the following question was referred to the High Court "Whether on. the facts and in the circumstances of the case, the payments made by the assessee to M/s. H. V. Low & Co. Ltd. or their nominees were of a capital nature and as such not allowable under section 10(2) (xv) of the Income tax Act, 1922 ?" 109 3 .lm0 It was not disputed before the High Court that there was an. agreement between the respondent and M/s. H. V. Low & Co. Ltd. on terms stated by the respondent and that the payments in question were made under that agreement. The High Court held that the arrangement entered into by the respondent with M/s. H. V. Low & Co. Ltd. was not such as was likely to have an enduring beneficial effect. In the opinion of the High Court, there was no cert ainty of duration and the arrangement could be terminated or revoked at any time. The consideration of the arrangement, it was observed, was not paid once for all but was related to uncertain shipments to be made. The arrangement, it was further held, did not create any monopoly or bring about any capital advantage to the assessee. The respondent was held entitled to claim the deduction of the expenditures under section 10 (2) (xv) of the Act. In the result, the question referred to the Court was answered in the negative and in favour of the assessee. We have heard Mr. Desai on behalf of the appellant and Mr. Palkhiwala on behalf of the respondent and are of the opinion that there is no merit in these appeals. The Tribunal has found that the amounts in question were paid by the respondent to M/s. H. V. Low & Co. Ltd. in pursuance of the agreement according to which M/s. H. V. Low & Co. Ltd. were to assist the respondent in procuring coal for shipment to Burma and were themselves not to export coal to Burma during the subsistence of the agreement. The above findings of fact are, for the purpose of these proceedings, binding upon the appellant and consequently no attempt was made either in the High Court or in this Court to assail them. The payments which were made by the respondent to M/s. H. V. Low & Co. Ltd., it would thus appear, were because of the assistance rendered by them for shipment of coal to Burma and for abstaining from exporting coal to Burma during the subsistence of the agreement. So far as the payment is concerned which was made to M/s. H. V. Low & Co. Ltd. for assistance to the respondent in procuring coal for shipment to Burma, it was admittedly an item of revenue expenditure. The controversy between the parties has centered on the point as to whether that part of the payment which was made because, of M/s. H. V. Low & Co. Ltd. having agreed riot to export coal to Burma during the subsistence of the agreement constituted capital expenditure or revenue expenditure. Mr. Desai on behalf of the appellant contends that as the payment was made for warding off competition by rival coal exporter, that payment should be held to be a capital expenditure. The fact that there was no certainty of the duration of the arrangement between the respondent and M/s. H. V. Low & Co. and the same could be terminated at any time, according to the learned counsel, 1094 is wholly immaterial. As against that, Mr. Palkhiwala argues that in order to constitute capital expenditure, the object of the expenditure should be to secure an advantage of enduring nature. When there is no certainty of the duration of the arrangement and the same can be revoked at any time, the advantage cannot be said to be of an enduring character and the expenditure cannot be held to be of a capital nature. Further. as the payment was related to the quantum of coal shipped to Burma in the course of trading activity and was not connected with the capital value of the assets, the payment, Mr. Palkhiwala submits, should be considered to be revenue expenditure. In our opinion, there is considerable force in Mr. Palkhiwala 's submission. Judicial decisions have, from time to time, laid down some broad principles in order to determine whether an expenditure is of a capital nature or revenue nature. Despite the enunciation of those principles, it is not always easy to decide the question in the context of the circumstances of an individual case. Considerable difficulty is experienced in border line cases. It was in this connection that Hidayatullah, J. (as he then was) observed in Abdul Kayoom vs Ccommissioner of Income tax(1) that "none of the tests (laid down in various authorities) is either exhaustive or universal. Each case must depend on its own facts, and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases . by matching the colour of the one case against the colour of another". It may be apposite at this stage to refer to some of the broad tests which have been.laid down to distinguish the capital expenditure from revenue expenditure. In the case of Atherton vs British Insulated and Helsby Cables Ltd.(2) , Lord Cave, L.C. laid down the following criterion which has been referred to in most of the subsequent cases : "But when an expenditure is made, not only once and for all, 'but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of the special circumstances leading to an oppo site conclusion) for treating such an expenditure as properly attributable not to revenue but to capital." The Courts have to bear in mind, according to the dictum laid down in the above case, whether it was an expenditure forming " part of the cost of the income earning machine or structure" as (1) . (2) 1095 opposed to part of "the cost of performing the income earning operations". In that case, the House of Lords dealt with a fund which had been created by the respondent company as a nucleus of a pension fund for its employees. After handing over the money to trustees for the employees, the company claimed that the money should be charged to revenue. The claim of the company was rejected by the House of Lords on the ground that the payment of money created for itself an enduring benefit or advantage which was of a capital nature. In the case of Robert Addie and Sons ' Collieries Limited vs The Commissioners of Inland Revenue(1), Lord President Clyde gave the following test: "It is necessary accordingly to attend to the true nature of the expenditure, and to ask one 's self the question, is it a part of the Company 's working expenses ? is it expenditure laid out as part of the process of profit earning ? or, on the other hand, is it a capital outlay ? is it expenditure necessary for the acquisition of property or of rights of a permanent character, the process of which is a condition of carrying on its trade at all ? The expression 'once and for all ' used in the dictum laid down in Atherton 's case (supra) was referred to by Bhagwati, J. speaking for this Court in the case of Assam Bengal Cement Co. Ltd. vs Commissioner of Income tax, West Bengal(2) and it was observed that the expression was used to denote an expenditure which is made once and for all for procuring an enduring benefit to the business as distinguished from a recurring expenditure in the nature of operational expenses. The character of the payment can be determined, it was added, by looking at what is the true nature of the asset which has been acquired and not by the fact whether it is a payment in a lump sum or by instalments. It is also an accepted proposition that the words 'permanent ' and ' enduring ' are only relative terms and not synonymous with perpetual or ever lasting. There are some other tests like those of fixed capital and circulating capital for determining the nature of the expenditure. An item of disbursement can be regarded as capital expenditure when it is referable to fixed capital. It is revenue when it can be attributed to circulating capital. It is not the case of any party that this test of fixed and circulating capital can be invoked in this case nor has reference been made to some of the other tests. The case which has been set up on behalf of the revenue is that as the object of making the payments in question was to eliminate competition of a rival exporter, the benefit which enured to the respon (1) (2) 109 6 dent was of an enduring nature and as such, the payment should be treated as capital expenditure. We find ourselves unable to accede to this contention because we find that the arrangement between the respondent and M/s. H. V. Low & Co. Ltd. was not for any fixed term but could be terminated at any time at the volition of any of the parties. Although an enduring benefit need not be of an ever lasting character, it should not, at the same time,, be so transitory and ephemeral that it. can be terminated at any time at the volition of any of the parties. Any other view would have the effect of rendering the word 'enduring ' to be meaningless. No cogent ground or valid reason has been given to us in support of the contention that even though the benefit from the arrangement to the respondent may not be of a permanent. or enduring nature, the payments made in pursuance of that arrangement would still be capital expenditure. Such a contention indeed was repelled by the Judicial Committee in the case of Commissioner of Taxes vs Nchanga Consolidated Copper Mines Ltd.(1). The respondent company in that case together with two other companies Rhokana Corporation Ltd. and Bancroft Mines Ltd. formed a group for carrying on the business of copper mining. Following a steep fall in the price of copper in the world market the group, in common with other producers, decided voluntarily .to cut their production by 10 per cent. In effecting the cut, it was agreed that Bancroft Mines Ltd. should cease production for one year and that the respondent company and Rhokana Corporation Ltd. should undertake between them the whole group programme for the year reduced by the overall cut of 10 per cent. It was further agreed to pay a sum of Bancroft Mines Ltd. to compensate it for the abandonment of the production for the year. ,Question arose whether the compensation which the respondent company had paid to Bancroft Mines Ltd. was expenditure of capital nature ? The Judicial Committee held that the compensation paid was an allowable deduction in determining the respon dent company 's taxable. , income. The expenditure, in the view ,of the Judicial Committee, had no analogy with expenditure for the purpose of acquiring a business or a benefit of long term or enduring contract. Viscount Radcliffe who delivered the judgment while dealing with the question of expenditure observed: "It bought one right only, the right to have Bancroft out of production for 12 months. While, no doubt, money paid to a cquire a business or to shut a business down for good or to acquire some contractual right to last for years may well be capital expenditure, it seems a contradiction in terms to speak of what Nchanga thus acquired, which exhausted itself and was created (1) 1097 to exhaust itself within the 12 months ' period within which profits are ascertained, as constituting an enduring benefit or as an accretion to the capital or incomeearning structure of the business. If the expenditure is to be treated as capital expenditure at all, it cannot be for any reason such as that". Although we agree that payment made to ward off competition in business to a rival dealer would constitute capital expenditure if the object of making that payment is to derive an advantage by eliminating the competition over some length of time, the .same result would not follow if there is no certainty 'of the duration of the advantage and the same can be put to an end at any time. How long the period of contemplated advantage should be in order to constitute enduring benefit would depend upon the circumstances and the facts of each individual case. In the case of Assam Bengal Cement Co. Ltd.(1) the appellant company acquired from the Government of Assam a lease of certain lime stone quarries for a period of twenty years for the purpose of carrying on the manufacture of cement: In addition to the rent and royalties, the appellant agreed to pay the lessor annually a sum of Rs. 5,000/ during the whole period of the lease as a protection fee and in consideration of that payment the lessor undertook not to grant to any person any lease, permit or prospecting licence for lime stone in a group of quarries without a condition that no limestone should be used for the manufacture of cement. The appellant also agreed to pay Rs. 35,000/ annually for five years as a further protection fee and the lessor in consideration of that payment gave a similar undertaking in respect of the whole district. It was held by this Court that as a result of the annual payment of the amounts of Rs. 5,000/ and Rs. 35,000/ , there enured an advantage to the appellant for the whole period of the lease and as such it was capital expenditure. Apart from the above, we find that the payments made to M/s. H. V. Low & Co. Ltd. were related to the actual shipment of coal in the course of the trading activities of the respondent and had no relation to the capital value of the assets. The payments were not related to or tied up in any way to any fixed sum agreed between the parties. The dictum laid down by this Court in Travancore Sugars and Chemicals Ltd. vs Commissioner of Income tax, Kerala(2) in the circumstances is attracted. The appellant company in that case was to take over the assets of sugar manufacturing concern, a distillery and a tincture factory of the Government of Travancore. The promoters of the appellant company in that connection entered into an agreement with (1) (2) 18 LI 19 Sup Cl/72 1098 the Government. The cash consideration for the sale of the assets of the ' sugar manufacturing concern was Rs. 3.25lakhs, that for the sale of the distillery was agreed to be arrivedat as a result of joint valuation and that for the sale of the assets of the tincture factory was the book value. The Government agreed to recognise the transfer of the licence for the distillery to the appellant company and to secure the continuance of the licence for a period of 5 years after the termination of the existing licence. The Government also agreed to purchase the pharmaceutical products manufactured by the appellant company. Apart from the cash consideration, clause 7 of the agreement provided that the Government would be entitled to 20 per cent of the annual net profits subject to a maximum of Rs. 40,000/ after providing for depreciation and remuneration of the secretaries and treasurers. Clause 7 was amended in January, 1947 to the effect that the Government would be entitled to 10 per cent of the annual net profits. Question arose whether an amount of Rs. 42,480/ which was, payable under clause 7 of the agreement was a permissible expenditure under section 10 of the Incometax Act. It was held that the above payment was in the nature of revenue expenditure and not capital expenditure. Ramaswami, J. speaking for the Court dealt with the matter in the following Words : "Examining the transaction from this point of view, it is clear in the present case that the consideration for the sale of the three undertakings in favour of the appellant was : (1) the cash consideration mentioned in the principal agreement, viz. clauses 3, 4(a) and 5(a) and (2) the consideration that Government shall be entitled to twenty per cent of the net profits earned by the appellant in every year subject to a maximum of Rs. 40,000/ per annum. With regard to the second part of the consideration there are there importan t points to be noticed. In the first place, the payment of commission of twenty per cent on the net profits by the appellant in favour of the Government is for an indefinite period and has no limitation of time attached to it. In the second place, the payment of the commis sion is related to the annual profits which flow from the trading activities of the appellant company and the payment has no relation to the capital value of the assets. In the third place, the annual payment of 20 per cent commission every year is not related to or tied up, in any way, to any fixed sum agreed between the parties as part of the purchase price of the three undertakings. There is no reference to any capital sum in 1099 this ' part of the agreement. On the contrary, the very nature of the payments excludes the idea that any connection with the capital sum was intended by the parties. The above observations, in our opinion, have a direct bearing on the present case. Mr. Desai has referred to the following observations of Lord Greens in Henriksen (Inspector of Taxes) vs Grafton, Hotel Ltd.(1) : "It appears to me that there can be no difference in principle between a payment out and out for monopoly value and a payment in respect of a term. Each licence granted for a term must stand by itself since an application for its renewal falls to be treated as an application for a new licence. This is what I mean when I say that there is a false appearance of periodicity about these payments. Whenever a licence is granted for a term, the payment is made as on a purchase of a monopoly for that term. When a licence is granted for a subsequent term, the monopoly value must be paid in respect of that term, and so on. The payments are recurrent if the licence is renewed; they are not periodical, so as to give them the quality of payments which ought to be debited to revenue account. The thing that is paid for is of a permanent quality, although its permanence, being conditioned by the length of the term, is short lived. A payment of this character appears to me to fall into the same class as the payment of a premium on the grant of 'a lease which is admittedly not deductible". Particular reliance has been placed by Mr. Desai upon the concluding part of the above observations. The portion relied upon, in our opinion, has to be read in the context of the preceding lines and the facts of that case. The lessees of the licenced premises in that case, under. a covenant in their lease, paid annually certain sums imposed by the licensing justices as instalments of the monopoly on the grant and renewal of the licence for three years period. It was contended that those sums were not capital payments but should be regarded as revenue payments. It was held that monopoly value payments were imposed for the term of the licence on grant or renewal though the fact that permission was given to pay by yearly instalments gave a false appearance of periodicity. Such payments. in the opinion of the Court, fell into the same class as a premium paid (1) 1100 on the grant of a lease and as such should be regarded as of capital nature. It is obvious that the question involved in that case was different and the appellant can derive no assistance from it. The appeals consequently fail and are dismissed with costs. One set of costs. V.P.S. Appeals dismissed.

The appellant was a co operative society registered in Bombay under the Bombay Co operative Societies Act, 1925. The head office of the appellant was in Bombay and it had a branch in Mangalore. As the objects of the appellant were not confined to one State it was governed by MultiUnit Cooperative Societies Act, 1942 a Central Act. The appellant made a claim under section 54 of the Bombay Act in respect of a transaction which took place in Mangalore against the respondent who was a resident of Kesaragod and was a member of the appellant society. Both Mangalore and Kesaragod were at the relevant time in Madras Presidency. The Deputy Registrar of Co operative Societies Bombay gave an award regarding that claim. The award was sought to be executed as a decree in the Court of Subordinate Judge, Kesaragod. The respondent took an objection to the execution on the ground that the Deputy Registrar of Bombay bad no jurisdiction to pass the award and the same could not be executed as a decree in the courts in Kerala. Upholding the objection the Subordinate Judge dismissed the execution application. The High Court affirmed the decision. In appeal by special leave before this Court the appellant contended that since it was registered in Bombay State it was the Bombay Act which would govern the appellant society for purposes of registration, control and dissolution as laid down in section 2(1) of the Central Act. The word 'control it was urged comprehends within itself the adjudication of a claim made by the society against its members, and in the circumstances the award under, section 54 of the Bombay Act made by the Deputy Registrar Co operative Societies Bombay did not suffer from any legal infirmity. HELD, : As the objects of the appellant society were extended to the Presidency of Madras it should in view of sub section (1) of section 2 of the Central Act be deemed to have been registered under the law in force in the Presidency of Madras relating to co operative societies. The law which was then in force was the Madras Co operative Societies Act, 1932. Under section 51 of that Act a dispute between the appellant and the respondent in respect of its dealings relating to its Mangalore branch would normally have to be adjudicated upon by the Registrar appointed under the Madras Act. The fact that for the purpose of control the appellant society was governed by the Bombay Act would not justify a departure from the above normal rule. [166 B E] The word 'control ' is synonymous with superintendence, management, or authority, to direct restrict or regulate. Control is exercised by a superior authority in exercise of its supervisory power. Adjudication of disputes in a judicial or quasi judicial function and it would be unduly straining the meaning of the word 'control ' to hold that it also covers the adjudication of disputes between a co operative society and its members. There is a clear distinction between jurisdiction to decide a dispute which is a judicial power, and the exercise of control which is an administrative power, and it would be wrong to treat the two as identical or equate one with the other. [166 F G] 163 Panchshila Industrial Co operative Societies (Multi unit) vs Gurgaon Central Co operative Bank Ltd., Gurgaon, , distinguished. Since, as held above, the dispute between the parties could only be adjudicated upon in accordance with the provisions of the Madras Act the Registrar under the Bombay Act lacked inherent jurisdiction to decide the dispute and it was not a case of lack of territorial jurisdiction only [167 D E]

Civil Appeal No. 2085 of 1969. From the Judgment and Decree dated 15 11 68 of the Madras High Court in Criminal Side Appeal No. 45/65. M. Natesan and Mrs. section Gopalakrishnan for the Appellants. V. section Desai, P. G. Gokhale and section R. Agarwala for the Respondents 1 2. 702 Ex parte for the Respondents 3.8. The Judgment of the Court was delivered by SARKARIA, J. This appeal by certificate is directed against an Appellate Judgment and Decree, dated November 15, 1968, of the High Court of Madras. The facts leading to this appeal are as follows: The following pedigree table will be helpful in understanding the relationships of the parties: Palaniandi Pillai (died on 19 5 1928) | | | | | | | | Ramaswami Pillai Vadovelu Pillai Nataraja Pillai | (dies in 1953) (died in 31 1 57) | Dharmambal | (died in 1940) | | | | | R.Ekambaram R.Bala | subramaniam| (1st Defdt.) (2nd Defdt)| | | Rajamani Kamala Padma Sarada Laitha Selvaraj (3rd (4th (5th (6th (7th (died in 1952) Defdt.) Defdt.) Defdt.) Defdt.) Defdt.) =Rajammal (8th Defdt.) Palaniandi Pillai, shown in the above pedigree table, owned considerable properties. On December 12, 1927, he executed a Will whereby he bequeathed certain properties to each of his three sons. He appointed his sons, Ramaswami Pillai and Vadivelu Pillai, as Executors of his Will. In regard to his third son, Nataraja Pillai, the testator in clause 5 of the Will stated: "My third son, Nataraja Pillai, shall take the income accruing from the properties, namely, my cast stand, house and ground, situate in the Western Row of Mint Street, bearing Municipal Door No. 278, Re survey No. 600, Collector 's Certificate No. 750 and the 5 Godowns, namely, 2 Godowns situate in Varadaraja Mudali St., bearing Municipal Door No. 90 and 91, and 3 Godowns situate in 3rd North Beach Road bearing Municipal Door Nos. 5, 6 and 7 to 9, Re survey No. 3158 and 3187, Collector 's Certificate No. 2550. After his life time, if he leaves any male issue, they shall take the aforesaid properties, with 703 powers of alienations such as gift, usufructuary mortgage and sale. If there are no male issue as aforesaid, my heirs shall take the aforesaid properties. " Although the Will had not been probated, yet, by mutual arrangements between the first two sons who were named Executors in the Will, and the third son, Nataraja Pillai, the properties were distributed in consonance with the terms of the Will and the Executors conveyed and transferred the same to the respective legatees, and mutual release deeds were, also, executed by the three sons. Ramaswamy Pillai died in 1954 and Vadivelu Pillai in 1953, Nataraja Pillai died on January 31, 1957, without leaving any issue. His widow, Krishnammal, the appellant herein, filed the suit (C. section No. 7 of 1959) out of which this appeal has arisen. She claimed (a) partition and separate possession of one third share in the (plaint schedule) properties left by her husband Palaniandi Pillai, alleging that the properties ' were in the possession of the joint family consisting of his sons, or in the alternative, (b) for a declaration of her title and for possession of the properties on the ground that her husband Nataraja Pillai got the same absolutely by way of partition under the deed, dated July 14, 1928, and she, as his heir, inherited the properties; in the alternative, (c) for a declaration of her rights to the properties on a true construction of the Will of her father in law, Palaniandi Pillai, and for possession of the properties. The sons of Ramaswamy Pillai, respondents 1 and 2 herein, were impleaded as defendants 1 and 2, and the daughters of Vadivelu Pillai, respondents 3 to 7, were defendants 3 to 7. The daughter in law of Vadivelu Pillai, respondent 8 herein, was added as 8th defendant. The findings of the learned trial Judge, material for our purpose, were as follows: (i) Nataraja Pillai got only a life estate in the properties set out in Schedule I of the Plaint; (ii) the contingent interest in favour of the heirs of Palaniandi Pillai became vested only on the death of Nataraja Pillai, (iii) it is not open to the plaintiff, Krishnammal, to invoke Section 8 of the ; (iv) on the termination of the life interest given to Nataraja Pillai, the gift over in favour of the male issues could not take effect as he did not leave any male issue, with the consequence, that the properties, in effect, became revested in Palaniandi Pillai, but devolved on his heirs as if on intestacy; (v) Section 111 of the Indian succession Act would be applicable. 704 In the result, the appellants ' suit was decreed and it was held that she was entitled to one third share and separate possession of the same by partition of the Plaint Schedule 1 properties, and defendants 3 to 8 were equally entitled to one third share together with mesne profits relating to their shares in the said properties, while defendants 1 and 2 were entitled to the remaining one third share. Aggrieved, defendants 1 and 2 preferred Letters Patent Appeal in the High Court, contending that, according to the terms of the Will of Palaniandi Pillai, they were his only heirs and entitled to get the entire properties in which Nataraja Pillai held only a life interest; and that neither the plaintiff nor defendants 3 to 8 were entitled to any share. The Appellate Bench of the High Court purporting to proceed mainly on the scope and construction of Clause 5 of the Will of Palaniandi Pillai, held: (1) By his Will (exhibit P. 2) the testator had made "my heirs", i.e. the testator 's heirs as an "artificial" class of ultimate residuary legatees. (2) This class of legatees or "my heirs" did not acquire a vested interest in the residuary bequest on the death of the testator. (3) The ultimate bequest in their favour would become vested only in the event of Nataraja dying sonless. (4) The mandate implicit in the words "if there are no male issues as aforesaid" occurring in Clause 5 of the Will (exhibit P. 2) is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when Nataraja died sonless, and at no other. (5) This class of "my heirs" of the testator would be ascertained with reference to the point of Nataraja 's death (without a son) on January 31, 1957, when succession opened out and the bequest became distributable, "on the hypothesis that Palaniandi Pillai had lived up to that time" i.e. January 31, 1957. (6) Although this class of the heirs of the testator was to be ascertained on January 31, 1957 on the hypothesis that the testator and Nataraja died simultaneously, such ascertainment could not be done either by resorting to the Hindu Women 's Rights to Property Act, 1937 or to the , because Palaniandi Pillai actually died in 1928, long before the coming into force of these two enactments and he did not die intestate. 705 (7) Such class of heirs of the testator were to be determined according to the orthodox Hindu Law prevailing at the time of the testator 's death on May 19, 1928. (8) Section 111 of the Indian Succession Act was not applicable. On the above reasoning, the Appellate Bench of the High Court reversing the decree of the learned trial Judge, held that Respondents 1 and 2 herein were the only persons entitled to the entire Schedule 1 property on the death of Nataraja Pillai, to the exclusion of the latter 's widow, the plaintiff. Thus the appeal was allowed and the plaintiff 's suit dismissed. After obtaining a certificate under Article 133 of the Constitution from the High Court, the plaintiff, Krishnammal, has come in appeal before this Court. Controversy in this case hinges around the scope and construction of Clause 5 of the Will (exhibit P 2). In that connection, the first question that arises for consideration is: Did the testator by this Clause create or carve out an "artificial" class of his heirs ' and make a residuary bequest in their favour ? In our opinion, on a proper construction of the Will, the answer to this question must be in the negative. It is well settled that legal terms such as "heirs", used in a Will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator. The word "heirs", as pointed out by this Court in Angurbala Mullick vs Debabrata Mullick(1) cannot normally be limited to "issues" only. It must mean all persons who are entitled to the property of another under the law of inheritance. There is nothing in the language of Clause 5 of the Will which compels the construction that by use of the expression "my heirs" the testator meant something different from his 'heirs under the law. ' The expression "my heirs" has therefore to be construed as equivalent to "my legal heirs". Thus considered, the words used in the last two sentences of Clause 5 of the Will are not words of gift over to any 'artificial ' class of heirs. They only indicate that in the event of Nataraja 's death without any male issue, further devolution of the estate that had been given to him for life, would be regulated in favour of the testator 's heirs ascertained in accordance with Hindu Law of intestate succession. That is to say, the testator did not specify or lay down any line of heirs, deviating from the Hindu Law of intestate succession. 706 The ground is now clear to consider the second question which is pivotal to the whole problem: Whether the heirs of the testator, on whom the estate was to devolve in the event of Nataraja dying sonless, were to be ascertained according to Hindu Law in force at the time of Nataraja 's death or according to Hindu Law, prevailing in 1928 when the testator died. This question, also, is one of reaching at the real intent of the testator. In order to expatiate, the true import of the last two sentences of Clause 5 of the Will (exhibit P 2), the same can be legitimately expanded, parenthesized and elucidated so as to read like this: "After Nataraja 's life time, if he leaves any male issue, they shall take the aforesaid properties, with powers of alienation. If Nataraja dies without leaving any male issue, then my heirs, then ascertained according to law of inheritance, shall take the aforesaid properties." Thus amplified and elucidated, Clause 5 of the Will brings out, expressly or by inevitable implication, the intention and instructions of the testator in regard to the following: (a) In the event of the termination of the life estate of Nataraja on his death, without male issue, the property will devolve on "my heirs" i.e. the testator 's heirs. (b) Such heirs of the testator are to be ascertained according to the Hindu Law of intestate succession. (c) Such ascertainment of the heirs of the testator is to be done on the date of Nataraja 's death without male issue, when succession opens out in favour of those heirs, and not with reference to the date of the testator 's death. This necessarily implies that "my heirs" of the testator are required to be ascertained on the hypothesis that the testator lived upto and died a moment after Nataraja 's death. If what is spelled out at (a), (b) and (c) be the true construction of Clause 5 of the Will, it logically and inexorably follows therefrom, that ascertainment of the heirs of the testator, on whom the property was intended to devolve in the event of Nataraja dying sonless, was to be made in accordance with Hindu Law of intestate Succession as in force on the date of Nataraja 's death, on January 31, 1957, when succession opened out, and not in accordance with the orthodox Hindu Law prevailing in 1928, which on the relevant date, January 31, 1957, stood abrogated and superseded by the . The conclusion is therefore inescapable that "my heirs" referred to by the testator in Clause 5 of his Will, have to be ascertained in accordance with the . In so 707 doing, we are only giving effect to the import and construction of the Will of the testator, and no question of giving retrospective operation to the statute is involved. The learned Judges of the High Court have said that at the time of making the Will, the testator could not predicate that at the time of Nataraja 's death without leaving any son, the Hindu Law of Succession would be different from the one prevailing at the time of making the Will or the testator 's death. Nevertheless, the testator was definitely contemplating the contingency of Nataraja dying without any male issue, and the necessity of ascertaining the testator 's heirs at that point of time for further devolution of the property. It cannot, therefore, be said that ascertainment of the testator 's heirs according to the law in force at the time of happening of the contemplated contingency, was wholly beyond the ken of the testator. In the view we take of the import and scope of Clause 5 of the Will (exhibit P. 2) ascertainment of the heirs of Palaniandi Pillai has to be done on the assumption that he died intestate, a moment after Nataraja Pillai 's death, according to Sections 8 to 10 of the . At that point of time, the plaintiff (who would be assumed to be the widow of a "predeceased" son), and the defendants would all be heirs of the testator, falling in Class I of the Schedule referred to in Section 8. According to Section 9, all the heirs in Class I of the Schedule shall take simultaneously, to the exclusion of all other heirs. The distribution of the property among the plaintiff and defendants will be governed by Rules 3 and 4 in Section 10, which are as under: "Rule 3. The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall take between them one share. " "Rule 4. The distribution of the share referred to in Rule 3 (i) among the heirs in the branch of the predeceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of predeceased sons gets the same portion; (ii) among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions. " 708 In accordance with the aforesaid provisions of the , the plaintiff would be entitled to get 1/3rd share in Schedule I property in which her husband had a life interest, while the remaining 2/3rd share in the property shall be equally distributed among the two branches of the defendants, the branches of Ramaswami and Vadivelu getting 1/3rd share each. For the foregoing reasons, we allow this appeal, set aside the judgment of the High Court and pass a preliminary decree for partition and separate possession in favour of the plaintiff with respect to her 1/3rd share in the suit property. In the circumstances of the case, the parties are left to pay and bear their own costs. P.B.R. Appeal allowed.

By a will the testator bequeathed certain properties to each of his three sons. With regard to his third son (NP) the testator provided in Clause 5 of the will that if he had no male issues "my heirs shall take the aforesaid properties" after his life time. NP died in 1957 without any male issue. His widow (plaintiff appellant) filed a suit for declaration of her title to the properties on the ground that her husband got the same absolutely by way of partition and that she, as his heir, inherited the properties or in the alternative for a declaration of her right to the properties on a true construction of the testator 's will. (Defendants 1 and 2 were the sons of the testator 's eldest son while defendants 3 to 7 were the daughters and defendant 8 the widowed daughter in law of the testator 's second son.) The trial judge of the High Court decreed the plaintiff 's suit holding that on the termination of the life interest given to NP who died sonless the properties devolved on the heirs of the testator as if on intestacy, that the plaintiff was entitled to 1/3 share of the properties, and that the remaining 2/3 share should be share by the defendants. Defendants 1 and 2 appealed to a Division Bench of the High Court, claiming that as the only heirs of the testator they were entitled to get the entire property of NP who had only a life interest in it. Construing cl. 5 of the will, the Division Bench held : (1) that by his will the testator had made his heirs as an "artificial" class of ultimate residuary legatees; (2) that the mandate implicit in the words "if there are no male issues as aforesaid" is that such class of legatees or heirs of the testator would be ascertained and worked out at that point of time when NP died sonless and at no other; (3) that this class of heirs of the testator was to be ascertained on the death of NP on the hypothesis that the testator had been upto the time of NP 's death, but according to orthodox Hindu Law prevailing at the time of the testator 's death in 1928; (4) that neither Hindu Women 's Right to Property Act, 1937, nor the was applicable because the testator actually died long before the coming into force of these two enactments and he did not die intestate; (5) that according to Hindu Law prevailing at the time of the testator 's death in 1928, respondents 1 and 2 would be the only persons entitled to the property on the death of NP, to the exclusion of the latter 's widow, the plaintiff. 701 Allowing the appeal. ^ HELD: 1(a) On a proper construction of the will the testator could not be said to have created or carved out an "artificial" class of heirs and made a residuary bequest in their favour. It is well established that the term "heirs" used in a will must be construed in a legal sense and cannot normally be limited to "issues" only. It must mean all persons who are entitled to the property of another under the law of inheritance. [705E F] Angurbala Mullick vs Debabrata Mullick, [1951] 2 SCR 1125 at p. 1144; referred to. (b) The expression "my heirs" used in cl. 5 of the will must be construed as equivalent to "my legal heirs". The words "if there are no male issues my heirs shall take the aforesaid properties" are not words of gift over to any artificial class of heirs. [705G] 2. Construction of clause 5 of the will brings out expressly or by inevitable implication, these instructions of the testator: (a) In the event of NP 's death, without male issue, the property would devolve on the testator 's heir. (b) Such heirs of the testator would be ascertained according to Hindu Law of intestate succession. (c) Ascertainment of these "heirs" of the testator, is to be done at the time of NP 's death on the hypothesis that the testator lived up to and died a moment after NP 's death. (d) It logically follows from (a), (b) and (c) that these heirs of the testator would be ascertained according to the , which was the law in force on 31 1 57 when NP died sonless and succession opened out. [706 D F] 3. On the port and scope of cl. 5 of the will, as spelled out above, ascertainment of the testator 's heirs on whom the property would devolve on NP 's death, is to be done according to sections 8 to 10 of the . At that point of time, the plaintiff (who would be assumed to be the widow of a "predeceased" son) and the defendants would all be the heirs of the testator, falling in Class I of the Schedule referred to in section 8, and in accordance with Rules 3 and 4 in Section 10 of the Act, the plaintiff would be entitled to 1/3rd share, in the property, while the remaining 2/3rd share shall go equally to the branches of Ramaswami and Vedivelu. [707 DE]

minal Appeal No. 253 of 1968. Appeal by special leave from the judgment and Order dated April 12, 1968 of the Allahabad High Court in Criminal Govt. Appeal No. 13 of 1965 and Criminal Govt. Appeal No. 10 of 1966. B. P. Maheshwari and Sobhagmal Jain, for the appellant. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Mathew, J. This appeal , by special leave, is against a judgment of the High Court of Allahabad by which it restored the order of the Magistrate convicting the appellant of an offence under section 16 read with section 7. of the (Act 37 of 1954), hereinafter called the 'Act, and sentencing him to undergo one year 's rigorous imprisonment and pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for a further period of six months, after reversing the order passed by the Sessions Judge in appeal acquitting him of the offence. On June 13, 1963, Head Constable Baboo Khan was on patrol duty. He happened to come to the Chakki of one Abdul Razaaq. There he found a heap of Shakkar and some labourers mixing Shelkhari in it with spades. He went to the police station to inform the Station Officer about it but the Station Officer ' was not there. He then met the Sanitary Inspector and informed him about what he, saw at the Chakki. The Sanitary Inspector accompanied by the Food Inspector proceeded to the Chakki and there, they found the labourers mixing Shelkhari with Shakkar. The stock of Shakkar belonged to the appellant. The Food Inspector purchased 1 1/2 seers of Shakkar from the appellant by way of sample after paying its price. He divided the sample into three parts, gave one to the appellant and retained the other two with him. One of the samples retained was sent to the Public Analyst for examination. The Analyst found, in his report dated July 11, 1963, that the Shakkar contained 2.4% moisture, 72.7% total sugar, 64.7% sucrose, 17% extraneous matter insoluble in water. According to him the extraneous matter insoluble in water, total ash and ash insoluble in Hydrochloric acid exceeded by 15,O%, 10.1% and 13.3% respectively as against the maximum prescribed standards of 2.0%, 6.0% and O.5% respectively. On the basis of a complaint filed by the Food Inspector of the Municipal Board, Saharanpur, the Magistrate who tried the ap 352 pellant for an offence under section 16 read with section 7 of the Act came to the conclusion that the appellant had stored the Shakkar for sale, that it was adulterated and that he was guilty of the offence and convicted and sentenced him as aforesaid. The appellant filed an appeal against the order before the Sessions Judge. The Sessions Judge acquitted him of the offence for the reason that the prosecution had notproved 'that the Shakkar stored by the appellant was for sale. He said that the appellant was mixing extraneous matter with the Shakkar for converting it into Rab and as such it cannotbe said that the Shakkar was stored for sale by the appellant. He also said that no standard of quality was prescribed by therules framed under the Act for Shakkar, that as an article of food, Shakkar was neither 'gur ' nor 'Jaggery ' and that the sale of Shakkar to the Food Inspector by the appellant was under duress and was not a sale in the eye of the law. The Municipal Board filed an appeal against the order to the High Court. The High Court held that Shakkar is same as 'jaggery ', that standard 'of quality has been prescribed by the rules framed under the Act for jaggery, that the Shakkar in question was adulterated, that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of section 2 (xiii) of the Act, that Food Inspector had power under the Act to get the sample even if the Shakkar was stored for being manufactured into Rab and not for sale and restored the order of the Magistrate convicting and sentencing the appellant as aforesaid. The first contention on behalf of the appellant was that Shakkar is not 'jaggery ', and since no standard of quality has been prescribed for Shakkar under the rules formed under the Act, the Shakkar was not adulterated. We find it difficult to accept the contention that Shakkar is not Jaggery. Para A.07.05 of Appendix B of the Rules reads "Gur or jaggery means the product obtained by boiling or processing juice pressed out of sugar cane or extracted from palmyra palm, date palm or coconut palm. It shall be free from substances deleterious to health and shall conform to the following analytical standards on dry weight basis (i)total sugars not less than 90 per cent and sucrose not less than 70 per cent. (ii) extraneous matter insoluble in water not more than 2 per cent. 3 5 3 (iii)total ash not more than 6 per cent. (iv) ash insoluble in hydrochloric acid (HCI) not more than O.5 per cent. Gur or jaggery other than that of the liquid or semi liquid variety shall not contain more than 10 per cent moisture. " It is not disputed that Shakkar is a product obtained by boiling or processing _juice pressed from out of sugarcane, and therefore, it is clear that Shakkar is jaggery. But counsel for the appellant submitted that Appendix B of the Rules does not define jaggery but only gives the description of what 'jaggery ' is and it cannot, therefore, be said that jaggery would comprehend all the varieties of products obtained by boiling or processing _juice pressed out of sugarcane. In other words, counsel said that Appendix B to the Rules only describes what jaggery or gur is and that it does not define what jaggery or gur is. We are unable to accept the contention for the reason that jaggery or gur is defined as any product obtained by boiling or processing juice pressed out of sugarcane and so any product so obtained would be comprehend within the definition. Quite apart from this, we find in Chambers Twentieth Century Dictionary (Revised Edition) the meaning of 'jaggery ' as : "A coarse dark sugar made from palm sap or otherwise. (Hindi Shakkar; Sanskrit Sarkara). " It is, therefore, clear that Shakkar is 'jaggery '; and the finding of the High Court, on the basis of the report of the Analyst, that the Shakkar has not conformed to the standard of quality prescribed for jaggery and, therefore, the food was adulterated, was correct and has to be maintained. The second contention on behalf of the appellant was that he had kept the Shakkar for manufacturing Rab out of it. The contention, in other words, is that he had not kept the Shakkar for sale but kept it for manufacturing Rab out of it and, therefore, the conviction under section 16 read with section 7 of the Act was bad. We do not think that there is any substance in this contention either. Section 7 of the Act, in so far as it is material, Provides "No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute 354 (i) any adulterated food;" Section 16, which imposes the punishment, in so far as it is relevant, says : " 16 (1) If any person (a)whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;" The finding of the High Court is that the Shakkar was kept by the appellant for the purpose of sale and not for the purpose of manufacturing Rab out of it and that the attempt of the appellant was to sell the Shakkar as an article, of food after mixing Shelkhari with it. We see no reason to think that the finding was wrong. But assuming that the finding was wrong and that the appellant kept the Shakkar was for sale but for manufacturing Rab out of it, what follows ? If Shakkar is an article of food, it does not matter whether the appellant kept it for sale, or for manufacturing Rab out of it, provided the appellant has sold it. Arid a sale to the Food Inspector is a sale for the purpose of section 16 of the Act. In The Food Inspector, Calicut Corporation vs Charukattil Gapalan and another(), this Court held that, if any articles of food are sold by any person, whether he be a dealer in them or not, and if the food is adulterated, he is liable to be convicted under section 16 read with section 7 of the Act. The respondents before this Court in that case were the manager and owner of a tea stall. The case against them was that they sold 600 grains of sugar to the appellant, the Food Inspector, for analysis and that the sugar was adulterated. The respondents pleaded that the sugar was not sold 'as such ' in the tea stall and was only used for preparing tea which alone was sold. The plea was accepted by the District Magistrate and the respondents were acquitted. The acquittal was confirmed by the High Court. In appeal to this Court by the Food Inspector, one of the arguments for the respondents, was that they were not dealers in sugar and the sugar was not kept for sale and so they cannot be convicted under section 16 read with section 7 of the Act. The Court held, inter alia, that sale to a Food Inspector is a sale for the purpose of section 16 of the Act, that the article of food sold to the Food Inspector need not have been taken from a larger quantity kept for sale, and that the person by whom the article of food was sold to the Food Inspector need not be a dealer as such in the article. (1) [1971] 2 S.C.C.322. 355 In that case it was assumed by this Court that the sugar was adulterated. Whether it was adulterated or not as a matter of fact, this _Court proceeded on the assumption that it was adulterated. it that be so, we see no reason to doubt the correctness of the ratio of the case. We think the High Court was right in its conclusion. We dismiss the appeal. G.C. Appeal dismissed.

Muslim jurisprudence, where theology and moral concepts are found sometimes mingled with secular utilitarian legal principles, contains a very elaborate theory of acts which are good (because they proceed from haana), those which are bad (because they exhibit 'qubuh '), and those which are neutral per se. It classifies them according to varying degrees of approval or disapproval attached to them. The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered "prohibited". The binding, force in future of such a ren uticiation would, even according to strict Muslim jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of equitable estoppel, far from being opposed to any principle of Muslim Law will he found, on investigation, to be completely in consonance with it. [306 F] Abdul Rahim, Muhammedan Jurisprudence, P. 106, referred to. K, a Muslim, had incurred debts so heavily that all his property would have been swallowed up to liquidate the debts. The appellant and two of his brothers, with their labour and money, rescued the estate of their father and paid up the debts. Two other sons of K who could not con tribute anything towards the clearing up of the debts of their father executed deeds acknowledging receipt of cash and moveable properties as consideration for not claiming any eights in future in the properties mentioned in the deeds. On K 's death the two sons who had executed the deeds instituted a suit for partition of the properties mentioned in the deeds. The first appellate court ,held that the deeds in question evidenced family settlements and that the sons were estopped from claiming their share in the inheritance. The High Court in second appeal, decreed the suit. It proceeded on the assumption that, if law had not prohibited the transfer of his right of inheritance by a muslim heir, an estoppel would have operated against the respondent on the findings given and held that the rule of Muslim Personal law on the subject had the same effect as Section 6 (a). of the Transfer of Property Act and the chance of a Mahomedan heir apparent succeeding to an estate could not be the subject of a valid transfer of lease. In coming to this conclusion, the High Court relied on the decision of the Madras High Court in Abdul Kafoor vs Abdul Razack (A.I.R. in preference to the view adopted by the Allahabad High Court in Latafat Hussain vs Bidayat Hussain (A.I.R. 1936 All. 573.) Allowing the appeal and setting aside the judgment and decree of the High Court, HELD: Upon the facts and circumstance in the case found by the courts below, the two sons could not, when rights of inheritance vested 301 in them at the time of, their father 's death, claim these rights as such a claim would be barred by estoppel. The object of the rule of Mahomedan law which does not recognise a purported transfer, of a spes successionis as a legally valid transfer at all, is not to prohibit anything but only to make it clear what is and what is not a transferable right or interest in property just as this is what Section 6(a) of the Transfer of Property Act is meant to do. Its purpose could not be to protect those who, receive consideration for what they do not immediately have so as to be able to transfer it at all. It is not possible to concur with the view of the Madras High Court in Abdul Kafoor 's case that a renunciation of an expectancy, as a purported but legally ineffective transfer, is struck by section 23 of the Indian Contract Act. As it would be void as a transfer at all there was no need to rely on section 23 of the Contract Act, If there was no "transfer" of property at all, which was the correct position, but a simple contract which could only operate in future, it was certainly not intended to bring about an immediate transfer which was all that the rule of muslim law invalidated. The real question is whether, quite apart from any transfer or contract, the declarations in the deeds of purported relinquishment and receipt of valuable consideration could not be parts of a course of conduct over a number of years which, taken as a whole, created a bar against a successful assertion of a right to property when that right actually, came into being. An equitable estoppel operates, if its elements are established as a rule of evidence preventing the assertions of rights which may otherwise exist. [304 D] While the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself, illegal or prohibited by Muslim law, the View of the Allahabad High Court in Latafat Hussain 's case, while fully recognising that "under the Mohammedan law relinquishment by an heir who has no interest in the life time of his ancestor is invalid and void", correctly lays down that such an aban donment may nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued. Latafat Hussain vs Bidayat Hussain, A.I.R. 1936 All. 573, approved. View contra in Abdul Kafoor vs Abdul Ratack, A.I.R. 1959 Mad.131 and Asa Beevi vs Karuppan, (1918) 41 Madras I.L.R. 365, disapproved. Ameer Ali 's Mahomedan Law, Vol. 11, Hurmoot Ool Nisa Begum vs Allahdis Khan, (1871) 17 W.R.P.C. 108 and Mohammad Ali Khan vs Nisar Ali Khan, A.I.R. 1928 Oudh 67, referred to. (Since the Court was of opinion, that there was nothing in law to bar the application of the principle of estoppel contained in section 115 of the Evidence Act upon the totality of facts found by the final court of facts, it was found unnecessary to deal with at length with the question whether the facts found could give rise to an inference of a "family settlement" in a technical sense.)

Civil Appeal No. 1095 of 1970. and 1677 of 1973. From the Judgment and Order dated 26/27 9 1968 of the Gujarat High Court in Estate Duty Reference No. 3/67. S.C. Manchanda and R.N. Sachthey, for the Appellant (In CA 1095/70). K.B. Kazi and 1. N. Shroff, for the Respondents in CA 1095/70. S.T. Desai and J. Ramamurthi, for the Intervener. S.T. Desai and J. Ramamurthi, for the Appellants in CA 1677/73. S.P. Nayar, for the Respondent in CA 1677/73. 73 KRISHNA IYER, J. Is it permissible for judges to specu late on the philosophical edge of a human problem hidden by the litigative screen before settling down to examine its forensic facet ? If it is, we may make an observation about the question posed in this case without pejorative impli cations. For many men in advancing age arrives a stage in life when to be or not to be stampedes them into doing things 11 dubious before God and evasive before Caesar and we have a hunch both the appeals before us smack of such a disposition as will be evident when the narration of facts and discus sion of law unfold the story. A brief statement of the circumstances leading to the single critical legal issue, proliferating into a plurality of points, may now be made. We begin with the facts in the Gujarat Appeal [Kantilal Trikamlal(1)] since the Madras Appeal [Ranganayaki Ammal(2)] raises virtually the same question, is plainer on the facts and may conveniently be narrated immediately after. To appreciate the complex of facts we choose to enunciate the principal proposition of law canvassed before us by the Revenue in the two appeals. Does a relinquishment by a decedent of a slice of a share or a partition of joint property in such manner that he takes less than his due effected within two years of his death with a view to relieve himself of a part of his wealth and pro tanto to benefit the accountable person, a near relation have to suffer estate duty under the (for brevity, the Act) ? One Trikamlal Vadilal (hereinafter referred to as the deceased) and his son Kantilal (referred to later as the accountable person) constituted a Hindu undivided family. They continued as members of a joint and undivided Hindu family until November 16, 1953 when an instrument styled 'release deed ' was executed by and between the deceased and Kantilal. Considerable controversy between the parties turns on the interpretation of this instrument and it will therefore be necessary for us to refer to its terms briefly later. Suffice it to state for the present that, under this instrument, a sum of rupees one lakh out of the joint family properties was taken by the deceased in lieu of his share in the joint family properties and he relinquished his interest in the remaining properties of the joint family which were declared to belong to Kantilal as his sole and absolute properties and Kantilal also, in his turn, relinquished his interest in the amount of rupees one lakh given to the deceased and declared that the deceased was the sole and absolute owner of the said amount. Within two years from 7 3 died and on his death the question arose as to what was the estate duty chargeable on his estate. Kantilal, who is the accountable person before us, filed a return showing the status of the deceased as individual and the principal value of the estate as Rs. 1,0.6,724. The Assistant Con troller was, however, of the view that the instrument dated November 16, 1953 operated as relinquishment by the deceased of his interest in the joint properties in favour of Kanti lal and that the consideration of rupees one lakh for which the one half share of the deceased in the joint family properties at the date of the said instrument was Rs. 3,44,058 and there was, therefore, a disposition by the deceased in favour of a relative for partial consideration and it was, accordingly by reason of section 27, sub section (1 ), liable to be treated as a gift for the purpose of section 9, sub section (1), and its value, viz., Rs. 3,44,058 after deducting Rs. 1,06,724 (being the amount received by the deceased together with interest) was includable in the principal value of the estate of the (1) (2) 12 deceased. The Assistant Controller, accordingly, included a sum of Rs. 2,37,334/ being the difference between Rs. 3,44,058/ and Rs. 1,06,724/ in the principal value of the estate of the deceased. On appeal by the accountable person, the assessment made by the Assistant Controller was confirmed by the Central Board of Revenue. Though the main ground on which the Cen tral Board based its decision was the same as that which found favour with the Assistant Controller, viz., that under the instrument there was a disposition by the deceased of his interest in the joint family properties in favour of Kantilal for partial consideration and it was therefore by reason of section 27, sub section (1 ), liable to be treated as a gift for the purpose of section 9, sub section Another argument also appealed to the Central Board and that was one based on section 2(15), Explanation 2. The 'Board held that, in any event, under the instrument there was extinguishment at the ex pense of the deceased of his interest in the joint family properties and there was therefore a deemed disposition by the deceased of the benefit which accrued to Kantilal as a result of such extinguishment and the charge to estate duty was accordingly attracted under section 9, sub section (1), read with section 27, sub section On reference, the High Court held in favour of the assessee and the Revenue has appealed hopefully, relying on a ruling of the Madras High Court which itself is the sub ject matter of the sister appeal. Here the tables were 7 3 High Court as contrary to the ratio of this Court 's pro nouncements. Were it so, it were bad; but judgments, even of the summit court, are not scriptural absolutes but rela tive reasonings and there is in them, read as a human whole, more than meets the legal eye which looks at helpful lines here and there. We will examine them closely, especially because several High Courts are split on the construction of 'disposition ' in the Act, and seek to resolve the conflict of views and values. Behind everyone 's attitude to tax is an unspoken value judgment! Before we move into the arena of argument we may silhou ette the facts of the Madras case. The deceased, Bheema Naidu, and his predeceased son 's widow and children consti tuted a Hindu undivided family. A little within the two year pre mortem line drawn by the Act he effected a partition and turnnig abnegator took a smaller share instead of his legal half, benefiting the others to the extent of the difference. This difference was taxed as disposition of property under the Act and fiscal hierarchy was upheld by the High Court. The assessees assail that decision before us. The forensic focus has been rightly turned on the inter pretation of the critical provisions in the Act bearing on this controversy. The social design, the legislative intent and the grammar of statutory construction visa vis the Act may have to be briefly surveyed while studying the language of the text and the impact of the context. The scheme and spirit of the Act need to be understood first, for every social legislation has a personality and taxing statute a fiscal 13 philosophy without a feel of which a correct perspective to gather the intent and effect of the separate clauses cannot be gained. Over four centuries ago Plowden said: "Each law consists of two parts viz., of body and soul; the letter of the law is the body of the law and the sense and reason of the law is the soul of the law. " It is well known that death duties imposed on richer estates have a socialistic savour being motivated by the State 's policy of paring of unearned accumulation of inheritances and of diminishing glaring disparities of wealth. This comprehensive but slow egalitar ian purpose fulfils itself fully only when it operates on property at death and near death; nor is there any rational ground to save some types of disposition or subtle transfer ence of wealth from exigibility, having due regard to the plain language of estate duty measures. The broad object also includes inhibition of dispositions, unsupported by reasonable consideration, made on the eve of death or within 7 3 or manoeuvres, though sincere, being manifestly likely to defeat death duties posthumously flowing from properties covered thereby. The fiscal policy is dual: (i) the collec tion of revenue; and (ii) reduction of the quantum of inher itance on a progressive basis directed towards a gentle process of equalisation. The draftsman 's efforts have been exerted to use words of the widest import and, where the traditional use of words iS likely to limit, to use legal fictions, by deeming devices, to expand the semantics there of and to rope in all kinds of dealings with property for inadequate or no consideration within the statutory prox imity of death. The sweep of the sections which will be presently set out must therefore be informed by the lan guage actually used by the legislature. Of course, if the words cannot apply to any recondite species of property, courts cannot supply new logos or invent unnatural sense to words to fulfil the unexpressed and unsatiated wishes of the legislature. Law, to a large extent, lives in the language even if it expands with the spirit of the statute. It is good to remember that the Indian Act has some English genetic touch, being largely based on the English Finance Acts of 1854 Onwards. This historical factor has current relevance for one reason. 'We may usefully refer to, although we may not be blindly bound by, English authorities under the corresponding statute and both sides have sought trans Atlantic light on this footing. A skletal projection of the Act to the extent that concerns us here may now be made. This Act exacts estate duty. The charging section (section 5) authorizes the levy of a duty upon all property which passes on the death of a person dying after the commencement of the Act. Two questions immediately arise. What is property as envisaged in the charging section ? When does property pass on the death of a person ? The answer to the first question is furnished in an inclusive definition of 'property ' in section 2(15). It is a wide ranging definition supplemented by two expansive definitions. Of immediate moment is Explanation 2 which reads: "Explanation 2. The extinguishment at the expense of the deceased of a debt or other rights shall be deemed to have been a disposition made by the deceased in favour of the 14 person for whose benefit the debt or fight was extinguished, and in relation to such a disposition the expression 'property ' shall include the benefit conferred by the extinguishment of a debt or 7 3 What property passes on the death of a person is indicated in an inclusive definition set out in section 2(15). It covers property passing either immedi ately on the death or after any interval and 'on the death ' includes 'at a period ascertainable only by reference to the death '. A glance at sections 9 and 27 gives more comprehension. Section 9, among other provisions, introduces a legal fiction and since the meaning and implication of this section has been the subject of some disputation we had better allow the provision, in the first instance, to speak for itself: "9. Gifts within a certain period before death : (1 ) Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settle ment upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death. " Both the appeals deal with deceased persons who are mem bers of joint Hindu families and the subject matter of the dispositon was linked up with their share in the HUF (acro nymically speaking). For this reason our attention has to be rivetted to sections 7 and 39 which resolve a likely difficul ty in ascertaining the interest in property which ' passes on the death of a deceassed coparcener in the joint family property the pristine rule of Hindu law being his share lapses in favour of the survivors and is not a descendible estate or a predictable fraction. Sections 7 and 39, by a deeming process, circumvent this contretemps and crystallize a clear share in the coparcener at the point immediately before death. Had the properties of the coparcener been partitioned immediately before the death what share in the joint family property would have been allowed to the de ceased represents the principal value of such share for the purposes of computation of death duty. Section 27 is a strategic provision which deems as a gift all dispositions made by the deceased person in favour of his relations unless such disposition was made for full consideration or the deceased was concerned in a fiduciary capacity with the property. 'Relative ' means, in this context, near rela tions set out in section 27(2) and it is sufficient, for our pur pose, to know that in both the appeals the accounting persons are relatives failing within the statutory compass. One more provision is pertinent to our enquiry and that deals with gifts within a certain period before death. While there are other provisions dealing with gifts before 7 3 already been read and will later be explained. Now to the boxing ring. The bout has been fought over the import and amplitude of 'property ' as widened by section 2(15), especially Explanation 2 thereto. Sri section T. Desai, appearing for the accountable per 15 son in the Madras case, and Shri Manchanda, arguing for the Exchequer in the Gujarat case, have levelled multi pointed attacks, but the crucial issue which is decisive of both cases is the same. What is 'property ' for the purpose of this fiscal law ? Is it a misfortune for any legal system that a battle of semantics, where able judges and erudite advocates fundamen tally disagree on meanings of words pivotal to the very levy, should be a bonanza of the draftsman ? Simplicity and certainty is basic to the rule of law but is a consummation devoutly to be wished in our corpus juris. Here we find ranged on both sides more than one High Court taking con trary but scholarly views. A radically new legislative art is the urgent contemporary need if comprehensibility to the laity is to be a democratic virtue of law. We will first unlock Explanation 2 to section 2(15), discover the signification of 'property ' expanded by the deeming clause and then read it in that wider sense along with the comprehensive provisions of sections 9, 27 and 5. The key con cept that underlies this fasciculus of sections is property, the tax being charged on property passing on death. Consid erable controversy has raged not only on the boundaries of the notion of 'disposition ' as specially defined, by import ing a legal fiction, but on the slightly ticklish and tricky placement in section 9 of the expression 'bona fide made two years or more before the death of. the deceased '. If we surmount these constructional difficulties, the answer to the core question arising in these appeals fol lows without much ado. In fairness to counsel we must, at the threshold, set out the seven propositions formulated by Shri Desai for pin pointing the discussion. They are: "1. Partition is merely a process in and by which joint enjoyment is transferred into an enjoyment in severalty. Since in such a case each one of the coparceners had an antecedent title which extended to the whole of the joint family properties and had therefore full interest 7 3 his share, no creation of right or interest in such specific property takes place in his favour nor does any extinguishment of any right or interest in the other property take place to his detriment. Sections 9(1) and 27(1) form part of a single scheme. The word 'disposition ' in section 27 (1 ) cannot be treated in isolation and must take its colour and meaning from the sense in which the word has been used in sec. 9 (1). 3. 'Disposition ' means 'giving away or giving up by a person of something which was his own , 606 SC). No meaning howsoever wide and comprehensive of the expression 'disposition ' can possibly take in its ambit or coverage, parti tion , SC). The mere fact that on a partition a copar cener takes a lesser share than he could have demanded does not mean 16 that there is 'disposition ' as contemplated in Explanation 2 to section 2(15) which defines 'proper ty '. In such a partition, there is no extinguish ment, at the expense of such coparcener of any 'debt ' or 'other right '. In a partition whether equal or unequal, there is no disposition by a coparcener in favour of any relative nor can it be said that there is any purported gift nor can it be treated as a gift. Of course, the partition must be bona fide and not to evade duty. The scope and ambit of Explanation 2 to section 2(15) becomes more clear when it is read in juxtaposi tion with Explanation 1. The 'extinguishment ' contemplated in Expla nation 2 can be only in respect of any debt or other right which could have been created by the deceased and could have been enforced against him. In a partition, no such thing takes place. A definition is not a substantive rule of law operative by itself. The definition of 'property ' in section 2(15) has to be read along with sections 9 and 27 and not in isolation. Disposition, in section 9, even if read along with Explanation 2 to section 2(15), can only be of something the disponer had as his own at the time of the alleged extinguishment. If it is of any interest in property it must be of an interest which was already vested in the disponer at the time of the disposition. If of any other right, it must be of a right which had vested in him even when he gives it up. " This 7 point programme of submission really brings out all the issues and sub issues, legal and factual, and the last two, over lapping in some respects, deserve first attention. Before that, we must state, in precis form, the facts with reference to which the statute must speak. The life of the law is not idle abstraction or transcendental meditation but fitment to concrete facts to yield jural results a synergetic action, not isolated operation. Our discussion will therefore be conditioned by the material facts found in the two cases. They are, tersely, though simplistically put, that the deceased person, being a member of a joint Hindu family, within two years before his death, entered into a partition of family properties bona fide, not as colourable or sham transaction, whereby he received towards his share an allotment substantially lower in value than would be his legal entitlement thus gladly suffering a diminution which would to that extent benefit the account able person by giving him a larger slice of the joint cake than was his due. We assume, for the purpose of argument, that the divi sion in status and the partition made by metes and bounds have taken place simultaneously on the execution of the deed in question. We also take it that the release, relinquish ment or division in the cases on hand has been bona rule made in the sense that one sharer has not over reached the other or played fraud or together the sharers have not gone through a mere simulacrum of a partition or exercise in colourable division. We proceed on the further footing and that is law well established 16 now that 'partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in several ty. Each one of the sharers had an antecedent title and, therefore, no conveyance is involved in the process, as a conferment of a new title is not necessary '. Now to the 7 points of Shri Desai. The 6th point is a shade platitudinous and the other side does not dispute its soundness. Certainly the ' definition of 'property ' in section 2(15) has to inform and must be read along with section 9 and section 27 and cannot be functional in isolation. It is not a substantive rule of law operative by itself. Similarly, point No. 7, stated the way it has been, may not be and has not been disputed before us, for the expression 'disposi tion ' in section 9 must be read with the definition in Explana tion 2 to section 2(15) since that is the whole purpose of a"deeming provision ' in the shape of a definition. Granting that, the disponer cannot extinguish or part with what is not his rather a trite statement though since A can give or give up only what he has at the time of alienation or abnegation. Shri Desai contends, and rightly, that the deceased could not dispose of any interest in property which did not earlier vest in him or at least at the time of the disposition. No right can be given up without its being vested in him when he gives up. This hypothesis in law turns the searchlight on the existence, at the time of the release or partition, of what has been disposed of under that deed. What then was disposed of ? And did the deceased own at the time of disposition what he thus made over or extinguished ? An answer to these twin questions may be readily given, once we clear the confusion that has crept in at certain stages of the argument, by a process of inept importation and imperfect understanding of the rule of Hindu law regarding coparcenary. The proposition is trite that in an undivided Hindu family coparceners have no predictable or defined shares but each has an antecedent title in every parcel of property and is jointly the owner and in enjoyment with the others. But surely it is well established that at the very moment mem bers decide upon a partition eo instanti, a division in status takes place whereupon the share of the demanding members gets crystallised into a definite fraction and if there is division by metes and bounds the allotment of properties vivifies and specifies such shares in separate ownership. These two processes or stages may often get telescoped when by consensus the coparceners jointly divide the properties. Unequal divisions of properties knowingly made may not spell invalidity and mathematical equality may not be maintained always in a partition while, ordi narily, substantial fairness in division is shown. Granting these legal positions, the more serious question which has been agitated before us is as to whether a willing, al beit ' bona fide, arrangement whereby a substantially reduced share is taken by the decedent consequentially vesting a proportionately larger estate in the recipient is a dispo sition falling within Explanation 2 to section 2(15) and there fore 'property ' within the substantive definition. In this context we may have to read sections 9 and 27 for property taken under a disposition made. by the deceased may be deemed to be a gift in favour of the accounting person in the circum stances mentioned in section 9. Similarly, section 27 also tracks down certain dispositions made by deceased 18 persons in favour of relatives by treating them as 'gifts '. The basic concept of disposition looms important in such circumstances. This introductory statement of the law takes us to the other points of Shri Desai which we will tackle together, guided by the text of the sections aforesaid read in the light of the citations, aplenty, of cases Indian and Eng lish. We may compendiously state, forgetting for a moment the complication in the Gujarat Case of the release deed executed by the decedent being either a relinquishmere or a partition that in both the appeals, the decedents and the recipients were members of an undivided Hindu family and within the two years proximity of death the partition ar rangement was effected where under a lesser share than due was allotted to the latter. And indeed, it is this differ ence between what was due to the right of the deceased and what was actually taken that was treated as a 'gift ' by the Revenue based on the definition in section 2 (15 ), Explanation 2, plus sections 9 and 27. The cornerstone of the whole case of the Revenue is thus the concept of 'disposition ' which we may point out, right at the outset, is not a term of art not legalese but plain English with wide import. What is more, this word has acquired, beyond its normal ambit, an abnormal semantic expansion on account of a special definition with an Explanation super added. In short, 'disposition ' in the Estate Duty law of India enjoys an extended meaning. Even so, does it go so far as to cover a mere taking of a less than equal share by the deceased, the benefit on account of which has gone to the accountable person ? Before we enter the thicket of judicial conflict regard ing the meaning of 'property ' as extended by Explanation 2 to section 2(15), we may remind ourselves as courts that in a taxing statute one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. While the rulings on the point in the Act and in the allied Gift Tax Act will be adverted to presently, we may begin an incisive understanding of the Explanation 2 aforesaid. The spirit thereof is obvious. The framers of the Act desired by a deeming provision regarding 'disposition ' to cover extinguishments of debts and all other rights at the expense of and made by the deceased in favour of the beneficiary. The substantive definition of 'property ' in section 2(15) is not exhaustive but only inclusive and the supplementary operation of Explana tion 2 takes in what is not conventionally regarded as 'disposition '. Indeed, 'disposition ', even according to law dictionaries, embraces 'the parting with, alienation of, or giving up property. a destruction of property ' (Black 's Legal Dictionary). The short question before us is whether the dispositive fact of giving up by a coparcener of a good part of what is due to him at the time of division to his own detriment and to benefit of another coparcener, can be called 'disposition ' in law. Undoubtedly this operation, to use a neutral expression, is made up of simple jural facts that modify and extinguish jural relations and create in their place new rights whereby one gives or gives up and another gains. This legal result, produced by voluntary 'action, is 'disposition ' within the scope of Explanation 2 to section 2(15). The assessee 's contention, effectively presented by counsel, takes a legalistic course, ignoring the purpose, language and amplitude of 19 Explanation 2. Argues Shri Desai, in a partition, equal or unequal, there is no element whatsoever of consideration, partial or full, since in a partition there is only an adjustment of rights and substitution of joint enjoyment by enjoyment in severalty. In his view it is a confusion to mix up unequal partition with inadequate consideration and it is a worse confusion to talk in terms of bona fide and main fide partition where the shares are merely unequal by choice. What is forgotten in this chain of reasoning is the office of Explanation 2 which is deliberately designed to take into its embrace what otherwise may not be 'disposi tion '. Once we reconcile ourselves to the enlargement of sense imported by the Explanation, we part company with the traditional concept. We have also to stress the expression 'other right ' in the Explanation which is of the widest import and cannot be constricted by reading it ejusdem generis and 'debt '. 'Other right ', in the context, is expressly meant considerably to widen the concept and there fore suggests a somewhat contrary intention to the applica tion of the ejusdem generis rule. We may derive instruction from Green 's construction of the identical expression in the English Act Is. 45(2). The learned author writes: "A disclaimer is an extinguishment of a right for this purpose. Although in the event the person disclaiming never has any right in the property, he has the right to obtain it, this inchoate right is a 'right ' for the purposes of section 45(2), The ejusdem generis rule does not apply to the words 'a debt or other right ' and the word 'right ' is a word of the widest import. Moreover, the expression 'at the expense of the deceased ' is used in an ordinary and natural manner; and is apt to cover not only cases where the extinguishment involves a loss to the deceased of a benefit he already enjoyed, but also those where it prevents him from acquiring the benefit. The words 'the person for whose benefit the debt or other right was extinguished ' do not neces sitate a conscious intention to benefit some per son; it is sufficient that some person was in fact benefited. 'The motive or purpose of the deceased appears to me to be immaterial ', provided the transaction was gratuitous and did in fact benefit the other person concerned. The extinguishment of a right may also cover the release of his interest by one joint tenant in favour of another." (Green 's Death Duties, 7th Ed., Butterworths, p. 149) Shri Desai and also Shri Kazi, appearing for the 'ac counting persons ' in the respective cases, urged that this expansive interpretation taking liberties with traditional jural concepts is contrary to this Court 's pronouncement in Getti Chettiar(1). That was a case under the Gift Tax Act, 1958 and the construction of section 2(xxiv) fell for decision. Certainly, many of the observations there, read de hors the particular statute, might reinforce the assessee 's stand. This Court interpreted the expression 'transfer of property ' in section 2(xxiv) and held that the expression 'disposition ' used in that provision should be read in the (1) 20 context and setting of the given statute. The very fact that 'disposition ' is treated as a mode of transfer takes the legal concept along a different street, if one may use such a phrase, from the one along which that word in the is travelling. Mr. Justice Hegde rightly observed, if we may say so with respect, that 'Words in the section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are in tended to serve." (p. 605 606) The word 'transaction ' in section 2(xxiv) of the Gift Tax Act takes its The word that is it must be a 'transfer ' of property colour from the main clause that is , it must be a 'transfer ' of property in some way. Since a partition is not a 'transfer ' in the ordinary sence of law, the Court reached the conclusion that a mere partition with unequal allotments not being a transfer, cannot be covered by section 2(xxiv). A close reading of that provision and the judgment will dissolve the mist of misunderstanding and discloses the danger of reading observations from that case for application in the instant case. The language of section 2 (15 ), Explanation 2, is different and wider and the reasoning of Getti Chettiar (supra) cannot there fore control its amplitude. It is perfectly true that in ordinary Hindu law a partition involves no conveyance and no question of transfer arises when all that happens is a severance in status and the common holding of property by the coparcener is converted into separate title of each coparcener_as tenant in common. Nor does subsequent partition by metes and bounds amount to a transfer. The controlling distinction consists in 'the difference in definition between the Gift Tax Act [section 2(xxvi)] and the is. 2(15). The Madras High Court in Valliammai Achi(1) took the correct view when it said on similar facts: "The facts of this case, in our opinion, seem to square with the second Explanation to section 2(15). That, no doubt, is an Explanation to the inclusive definition of property. But the language of it seems to go further and coins a deemed disposition in the nature of a transfer. The mechanics of the transfer for the purposes of Explanation 2 consist in the extinguishment at the expense of the deceased of a right and the accrual of a benefit in the form of the right so given up in favour of the person benefited. Transfer in a normal sense and as understood with reference to the Transfer of Property Act connotes a movement of property or interest or right therein or thereto from one person to another in praesenti. But in the kind of disposition contemplated by the second Explanation, one can hardly trace such a transfer because of the mere fact of extinction of a certain right of the deceased which does not involve a movement, a benefit is , 808. 21 created in favour of the person benefited thereby. In the present case the son who was a quondam coparcener had a pre existing right to every part of the coparcenary property, and if by a partition or a relinquishment on the part of one or more of the coparceners, the joint ownership is severed in favour of severalty, the process, having regard to the peculiar conception of a coparcenary, in volves no transfer . But Explanation 2 is concerned not with that kind of situation, but an extinguishment of a right and creation of a bene fit thereby and this process is statutorily deemed to be a disposition which is in the nature of a transfer. " This line of reasoning has our general approval. From what we have said, the bold lines of opposing views emerge and they hinge on the conno tation of 'disposition '. The High Courts, in their divergent stands, have lined up before both strands of reasoning. Madras, a Full Bench of the Punjab High Court, and the classic observations in In re Stratton 's Disclaimer(1) support the point of view championed in Ranganayaki Ammal. The contrary thinking finds support in Andhra Pradesh and Punjab as welt as in Gujarat (Kantilal). The sense of our statutes modelled as they are on a series of English Acts, is best expressed so far as the concept of 'disposition ' is concerned, by Jenkins L.J., in In re: Stratton 's Disclaimer(1) relating to section 45 of the Finance Act, 1940 [which runs similar in strain to s.2(15). Noting the strength of the sweeping and unparticularized reference to 'a debt or other right ', Jenkins L.J., repelled the application of the ejusdem generis rule and impart ed to the word 'right ' the widest import: "Mr. Russel did not seek to limit the effect of the words 'debt or other right 'by an applica tion of the ejusdem generis rule, and, in my view, it would not be possible to do so. In the absence of any such restriction on its meaning the word 'right ' is a word of the widest import, and if, in accordance with my view, Mrs. Stratton can properly be held to have had a right in respect of the specific bequest and devise pending disclaimer, I see no ground for holding that it was not a right within the meaning of section 45 (2). " * * * * "I confess that I am disposed to deprecate recourse in revenue legislation to sweeping gener alities of this kind, but the mere fact that an enactment is couched in general and comprehensive terms affords no ground for excluding from its operation transactions falling fairly within its provisions, general though they may be. Roxburgh J., emphasized the impact of the legal fiction and observed: "A certain state of facts is to be deemed to be a different state of facts, and the line between fact and hypothesis seems to me to be drawn by the word 'deemed '. If this be (1) [1958] 34 I.T .R. (Estate Duty) 47. 22 so, only three actual facts are expressed to be necessary in order to involve the hypothetical situation, (1) the existence of a right, (2) its extinguishment, (3) its extinguishment at the expense of the deceased. When those three facts concur, the hypothesis goes into action, and the hypothesis is that these facts are equivalent to a disposition made by the deceased in favour of the person for whose benefit the right was extin guished. These words, ill my opinion, all form part of the hypothesis and the concluding words are necessary to define the hypothetical disponee. " The conventional construction of 'disposition ' has to submit to the larger sweep of the hypothetical extension by defini tion. The Gujarat High Court has gravitated towards the nar rower construction of 'disposition ' and 'or right '. It makes no specific reference to Stratton 's Disclaimer (supra) and the learned judges have insisted on transfer of inter est as a necessary indicium of every disposition. Partition does not involve a transfer and therefore, cannot be a disposition, runs the logic of the Gujarat judgment. Like wise, 'other right ', in Explanation (2), it is argued, cannot cover the case of partition as in the learned Judges ' view a transfer is a sine qua non. We cannot agree, for reasons already stated, with this approach which defeats the intendment of the Act and the express object of Explana tion 2 to section 2(15). The peculiar definition of 'disposi tion ' injecting a triple hypothesis and fictional expan sion covers the diminution in the share taken by the copar cener and augmentation of the share taken by the other and impresses the stamp of property on this process by the "deeming ' provision. Sections 9 and 27 strengthen this conclusion. We were confronted by Shri Desai with Kancharla Kesava Rao(1) for contending that giving away or giving up could not in all cases be disposition where the transaction is a partition. This Court, in the above ruling, held that a partition in a coparcenary was just an adjustment of rights, not a transfer in the strict sense. Shri Justice Hegde, speaking for the Court, placed on section 24 of the Act more or less the same intepretation as was put in Getti Chettiar (supra) by this Court. Whatever might be the interpretation 'disposition ' in section 24 of the Act, we are satisfied that the only straight forward construction of that expression in section 27 is as we have explained at length above. Section 9, dealing with gifts takes in property under a disposition made by a deceased, throwing up the question 'What is a gift? '. Section 27 supplies the answer: 'an dispsition made by the deceased in favour of a relative of his shll be treated for the purposes of this Act as a gift '. Unless: of course, it is made for full considera tion. There is no limitation, environmental or by the society of words, warranting the whittling down of the unusually wide range of explanation 2 to section 2(15). Kesava Rao (supra) cannot cut back on the liberality of section 27. In the realm of legal fiction, law cannot be confined within traditional (1) 23 concepts. It is pertinent that as between the Gift Tax Act and the there is basic difference in that the tax effect in the first is on transaction inter vivos and in the second on the generating source of transmission by death. Comparisons in construction cannot therefore be pushed too far. Before winding up tihis part of the discussion, we may refer to Grimwade vs Federal Commissioner of Taxation (1) where Williams J., dealing with the expression 'disposition of property ' defined somewhat in similar lines as in our Act, observed: "The whole emphasis of paragraph (f) is upon ' a transaction entered into by one person, which seems to me to mean that where there is an act done by one person with the requisite intent, and as a result there is a transfer of value from any property of that person to the property of another person, the conditions of liability are satisfied. Each statute has its own mint and the coinage of words bears a special stamp. That is our only comment when we depart semantically from other judicial ' annotations of the expres sion 'disposition '. If A is entitled to a moiety in property worth rupees five lakhs (or let us assume that much of cash in the till belongs jointly to A and B) and by a partition relinquishment, disclaimer or otherwise A accepts something substantially less than his due, say rupees one lakh as against rupees two and a half lakhs and the remainder goes to. the benefit of B who gets four lakhs as against two and a half lakhs, commonsense, concurrently with Explanation 2, draws the inference that A has made over at his expense and to the benefit of B a sum of rupees one and ahalf lakhs which may be designated a 'disposition ' by him in favour of B. Shri Desai rightly stressed in construing section 9 we should not confess between a mala fide transaction and unequal partition. He is right. But the simpIe scheme of section 9 may be stated to erase misapprehension. What the provision declares is that if the disposition made by the deceased is more than two years before death. ,, the property covered thereby shall not pass on the death unless it shall not have been bona fide. That is to say, even if the transaction were more than two years before the death, if it were entered into in bad faith, estate duty may still attach to that property. So far as dispositions made within two years of the death of the deceased are concerned, there is no question of mala fides or bona fides. All such transactions are caught within the coils of section 5 read with sections 9 and 27. The re quirement of 'bona fides ' has nothing to do. with disposi tions within 2 years and has much to do with those beyond 2 years. The marginal obscurity in section 9 is due perhaps to compressed draftsmanship. Now to costs. We have already indicated how serious arguments have appealed in contrary ways to several fudges of the High Courts and certain observations of this Court have themselves been capable of different shade of sense from what we have read into them. Indeed the point involved in the case is of general public importance which (1) ; 24 on account of the conflict in the High Courts, needs to be decided by the Supreme Court. One of the major functions of this Court is to declare the law for the country under article 141 of the Constitution, although under our adversary system it is only when litigation spirals up the Court acts and declares the law. While dealing with a similar situation, this Court in Trustees Port, Bombay(1) observed: "Is it fair in these circumstances that one party, albeit the vanquished one, should bear the burden of costs throughout for providing the occa sion not provocation for laying down the correct law in a controversial situation ? Faced with a similar moral legal issue, Lord Reid observed: "I think we must consider separately costs in this House and costs in the Court of Appeal. Cases can only come before this House with leave, and leave is generally given because some general question of law is involved. In this case it enabled the whole vexed matter of non est factum to be reexamined. This seems to be a typical case where the costs of the successful respondent should come out of public funds. The Evershed Committee on Supreme Court Practice and Procedure had suggested in England that the Attorney General should be empowered to issue a certificate for the use of public funds in appeals to the House of Lords where issues of outstanding public importance are involved. " Maybe, a scheme for a suitors ' fund to indem nify for costs as recommended by a Sub Committee of Justice is the answer, but these are matters for the consideration of the Legislature and the Executive. We mention them to show that the law in this branch cannot be rigid. We have to make a compromise between pragmatism and equity and modify the loser pays all doctrine by exercise of a flexi ble discretion. The respondent in this case need not be a martyr for the cause of the certainty of law under section 87 of the Act, particularly when the appellant wins on a point of limitation. (The trial Court had even held the. appellant guilty of negligence). In these circumstances we direct that the parties do bear their costs throughout. " We adopt the same course and while. allowing Civil Appeal No. 1095 of 1970, and dismissing Civil Appeal No. 1677 of 1973 the parties in both the appeals are directed to bear their respective costs throughout. V.P.S. C,4. 1095 of 1970 allowed. CA 1677 of 1973 dismissed. (1) ; , 738.

Under section 3(b), , a sale or purchase of goods is deemed to take place in the course of inter State trade or commerce if the sale or purchase is effected by a transfer of documents of rifle to the goods during their movement from one State to another. Section 7(3 ) provides that on the application of the dealer the prescribed authority shall register the applicant and grant him a registration certificate which shall specify the class or classes of goods for the purpose of section 8(1); and the Form prescribed by r. 3, Central Sales Tax (Registration and Turnover) Rules, 1957, for application for registration, requires the purposes for which the goods were purchased by the dealer to be specified, resale being one such purpose. Section 8(1)(b) provides that every dealer who, in the course of inter State trade or commerce sells to a regis tered dealer other than the Government, goods of the de scription referred to in sub section (3) shall be liable to pay 3.%_ of his turnover as.tax under the Act; whereas, under section 8(2), the tax payable with respect to goods which do not fall within sub section (1) shall be, in the case of declared goods, at the rate applicable to to the sale or purchase of such goods inside the appropriate State and in the case of other goods 10%, or the rate applicable in the State, which ever is higher. Prior to April 1, 1963, section 8(3) stated, that the goods referred to in section 8(1)(b), "(a) in the case of declared goods, are goods Of the class or classes speci fied in the certificate of the registered dealer purchasing the goods as being intended for resale by him; and (b) in the case of goods other than declared goods are goods of the class or classes specified in the certificate of registra tion of the registered dealer purchasing the goods, as being intended for resale by him. " By the Amendment Act (8 of 1963), cl. (a) was omitted and the opening words in cl. (b), "in the case of goods other than declared goods" were also omitted; so that, after April 1, 1963, the goods referred to in section 8(1)(b) are specified in sub section (3) as goods of the, class or classes specified in the certificate of registra tion of the registered dealer purchasing the goods as being intended for resale by him. Section 8(4)(a) says that the provisions of section 8(1) shall not apply to any sale in the course of inter State. trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner, a declaration in the prescribed. Form, duly filled and.signed by the registered dealer to whom the goods are sold containing the prescribed particu lars. Section 9(1) contains a general rule that the tax payable by any dealer on sales effected in the course of inter State trade or commerce would be levied by the Govern ment of India and collected in the State from which the movement of the goods commenced. The proviso to the sub section qualifies this rule in the case of a subsequent sale which is not exempted from tax under section 6(2). and states, .that the tax on such subsequent sale would be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained, or could have Obtained, the Form prescribed for the purpose of section 8(4)(a). Coal is one of the declared goods having been declared under section 14 to be of special importance in inter State trade or commerce. The appellant was a Company carrying on business as coal agents and was registered in U.P. under the U.P. Sales Tax Act, 1948, and the . The appellant arranged for the supply of coal from collieries in W. Bengal and Bihar to consumers in U.P. The collieries sent the coal by 4 1003 SCI/76 26 rail, the railway receipts either in the name of the.appel lant or in the name of the consumer in U.P., and sent the bills and invoices to the appellant 's head office in Calcut ta. The appellant forwarded the railway receipts to the consumers in cases where the receipts were in the names of the consumers, and in cases where the receipts were in the appellant 's name also endorsed them in favour of the consum ers. There was thus, in the latter cases, a subsequent sale of goods in the course of inter State trade or commerce by the transfer of documents of title by the appellant to the consumers in U.P. For the assessment year 1966 67 the appellant claimed that the turnover in cases where the railway receipts had been subsequently endorsed in favour of the consumers in U.P. was not taxable in U.P. The Sales tax Officer by order dated March 27, 1971, accepted the conten tion, relying on a decision of the High Court. But, in subsequent decisions, the High Court held that in cases where a regisetred dealer effected a second sale in the course of inter State trade and commerce, sales tax on the turnover was to be realised in the State where the dealer effecting the sale was registered; and in one of the deci sions it was observed that the decision on which the Sales tax Officer relied had overlooked the proviso to section 9(1 ) of the Central Act. The Sales tax Officer accordingly proposed to rectify the error committed by him and after following the procedure prescribed for rectification of errors appar ent on the face of the record in section 22 of the U.P. Act, passed an order on March 26, 1974, rectifying the mistake and served it on the appellant on March 31, 1974. The appellant challenged the order unsuccessfully in the High Court. In appeal to this Court it was contended: (1) That the declaration prescribed under section 8(4)(a) is necessary when section 8(1) was applicable, but that, after the omission in section 8(3), reference to 'declared goods ' is omitted in that section, so that when section 8 (1)(b) refers to the sale of goods mentioned in section 8(3) the reference is only to goods other than declared goods and hence, when a dealer sells declared goods, he could not have obtained the prescribed declaration and so the proviso to section 9(1) did not apply; (2) Section 22 'of the U.P. Act was not ap plicable as there was no mistake apparent on the face of the record; and (3) The order under section 22 was barred by limi tation, because it was effective only when it was served on the appellant. Dismissing the appeal to this Court, HELD: (1) The 1971 assessment order was wrong. [46 G] The Act and the rules and the prescribed Forms make no distinction between declared goods and other goods, except for the purpose of the rate of tax. Under section 7(3) the regis tration certificate granted to a dealer has to specify the class or classes of goods for the purposes of section 8(1) and it makes no distinction between declared goods and other goods. Sub sections 8(1) and (3) also show that all sales to a registered dealer other than the Government, whether of declared goods or other goods, are covered by section 8(1). Clause (a) was omitted from section 8(3) presumably because it was considered unnecessary to retain it when cl. (b) apparently covered all goods both declared and other than declared. The declaration referred to in section 8(4)(a) is necessary for the dealer to avail himself of the benefit of the rate of tax mentioned in section 8(1). There is no valid reason why the appellant could not have obtained the decla ration in the prescribed Form as required by the proviso to section 9(1 ). Since no .claim for exemption under section 6(2) is made by the appellant, the first order of assessment was contrary to the proviso of section 9(1) and the sales in question were taxable within the respondent State, where the appel lant was registered as a dealer. [45 D H] (2) The 1971 order of assessment was patently errone ous in that it failed to take into consideration the proviso to section 9(1). Therefore, it could be rectified under section 22, U.P. Act. [46 G] 27 (3) The order rectifying the mistake was recorded with in 3 years of the date of the original order as required by section 22 of the U.P. Act. The fact that the order was communi cated, to the appellant on March 31, 1974 could not make any difference. The order of rectification is deemed to be made on the date of communication only for the purpose of count ing the period of limitation for filing the appeal, under section 9 of the U.P. Act. Therefore, in the instant case, the appellant was not affected by the order under section 22 being communicated to it after the expiry not of 3 years from the date of the original order. [47 B; 48 B] Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer [1962]. 3 S.C.R. 676 and Madan Lal vs State of U.P. explained & distinguished.

Criminal Appeal No. 44 of 1961. Appeal by special leave from the judgment and order dated September 16, 1960 of the Calcutta High Court in Criminal Appeal No. 56 of 1958. D.N. Mukherjee, for the appellant, 981 B. K. Bhattacharya, and Sukumar Ghose, for the respondent No. 1. P. K. Chatterjee and P. K. Bose, for the respondent No. 2. 1963. May 10. The judgment of the Court was delivered by DAS GUPTA J. This appeal by special leave is against a decision of the Calcutta High Court. The appellant was examined as a witness for the prosecution in the court of the Additional Chief Presidency Magistrate, Calcutta, in a case instituted by one Mayadas Khanna against the respondent. Chamanlal Mehra and two other persons under sections 504 and 506 of the Indian Penal Code. That case ended in the acquittal of the accused persons on May 10, 1957. On June 28, 1957 an application was made in the Magistrate 's court under section 476 of the Code of Criminal Procedure alleging that this appellant and some of the other witnesses, including Mayadas Khanna, examined for the prosecution in that case had "given false evidence and/or have fabricated false evidence for the purpose of being used in proceedings before the Court and have used false and or fabricated evidence as genuine and/or have forged document and/or have used as genuine forged document and each of the accused has abetted others in commission of these offences, and praying that after the necessary enquiry a complaint be made to the Chief Presidency Magistrate against them for the offences committed by these acts. It appears that the learned Magistrate Mr. jahangir Kabir who had disposed of the criminal case against Chamanlal Mehra was no longer available and the application under section 476 was transferred by the Chief Presidency Magistrate to the file of Mr. J. M. Bir, Presidency Magistrate, for disposal. For this 982 purpose the Chief Presidency Magistrate nominated Mr. J. M. Bir as successor of the trying Magistrate. Mr. Bir was of opinion that section 479A of the Code of Criminal Procedure was a complete bar against any action being taken by him in respect of this appellant and others who were merely witnesses on the side of the complaint in the criminal case. He therefore directed a complaint to be lodged only against Mayadas Khanna, the complainant, in the criminal case under section 504 and section 506 of the Indian Penal Code and rejected the application as against the rest. On appeal by Chamanlal Mehra against the Magistrate 's refusal to make a complaint against the other persons the High Court of Calcutta held that section 479 A of the Code of Criminal Procedure had no application to the offence of committing forgery or being a party to a criminal conspiracy to commit forgery. The High Court considering it expedient in the interests of justice that a complaint should be made against this appellant in respect of an offence under section 467 and section 4671120 B of the Indian Penal Code that he appeared to have committed, set aside the order of the Magistrate in respect of this appellant and made an order that such a complaint be made. The correctness of the High Court 's view that section 479A has no application to offences under section 467 and section 467/120B and does not bar an action being taken against a witness under section 476 of the Code of Criminal Procedure for such offences is challenged before us. The relevant portion of section 479A which was inserted in the Code of Criminal Procedure by the Amendment Act or 1955 runs thus : "Notwithstanding anything contained in sections 476 to 479 inclusive, when any Civil., Revenue or Criminal Court is of opinion that any person appearing before it as a witness 983 has intentionally given false evidence in any stage of the judicial proceedings or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefore and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction. . . There is divergence of judicial opinion on the question whether if action could have been taken by the criminal court under section 479A but was not taken action can still be taken under section 476 of the Code of Criminal Procedure. But that question does not arise for consideration before us. The question here is : Assuming that where action could have been taken under section 479A of the Code of Criminal Procedure but was not taken by the criminal court concerned, for offences of giving false evidence in any stage of a judical proceeding or for intentional fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding, no action can be taken under section 476 of the Code of Criminal Procedure, is it further correct to say that no such action under section 476 of the Code of Criminal Procedure can be taken even in respect of offences of forgery or conspiracy to commit forgery ? 984 We do not see any reason why this should be so. The special procedure of section 479A is prescribed only for the prosecution of a witness for the act of giving false evidence in any stage of a judicial proceedings or for fabrication of false evidence for the purpose of being used in any stage of a judicial proceeding. There is nothing in the section which precludes the application of any other procedure prescribed by the Code in respect of other offences. In applying the principle that a special provision prevails over a general provision, the scope of the special provision must be strictly construed in order to find out how much of the field covered by the general provision is also covered by the special provision. Examining the special procedure prescribed by section 479 A in that light, it is important to notice that the act of intentionally giving false evidence in any stage of a judicial proceeding and the act of fabricating false evidence for the purpose of being used in any stage of a judicial proceeding mentioned in section 479A of the Code of Criminal Procedure are the acts which are made punishable under section 193 of the Indian Penal Code and cognate sections in Chapter XI. It appears clear to us therefore that it is prosecution in respect of section 193 of the Indian Penal Code and cognate sections in Chapter XI that is dealt with under section 479A. If the legislature had intended that the special procedure would apply to offences other than offence under section 193 of the Indian Penal Code and cognate sections in Chapter XI it would have used clear words to that effect. It will be unreasonable to read into section 479A the meaning that where a person who appears to have committed an offence under section 193 of the Indian Penal Code by giving false evidence or fabricating false evidence appears to have committed some other offence also say, forgery, for the very purpose of fabricating false evidence, complaint for such other offence also 985 can be made under section 479A of the Code of Criminal Procedure. We are therefore of opinion that section 479A has no application to prosecution for offences other than an offence under section 193 and cognate sections in Chapter XI and that as regards other offences sections 476, 477, 478 and 479 continue to apply even after the enactment of section 479A. Whether the High Court is right or wrong in its view that the appellant appeared prima facie to have committed offences under section 467 and section 467/120B of the Indian Penal Code has not been argued before us and we express no opinion either way on that matter. The appeal is dismissed. Appeal dismissed.

The appellant was a prosecution witness against the respondents. That case ended in the acquittal of the respondents. An application was moved under section 476 of the Code of Criminal Procedure before the Magistrate against the appellant and some other prosecution witnesses with a prayer that a complaint be made against them. The Magistrate was of opinion that section 479A of the Code of Criminal Procedure was a complete bar to action being taken against the appellant and other prosecution witnesses. So no complaint was filed against them. On appeal the High Court set aside the order of the Magistrate and directed the Magistrate concerned to file a complaint against the appellant in respect of offences under section 467 and section 467/120B of the Indian Penal Code as section 479A of the Code of Criminal Procedure had no application to the facts of the present case. Held that section 479A had no application to prosecution for offences other than an offence under section 193 and cognate sections in Ch. XI and that as regards other offences sections 476, 477, 478 and 479 of the Code of Criminal Procedure continue to apply even after the enactment of section 479A.

Appeal No. 22 of 1956. Appeal by special leave from the judgment and order dated July 4, 1954, of the Custodian General, Evacuee Property, in Revenue Case No. 427/R/ Judl. A. V. Viswanatha Sastri and R. Ganapathy Iyer, for the appellant. H.N. Sanyal,Additional Solicitor General of India, N. S.Bindra and D. Gupta, for the respondent. January 12. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave is directed against the order passed by the respondent, the Custodian General of Evacuee Property, New Delhi, in a revision petition confirming the orders of the subordinate authorities whereby the application made by the appellant for confirmation of the sale transaction in question has been rejected under section 40 (4) (a) of the Administration of Evacuee Property Act, XXXI of 1950. The appellant, Rabia Bai, who is a citizen of India having her residence at Grange, Yercaud, in the Salem District, came to know in 1949 that premises No. 20, Godown Street, G.T., Madras, was for sale. Since the appellant desired to acquire some immoveable property she arranged for 57 450 the purchase of the said premises through her husband. The said premises belonged to one Mohamad Gani Jan Mohamad who had left for Pakistan in 1947 and had settled there. The said Mohamad Gani Jan Mohamad had executed a power of attorney in favour of his nephew, Ahmed Abdul Gani. The said Gani came to Madras in April, 1949, and arranged for the sale, and as a result of negotiations between him and the appellant 's husband the latter entered into a written agreement with the former on April 29, 1949, to purchase the said property for Rs. 2,40,000/ . A substantial part of the consideration to the extent of Rs. 1,50,000 / was paid immediately in the form of cash and bank drafts. Thereafter the sale deed was duly engrossed and sent to Karachi for execution by the vendor. After it was received back duly executed it was presented at the Collector 's Office, Madras, and was duly stamped on June 27, 1949. Income tax clearance certificate had, however, to be obtained before the said document could be registered, and soon after the said certificate was obtained the document was presented for registration and was duly registered on August 11, 1949. The balance of the consideration of Rs. 30,000/ was paid before the registering officer to Mr. M. H. Ganni who also held a power of attorney from the vendor. That is how the appellant obtained title to the property in suit. As we will point out the appellant applied for confirmation of this sale deed and her application has been rejected. Before we refer to the relevant facts in connection with the said proceedings it is material to set out very briefly the history of the application of the evacuee laws to the State of Madras. Within a fortnight after the registration of the sale deed in favour of the appellant Ordinance No. XII of 1949 which had been promulgated on June 13,1949, was extended to Madras on August 23, 1949. Section 25(1) of the Ordinance imposed restrictions on transfers by evacuees. In substance this sub section provided that transfers made by or on behalf of evacuees of any right or interest in their property after such date as may be specified in that behalf with reference to any 451 Province by the Central Government by notification in the official gazette shall not be effective unless they are confirmed by the Custodian. Section 25(2) provided that an application for confirmation of such transfer may be made by the transferor or the transferor or any person claiming under, or lawfully authorised by, either of them to the Custodian within two months from the date of registration of the deed of transfer or within two months from the commence ment of the Ordinance whichever is later. The proviso to the said sub section empowered the Custodian to admit an application even if it was made after the period of limitation prescribed therefor if he was satisfied that there were sufficient reasons for doing so, and it imposed on the Custodian an obligation to record such reasons. Sub section (3) required the Custodian to hold a summary enquiry into the application in the prescribed manner, and authorised him to reject the application for confirmation if he was of opinion that (a) the transaction had not been entered into in good faith or for valuable consideration, or (b) the transaction was prohibited under any law for the time being in force, or (c) the transaction ought not to be confirmed for any other reason. Sub section (4) provides that if the application is not rejected under sub section (3) the Custodian may confirm the transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose. Ordinance No. XII of 1949 was, however, repealed by Ordinance No. XXVII of 1949 which came into force on October 18, 1949. Section 38 of this latter Ordinance corresponds to section 25 of the earlier Ordinance except in one material particular. It provides that no transfer of any right or interest in the property made in any manner whatsoever after the 14th day of August, 1947, by or on behalf of an evacuee as therein specified shall be effective unless it is con firmed by the Custodian., In other words, whereas section 25 of the earlier Ordinance left it to the Central Government to specify the relevant date in reference to any Province by notification in the official gazette, section 38(1) has prescribed the date for all the Provinces 452 where the Ordinance applied. The rest of the relevant provisions of section 38 are the same as those of section 25 of the earlier Ordinance. On April 17, 1950, this Ordinance was in turn ,repealed by Act XXXI of 1950 by section 58. Section 40(1) and (4) are similar to the relevant provisions of sections 25 and 38 of the earlier Ordinances. One of the changes made is in regard to the relevant dates prescribed by section 40(1). Under section 40(1) the transfers which are affected by its provisions are those which are made after the 14th day of August, 1947, but before the 7th day of May, 1954; and in respect of them the said section provides, inter alia, that they shall not confer any rights on the parties thereto, if at any time after the transfer the transferor becomes an evacuee within the meaning of section 2 or the property of the transferor is declared or notified to be evacuee property within the meaning of this Act unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act. Section 40(4) deals with an application made under sub section (1) for the confirmation of the transfer. This sub section and its three clauses (a), (b) and (c) correspond to sections 25(3) (a), (b) and (c) and 38(4)(a), (b) and (c) of the two earlier Ordinances. Thus it is clear that the relevant provisions, which conferred power on the Custodian to hold an enquiry on the application made for the confirmation of the transfer and to reject confirmation in certain cases, continued to be the same. The position, therefore, is that Ordinance No. XII of 1949 which was extended to Madras on August 23, 1949, was in operation only until October 18, 1949. Thereafter Ordinance No. XXVII of 1949 took its place, and in turn this Ordinance was repealed by Act XXXI of 1950 on April 17, 1950. The application made by the appellant for confirmation of her purchase has been dealt with under the relevant provisions of the Act, and we would therefore refer to the said provisions hereafter. On December 19, 1949, the appellant applied for confirmation of the sale transaction in her favour. This application was resisted by the tenants who urged several grounds in support of their plea that the 453 transfer should not be confirmed. It appears that on January 11, 1951, the Assistant Custodian of Evacuee Property, Madras City, had declared the property of the vendor to be evacuee property since he was of the opinion that the vendor 's case fell within the four corners of the definition of " an evacuee " under section 2(d)(ii) of the Act. The declaration that the vendor 's property was evacuee property was made under section 7(1) of the Act. The Assistant Custodian considered the appellant 's application for confirmation of the transfer in the light of the declaration already made by him that the vendor was an evacuee and that his property was evacuee property. He referred to the relevant features of the transaction and came to the conclusion that he would not be justified in confirming it. It appears that in reaching this conclusion he relied on the provisions of section 40(4)(c) of the Act. In his opinion the feverish hurry disclosed by the conduct of the vendor attracted the provisions of section 40(4)(c). The order refusing to confirm the transaction was passed on July 31, 1951. The appellant challenged the correctness of this conclusion by preferring an appeal before the Custodian. The Custodian found in favour of the appellant that the sale transaction in question was supported by valuable consideration; even so he proceeded to examine the question as to whether it could be said to have been entered into in good faith. In dealing with this question the appellate authority considered the fact that the vendor had left for Pakistan in June, 1947, evidently on account of civil disturbances or in fear of such disturbances and that it was obvious that he was permanently settled in Pakistan. According to the appellate authority the vendor was desirous of disposing of his properties in India in order to convert them into cash and take them away to Pakistan. In this connection reliance was placed on a letter written by the vendor to Mohideen on July 4, 1949. In this letter the vendor had stated that " if the matter is delayed there would be many sort of new difficulties as you know that the Government are passing new rules every day ". He took the view that this letter 454 clearly disclosed that the vendor 's intention was to dispose of his properties as quickly as possible so as to evade the restrictions of the evacuee laws which he apprehended would be extended to Madras any day. this finding the appellate authority came to the conclusion that the transaction had been entered into otherwise than in good faith, and so it could not be confirmed under section 40(4)(a). The appellate judgment shows that according to the appellate authority the request for confirmation could be rejected also under section 40(4)(c) of the Act. This order was pronounced on February 4,1953. The appellant then moved the respondent, the Custodian General in his revisional jurisdiction. The respondent considered the matter afresh, and agreed with the finding of 'the appellate authority that though the transaction was supported by valuable consideration it could not be said to have been entered into in good faith. In support of this conclusion he relied on the conduct of the vendor, the haste with which the transaction was attempted to be completed and the anxiety disclosed by him in his letter to Mohideen. In substance the respondent came to the conclusion that the vendor wanted to evade the restrictions of the evacuee law which he knew would soon be extended to Madras, and that showed that he was not acting in good faith. It is on this view that the revisional application preferred before him by the appellant was dismissed by him on July 4, 1954. In his opinion the appellant 's case fell under section 40(4)(a) of the Act. He did not, therefore, consider the question about the applicability of section 40(4)(c). It is clear that if a transaction is affected by absence of good faith either in the vendor or the vendee its confirmation may properly be rejected under section 40(4)(a); in other words, good faith is required both in the vendor and the vendee. In that sense the provisions of section 40(4)(a) are more rigorous and stringent than those of section 53(1) of the Transfer of Property Act. Under the latter section which deals with fraudulent transfers the rights of a transferee in good faith and for consideration are expressly protected; that, 455 however, is not the position under section 40(4)(a). Therefore the fact that the appellant paid valuable consideration for the transaction and is not shown to have acted otherwise than in good faith in entering into the transaction would not justify her claim for confirmation of the said transaction if it is shown that the vendor had not acted in good faith in entering into the said transaction. The fact that consideration was paid by the appellant and that she was acting in good faith may perhaps be relevant in determining the character of her conduct in regard to the transaction; but it would not be relevant or material in determining the character of the conduct of the vendor in relation to the transfer. This position is not seriously disputed before us. Mr. Sastri, however, contends that in considering the good faith of the vendor it would be necessary to bear in mind that at the relevant time when negotiations were going on between the parties in respect of the transaction in question evacuee law had not been applied to Madras, and so evacuees like the appellant 's vendor were absolutely free to deal with their properties as they liked. He also attempted to argue that even where the evacuee law applied, the policy adopted by the Government of India was to confirm transfers made by Mohammedan evacuees in favour of Indian nationals unless a certificate signed by the prescribed income tax authority certifying that the transferor had paid all taxes due from him to the income tax department in respect of his property, business or undertaking, or has made satisfactory arrangements for the payment thereof, had not been produced, and unless he had failed to pay any other dues outstanding against him in the Custodian 's register in respect of his own property and third party claims recognised exparte by the Custodian. This argument is based upon a copy of the press note alleged to have been issued by the Government of India in the Ministry of Rehabilitation on May 13, 1949. On the other hand, the learned Additional Solicitor General has relied on a copy of a circular issued by the Government of India on March 9, 1950, where it has been stated that the instructions 456 issued by the Government of India are subject to other requirements of section 38(4) of the Central Ordinance No. XXVII of 1949 ; in other words, whatever may be the nature of the circulars and directions issued by the Government of India, the appropriate authorities administering the provisions of the evacuee law had to deal with the matters brought before them under the relevant provisions of the said law. We do not think we can attach much importance to the argument that even where the evacuee law applied confirmation of sale transactions was intended to be automatic subject to the satisfaction of the two conditions specified in the press note. We are bound to assume that the question about confirming sale transactions was required to be, and was in fact, dealt with by the appropriate authorities under the relevant statutory provisions which were in force at the material time. It is, however, true that no evacuee law had been extended to Madras at the time when the impugned transaction was completed, and that naturally raises the question as to whether if a transaction had been entered into deliberately and consciously with the object of evading the application of evacuee law which it was apprehended would soon be extended to Madras, does that fact attract the provisions of section 40(4)(a) of the Act? As we have already indicated the respondent has answered this question in the affirmative, and Mr. Sastri contends that this conclusion is erroneous in law. Mr. Sastri 's argument is that the expression " good faith " in section 40(4)(a) should be construed in the sense attributed to the said expression by section 3, sub section (22) of the General Clauses Act, X of 1897. The said provision lays down that a thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not. The argument is that the vendor could not be said to have acted dishonestly when no evacuee law applied to Madras, and an intention to avoid a law which may be applied to Madras in future cannot be said to introduce an element of dishonesty in his conduct. In our opinion this argument cannot be accepted. In this connection it is necessary to bear in mind that section 3 of the General 457 Clauses Act itself provides that the definitions prescribed by the said section are applicable " unless there is anything repugnant in the subject or context ", and so it would not be unreasonable to hold that the content of the expression " good: faith " would depend,, substantially on the context of the statute which uses it. In determining the denotation of the said expression in section 40(4)(a) it would be essential to take into account the scope and effect of the main provisions of section 40(1). As we have already noticed, this section provides, inter alia, that no transfer made after the 14th day of August, 1947, shall be effective so as to confer any rights in respect of the said transfer on the parties thereto if, at any time after the transfer, the transferor becomes an evacuee within the meaning of section 2, or the property of the transferor is declared or notified to be An evacuee property within the meaning of the Act, unless the transfer is confirmed by the Custodian in accordance with the provisions of this Act. It would thus be clear that all transfers made after the 14th day of August, 1947, but before the 7th day of May, 1954, are hit by this section, and that obviously would bring within the mischief of the section a large number of transfers effected at a time when no evacuee law was in force in respect of them. Reading section 40(1) and (4) together it appears that the transfers hit by the former provision would be valid only if they are confirmed under the latter provision. It is possible that a transfer made during the prohibited period may have been entered into in good faith or was for valuable consideration and did not attract any of the provisions contained in cls. (a), (b) and (c) of a. 40(4). In such a case merely because it was affected within the prohibited period it would not become void and the Custodian may have to confirm it; but where such a transfer attracts the provisions of section 40(4)(a) for instance, it would not be affirmed and it would remain inoperative. This shows that the main object of the Act was to preserve the property of persons who had migrated to Pakistan till the Government of India could come to some understanding with the Pakistan Government in regard to adjustment of claims of Indian 58 458 evacuees in respect of the properties left by them in Pakistan. The idea then presumably was that the two Governments should agree on the valuation of the evacuee properties left by evacuees in the two respective countries and the difference in the said valuation should be amicably adjusted between them. After such adjustment was made it was intended to compensate the evacuees in regard to the loss incurred by them in respect of the properties left by them in the two respective countries. That this intention did not succeed is an other matter. There can, however, be no doubt about the policy and object of the Act, and in determining the content of the expression " good faith " in the context of the main provision of section 40(1) this object and policy of the Act must be borne in mind. Section 40(4) refers to three kinds of cases where the transfer may not be confirmed; cl. (a) deals with transactions which are not entered into in good faith or for valuable consideration; cl. (b) deals with transactions which are prohibited under any law for the time being in force; and cl. (c) deals with cases of transactions which are not confirmed for any other reason. It would thus be seen that the scope of the three clauses is very wide. It is not only transactions prohibited under any law that fall within the mischief of section 40(4); but transactions which are not entered into in good faith or for valuable consideration also fall within its mischief Now, if the test prescribed by section 3(22) of the General Clauses Act as interpreted by Mr. Sastri is held to be relevant a large number of transactions may have to be confirmed even though they are shown to have been deliberately entered into with the object of evading the provisions of section 40(1). In our opinion, the fact that the evacuee law had not been extended at the relevant time to Madras would not be decisive in the matter. It was well known that the said law was being extended from Province to Province as it was deemed necessary, and indeed the letter written by the vendor to Mohideen clearly shows that the vendor knew as much. The history of the evacuee laws passed in several States and by the 459 Central Government and Legislature from time to time shows that the Legislatures were attempting to meet with an unprecedented problem, and the laws passed by them in India and Pakistan at the material time made it perfectly clear to the evacuees from both the countries that the two countries were adopting appropriate legislative measures to protect the evacuee properties and prevent their transfers. Therefore, if a vendor sold his property not for any necessity or for any other legitimate purpose but solely with the object of converting it into cash and removing it to Pakistan, that clearly was intended to defeat the provisions of the Act which he knew would soon be extended to Madras, and so it would be difficult to hold that he was acting honestly within the meaning of section 40(4)(a) of the Act. An intention to defeat the provisions of the Act cannot be said to be honest in the context. If despite his intention to defeat the application of the Act a transaction is upheld as entered into in good faith many transactions may escape the application of section 40(1), and that clearly would defeat the purpose of the Act. It is significant that though the provisions of section 40(1) are drastic they have been deliberately made retrospective, and that emphatically brings out the aim and object of the Act; and it would be unreasonable to ignore this aim and object of the Act in construing the expression " good faith " in section 40(4)(a). We would, therefore, hold that having regard to the aim and object of the emergency legislation with which we are concerned in the present case the expression " good faith " used in section 40(4)(a) has been property construed by the respondent when he held that a deliberate intention to defeat the apprehended application of the evacuee law which was responsible for the transfer in question brings the transfer within the ' mischief of section 40(4)(a). The result is the appeal fails and is dismissed with costs. Appeal dismissed.

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

Appeal No. 349 of 1966. Appeal by special leave from the judgment and order dated December 17, 1963 of the Punjab High Court,. Circuit Bench at Delhi in R.F.A. No. 164 C of 1963. 1003 section V. Gupte and A. N. Goyal, for the appellants. C. B. Agarwala, H. K. Puri and B. N. Kirpal, for respondent No. 1. The Judgment of the Court was delivered by Hegde, J. The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No. 15 of 1943. The trial court answered that question in the affirmative but the High Court has taken a contrary view. Hence this appeal. The facts of the case leading up to this appeal, briefly stated, are as follows : One Krishen Gopal had lease hold rights in the suit pro perties. After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties. Each one of them claimed that those properties had been gifted to him by Krishen Gopal. As a result of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour. In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal. The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma. The trial court dismissed the suit but in appeal the decree of the trial court was reversed and the suit was decreed as prayed for. That decision was confirmed by the High Court and thereafter by this Court in, Civil Appeal No. 164 of 1953. After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court. Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways. When everyone of those efforts failed Rangi Lal Verma the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint. family consisting of Banwari Lal Verma and his sons. This suit was dismissed for non prosecution. It is only thereafter the present suit has, been filed by one of the sons of Banwari Lal , Verma claiming partition in the suit properties on the allegation that the same had been gifted by, Krishen, Gopal to. his joint family. 1004 The gift put forward by the plaintiff is said to have been made in 1928. Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time. was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit. Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons. The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effort is one, and continuous. The suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case. In the Civil Suit No. 15 of 1943, there was no room for con troversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family. Therein the controversy was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma. As seen earlier Banwari La] Verma pleaded that they had been gifted in his favour. He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity. The properties that were in dispute in the former suit as well as in the present suit are identical properties. It cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family. It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit. That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit. It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued as representing the whole family, see Lalchand vs 1005 Sheogovind(1); Ram Kishan vs Ganga Ram(2); Prithipal V. Rameshwar(3); Surendranath vs Sambhunath(4). The suit by or against the manager will deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa(5). See also Venkakanarayana vs Somaraju(6). It is not not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A Karta can represent the family effectively in proceeding though he is not named as such, see Mani Sahoo vs Lokanath(7). For the reasons mentioned above this appeal is allowed and the judgment and decree of the High Court is set aside and that of the trial court restored. The respondent shall pay the costs of the appellants in all the courts. V.P.S. Appeal allowed. (1) (1929) I.L.R.8, Pat. 788. (2) , Lab. (3) , Luck. (4) , Cal.

A suit between J the father of appellants and B the father of respondents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favour of J and the decree was confirmed by this Court. After various attempts by B and after his death by his sons, to defeat J 's rights, one of B 's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of which B was the karta. On the question whether the decree in the earlier suit operated as res judicata. HELD : It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was suing or was being sued as a manager,. It is sufficient if the manager was in fact suing or was being sued as representing the whole family. A suit by or against the manager will be deemed to be one brought by or against him as representing the family if the circumstances show that he was the manager and the property involved in the suit was family property. [1004 H; 1005 A B] In the present, case, B must be deemed to have been sued in the previous suit as the karta of his family, because : (a) the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta, (b) there was no conflict of interest between B and his sons and there was no allegation that B did not safeguard the family 's interest while contesting the previous suit; and (c) B did not claim in the earlier suit that the gift was to him in his individual capacity. [1004 A C; 1005 C] Lalchand vs Sheogovind, Pat. 788, Ram Kishan vs Ganga Ram, Lah. 428, Prithipal vs Rameshwar, Luck. 288, Surendranath vs Sambhunath, Cal. 210, Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa, I.L.R. , Venkatanarayana vs Somaraju, A.I.R. 1937 Mad. 610 (F.B) and Mani Sahoo vs Lokanath, A.I.R. , referred to.

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

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

Appeal No. 230 of 1964. Appeal by special leave from the judgment and order dated January 11, 1961 of the Madras High Court in section C. Petition No. 165 of 1960. R. Ganapathy Iyer and R. Thiagarajan, for the appellant. A. V. Rangam, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by special leave is against the order,, of the High Court of Madras dated January 11, 1961 refusing the certificate under article 133(1)(a) and (b) of the Constitution. 155 The authorities appointed under the Hindu Religious and Charitable Endowments Act, Madras Act 11 of 1927 having held that the premises No. 29 South Masi Street, Madurai, wherein the idol of Sri Srinivasaparumal and certain other idols were located constituted a temple within the meaning of the said Act, the appellant filed an application in the District Court for a declaration that the said premises were private property and for an order setting aside the said decision. The said application was by an order of the High Court converted into a suit. The main question in the suit was whether the said premises could be said to be a temple as defined by Madras Act 19 of 1951. The District Judge, Madurai, decreed the suit in favour of the appellant holding that the aforesaid premises did not constitute a temple and set aside the decision of the said authorities. On appeal, the High Court reversed the said judgment and decree and found that the premises in question constituted a temple. The appellant thereupon filed a petition for leave to appeal to this Court and submitted that the value of the subject matter of dispute in the District Court as also in appeal in the High Court was more than Rs. 20,000/ and that the judgment of the High Court having reversed the judgment and decree of the Trial Court he was entitled to leave under article 133(1)(a) and (b). The High Court dismissed that application on the following grounds: (a) that the subject matter of the dispute, whether it was a private or a public temple could have no market value and therefore was incapable of valuation; (b) that cl. (b) of article 133(1) could not apply as the judgment and decree passed by it did not involve directly or indirectly a claim or question res pecting property of the value of Rs. 20,000/ or more and (c) that the appeal did not involve any substantial question of law. For the time being we are concerned with grounds (a) and (b) and not with ground (c) is the contention raised by Mr. Ganapathy Iyer for the appellant was that the refusal to grant leave by the High Court under either of the clauses (a) and (b) of article 133(1) was not correct. The point for consideration is whether the High Court was right in holding that the property in question whether as a private or a public temple was incapable of valuation as it could have in either case no market value. It may be observed that the appellant claimed that the property belonged to the Thoguluva family and he was in management thereof for and on behalf of the family. The suit in the first instance was filed by him in the form of an application, being O.P. No. 37 of 1950 under section 84(2) of Madras Act 11 of 1927. Under that Act only a fixed court fee was payable. That being so, the appellant did not have to pay court fees as it would in the case of an ordinary suit on a valuation made by him therefor. The application was subsequently converted into a suit by an order of the High Court. He was therefore entitled 156 to contend at the time of the leave application that the property in dispute was of the value of not less than Rs. 20,000/ . It does not appear to be in dispute that the site of the Mandapam and the structure standing thereon was originally the property of one Kuppaiyan and his undivided sons. The appellant 's case was that in execution of the decree in Suit No. 650 of 1882 passed against the said Kuppaiyan the property was sold by public auction and purchased by Thoguluva Thirumalayyan, the appellant 's ancestor, for a sum of Rs. 1,060/ . The original mandapam was thereafter improved upon and some additional structures e.g., shops and other constructions were added, the expenses for such repairs and additions having been met by the descendants of the said Thoguluva Thirumalayyan, and therefore the property belonged to and was an alienable private property of the family. On the other hand, the case of the respondents in their written statement was that the property was a public temple for public religious worship and that the allegation of the plaintiff that it was a private property capable of alienation was "false and misleading." The case of the appellant was accepted by the Trial Court but was rejected by the High Court and the High Court held that the property was a public temple within the meaning of Madras Act 19 of 195 1. The dispute between the parties was thus centred round the question whether the property was the private alienable property of the said family or was a public temple as held by the High Court. There was evidence that the shops subsequently constructed as aforesaid were let out to tenants for a number of years and property taxes were levied thereon by the Madhurai Municipality, presumably on their rateable value. We may also mention here that in his application to this Court for directing an inquiry into the value of the property under 0. 45, r. 1 of the Code of Civil Procedure the appellant has stated that he has in his possession municipal receipts showing the property tax paid to the Madurai Municipality. According to the appellant, property tax for the half year ending September 30, 1950 was Rs. 94 0 6 and for the half year ending March 31, 1961 it was Rs. 130.36nP. According to him the half yearly tax would be equivalent to one month 's rent and on that basis the annual rental value would come to Rs. 1,126 6 0 in 1950 and to Rs. 1,672.32nP in 1961. If that be so, capitalising that value at twenty times the annual rental value, the value of the property would come to more than Rs. 20,000/ . The refusal of the High Court to grant leave was based on the observation that whether the property is a private or a public temple, it was incapable of valuation. But as observed earlier the appellant 's case was that the subject matter of dispute in the suit was the private property of the said family and that it was alienable property and therefore capable of a valid transfer. That being 157 the dispute between the parties, the High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation. The subject matter of the dispute has to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint, the property is the private property of the said family capable of alienation, the High Court ought to have valued the property accordingly though according to the respondents the property was inalienable and was a public temple. The High Court was thus wrong in proceeding on the aforesaid assumption. We would therefore allow the appeal, set aside the order passed by the High Court and remand the case to the High Court to decide the application for leave in accordance with the observations made in this judgment. The High Court may either hold the inquiry itself or remit the case to the Trial Court to hold such inquiry and report to it. Accordingly, the appeal is allowed and the High Court 's order is set aside. The respondents will pay to the appellant the costs of this appeal. Appeal allowed.

The respondent was a trader in hider. and skins and the appellant was an exporter. During the period January to August 1949, there were several contracts between them. The contracts mentioned that the appellant was buying the goods for resale in U.K. The price quoted was C.I.F. less 2 1/2 %. The contracts also provided that time should be the essence of the contract, that the sales tax was on respondent 's ac count, that the respondent was answerable for weight as well as quality, that there should be a lien on the goods for moneys advanced by the appellant, and that any dispute regarding quality should be settled by arbitration according to the custom of the trade in the U.K. The course of dealing between them showed that before the goods were shipped they were subjected to a process of trimming and reassortment in the godowns of the appellant with a view to make them conform to London standards, that the goods were marked with the respondent 's mark and that premiums were paid to the respondent in case the goods supplied were of special quality. The respondent filed a suit on the original side of the High Court praying that an account should be taken of the dealings between himself and the appellant on the ground that the appellant was his agent. The appellant 's case was, that there was an outright purchase of the respondent 's goods and that the appellant was not an agent of the respon dent. The trial Judge dismissed the suit. On appeal the High Court held that the appellant acted as a del credere agent of the respondent and directed the taking of accounts. In appeal to this Court, it was contended by the appellant that: (i) the terms of the contracts and the course, of dealing between the parties showed that the appellant was not the agent of the respondent but was an outright purchaser of the goods, and (ii) that there was a settled account between the parties which the respondent could not reopen. HELD:(i) The appellant was the purchaser of the respondent 's goods under the several contracts and not his agent for sale, and therefore, the view taken by the High Court was not correct. The essence of sale is the transfer of title to the goods for price paid, or to be paid, whereas the essence of the agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods, and the agent is liable to account for the proceeds. On the terms of the contract and the course of dealing between the parties, the contract was not one of agency for sale but was an agreement of sale. The appellant purchased the goods from the respondent 2 1/2% less and sold them to the London purchasers at the full price so that the 2 1/2 % was its margin of profit and not its agency commission. The fact that the goods were sent with the respondents 2 mark, that the premium was paid outside the terms of the contract, that the appellant considered it fair and just to pay the whole of the premium to the respondent or to share it with him, and that additional burden with respect to weight and quality was thrown on the respondent, have no significance, in deciding the nature of the contract. The clause with regard to lien is consistent with the transac tion being an outright sale, because the appellant was acting as creditor of the respondent and charged interest on advances only till the date of shipment of the goods when it became the purchaser of the goods from the respondent. An agent can become a purchaser when the agent pays the price to the principal on his own responsibility. The clause regarding arbitration in the U.K., though unusual, is not also inconsistent with there being a sale of goods between the parties in India. [3H 4B; 5G H.] (ii) The accounts were settled between the parties and the respondent could not be allowed to reopen the settled account as there was no proof of fraud, mistake or any other sufficient ground. Accounts are "settled or started" if they are submitted and accepted as correct by the other side to whom they have been rendered. For almost every shipment the appellant prepared a full and detailed statement of account and sent it to the respondent. The account contained items both of credit and debit and the figures on both sides were adjusted between the parties and a balance struck and the respondent accepted their accuracy and never raised any objection to them. [11H; 14 E F]. Bishnu Chand vs Girdhari Lal, (1934) L. R. 61 I.A. 273 and Laycock vs Pickles, 4 B and S 497, applied.

Appeal No. 3607 11 of 1988. From the Judgment and Order dated 12.7.1988 of the Calcutta High Court in F.M.A.T. Nos. 2301, 2326 and 2327 of 1986. Tapas Ray, Dr. Shankar Ghosh, B. Dutta, H.K. Puri, S.K. Nandy, Sushil Kr. Jain and R.K. Joshi for the Appellants. G.L. Sanghi, N.R. Chowdhary, Som Nath Chatterjee for the Respondents. The Judgment of the Court was delivered by VERMA, J. These appeals involve for decision a common question, relating to fixation of seniority of certain Sub Assistant Engineers appointed ad hoc temporary Assistant Engineers for a specified period in the P.W.D. and the Irrigation and Waterways Department of the Government of West Bengal, vis a vis the direct recruits in the cadre of Assistant Engineers appointed regularly according to rules in these departments prior to the regularisation of the ad hoc appointees. The question was raised by the ad hoc appointees who were regularised subsequently, by filing writ petitions in the Calcutta High Court claiming revision of their seniority, reckoned from the date of their initial ad hoc appointment. These writ petitions were dismissed by a Single Bench of the High Court but the writ appeals were allowed by a division bench, resulting in grant of the relief claimed by the ad hoc appointees. It is these judgments, involving the common question of the merit of the claim of the ad hoc appointees for seniority, reckoned from the date of their initial ad hoc appointment, in he facts and circumstances of the case, which are challenged in these appeals. 925 Civil Appeal No. 3607 of 1988 is by the State of West Bengal while Civil Appeal No. 3610 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the P.W.D. Civil Appeal No. 3608 of 1988 is by the State of West Bengal while Civil Appeal No. 3611 of 1988 is by the adversely affected direct recruits who were respondents in the writ petition filed by the ad hoc appointees in the Irrigation and Waterways Department. Civil Appeal No. 3609 of 1988 is a similar matter, also relating to the Irrigation and Water ways Department. The material facts are only a few, and may be stated with reference to the P.W.D., pointing out the minor difference on facts between the ad hoc appointments made in the PWD and Irrigation and Waterways Department, which are not significant on the conclusion reached. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of West Bengal made Rules by Notification No. 94 dated 20th August, 1959 for the regulation of recruitment to the Engineering Services under the Department of Works and Buildings of the Government of West Bengal. In the present case, we are concerned with the cadre of Assistant Engineers, for which the relevant rules are : "Rule 4: There will be an examination held by the Public Service Commission, West Bengal, for recruitment to posts of Assistant Engineer. A certain proportion of such posts as may be determined by the Works and Buildings Depart ment from time to time, will be filled up by candidates, in order of merit, who will be given a higher initial pay of Rs. 325 per month in the time scale of pay for Assistant Engineers. In order to be eligible for such higher initial pay a candidate must secure 66 per cent or above of the total marks in the said examination. Rule 9: Recruitment to the permanent posts of Assistant Engineer shall be made as follows 926 (a)Forty per cent of vacancies by direct recruitment on the results of a competitive examination to be conducted by the Public Service Commission, West Bengal as mentioned in rule 4 supra: Qualifications : (i)A degree in Civil Engineering of a recognised University or any other qualification in Civil Engineering exempting a candidate from appearing in Sections A and B of Associate Membership Examination of the Institute of Engineers (India). (ii)One year 's post graduate practical training or study or research or practica l engineering experience. (iii)Age not more than 27 years on the 1st August of the year in which the recruitment examination is held. The age limit shall in the case of candidates who have been in the employ of the Central or the State Government or of the Damodar Valley Corporation or any other statutory body recognised for the purpose by the Government and are not out of such employment for more than a year on the said date be releasable to the extent of the actual period spent (continuously) in such employment. This relaxation of age limit will not be permitted to a candidate who had already appeared in the examination thrice. No candidate will be allowed to take more than three chances. Departmental candidates are ' eligible to apply provided they fulfill the requisite qualifications. (b)Forty per cent by selection from amongst directly recruited temporary Assistant Engineers who have rendered two years satisfactory service, selection wing made by the Public Service Commission, West Bengal. 927 (c)Twenty per cent by promotion of confirmed Overseer Estimators. Rule 10 Recruitment to temporary posts of Assistant Engineer shall be made as follows . (a) Eighty per cent of the vacancies are to be filled by direct recruitment on the results of a competitive examination referred to in rule 9(a) above. (b) Twenty percent by promotion of confirmed Overseer Estimators. Rule 11 Notwithstanding anything contained in these rules the Governor may in case of emergency fill up vacancies in the posts of Assistant Engineer both permanent and temporary by advertisement and interview, through the Public Service Commission, West Bengal. Rule 12 An Overseer Estimator shall not be promoted as a temporary Assistant Engineer unless he has rendered 10 years services. To be eligible fo r promotion he must pass a written and oral examination which will be conducted by the Public Service Commission, West Bengal, and will be of the same standard as Professional Examination referred to in Chapter VI of the Service (Training and Examination) Rules, West Bengal, Overseer Estimators who have been confirmed in their posts and have tendered 8 years ' service including temporary service in that post shall be eligible to sit for such examination, a panel of Overseer Estimator fit for promotion as temporary Assistant Engineers shall be maintained in consultation with the Public Service Commission, West Bengal. " Under these Rules, recruitment to the permanent posts of Assistant Engineers was required to be made under Rule 9, while Rule 10 governed 928 recruitment to the temporary posts of Assistant Engineers. Rule 11 provided for emergency appointment by advertisement and interview through the Public Service Commission. It is clear from these Rules that appointments to all the posts, permanent and temporary were to be made according to the prescribed procedure, on the basis of a competitive examination conducted by the Public Service Commission; and even the appointments made in an emergency governed by Rule 11 were to be made 'by advertisement and interview through the Public Service Commission '. Any appointment to a permanent or temporary post of Assistant Engineer, which was not made in accordance with Rule 9 or 10 or 11 was, therefore, not in accordance with these Rules. The writ petitioners in all these matters were duly appointed Sub Assistant Engineers who were earlier called Overseer Estimators as described in the Rules, and though initially diploma holders, having obtained the prescribed degree, were eligible for appointment as Assistant Engineers. The writ petitioners (respondents in these appeals) were appointed temporary Assistant Engineers on ad hoc basis, initially for a period of six months in the PWD between. 1974 to 1976 and in the Irrigation and Waterways Department between 1972 to 1978. According to writ petitioners themselves, their claim for seniority is based on direct recruitment to the post of Assistant Engineer, and not as promotee from the next below cadre of Sub Assistant Engineers in the promotion quota specified for them, in the Rules. It is, therefore, the claim of the writ petitioners for seniority from the date of their initial ad hoc appointment, as direct recruits, and not as promotees in the promotion quota, which has to be considered. The ad hoc appointment of all the writ petitioners was in identical terms and, therefore, it is sufficient to refer merely to the relevant part of one such notification dated 10th May, 1974, as illustrative of the nature of their ad hoc appointment. The relevant part of the notification is as under "The Governor is pleased to appoint the following Sub Assistant Engineers of the P.W.D. now posted in the Directorates/offices mentioned against each as tempy. Assistan t Engineers in the West Bengal Service of Engineers under the P.W. Department, on ad hoc basis, for a period of 6 (six) months with effect from the dates of joining or until further orders whichever is earlier. 929 4. The appointment is purely on ad hoc basis and he will have to revert to the post of S.A.E. if he is not selected for regular appointment as Assistant Engineer through the P.S.C." The initial ad hoc appointment was extended periodically, on the same terms, during the entire period upto 26.2.1980. During this period, several opportunities were given to these persons to appear before the Public Service Commission to satisfy the condition attached to their ad hoc appointment, but none of the writ petitioners complied with the requirement, declining throughout to appear before the Public Service Commission. Strangely, the State Government requested the Public Service Commission to permit regularisation of the services of these ad hoc, appointees as Assistant Engineers, without being selected for regular appointment by the Public Service Commission, but the Public Service Commission firmly turned down that request. The PSC 's letters dated 4.5.1978, 10.10.1979 and 22.11.1979 contain such refusal. The Government, even then, took the decision on 26th February, 1980 to regularise these persons as Assistant Engineers, and, consequently, took three simultaneous steps on 26.2.1980: the requirement in the rules of consultation with the P.S.C. was dispensed with, for them; they were absorbed as temporary Assistant Engineers; and rule under Article 309 was made, providing for their seniority as temporary Assistant Engineers, with effect from the same date i.e. 26.2.1980. This rule clearly provided, that all persons appointed regularly in accordance with rules, prior to 26.2.1980, as Assistant Engineers would rank above the ad hoc appointees so absorbed with effect from 26.2.1980. This decision of the Government has also been implemented. Surprisingly, the grievance, even then, of the writ petitioners is, that their seniority should be reckoned not only from 26.2.1980, as has been done, but from the date of their initial ad hoc appointment made temporarily in the above manner, notwithstanding the conditions attached to that appointment under the rules, and their failure to fulfill the same. It is sufficient to refer to certain portions of the PSC 's reply dated 4th May, 1978 to the State Government 's proposal for regularisation of ad 930 hoc appointments, reiterating the strong objection of PSC that 'the appointments had been ab initio irregular, illegal and unconstitutional. ' Relevant extract from the reply is as under: "2. It appears that the cases of 27 of 36 ad hoc appointments of Assistant Engineer (29 in the Civil Branch and 7 in the Electrical Branch) under the Public Works Department as made between May, 1974 and June, 1975 were earlier reported to the Commission in January, 1975. The Commission informed Government that the appointments had been ab initio irregular, illegal and unconstitutional and requested Government to make regular recruitment to the posts after advertisement (vide Secretary 's D.O. No. 370 PSC dated the 8th March, 1975). The Commission also brought the irregularity to the notice of the Chief Secretary whose reply in this regard was as follows (vide Chief Secretary 's letter No. 938/75 CS dated the 22nd August, 1975 issued by Public Works (Estt.) Department : '. The ad hoc appointments in question were made by the Public Works Department in the exigencies of public service pending recruitment of Assistant Engineers through the Public Service Commission, West Bengal and on the express condition that the concerned of ficers would have 'lo revert if they failed to be selected by the Public Service Commission for appointment as Assistant Engineers. " 3.It appears that of the 29 ad hoc Assistant Engineers (Civil) only 3 applied in response to the Commission 's subsequent advertisement. None of them however appeared at the preliminary written test held by the Com mission in that connection. As regards the 7 posts of Assistant Engineers (Electrical) it appears that all the 7 ad hoc appointees applied in response to the Commission 's advertisements issued in 1975 but that none of them was able to obtain even the pass mark at the interviews. In the above context it is not clear how Government can 931 now sponsor a proposal for regularisation of the appointment of these ad hoc appointees. " In this reply it was finally said that the illegality of these ad hoc appointments could not be cured. It was after the strong stand taken by the PSC, that the State Government took the aforesaid action on 26.2.1980 to dispense with the requirement of consultation with the PSC, and regularise appointments of ad hoc appointees with effect from 26.2.1980. The Rules for seniority made by the notification dated 26.2.1980 issued in exercise of the power conferred by the proviso to Article 309 of the Constitution, are as under "1. These rules may be called the Seniority Rules for the Assistant Engineers recruited in the Public Works Department otherwise than through the Public Service Commission, West Bengal during the period from May 1974 t o June,1976. 2. The Assistant Engineers under Public Works Department who were recruited otherwise than through the Public Service Commission, West Bengal during the period from May 1974 to June 1976 and who were excluded from the purview of the Public Service Commission, West Bengal under this department notification No. 1299 F dated 26.2.1982, shall be deemed to be junior to any Assistant Engineer who was selected by the Public Service Commission, West Bengal and was appointed on a date prior to 26th February, 1980. The inter seniority in respect of the Assistant Engineers who are covered by the said notification shall be determined on the basis of select list, if any. In the absence of any such select list the inter se seniority should be determined on the basis of their length of service as Assistant Engineer in the Public Works Department." (emphasis supplied) These ad hoc appointees having obtained the benefit of regularisation with effect from 26.2.1980 without being selected by the PSC, and being given the benefit of seniority from the date of their regularisation on 932 26.2.1980, have challenged the Government 's action and claimed seniority with effect from the date of their initial ad hoc appointment, of this nature. It may, here be mentioned, that in case of the ad hoc appointees in the Irrigation and Waterways Department, even a rule for seniority being given to them from 26.2.1980 was not made, as was done for the ad hoc appointees in the P.W.D., and yet they have also been given the same benefit. They make the same grievance, inspite of this. On behalf of the appellants, State of West Bengal and the direct recruits aggrieved by the judgment of the Division Bench of the High Court, it has been urged that the claim of the writ petitioners (respondents in these appeals) for seniority being given to the, retrospectively from the date of their initial ad hoc appointment, made contrary to the rules, in spite of their regularisation being made expressly from 26.2.1980, is wholly untenable and against the decisions of this Court, particularly the constitution bench decision in Direct Recruit Class II Engineering Officer 's Association and Ors. vs State of Maharashtra and Ors. , ; = ; On this basis, it was submitted that the Division Bench of the High Court committed an error in reversing the judgment of the Single Bench, by which the writ petitions had been dismissed. In reply Shri G.L. Sanghi appearing for the writ petitioners (respondents in all these appeals) submitted, that the initial ad hoc appointment of the writ petitioners was made by a mode permissible under the rules; that appointment was made in relaxation of ' the rules by the Government which is implicit in the action taken; the initial ad hoc appointment must, therefore, be equated with a regular appointment made under the rules; and on this equation there is no justification for discrimination between the initial ad hoc appointees and regular appointees coming in by direct recruitment thereafter in accordance with rules. It was submitted that the initial ad hoc appointment being, therefore, in the nature of regular appointment, made during an emergency, after selection by a Committee consisting of five Chief Engineers, these persons are entitled to count their entire service including the ad hoc period prior to 26.2.1980, for the purpose of their seniority. Shri Sanghi relied on the decisions of this Court in A. Janardhana vs Union of India and Ors.[1983] 2 SCR 936 and Narender Chadha Ors. vs Union of India and Ors. ; to support his submission. Shri Sanghi further submitted, that the case of the writ petitioners fell squarely within the ambit of conclusion (B) of the summary 933 in Maharashtra Engineers case (in para 44 of the SCR = para 47 of SCC. The question, therefore, is whether Shri Sanghi is right in his submission that this case falls within the ambit of the said conclusion (B) in Maharashtra Engineers case. The submission of the other side is that this case falls, not within conclusion (B) but the corollary mentioned in con clusion (A), of that decision. Conclusions (A) and (B), which alone are material, are as under : "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B)If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. " It is not necessary to deal at length with the decisions of this court in A. Janardhana and Narender Chadha in view of the later constitution bench judgment in Maharashtra Engineers ' case, wherein all the relevant earlier decisions have been considered before summarising the conclusions (in para 44 of SCR = para 47 of SCC). We may, however, briefly refer to the decisions in A. Janardhana and Narender Chadha, since Shri Sanghi has strongly relied on them. It may be mentioned that both these decisions related to inter se seniority of direct recruits and promotees, the two channels for appointment to the posts, where there was a quota prescribed for the two channels leading to rota for confirmation, and the seniority was based on the date of confirmation, according to rules. The dispute arose as a result of promotions being made in excess of the promotees quota, in the case of the surplus promotees. It 934 was in that context, that the question of taking into account longer period of continuous officiation for the purpose of fixing inter se seniority of direct recruits and promotees, came up for consideration. Those cases are clearly distinguishable. In the present case, there is no dispute between promotees and direct recruits, the claim of the writ petitioners being based only as direct recruits in the cadre of Assistant Engineers, and not as promotees from the lower cadre of Sub Assistant Engineers to which they had earlier belonged. The present is, therefore not a case of a dispute relating to the surplus promotees, who were given promotion regularly in accordance with rules, but in excess of the quota fixed for them under the rules. In the present case, all the writ petitioners are persons who were given ad hoc temporary appointments for a fixed period, which was extended from time to time till their regularisation on 26.2.1980, and that too by relaxation of the condition of selection by the Public Service Commission, which was an express condition of their ad hoc appointment and a requirement for regular appointment under the Rules. Assuming the relaxation made in their case by the State Government on 26.2.1980 to be valid, as the same is not disputed before us, they could be treated as regularly appointed only with effect from 26.2.1980 when the relaxation was given to them, and an order was made simultaneously absorbing them in the cadre of Assistant Engineers, also framing a rule at the same time under Article 309 providing for fixation of their seniority only from that date. Accordingly, there is no foundation for the claim that they could be treated at par with the direct recruits, regularly appointed prior to 26.2.1980. The admitted facts, which are the foundation of the claim of the writ petitioners, are sufficient to negative their claim. It is obvious that prior to the steps taken by the State Government on 26.2.1980 for their regularisation in this manner, there was no basis on which the writ petitioners could claim to be regularly appointed as Assistant Engineers; and, therefore, the manner in which they were regularised, including the mode of fixation of their seniority with effect from 26.2.1980, is decisive of the nature of their regular appointment. This alone is sufficient to negative their further claim. They can make no grievance to any part of that exercise, made only for their benefit. The constitution bench in Maharashtra Engineers ' case, while dealing with Narender Chadha, emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to 935 twenty years on the posts without being reverted, and then proceeded to state the principle thus : "We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service. ' The constitution bench having dealt with Narendra Chadha in this manner, to indicate the above principle, that decision can not be construed to apply to cases where the initial appointment was not according to rules. We shall now deal with conclusions (A) and (B) of the constitution bench in the Maharashtra Engineers ' case, quoted above. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) can not cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ,according to rules '. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop gap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority. This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other. 936 The question therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary in conclusion (A). In our opinion the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules ' and the later expression 'till the regularisation of his service in accordance with the rules '. We read conclusion (B), and it must be so read to re councile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment only on ad hoc basis as a stop gap arrangement and not according to rules. It is, therefore, not correct to say, that the present cases can fall within the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A). 937 In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for treating their entire period of 'service prior to 26.2.1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a committee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only 'by advertisement and interview, through the Public Service Commission, West Bengal. ' Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stop gap arrangement for fixed period, as expressly stated in the appointment order itself. Thus, there is no escape from the conclusion that the present cases fall squarely within the ambit of the corollary in conclusion (A), of Maharashtra Engineers case and, therefore, the period of ad hoc service of writ petitioners (respondents) on the post of Assistant Engineer prior to 26.2.1980, cannot be counted for reckoning their seniority. Consequently, these appeals are allowed. The impugned judgments of the Division Bench of the High Court, are set aside, and those of the Single Bench dismissing the writ petitions are restored. No costs. N.V.K. Appeals allowed.

The appellant assessee was a cooperative society engaged in the business of banking The previous year relevant to the assessment year 1963 64 was the year ending June 30, 1962. The business income of the assessee was exempt under the provisions of Section 80(1) as it then stood. During the aforesaid accounting yew, the assessee received a sum of Rs. 19 being the interest on the deposit made by it with an Electricity Distribution Company. This deposit had to be made by the assessee as it was required by the conditions notified by the electricity company for supply of energy, and it carried interest. It was on account of the said deposit that the sum of Rs. 19 was received by the assessee, by way of interest. The Income tax Officer treated the amount of Rs. 19 as income from other sources, and on that basis, he levied additional surcharge, in a sum of Rs. 81,920. The assessee appealed to the Appellate Assistant Commissioner who upheld the assessee 's contention that the said sum of Rs. 19 constituted its business income and, was therefore, exempt. He held that the levy of surcharge was unsustainable. The Revenue appealed to the Appellate Tribunal which held that it was 'income from business ', and accordingly dismissed the Revenue 's 997 998 appeal. At the instance of the Revenue, the Tribunal referred the question to the High Court. The High Court held, that the assumption made by the Appellate Assistant Commissioner and the Tribunal that the liability of surcharge was not attracted in case the said sum of Rs. 19 represented business income may not be warranted and that in such a situation the High Court does possess the power to correct the error so long as the point arose out of the Tribunal 's order. It returned the reference unanswered and directed the Tribunal to consider the case on all points that require consideration of the question whether additional surcharge was attracted. In the assessee 's appeal to this Court, it was submitted that the High Court exceeded its jurisdiction in making the aforesaid direction, that the High Court widened the scope of enquiry which it was not empowered to do in a reference under Section 256 and that the matter should be sent back to the High Court for answering the question of law as stated by the Tribunal. Dismissing the appeal, this Court, HELD : All that the High Court has asked the Tribunal to do is to consider whether the liability of surcharge is not attracted even if the said sum of Rs. 19 is treated as income from business. The fact that the revenue was also a party to the said erroneous assumption before the Tribunal cannot stand in the way of the Revenue resiling from an er roneous assumption of law. [1004 D F] In the instant case, the question was whether additional surcharge was leviable for the assessment year 1963 64 under the relevant Finance Act. The assessee 's contention was that it had no income which was liable to be assessed to income tax inasmuch as its entire income was exempt under Section 81 (1) (a), and it was submitted that the sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did not attach to the assessee. The I.T.O. took the view that the said sum of Rs. 19 represented income from other sources and, therefore, liability of additional surcharge was attracted. The Appellate Assistant Commissioner upheld this contention. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional 999 surcharge was attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that this legal submission, though raised for the first time, did call for serious consideration. This was done to arrive at a correct decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even In case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated. Such a course would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle. [1004 B F] C.I.T. Bombay vs Scindia Steam Navigation Ltd., 42 I.T.R. 589, relied on.[1004 H] V.R.Y.K.N. Kallappa Chettiar vs Commissioner of Income Tax, ; C.L T. vs Ogale Glass Works Ltd., 25 I.T.R. 529; Keshav Mills Co. Ltd. vs Commissioner of Income Tax, Bombay North, Ahmedabad, ; Commissioner of Income Tax, Bihar and Orissa vs Kirkend Coal Co., 74 I.T.R. 67 and Kusumben D. Mahadevia vs Commissioner of Income Tax, Bombay City , not applicable. [1004 H]

Appeal No. 646 652 of 1960. 349 Appeals from the judgment and decree dated November 28, 1962 of the Madras High Court in 385, 259, 260, 385 of 1947 respectively. A.V. Viswanatha Sastri and R. Gopalakrishnan, for the appellant (in C.A. Nos. 648, 649 and 650 of 1960) and for the respondents (in C.A. Nos. 651 and 652 of 1960). T.V. R. Tatachari, for respondents Nos. 1. 2. 5 and 6 (in C.A. No. 648 of 1960) and appellants (in C.A. No. 652 of 1960). S.T. Desai, K. Jayaram and R. Ganapathy Iyer, for respondents No. 1, 3, 4, 5, 8 to 11, 15, 16, 18, 19 and 21 (in C.A. No. 649 of 1960) respondents Nos. 1, 2 and 8 (in C.A. No. 650 of 1960) and the appellants (in C.A. No. 651 of 1960). July 31, 1964. The Judgment of the Court was delivered by SUBBA RAO, J. These five appeals by certificate arise out of Original Suits Nos. 183, 184 and 185 of 1945 filed in the Court of the Subordinate Judge, Coimbator, Madras State. O.S. No. 183 of 1945 relates to properties claimed on behalf of Sri Chowleswaraswami temple. Periaswami Goundar and Samana Goundar, the plaintiffs in the said suit, are the trustees of the said temple. They filed the suit for the recovery of the plaint scheduled properties from the defendants who are the archakas and the alienees from them on the ground that the said properties were the properties of the deity and that the defendants had no right therein. They also claimed mesne profits for a period of 3 years prior to the suit. The defendants filed a written statement admitting the claim of the deity to the melvaram interest in the properties but claimed that the archakas owned the kudivaram therein and that some of the said properties were validly transferred to the alienees. O.S. No. 184 of 1945 was filed in the said Court by the trustees of Sri Pongali Amman temple situated in the village of Vengambur for the recovery of the properties 350 mentioned in the schedule attached to the plaint. The defendants, who are the archakas and alienees from them, inter alia, pleaded that only melvaram in the said properties was granted to the deity and that the archakas owned the kudivaram therein and that they had validly alienated their interest in the said properties in favour of the alienees. O.S. No. 185 of 1945 was filed in the same Court by the trustees of Sri Varadaraja Perumal temple situated in Vengambur village . The plaintiffs sought to recover the properties mentioned in the schedule annexed to the plaint from the archakas and the alienees from them on the same grounds and the defendants raised similar pleas. It is not necessary to mention other defences raised in the written statements filed in the three suits as nothing turns upon them in these appeals. The main issue in O.S. No. 183 of 1945, O.S. No. 184 of 1945 and O.S. No. 185 of 1945 was whether the inam grants made to the three temples consisted of both varams or melvaram alone. The learned Subordinate Judge tried the said suits along with two other suits and delivered a common judgment therein. On the said issue he held in all the three suits that the grants to the three deities comprised both the varams. He further held that the alienations made by the archakas prior to May 16, 1931, were binding on the trustees of the respective temples and that the alienations made subsequent to that date were liable to be set aside. In the result the learned Subordinate Judge gave a decree in each of the suits for possession of the plaint schedule properties except those covered by the alienations effected before May 16, 1931. He also decreed mesne profits to the plaintiffs for a period of 3 years prior to the suits and also subsequent profits from the date of the suits to the date of delivery of possession at the rate fixed by him. The defendants in the said suits preferred appeals to the High Court of Madras, being Appeals Nos. 259, 260 and 385 of 1947. The said appeals were heard by a Division Bench of the said High Court, consisting of Satyanarayana Rao and Rajagopalan, JJ. The High Court agreed with the 351 trial court on the finding relating to the nature of the grants to the temples, that is to say it held that the grants to the temples comprised both the varams, namely, melvaram and kudivaram. The learned Judges, for the first time, though there was no pleading, no issue and no contention in the trial Court, held that the archakas were entitled to have a portion of the said properties allotted to them towards their remuneration for the services to the temples and gave a decree directing the division of the said properties into two halves and putting the archakas in possession of one half. They did not disturb the finding of the learned Subordinate Judge in regard to the alienations, that is they maintained the alienations made before May 16, 1931. Against the decree of the High Court in A.S. No. 259 of 1947 and A.S. No. 385 of 1947 both the archakas and the trustees preferred appeals to this Court questioning the correctness of the decree of the High Court in so far as it went against them. Against the decree in A.S. No. 260 of 1947 no appeal was filed by the archakas, but the trustees preferred an appeal questioning that part of the decree directing a part of the properties to be put in possession of the archakas. Mr. Desai and Mr. Tatachari, appearing for the archakas in the different appeals, contended that the Courts below, having regard to the consistent and continuous conduct of enjoyment as absolute owners of the properties by the archakas spread over a long period of time, should have invoked the doctrine of lost grant particularly when there was no clear and convincing evidence of the terms of the grant. Alternatively, they argued that the Courts should have held, on a fair construction of the recitals found in the inam statements and the inam register, that only melvaram was granted to the deity. Mr. Viswanatha Sastri, learned counsel for the trustees, contested this position. He would say that there is no scope for invoking the doctrine of lost grant as the recitals in the inam register and the inam statement, which are of great evidentiary value, conclusively establish that both the 352 varams were granted to the deity and that all the documents, or most of them, disclosing the conduct of the archakas would support the conclusion that both the varams were so granted to the deity. At the outset it would be convenient to notice briefly the scope of the doctrine of lost grant, as the learned counsel for the appellants have strongly relied upon it. The doctrine of lost grant with its limitations has been succinctly explained by the Judicial Committee in Sankara narayana Pillayan vs H.R.E. Board, Madras(1). The temple in that case had 4 kattalais. Though the temple had a general trustee, each of the kattalais was in the charge of a special trustee or trustees. In regard to one of the kattalais after meeting all the expenses there remained a surplus which the trustees claimed for their own benefit and in fact they were utilizing the surplus for the benefit of their families. It was contended by the appellants that they were the owners of the suit properties, which were subject only to a charge in favour of the kattalai for the performance of the worship according to the prescribed scale. The Judicial Committee, after noticing the earlier decisions, observed: "The presumption, it was stated, of an origin in some lawful title which the Courts have so often readily made in order to support pos sessory rights long and quietly enjoyed, arises where no actual proof of title is forthcoming, and the rule has to be resorted to because of the failure of actual evidence. In the present case, where there is ample and convincing proof of the nature of the grant, the object of the endowment and the capacity of the persons claiming the user and enjoyment, the rule can hardly have any application. " In the result the Judicial Committee held that the proper ties were granted only to the deity and that the trustees had no claim to any surplus income. The said principle has been accepted by this Court in Buddu Satyanarayana V. Konduru Venkatapayya(2). There a question similar to (1) I.L.R. ,605 606. (2) ; , 1003. 353 that now raised was considered. The archakas claimed, relying upon the doctrine of lost grant, that under the original inam grant only the melvaram interest was given to the deity. Rejecting that contention, Das, J., speaking for the Court, observed: "There is no doubt, 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 no actual proof of title is forthcoming but it is equally well established that that presumption cannot 'be made where there is sufficient evidence and convincing proof of the nature of the grant an the persons to whom it was made. " The basis of this doctrine is clearly brought out by two judgments of the Judicial Committee. Lord Buck master, delivering the judgment in Maginiram Sitaram vs Kasturbhai Manibhai(1), observed : "At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made." Viscount Sumner in Mohamed Muzafar Ali Musavi vs Jabeda Khatun(2) said much to the same effect thus "The presumption of an origin in some lawful title, which the Courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming, is one which is not a mere (1) [1921] L.R.49 I.A. 54. 51 Sup. Court. 23 (2) [1930] L.R. 57 I.A. 125. 354 branch of the law of evidence. It is resorted to because of the failure of actual evidence. " It is, therefore, clear that the said principle can only be invoked where there is no acceptable evidence of the terms of the grant. In these appeals the trustees filed copies of the relevant extracts of the inam register and the statements filed by the ancestors of the archakas during the inam enquiry in support of the contention that both the varams were granted to the deity. The evidentiary value of the recitals in the inam register has been emphasized by the Judicial Committee in more than one decision. In Arunachalam Chetti vs Venkata Chalapathi Guruswamigal(1), the Judicial Committee expressed its view on the evidentiary value of the recitals in inam register thus: "It is true that the making of this register was for the ultimate purpose of determining whether or not the lands were tax free. But it must not be forgotten that the preparation of this register was a great act of state and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioners, through their officials, made enquiry on the spot, heard evidence and examined documents, and, with regard to each individual property, the Government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the Board when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the inam register. " (1) Mad. 355 In the latest decision of the Judicial Committee reported in Sankaranayana Pillayan 's case(1), it reiterated the same position when it said: "The question arose in a recent case before this Board with reference to a Madras inam [see Secretary of State for India vs Vidhya Thirta Swamigal(2)], where it was held that the title deeds and the entries in the inam register are evidence of the true intent and effect of the transaction and of the character of the right which was being recognized and continued. The entries in the inam register and the description of the inamdar therein were accepted as indications of the nature and quantum of the right and the interest created in the land. "This view of the Judicial Committee has been accepted and applied by the Madras High Court in many decisions when it was called upon to decide on the conflicting claims of a trustee and a archaka to the properties dealt with in the inam registers. The documents relating to Sri Pongali Amman temple are Exs. P 2 and P 3. exhibit P 2 is the statement filed by an ancestor of the present archakas before the Inam Commissioner. It is of the year is an extract of ,the inam register. As observed by the Judicial Committee, the entries made in the said register are the result of an elaborate enquiry based upon oral evidence, on the spot enquiry and scrutiny of available accounts and records. The inam statement is only one of the pieces of evidence which the Inam Commissioner might have taken into consideration in compiling the inam register. The recitals in the statement must, therefore, give Place to the recitals in the inam register, though an attempt shall be made to harmonize them, if possible. Before considering the recitals in exhibit P 3 it is necessary to bear in mind the common case i.e., that it is the case of both the archakas and the trustees that exhibit P 3 deals only with the property that was given to the deity. But the dispute is as regards the extent of the (1) I.L.R. (2) 1.L.R , 908 (P.C.). 356 interest in the property that was given to the deity. WaS it only the Melvaram in the said property that was granted to the deity or was it that both the varams therein were granted to the deity. Now let us give a close look to the recitals under the various columns in exhibit P 3. The first major head is "class, extent and value of inam". The said major head is divided into 7 sub heads. in col. 2 under the sub head "General class to which the inam belongs", the entry is "religious". In col. 3 under the head "the survey number and the name of the field or fields comprised in the grant dry, wet or garden", the particulars of the lands are given. This entry shows that except a small extent which is a garden the rest is dry land. These details are more consistent with the grant being of both the varams than being of mere melvaram. If it is of melvaram alone, the quality of the field is quite irrelevant. Sub heads 4, 5 and 6 show that the extent is about 18 acres and 99 cents and the assessment is Rs. 24 14. 5. These recitals leave the impression that the lane, was a dry land bearing a small assessment of Rs. 24 14 5 and the, income therefrom could not have been appreciable in those days. The second main head is "description, tenure and documents in support of the inam". The entries under the various columns under this head establish that the dry lands bearing an assessment of Rs. 24 14 5 described in cols. 3. 4, 5 and 6 were granted as Devadayam to the deity Pongali Amman permanently by Madurayar Paligar of Midura. The of the grant is not known; but even in the accounts of 1209 F. the name of the deity was entered the grantee . The third major head is "name and relationship of the original grantee and of subsequent and present heirs length of possession". In Col. 13 and 15 the, name of the deity alone is given. In Col. 16 under the heading "name and age" and in Col. 17 under the heading "place of residence" only the name of the deity is given. Below the name of the deity the name of the Pujari "Pujari Muttandi, age 45" is given. In Cols. 18 and 1 9 under the heading "relation to orginal grantee or subsequent registered holders" and "surviving heirs of the present incumbent" no entry is made. Obviously no entries are made under these sub heads, as the deity cannot have relations. The mention of Pujari Muttandi in the 357 context of other entries indicates that he was in charge of the temple. If his name was mentioned because he had some interest in the land the other suitable entries in regard to his relations would have been made under the relevant sub heads. Indeed it is not the case of the archakas that they have some interest in the melvaram. If the document was concerned only with the melvaram interest, strictly there was no place for the archaka in the document, for he had no interest therein. His name was mentioned only as he was the person who was in de facto management of the properties of the deity. In Col. 21 under the heading "Deputy Collector 's opinion and recommendation", the entry is "To be confirmed permanently to the Pagoda so long as it is well kept up, subject to the existing jodi of Rs. 3 1 7". Under Col. 22 the inam is confirmed to the Pagoda. A reasonable interpretation of the recitals in this document leads to the only conclusion that the Inam Commissioner was dealing with the entire interest in the land, the particulars whereof were given therein. There is no evidence that at the time the grant was made the archakas or any others were kudivaramdars. But it is said that exhibit P 2, the inam statement, filed by the then archakas would establish that what was ranted was only the melvaram. There, in Col. 2 under the head "Name of the inamdar entered in dowle and names of the present enjoyer" the following entry is found: Pongaliamman poosari Kuppaiyandi Muthuveeran as per paimash entry. For fields Nos. 595 and 597 no poosari 's name is mentioned. Present (enjoyer) Pongaliamman poosari Muthandi. " It is said that pujari is shown as the enjoyer and, therefore, the deity has no interest in the enjoyment of the land. The deity was obviously represented by the pujari who was the de facto trustee. He was in possession of the property in his capacity as the de facto trustee. In those circumstances if the pujari of the temple is described as an enjoyer, it can only mean that he was in possession of the land on behalf of the temple. Whatever ambiguity there might be in the said recital it is dispelled by the entry in Col. 12 under the head "Particulars of present enjoyment", namely 358 "By directly cultivating this land selling the produce derived therefrom and applying the sale proceed to the service of the deity. and my agnates have been performing pooja and enjoying the said land according to the conditions of the grant". This entry is couched in clear and unambiguous terms. It describes the nature of the enjoyment of the land by the archaka; it clearly says that he was cultivating the land, selling the produce and from the sale proceeds he was doing the services to the deity in accordance with the terms of the grant. If the deity was entitled only to the melvaram, this recital is inconsistent with it. The recital indicates that the entire land was the subject matter of the grant in favour of the deity and that the produce from that land was utilized for the services to the deity. Strong reliance is placed upon the entry in col. 13 under the head "Income derived from the manibam; whether sarvadambla or jodigai, if jodigai, how much". The entry is, "Income Rs. 24 14 5; Jodigai Rs. 3 1 7." Basing upon the said entries the argument is that exhibit P 3 shows that the assessment on the land was Rs. 24 14 5 and exhibit P 2 indicates that the same amount was the income derived from the inam and, therefore, what was granted in inam could have been only the assessment i.e., Rs. 24 14 5. This argument is farfetched and based on a slender foundation. One of the main objects of the inam enquiry was to ascertain whether the alienated lands were free of tax or not. The archaka who was in possession of the land on behalf of the deity had to give information as regards the tax payable in respect of the land in his possession. In that context the expression "income derived from the manibam" can only mean the assessment fixed on the land. After stating that full assessment was only Rs. 24 14 5 the archaka stated that he was not paying the entire amount, but was paying only the jodigai of Rs. 3 1 7. So understood the said recitals fit into the scheme of other recitals in the said statement and those found in exhibit P 3. A similar argument was advanced before this Court in Buddu Satyanarayan 's case(1) and was rejected. Das, J., observed at p. 1006 thus: (1) ; 359 "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 not entirely, on the fact that the amount of assessment and the amount of income were the same and the conclusion was drawn that the Inam grant comprised only of the revenue assessment, i.e., of melvaram rights. We are unable to follow the reasoning. " We, therefore, hold that, from the recitals in the said two documents, what was granted to the deity was of both the varams. Learned counsel for the archakas relied upon the long possession and enjoyment of the suit lands by the archakas and their ancestors in support of their contention that the melvaram alone could have been granted to the deity. Long enjoyment is also consistent with an arrangement that might have been entered into between the grantor and the then functioning archaka or archakas having regard to the conditions prevailing then. The lands granted were com paratively of small extent and they were dry lands. In those days the income from the said lands must have been very insignificant. There was no trustee for the temple. In those circumstances it is, more likely that the grantor would have put the land in the possession of the archaka so that he might, from and out of the produce from the land, maintain the temple, perform the puja and meet the expenditure connected with the puja and also pay himself the remuneration for his services to the temple. That was a convenient arrangement which was adopted in many of the small temples in that part of the country. This practice was recorded with clarity by the Madras High Court in Narayanamurthi vs Achaya Sastrulu(1). In dealing with a similar argument the learned Judge observed: The evidence of user and enjoyment, however long uninterrupted and unquestioned, would be evidence of the grant only iN the absence of (1) A.I.R [1925] Mad.411,412 413 360 any reliable or cogent evidence with regard to the terms of the grant itself or in the case of any ambiguity in the grant. It seems to be clear that almost very recently the suit lands yielded only just what was sufficient for nitya naivedyam or the daily worship. No doubt in such a state of things not only the persons who established the temples and made the endowments but succeeding generations of worshippers would have allowed the archakas to cultivate the lands and take the income performing the puja as it was obviously the most convenient mode of arranging for the worship of the deities and the payment of remuneration of the archaka service." "But when the income accruing from the lands came to be considerable and the archakas, by reason of old habits and following their fore fathers, claimed the lands and surplus profits therefrom to be their own, it was only natural that the worshippers should take steps to secure the surplus income for the institutions. " These observations are very apposite and they clearly describe the circumstances under which the archakas of the temples were allowed to be in possession of the temple lands. If that was the situation under which the archakas came into possession of the lands, they were certainly in the position of de facto trustees and they could not by mortgaging or otherwise alienating the properties claim any rights in derogation of the title of the deity. Indeed the documents on which the learned counsel relied contain clear and unambiguous admission on the part of the archakas that the land itself was the property of the deity. P 12, P 13, P 14 and P 15 are copies of mortgages executed by the archakas. Under these documents the land in their possession was mortgaged and it was described as paditharam Manyam. They also disclosed hat the paditharam paddy directed to be paid to the temple was more than the kist payable thereon to the Government. In the prior proceedings i.e., applications preferred by the 361 archakas for declaring the temples as excepted ones, there was no claim that the melvaram alone was granted to the deity. In other proceedings the archakas claimed that the lands were service inams, but they did not come forward with the present plea that melvaram only was granted to the deity. Further, pattas for the suit lands were transferred without any objection of the archakas in the name of the deities in 1939 and the archakas also paid contribution to the Madras Hindu Religious Endowments Board on tile basis that both the varams belonged to the deity. The conduct of the archakas, therefore, is consistent with the recitals in the inam register, namely, that what was granted to the deity was the land i.e., both the varams, and that they had been put in possession and enjoyment of the said land in their capacity as archakas and de facto trustees. Learned counsel for the appellants relied upon an order made by A.R.C. Westlake, Collector of Coimbatore, on April 14, 1941, wherein he held that only melvaram was granted to the deity. That order came to be made under the following circumstances. The trustees appointed by the Coimbatore District Temple Committee filed an application before the Revenue Division Officer under section 44 B11(a) of the Madras Hindu Religious Endowments (Amendment) Act, 1934, for a declaration that the alienations of portions of inam land attached to the temple were null and void and for resumption and regrant of the same to the deity. One of the issues in the application was whether the inam comprised melvaram or both melvaram and Kudivaram. The Revenue Division Officer held that the inam comprised both the varams. On appeal, the Collector came to the contrary conclusion. But a perusal of the order shows that his conclusion was based upon pure surmises. The Collector did not refer to any document or evidence for his conclusion. The trustees filed a suit in the Court of the Subordinate Judge, Coimbatore, for a declaration that the inam grant in favour of the plaint temple comprised both the varams The learned Subordinate Judge held that section 44 B of the Act had no application as the grant was to the deity and was not a service inam. The result of this litigation was that there was no final decision on the 362 question whether the grant was of both the varams or only of the melvaram. These proceedings cannot, therefore, be of any evidentiary value in this case. On a consideration of the entire evidence we agree with the conclusion arrived at by the High Court that the grant to the deity comprised both the varams in the suit lands. Now coming to the appeals relating to chowleswara swami temple, the factual and legal position is exactly the same as in the case of Pongaliamman temple exhibit P 2 is the statement made before the Inam Commissioner by the then archaka and exhibit P 3 is the extract from the Inam register. Under the relevant entries in the inam register, survey numbers, extent, quality and the assessment of the subject matter of the grant are given. The land is described as Devadayam and is stated to have been granted for the support of the pagoda of Chowleswaraswami. The nature of the grant is described as permanent. The date of the grant is not known. The grantor 's name is given as Maduraiyar Paligar of Madura. The name of the original grantee is given as Chowleswaraswami. The grant of the land described earlier is confirmed permanently to the pagoda as long as it is well kept subject to the existing jodi of Rs. 24 8 2. The only mention of archaka is in col. 17 under the head "Particulars regarding present owner" and the entry thereunder is "Chowleswaraswami, stanika Muttaiyan". The other columns where the relationship of the present owner with the previous owners is expected to be recorded are left blank for the obvious reason that the said columns are irrelevant in the case of a deity. The archaka 's name in addition to the deity is mentioned as he was in possession of the land in his capacity as de facto trustee. The deity must necessarily have to be represented by somebody and that he can only be the stanika who was managing the temple and its properties. The relevant entries in the inam register do not countenance any contention that the melvaram interest only in the land was granted and that was confirmed to the deity. If the melvaram was granted or confirmed, the recitals would have been different. The corresponding inam statement is exhibit P 2. The entries are practically similar to those found in exhibit P 2 relating to 363 Pongaliamman temple with some slight variations. Col. 2 makes a clear distinction between ownership of the land and enjoyment. The owner is shown as Chowleswaraswami and the "present" enjoyer is shown as Chowleswaraswami 'section stanika. The nature of the enjoyment is described in col. 2 thus: "The said lands are leased out for varam cultivation and I cultivate the same myself some times and the income (masul) therefrom is enjoyed by me and co sharers (Pangali) and used for Swami Viniyogam. " It is manifest from this recital that the land was the subjectmatter of the grant and the income therefrom was derived either by direct cultivation or by leasing out the same, and the said income was enjoyed by the archaka and used for viniyogam. The point to be noted is that the predecessorin interest to the present archaka admitted that the produce from the land was utilized for the services of the deity. The said admission is inconsistent with the allegation that the grant was only of melvaram. The entries in col. 13 are similar to those contained in the corresponding exhibit P 2 relating to Pongaliamman temple, and, for reasons already given, they do not support the contention that the assessment of Rs. 74 1 5 was only granted to the deity. A combined reading of these two documents leads to the only conclusion that both the varams were granted to the deity. Just as in the case of Pongaliamman temple so in the case of Chowleswaraswami temple, the subsequent conduct of the archakas belie their assertion that only melvaram interest in the land was granted to the deity. D 1 of 1867, D 2 of 1868, D 3 of 1870 and D 4 of 1883 are some of the mortgages executed by the archakas ,of Chowleswaraswami temple. D 5, D 6 and D 7 are sales. In all these documents the property is described as Chowleswaraswami manyam. If really the kudivaram belonged to the archakas, they would not have described the land they were alienating as Chowleswaraswami manyam. The description of the property as that of the deity is consistent with the title of kudivaram also being in the deity. Further, as in the other case, the pattas were 364 transferred in the name of the deity in 1939, the contri butions were paid to the Hindu Religious Endowments, Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archakas 's case was not that the grant to the deity was only of the melvaram but the lands were service inam lands. Though the archakas dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reasons we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nothing, therefore, need be said on the question of title of the land in respect of this temple. Coming to the cross appeals filed by the trustees against that part of the decree of the High Court apportioning the property of the deity between the deity and the archakas, the question raised is whether the High Court, having held that the title to the suit property vested in the deity, had jurisdiction to compel the trustees of the temples to put the archakas in possession of specified extent of property towards their remuneration. The High Court observed thus: "On these findings, it is no doubt true that the decree in favour of the plaintiffs for possession of the properties on behalf of the deity has to be upheld subject to the consideration set forth below. " Then it proceeded to consider whether any allocation of land should be made between the archakas and the trustees. After noticing the relevant decisions on the subject, it observed thus: .lm15 "These decisions are practically uniform except for the decisions. . (in) A. section No. 2 3 7 of 1950(1) and. . (in) Venkatadri vs Seshacharlu(2) and have upheld the allocation (1) Brahnyya vs Rajeswarawami temple A.I.R. 1953 Mad. (2) I.L.R. 365 of lands between the archakas and the trustees, the proportion however varying with the extent of the lands and the amount of the income. None of the Judges were of the opinion that the arrangement should be a permanent and an unalterable one and it must naturally be subject to revision or alteration according to the circumstances of the case at the instance not only of the trustees but also at the instance of the archakas, if it was found that the allocation was working to the detriment of either the archakas or of the temple. " It concluded: "We think, therefore, in these cases, the best arrangement would be to allocate half the lands in each of the suits for the remuneration of the archakas, to be divided equally, having regard to the wet and dry extents, and leave the remaining half to the trustees, who have to meet the cost of the daily worship and accumulate the surplus in their hands as it belongs to the deity." On principle, in our view, the conclusion arrived at by the learned Judges of the High Court is unsupportable. The suits were based on title and the relief asked for was the eviction of the archakas from the suit property as they, according to the plaintiffs had no title to remain in possession. The archakas raised the plea that the title of the ,deity was confined only to melvaram in the plaint schedule lands and that they had title to the kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant. In the circumstances the Court has no option but to deliver pos session to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for a temple a court may in an appropriate case put the archaka in possession of a portion of the temple lands towards his remuneration for services to the temple; but these are not suits for framing a scheme. That apart, there is absolutely no material either in the pleadings or in the evidence to 366 make any such apportionment, for the allotment of a parti cular share to the archaka would depend upon the total income from the lands, the value of the articles required for the worship, the amount of reasonable remuneration intended to be provided and other similar circumstances. An allotment cannot possibly be made on the basis of allocations made in the circumstances and facts peculiar to other cases. Indeed, this Court has already expressed a clear opinion on this aspect of the case in Buddu Surya narayana 's case(1). Therein, Das, J., said at p. 1008 thus: 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 not legal, of the Archakas and to make some pro vision for protecting their rights, but those considerations appear to us to be entirely out of place in a suit for ejectment on proof of title. " With respect we entirely agree with the said observations. It follows that the High Court went wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned have made suitable arrangements for remuneration in the ,case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law. In the result, Civil Appeals Nos. 648 and 650 of 1960 filed by the trustees are allowed but, in the circumstances, without costs. Civil Appeal No. 649 of 1960 filed by the trustees is also allowed without costs except as against the (1) ; 367 14th respondent. The said appeal against the 14th respondent is withdrawn on the ground that his interest as a mortgagee is not now subsisting and the said appeal against the 14th respondent is dismissed as withdrawn but, in the circumstances, without costs. Civil Appeals Nos. 651 and 652 of 1960 filed by the archakas are dismissed with costs. One hearing tee. Ordered accordingly.

The appellants filed suits for the recovery of certain properties from the possession of the respondents. The plaintiffs were the trustees of the temples and the defendants were the archakas and the alienees of the suit properties. These suits were based on title and the relief asked for was the eviction of the archakas from the suit property as they, according to the plaintiffs, (appellants) had no title to remain in possession The plaintiff claimed that the suit properties were the properties of the deity and that the defendants had no right therein. The archakas raised the plea that the title of the deity was confined only to melvaram in the plaint schedule lands and that they had title to the Kudivarani. Both the Trial Court and the High Court confirmed the title of the deity to both the interests (Varams) and negatived the title of the defendant Archakas. The High Court also held that the archakas were entitled to have a portion of the said properties allotted to them towards their remuneration for the services to the temples and gave a decree directing the division of the said properties into two halves and putting the archakas in possession of one half. Against this decree of the High Court both the archakas and the trustees (appellants) preferred cross appeals to this Court. 348 The main point for consideration was whether the High Court, having held that the title to the suit property vested in the deity, had jurisdiction to compel the trustees of the temple to put the archakas in possession of specified extent of property towards their remuneration. Held:(i) The principle of a Lost Grant can only be invoked where there is no acceptable evidence of the terms of the grant. In the present case there is no scope for invoking the doctrine of Lost Grant as the terms of the grant are clear from the recitals in the lnam register and the inam statement, which conclusively establish that both the Varams were granted to the deity. Sankaranarayana Pillayan vs H.R.E. Board, Madras I.L.R. , Buddu Satyanarayana vs Konduru Venkatapayya: ; , Maginiram Sitaram vs Kasturbai Manibhai, (1921) L.R. 49 I.A. 54 and Mohamed Muzafar Ali Musavi V. Jabeda Khatun, (1930) L.R. 57 A. 125, relied on. (ii)The High Court erred in making an allocation of the lands between the trustees and the archakas in a suit for ejectment because there was absolutely no material either in the pleadings or in the evidence to make any such apportionment. 'Me High Court had De option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for temple a court may in an appropriate case put the archaka in possession of a portion of the temple lands towards his remuneration for services of the temple; but such considerations are out of place in a suit for ejectment. Brahmayya vs Rajaswaraswami Temple, A.I.R. 1953 ',fad. 580 as Venkatadri V. Seshacharlu, I.L.R. referred to. (iii)On the facts of this case it was held that the conduct of the archakas, was consistent with the recitals in the inam register, namely, that what was granted to the deity was the land i.e. both the Varams and that they had been put in enjoyment the said land in their capacity as archakas and de facto trustees. They could not by mortgaging or otherwise alienating the property claim any right in derogation of the title of the deity. They also cannot claim any right because their names are mentioned in addition to deity in the Inam register. Their names in addition to the deity are mentioned as they were in possession of the land in their capacity as de facto trustees. Arunachalam Chetti vs Venkata Chalapathi Guruswamligal, Mad. 253 and Secretary of State for India vs Vidhya Thirta Swamiga, I.L.R. , referred to. Narayanamurthi V. Achaya Sastrulu, A.I.R. 1925 Mad. 411 relied on.

Civil Appeal No. 1297 of 1975. From the judgment and order/decree dated the 30th May, 1975 of the Delhi High Court in S.A.O. 43 of 1973. A. K. Sen, R. L. Kohli, section K. Bagga, Mrs. section Bagga and Miss Yash Bagga for the Appellant. Y. section Chitaley, R. P. Singh, R. K. Jain and M. Mudgal for Respondent No. 1. The Judgment of the Court was delivered by KRISHNA IYER,J. This fifth deck appeal, by certificate under article 133 of the Constitution, stems from a humdrum but protected litigation under the rent control law by a tenant who has lost all alone the way. If we may prologise, this special law hopefully set up a quasi judicial machinery for summary trial and speedy disposal and prescribed eviction save upon simple grounds safeguarding the security of tenants of buildings against being inequitably ejected. But this very case discloses the chronic distortion in processual justice, caused by a slow motion spiral of appeals and plethora of technical pleas defeating the statutory design. 908 The obvious legislative policy and project in this class of simplistic landlord tenant litigation demands a radically non traditional judicial structuring and legal engineering, by passing sophistications and formalisms and tier upon tier of judicial reviews. Both these imperatives are conspicuously absent in current rent control litigation a dismal failure which the legislature will, we hope, awaken to rectify. Post audit of socio economic laws in action, with a view to over see if legal institutions and jural postulates actually achieve legislatively mandated objectives in special classes of dispute proceessing, makes for competent and credible implementation of laws and saves the time of the higher courts and the money of the public at present consumed exasperatingly but avoidably. The price of legislative inaction in these areas is popular disenchantment with laws and tribunals. Factual matrix The appellant is the tenant of a building in Delhi having been inducted into possession by the respondent landlord under a letting of May 19, 1954, evidenced by a deed which fixed the term merely as less than a year (a circumstance out of which a minor ripple of legal argument has arisen). At the time of the lease the (for short, the TP Act), had not been extended to Delhi although, later, on December 1, 1962, the said Act was made applicable to this area. The landlord had been receiving rent from the tenant until the time he filed a petition for eviction (1967), the statute which regulated the right to eviction being the Delhi Rent Control Act, 1958 (59 of 1958) (for short, the Rent Act). The eviction petition set out two grounds out of the many specified in section 14 of the Rent Act, viz. ,unauthorized sub letting of a portion of the premises and possession, by the tenant, of alternative accommodation. Both these grounds having been made out, the evictibility under the Rent Act became inevitable. But, in the High Court, the appellant tenant fell back on certain defences grounded on ss.106 and 111 of the TP Act on the score that no notice to quit had been given, nor notice of forfeiture, as prescribed by those sections. There is no dispute that neither notice to quit nor notice of forfeiture determining the tenancy had been given by the landlord. The core of the controversy thus turns on the need to comply with the requirements of sections 106 and/or 111 of the TP Act and the fatal effect of failure in this behalf. The landlord seeks to break through these defences by urging that the lease has expired by efflux of time limited thereby under section 111(a) and no notice terminating the tenancy under section 106 is needed and further that the forfeiture of the tenancy caused by sub letting contrary to the terms of the deed of demise can be availed of by the landlord even in the absence of a notice as contemplated by section 111 (g) because the TP Act, as amended by the Amending Act of 1929, did not, in terms, apply to the present lease and the principles of justice, equity and good conscience, which alone applied, did not desiderate the technical requirement of a notice in writing of an intention to determine the lease. The Rent Controller, at the floor level, ordered eviction and the Appellate Tribunal affirmed it, upholding the vice of sub letting without consent of the landlord in the manner specified in section 14(1)(b) as 909 also the disability spelt out in section 14(1) (h) on acquiring vacant possession of alternative residence. The resistence founded on the TP Act was also over ruled by the appellate Tribunal. But, when the case reached the High Court in second appeal, under section 39 of the Rent Act, the learned Single Judge felt that certain points of law spun out of the TP Act deserved consideration by a Division Bench and referred the appeal for determination accordingly to a larger Bench. The Division Bench which heard the appeal dismissed it but granted a certificate of fitness for appeal to the Supreme Court under article 133 of the Constitution, restricting it, however, to but one ground urged before it. Shri A. K. Sen, for the appellant, made a gentle hint that the High Court had heard long arguments in March 1974 but could resolve its doubts to deliver a judgment only in May 1975 so much so the freshness of counsel 's submissions might have faded somewhat and so we should have a closer look at his points de hors the judgment under appeal. If this fact of a long hiatus between hearing and decision were true, it must have inflicted a heavy strain on the memory of the learned Judges which it is a healthy practice to avoid. However, after listening to Shri A. K. Sen, we feel that his fears are unfounded. A preliminary pre emptive objection was urged by the respondent that the High Court having circumscribed the certificate to a single point no other submissions should be permitted. We see no force in this untenable insistence on tying down the appellant. Once a certificate of fitness has been granted under article 133, the appeal, in all its amplitude, is before this Court and every point may be urged by the appellant provided this Court permits it, having regard to the circumstances. Perhaps, a certificate under article 132, or special leave under Art, 136 may stand on a different footing if the Court limits the grounds in any manner. Of course, conceding the Court 's plenary power in appeals on certificate under article 133, it is still within the Court 's discretion not to allow a new point to be taken up [The rulings in ; and 1964(2) SCR 930 lay down the law on this point]. The contentions We have already indicated that, under the Rent Act two grounds for eviction have been good by the landlord. Indisputably, sub letting has been substantiated. Even so, it is argued that only where a lease has been duly determined giving rise to a right to present possession under the TP Act can the landlord sue for recovery of the building. The scheme of the Rent Control law, speaking generally, is to put further fetters on landlords seeking eviction from urban buildings where, in the absence of such new barriers, they will be entitled to ejectment. The acute scracity of accommodation is the raison de 'etre of the law. It is not as if the rent control statutes are a bonanza for the landlords and confer a relaxed right to eject where, under the general law, they do not have such a right in praesenti. To hold otherwise is to pervert the purpose and substitute an added danger for an extra dyke. It follows that even where under a particular rent control statute the landlord makes out grounds for eviction, he can institute proceedings in this behalf only if de hors the said grounds he has cause of action under the TP Act. 910 We agree that, if the rent control legislation specifically provides grounds for eviction in supersession, not in supplementation, of what is contained in the T.P. Act, the situation may conceivably be different. But, in the Delhi Rent Act,as in many other like Statutes, what is intended to be done is not to supplant but to supplement, not to eliminate the statutory requirements of determination of tenancy but to superimpose a ban on eviction which otherwise may be available in conformity with the TP Act without fulfilment of additional grounds. 'No order . . for the recovery of possession of any premises shall be made. in favour of the landlord against a tenant ' is a blanket ban in section 14(1) of the Rent Act. It is followed by enumeration of specific grounds proof of which may authorize the Controller to make an order for the recovery of possession of the premises. It follows that before a landlord can institute proceedings for recovery of possession, he has to make out his right (a) under the TP Act; and (b) under the Rent Act. In Manujendra Dutt this Court considered the question elaborately and observed: "The Thika Tenancy Act like similar Rent Acts passed in different States is intended to prevent indiscriminate eviction of tenants and is intended to be a protective statute to safeguard security of possession of tenants and therefore should be construed in the light of its being a social legislation. What section 3 therefore does is to provide that even where a landlord has terminated the contractual tenancy by a proper notice such landlord can succeed in evicting his tenant provided that he falls under one or more of the clauses of that section. The word 'notwithstanding ' in section 3 on a true construction therefore means that even where the contractual tenancy is properly terminated, notwithstanding the landlord 's right to possession under the or the contract of lease he cannot evict the tenant unless he satisfied any one of the grounds set out in section 3. Rent Acts are not ordinarily intended to interfere and with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the general law. * * * * * The right to hold over, that is, the right of irremovability thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time the tenant need not seek protection under the Rent Act. For he is protected by his lease in breach of which he cannot be evicted. (See Maghji Lakshamshi and Bros vs Furniture Workshop [1954] AC 80, 90). In Abasbhai vs Gulamnabi ; , this Court clearly stated that the Rent Act did not give a right to the 911 landlord to evict a contractual tenant without first determining the contractual tenancy. In Mangilal vs Sugan Chand (AIR 1965 SC 101) while construing section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965), a section similar to section 3 of the present Act, this Court held that the provisions of section 4 of that Act were in addition to those of the and therefore before a tenant could be evicted by a landlord, he must comply with both the provisions of section 106 of the and those of section 4. The Court further observed that notice under section 106 was essential to bring to an end the relationship of landlord and tenant and unless that relationship was validly terminated by giving a proper notice under section 106 of the , the landlord could not get the right to obtain possession of the premises by evicting the tenant (See also Haji Mohammad vs Rebati Bhushan 53 C.W.N. 859). " We are inclined to hold that the landlord in the present case cannot secure an order for eviction without first establishing that he has validly determined the lease under the TP Act. We are therefore thrown back to an examination of the argument pressed by the appellant tenant that independently of the rent control law, the respondent has no subsisting cause of action. The contention is two fold. Firstly, the lease is one where the time is not limited and therefore section 111(a) will not apply and is terminable on the part of the lessor only in the manner provided by section 106, i.e., by 15 days ' notice expiring with the end of the month of the tenancy. Admittedly, no such notice was given. The counter contention of the landlord, apart from the plea of statutory tenancy requiring no further notice to determine, is that the lease is for a specified period even though it expresses itself as for a term less than one year and under section 111 (a) has expired by efflux of time. We cannot agree to this feebly asserted argument. A lease merely stating that it is for a period less than one year is ex facie for an indefinite period and, as such, cannot expire by efflux of time. Nor are we convinced that, notwithstanding the acceptance of rent for the period of 11 years the landlord had not assented to the holding over of the tenancy and that what emerged was a statutory tenancy which did not require notice in law for valid determination. Possibly so; not necessarily. However, we need not explore this aspect further in the view that we take of the other submission of the landlord that the lease has been determined by forfeiture, not in terms of section 111 (g) of the TP Act, but on the application of the principles of justice, equity and good conscience. We will examine this latter contention in some detail, as it is decisive of the fate of the case. The Rent Act contemplates no elaborate pleadings but filling out of particulars in a pro forma which takes the place of a plaint. No specific averment of forfeiture and consequent determination of the lease is found in the petition. Having regard to the comparative informality 912 of these proceedings and the quasi judicial nature of the whole process, such an omission cannot be exaggerated into a lethal infirmity. What is perhaps more pertinent is that the petitioner was innocent of the plea of forfeiture throughout the stages of the trial before the Rent Controller. When the case reached the appellate stage, it was specifically urged that the tenancy 'stood terminated by forfeiture under section 111 (g) of the TP Act. The Tribunal studied the terms of the rent deed, Exhibit AW 3/1 and held that there was an express condition against sub letting and a provision that on breach thereof the lessor had the right to move for eviction something equivalent to a right to re enter. The tenant remonstrated against this new plea being permitted in appeal but the Court construed the statement in the pro forma in column 18 B, that no notice is necessary, to mean that there was a determination by forfeiture even without the issuance of a notice. More over, the Court noticed the fact that the question was only one of law and should be permitted in the interests of justice. After some consideration of the issue the Tribunal reached the result 'that the tenancy stood determined by forfeiture and therefore no notice was required '. We need not tarry further on the tenability of this conclusion since the matter has been more fully examined at the High Court level. Arguments before us have proceeded on the footing that a sub tenancy has been created and this amounts to a breach of condition with a provision for re entry. The tribunal in appeal held that no notice was necessary since the lease was created prior to the extension of the TP Act to Delhi. Although there is some confusion in this order about the determination of the lease being under section 111(g) or outside it, the thrust of the holding is found in these concluding words: "However, as held by the Supreme Court in Narender, Lokmanya Lodhi vs Narmada Bai & Ors. the provisions in section 111 (g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on the principles of justice, equity or good conscience and would not govern the bases made prior to the coming into the force of the TP Act or to a lease executed prior to the coming into force of the TP Act. The lease in question was admittedly created before December 1, 1962 and, therefore, the requirement of the notice in writing could not be insisted upon. " In short, the clincher was 'justice, equity and good conscience '. The critical phase of the case thus beckons us, the last court of law and justice, to the final valley of the forensic battle. Does the TP Act apply to a lease executed prior to the extension of that Act to the area, even though the event that determines the tenancy viz., forfeiture, occurs after such extension ? Secondly, if the TP Act does not apply proprio vigore to such demises and their determination, can the principles of justice, equity and good conscience be invoked to transplant the twin rules in section 111(g) of the said Act? Thirdly, and this is the crux of the matter if such transfusion is permissible, 913 is the synergetic operation of breach of a condition of the lease providing for re entry and a written notice of forfeiture on that score obligatory in terms of section 111(g) or can written notice of forfeiture be dispensed with as being no part of equity or justice but a technical or formal statutory requirement? What, in short, is the status of the formula of justice, equity and good conscience, in the legal pharmacopoeia of India? Shri A. K. Sen urges that the procedural interdict against raising the objection based on section 111(g) is of no consequence. While the law goes to the root of the case and is perfectly plain and the facts indubitably manifest on the record, the refusal to examine and uphold the objection, if valid, is to surrender the judicial function of doing justice according to law at the illegitimate altar of technical inhibition. Moreover, he argues, the plea based on section 111(g) in some form or other, is writ large in the Tribunal 's order and the High Court 's judgment. New nuances and clearer focus may be allowed where the point of law has been broadly touched upon. Face to face with the issue of forfeiture under section 111(g), the appellant presses the position that since admittedly no notice in writing, as laid down in the section, has been issued, the eviction proceeding can be shot down by that legal missile alone. Before the amending Act of 1929, all that was necessary for the lessor to determine the demise on forfeiture was to do 'some act showing his intention to determine the lease '. The rule of English law before the enactment of the Law of Property Act, 1925 appears to be that a suit for ejectment is equivalent to re entry. It has been held in India that an act showing the lessor 's intention to determine the lease can take the form of the institution of an action in ejectment. The statutory law, as it now stands, however is that the happening of any of the events specified in section 111(g) does not, ipso facto, extinguish the lease but only exposes the lessee to the risk of forfeiture and clothes the lessor with the right, if he so chooses, to determine the lease, by giving notice in that behalf. Mulla states the law correctly thus: "Forfeiture of a lease requires the operation of two factors: (1) A breach by the lessee of an express condition of the lease which provides for re entry on such breach and (2) a notice by the lessor expressing his intention to determine the lease." (Mulla on TP Act, p. 746 747, 6th Ed.) The notice has to be in writing. In Namdeo Lokman Lodhi(1) this Court laid down the law to the same effect. Mahajan J., observed: "Section 111(g) in the terms makes the further act an integral condition of the forfeiture. In other words, without this act there is no completed forfeiture at all. Under the old section an overt act evidencing the requisite intention was 914 essential. As the law stands today, under the Act, notice in writing by the landlord is a condition precedent to a forfeiture and the right of re entry. " It cannot be gainsaid that a notice, as envisioned in section 111(g) not having been given to the lessee in the present case, determination of the demise under section 111(g) cannot be claimed by the lessor. Thus, if the fortune of the landlord were to turn on the application of the TP Act as it stands now, the ejectment proceeding must be rebuffed. Counsel for the respondent seeks to sustain his case on the submission that the TP Act does not apply to the lease in question and therefore a forfeiture giving rise to a determination of the lease follows upon breach of a condition in the lease, to wit, sub lease of a portion of the building, plus an act indicative of the landlord 's intention to terminate the tenancy. According to counsel, in the absence of a specific statutory provision, the rules of justice, equity and good conscience govern the situation and this element is amply fulfilled by the filing of the eviction petition itself. We are, therefore, called upon to consider whether the provisions of the TP Act apply to the lease of 1952 executed in Delhi and, secondly, if it does not whether its present provision, as amended in 1929, has to be treated as a rule of justice, equity and good conscience, or the mere institution of legal proceedings for ejectment would be tantamount to an act evidencing the intention of the lessor to avail himself of the forfeiture clause and sufficient to satisfy justice, equity and good conscience. A little legal history helps to appreciate this part of the controversy. The TP Act came into force on July 1, 1882; but it extended in the first instance to the whole of India except certain saved territories including Delhi. It was actually extended to Delhi only in 1962. Section 2(c) of the Act provides that 'nothing herein contained shall be deemed to affect any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability '. There is some dispute as to what 'nothing herein contained ' connotes. Shri A. K. Sen submitted that the Act had come into force as early as 1882 and while transactions created before that date (July 1, 1882) would not be affected by its provisions, subsequent transactions would be governed by that Act even though they may have been executed before the extension of the Act to a particular area. His brief contention was, to start with, that even if the Act was extended to Delhi in 1962, once it was so extended the whole Act came into force in its totality in that area and only those transactions which were expressly saved by section 2 viz., 'legal relations constituted before this Act comes into force ' escaped from its operation. So much so the present lease being of 1954 would be covered by section 111 (g). Our attention was drawn by him to section 63 of the Amending Act in this connection. Shri Chitaley, for the respondent, countered this contention by another extreme stand. According to him, the Act came into force in Delhi only when it was extended to that place, viz., in 1962. Therefore, transactions prior to that date swam out of its operation altogether. A third possibility, a sort of via media or golden mean, also 915 came up for consideration as a close up of the relevant provisions was taken. This view was that while transactions which came into existence in an area before the Act was extended to that area, would be tested for their validity by the law extant when the transaction was entered into, the remedies and other incidents would be conditioned by the TP Act if it had been extended to the area when the remedy was sought to be enforced. Shri Chitaley wanted us to accept Namdeo (supra) as an authority for his proposition and relied on certain passages therein. The problem presented before us cannot be disposed of in an easy fashion and deserves serious examination. In the present case, we are relieved of that obligation for the weighty reason that the appellant has all along staked his case on the application of the rules of justice, equity and good conscience and not on the textual rigour of section 111(g) applied proprio vigore. We have already indicated that although this question was not canvassed before the trial Court, the appellate tribunal did consider it as a point of law. In doing so, the learned Tribunal applied what he considered to be the principles of justice, equity and good conscience and dispensed with the drastic insistence on notice in writing. In the High Court, the position taken up by the appellant did not disturb the application of justice, equity and good conscience. On the contrary, the Division Bench emphatically asserted that the appellant never disputed this proposition. Indeed, both in regard to notice to quit and notice of forfeiture, the appellant accepted the application, not of the TP Act as such, but of the rules of justice, equity and good conscience. We may as well except the relevant statement in the judgment of the High Court: "In the present case, the provisions of the TP Act had not been extended to Delhi during the material period and these provisions would therefore, not be applicable to the tenancy in question. It was not disputed before us that in view of this only such of the principles embodied in the provisions of sections 106 and 111 of the TP Act would regulate the matter as could be held to be consistent with the rules of equity, justice and good conscience. It was also not disputed before us that even though the provision of section 106 of the TP Act laying down the manner in which a tenancy may be terminated are technical in character, in that they require such termination 'by fifteen days ' notice expiring with the end of the month of the tenancy '. It would be consistent with the requirements of equity, justice and good conscience that a tenant has reasonable notice of termination even though it does not expire with the end of the month of a tenancy. It was also not disputed that in the present case, no notice whatever was sent to the tenant of the application for eviction when the notice was sought to be justified on the ground that no such notice was necessary because the tenancy stood determined either by efflux of time limited thereby in terms of the principle embodied in section 111(a) of the TP Act or by forfeiture following the breach by the tenant of the express condition regarding sub letting in terms of the principles embodied in section 111(g) of the said Act. " 916 If the appellant 's case was that the TP Act applied of its own force, he would have urged so in the High Court, especially because the appellate tribunal had dealt an eviction blow on him by applying the rules of justice, equity and good conscience. Moreover, the categorical statement in the judgment of the High Court confirms the view that the appellant stuck to his stance of justice, equity and good conscience. Nay more. Even in the grounds of appeal to this Court" he has only harped on justice, equity and good conscience and invoked section 111(g) as embodying equity and good conscience. For the first time he has, by a volta face, switched to the TP Act as against the rules of justice, equity and good conscience. It is too late in the day to set up a new case like that. There are many reasons why. Even though we have power to permit a new plea, we should not exercise it here. We decline our discretion to allow the appellant to travel into the new statutory territory of section 111(g). He has to stand or fall by his submission that justice, equity and good conscience is the alter ego of section 111 (g) of the TP Act in its dual requirements of (a) the breach of a condition providing for re entry and (b) notice in writing to the lessee of an intention to determine the lease. Once we assume the inapplicability of the TP Act to the lease in question an assertion of the respondent which we do not feel compelled to consider in this appeal we are confronted by the concept of justice, equity and good conscience which, admittedly, comes into play in the absence of any specific legislative provision. In India and in other colonies during the Imperial era a tacit assumption had persuaded the courts to embrace English law (the civilizing mission of the masters) as justice, equity and good conscience. Throughout the Empire in Asia and Africa, there was an inarticulate premise that English law was a blessing for the subject peoples. Robert M. Seldman writes about Sudan: "The courts were simply directed to decide cases on the basis of 'justice, equity and good conscience ' [Civil Justice Ordinance, , 10 Laws of the Sudan 13 (1955) ]. However, the judges were all English lawyers; and with magnificent insularity it developed that 'justice, equity and good conscience ' meant not merely English common law but English statutory law as well. The author has been told by an English barrister who tried a case in the Sudan some years ago that he was amazed to discover that 'justice, equity and good conscience ' meant in his case the English Sales of Goods Act, 1862." (Law and Economic Development in Independent, English Speaking, Sub Saharan Africa Wisconsin Law Review Vol. 1966, Number 4, Fall) The Judicial Committee of the Privy Council struck a similar note in Maharaja of Jeypore vs Rukmani Pattamahadevi(1) where Lord Phillimore stated: "They are directed by the several charters to proceed where the law is silent, in accordance with justice, equity, 917 and good conscience, and the rules of English law as to forfeiture of tenancy may be held and have been held to be consonant with these principles and to be applicable to India." Unfortunately, even after liberation, many former colonies, including India, did not shake off this neo colonial jurisprudence (See A.I.R. 1950 Bom. 123). This is the genesis of the idea that Indian 'good conscience ' is English Common Law during the reign of Empress Victoria ! The imperatives of Independence and the jural postulates based on the new value system of a developing country must break of from the borrowed law of England received sweetly as 'justice, equity and good conscience '. We have to part company with the precedents of the British Indian period tying our non statutory area of law to vintage English law christening it justice, equity and good conscience '. After all, conscience is the finer texture of norms woven from the ethos and life style of a community and since British and Indian ways of life vary so much that the validity of an anglophilic bias in Bharat 's justice, equity and good conscience is questionable today. The great values that bind law to life spell out the text of justice, equity and good conscience and Cardozo has crystallised the concept thus: "Life casts the mould of conduct which will some day become fixed as law. " Free India has to find its conscience in our rugged realities and no more in alien legal thought. In a larger sense, the insignia of creativity in law, as in life, is freedom from subtle alien bondage, not a silent spring nor hot house flower. So viewed, the basic question is: What is the essence of equity in the matter of determining a lease on the ground of forfeiture caused by the breach of a condition ? Can any technical formality be exalted into a rule of equity or should a sense of realism, read with justice, inform this legal mandate ? If Law and Justice in the Indian context must speak to each other, statutory technicality such as 'notice in writing ' prescribed in section 111(g) of the TP Act cannot be called a rule of equity. It is no more than a legal form binding on those transactions which are covered by the law by its own force. The substance of the matter the justice of the situation is whether a condition in the lease has been breached and whether the lessor has, by some overt act, brought home to the lessee his election to eject on the strength of the said breach. This Court, in Namdeo (supra) has explained the rule of justice, equity and good conscience. It observed, at p. 1015: "It is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come up before them for determination even though the statutory provisions of the are not 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 conscience also govern those transfers. If, therefore, we are satisfied that the particular principle to which the legislature 918 has now given effect by the amendment to section 111 (g) did in fact represent a principle of justice, equity and good conscience, undoubtedly the case will have to be decided in accordance with the rule laid down in the section, although in express terms it has not been made applicable to leases executed prior to 1929 or even prior to the coming into force. The main point for consideration thus is whether the particular provision introduced in sub section (g) of section 111 of the in 1929 is but a statutory recognition of a principle of justice, equity and good conscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is not based on any well established principles of equity. The High Court held, and we think rightly, that this provision in subsection (g) of section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the and every amendment effected is necessarily based on principles of justice, equity and good conscience. 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 concerned, the insistence therein that the notice 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 not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenant 's breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete 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 111. 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 conscience are not such a variable commodity, 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 contained in subsection (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the 919 one stated in the sub section as it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture. " Of course, in that case, Mahajan, J. has dwelt at length on the English law of landlord and tenant and the discussion is partially suggestive of the English law of real property being a good guide to the Indian Judges ' good conscience. But the ratio is clear that processual technicalities and even substantive formalities cannot masquerade as justice and equity. The touchstone is simply whether the formal requirement of the law is part of what is necessarily just and reasonable. In this perspective, the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense. Realism, married to equity, being the true test, we are persuaded that the pre amending Act provision of section 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease. The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly Reference was made at the bar to the ruling in Mohd. Amir(1) To understand that decision we have to make a distinction between the principles embodied in section 111(g) and the provisions thereof. Not all the stipulations and prescriptions in the section can be called the principles behind it. In this light there is no contradiction between the two cases of this Court the earlier one of Namdeo (supra) and the later Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view. It is a fitting finale to this part of the argument that in the High Court arguments proceeded on the footing that the Supreme Court has ruled in Namdeo (supra) that 'there being no requirement in English law of a written notice to the lessee of the intention of the lessor to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience '. We have already made our comments on the anglophonic approach and do not wish to reiterate them here. However, there are certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court: "In the case of Namdeo Lokman Lodhi the Supreme Court was directly concerned with the question of the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and therefore, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative." 920 The irrelevance of the English law as such to notions of good conscience in India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlord 's termination of the tenancy in this case is good even without a written notice. Many other niceties of law were presented to us by Shri A. K. Sen to extricate the tenant from eviction. They are too unsubstantial and intricate for us to be deflected from the sure and concurrent findings, read in the background of an alternative accommodation being available to the tenant. We dismiss the appeal but direct that this order for eviction shall be executed only on or after March 1, 1976. The over all circumstances justify a direction that the parties do bear their costs throughout. P.H.P. Appeal dismissed.

The respondent landlord let out the building in question to the appellant tenant in the year 1954, when the Transfer of Property Act was not applicable to Delhi where the property is situated. The Transfer of Property Act was made applicable to Delhi in the year 1962. In 1967, the respondent filed a suit for eviction against the appellant without terminating the tenancy under the Transfer of Property Act on the grounds of unauthorised subletting and acquisition of alternative accommodation by the tenant. A decree for eviction was passed by the Rent Controller which was affirmed by the Appellate Tribunal. In the High Court it was contended by the appellant that neither notice to quit nor notice of forfeiture determining the tenancy was given by the landlord as required by sections 106 and 111 of the Transfer of Property Act. The respondent contended that the lease had expired by efflux of time under section 111(a) and no notice terminating the tenancy was necessary and that forfeiture of the tenancy caused by the subletting contrary to the terms of the agreement can be availed of by the landlord even in the absence of a notice as contemplated by section 111(g). The High Court dismissed the petition filed by the appellant but granted a certificate of fitness under Article 133 restricting it to one ground urged before the High Court. The respondent raised a preliminary objection that since the certificate was granted only on one point the appellant could not be permitted to make any other submissions. The appellant contended that the lease is one where the time is not limited and, therefore, is terminable only by 15 days notice as required by section 106 of Transfer of Property Act. The respondent contended that the lease was for a fixed period and expired by efflux of time. In any evnt a notice in writing is not necessary to terminate the lease. Institution of legal proceedings serves that purpose. ^ HELD: (1) Once a certificate of fitness has been granted under Article 133, the appeal, in all its amplitude, is before the Court and every point may be urged by the appellant provided this Court permits it having regard to the circumstances. It is however, within the court 's discretion not to allow a new point to be taken up. [909D E] (2) The scheme of the Rent Control Law, is to put further fetters on landlords seeking eviction where in the absence of such acute barriers the landlords would be entitled to ejectment. Even where under a particular Rent Control Statute the landlord makes out grounds for eviction he can institute proceedings in this behalf only if de hors the said grounds he has cause of action under the Transfer of Property Act. The landlord cannot secure an order for eviction without first establishing that he has validly determined the lease under the transfer of Property Act. [909G H,911C] (3) A lease merely stating that it is for a period less than one year is ex facie for an indefinite period and as such cannot expire by efflux of time. 907 Nor are we convinced that the acceptance of rent for the period of 11 years does not amount assenting to the holding over of the tenancy by the landlord. [911E F] (4) The Rent Act contemplates no elaborate proceedings but filing out of the particulars in a proforma which takes the place of a plaint. No specific averment of forfeiture and consequent determination of the lease is found in the petition. The question arises whether a written notice of forfeiture for the breach of the condition of the lease is obligatory in terms of section 111(g) or whether written notice of forfeiture can be dispensed with as being no part of the equity or justice but a technical or formal statutory requirement. Before the amendment of Transfer of Property Act in 1929 all that was necessary for the lessor to determine the demise on forfeiture was to do some act showing his intention to determine the lease. The rule of English Law 'before the enactment of the law of Property Act, 1925, appears to be that a suit for ejectment is equivalent to a re entry. The appellant did not urge in the High Court that the Transfer of Property Act was applicable in its own force. We decline our discretion to allow the appellant to travel into the new statutory territory of section 111 (g). [911G H, 913A, D E, 916C] (5) In India and in other colonies throughout the Imperial Era a tacit assumption had persuaded the courts to embrace English Law (the civilizing mission of the masters) as justice, equity and good conscience. Unfortunately, even after liberation, this neo colonial jurisprudence was not shaken off. Free India has to find its conscience in our rugged realities and no more in alien legal thought. So viewed, the basic question is what is the essence of equity in the matter of determination of a lease on the grounds of forfeiture caused by the breach of a condition. The substance of the matter the justice of the situation is whether a condition in the lease has been breached and whether the lessor has by some overt act brought home to the lessee his election to eject on the strength of the breach. The touchstone is simply whether the formal requirement of the law is part of what is necessarily just and reasonable. In this perspective the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or cannon of commonsense. Realism married to equity being the true test, we are persuaded that pre amending Act provision of section 111 (g) is in consonance with justice. The mere institution of the legal proceeding for eviction fulfills the requirements of law for determination of the lease. The conscience of the Court needs nothing more and nothing less. The essential principles, not the technical rules, of the Transfer of Property Act form part of justice, equity and good conscience. [916D, 917A, D, E F,919B C, 920A]

Appeal No. 870 of 1968. (From.the Judgment and Order dated 22.11.1967 of the Madhya Pradesh High Court in Second Appeal No. 436/64. G.L. Sanghi and D.N. Misra for the appellant. P.H. Parekh (amicus curiae) for the respondents. The Judgment of the Court was delivered by KRANNA, J. This appeal by special leave is against the judgment of the Madhya Pradesh High Court affirming on second appeal the decision of the trial court and the first appellate court whereby suit for possession of the land in dispute had been decreed in favour of the plaintiff re spondent against the defendant appellant. Laxmi Dayal died in 1952 leaving the lands in dispute and some other properties. He was succeeded by his two widows, Shantibai and Bindumati. In 1954 Chandanbai, widow of brother of Laxmi Dayal, filed civil suit No. 34A of 1954 against Shantibai and Bindumati in respect of the property left by Laxmi Dayal. During the pendency of that suit, a deed of partition was executed by Shantibai, Bindumati and Chandanbai, as a result of which each one of them was stated to have become full owner of the property which fell to her share. The partition deed was got registered and necessary mutation entries were made in accordance with that deed. On September 8, 1955, Shantibai made a will of the property which fell to her share as a result of partition,. in favour of the plaintiff respondent. The suit filed by Chandanbai was disposed of on February 18, 1956 in terms of partition deed dated January 13, 1955. Shantibai died on May 29, 1956. The respondent filed the present suit against Bindu mati defendant appellant for possession of the land in dispute on the allegation that he (the respondent) had taken possession of the land in dispute in pursuance of the will executed in his favour by Shantibai. The appellant was stated to have relinquished her right of survivorship in the land which fell to the share of Shantibai. The appellant, it was further pleaded, had taken forcible possession of the land in dispute. The suit was resisted by the appellant on the ground that she had not relinquished her right of survivorship in the land which fell to the share of Shantibai. Shantibai, it was further averred, had no right to dispose of the said land by will. The trial court accepted the contention of the respondent and decreed his suit. The decision of the trial court was affirmed on appeal by the first appellate court and by the High Court in second appeal. The first question which arises for consideration in this appeal is whether the appellant relinquished her right of survivorship in the property which fell to the share of Shantibai as a result of the deed of partition dated January 13, 1955. In this respect we find that each 990 of the three executants stated in that deed that none of them would have any right or claim over the property that fell to the share of other shareholders in partition. it was further stated in the deed: "Every shareholder may get the property fallen to her share, mutated and may take possession thereof and thus may become abso lute owner thereof. 'Every shareholder may get her name separately mutated in Patwari 's papers. She may sell it. If other sharehold er claim it, it will be contrary to law . . By taking our respective share from the entire property in the parti tion we become separate from the entire property. " When she came into the witness box, the appellant admitted that their object in making the partition was that they would be able to dispose of their separate lands in any way they liked. The appellant also stated that as a result of partition, each one of the executants of the deed of partition became exclusive owner of the property that fell to her share. In the face of the recitals in the deed of partition and the admissions made by the appellant in the witness box, we find no reason whatsoever to disturb the finding of the courts below that the appellant had relin quished her right of survivorship in the property which fell to the share of Shantibai. Sanghi on behalf of the appellant, however, contends that it is not permissible in Hindu law for a widow to give up her right of survivorship in the property which fails to the share of the co widow even as a result of an agreement. This contention, in our opin ion, is devoid of force and runs counter to the decision of this Court in the: case of Karpagathachi & Ors. vs Nagarathipathachi.(1) As observed in that case, "under the Hindu law as it stood in 1924, two widows inheriting their husband 's proper ties took together one estate as joint tenants with rights of survivorship and equal benefi cial enjoyment. They were entitled to en force a partition of those properties so that each could separately possess and enjoy the portion allotted to her, see Dhuowan Deen Dobey vs Myna Baee(2), Gauri Nath Kakaji vs Gaya Kuar(3). Neither of them could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship, see Commissioner of Income tax vs Smt. Indira Balakrishna(4). But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during the continuance of the widow 's estate, and could absolutely divide the properties, so as to preclude the right of survivorship of each of the portion allotted to the other see Ramakkal vs Ramasami Naichan (5),, Sudalai Ammal vs Gomathi Ammal(6). Likewise, two daughters succeeding to their father 's estate as joint (1) ; (2) (3) (1928)L.R. 55 I.A. 299. (4) ; ,517. (5) Mad, 522, (6) , 991 tenants with rights of survivorship could enter into a similar arrangement, see Kailash Chandra Chuckerbutty vs Kashi Chandra Chuck erbutty (1), Subbammal vs Lakshmanu Iyer(2), Ammani Ammal vs Periasami Udavan.(a) Such an arrangement was not repugnant to section 6(a) of the . The interest of each widow in the properties inherited by her was property, and this property together with the incidental right of survivorship could be lawfully trans ferred. Section 6(a) of the prohibits the transfer of the bare chance of the surviving widow taking the entire estate as the next heir of her hus band on the death of the Co widow, but it does not prohibit the transfer by the widow of her present interest in the properties inher ited by her together with the incidental right of survivorship. The widows were competent to partition the properties and allot separate portions to each, and inciden tal to such an allotment, each could agree relinquish her right of survivorship in the portion allotted to the other. " There is nothing in the decision of Smt. Indira Balakr ishna (supra) which stands in the way of any mutual arrange ment between the cowidows, the effect of which would be to preclude the right of survivorship of each to the portion allotted to the other. The question which actually arose for decision in that case was whether the three widows of a deceased person could have the status of an association of persons within the meaning of section 3 of the Indian In come tax Act, 1922. This question was answered in the negative. While discussing this question, this Court observed that though the widows take as joint tenants, none of them has a right to enforce an absolute partition of the estate against the other so as to destory the right of survivorship. The question as to whether the right of survivorship could be relinquished as a result of mutual agreement did not arise for consideration in that case. This question was dealt with in the case of Karpagathachi (supra) and it was held after noticing the decision in Smt. Indira Balakrishna 's case (supra) that such relinquishment of the right of survivorship was permissible as a result of mutual arrangement. Lastly, it has been argued by Mr. Sanghi that even though Shantibai became entitled to dispose of during her life time the property which fell to her share as a result of the deed of partition, she could not bequeath the same by means of a will. This submission too. is devoid of force, and we agree with Mr. Parekh who argued the case amicus curiae that the power of Shantibai to make a will in respect of the property in dispute was co extensive with her power to transfer it inter vivos. The question as to what effect the will would have on the right of the male rever sioner, if any, of Laxmi Dayal need not be gone into in this case. So far as Bindumati appellant is concerned, we have no doubt that in the light of the arrangement contained in the deed of partition dated January 13, 1955 she cannot resist the (1) cal. (2) , (3) (1923) 45 M.L.I. 1. 992 claim of the plaintiff respondent who is a legatee under the will of Shantibai. To hold otherwise would be tantamount to permitting the appellant to assert her right of survivor ship in the property which fell as a result of partition to the share of Shantibai even though the appellant has relin quished such right of survivorship. The appeal consequently fails and is dismissed. As no one appeared on behalf of the respondent, we make no order as to the costs of the appeal. P.H.P. Appeal dismissed.

One Lakshmi Dayal died in 1952 leaving behind two wid ows, appellant and Shantibai. In 1954, Chandanbai widow of brother of Laxmi Dayal filed a suit against the appellant and Shantibai in respect of the. properties left by Lakshmi Dayal. During the. pendency of the said suit, the appel lant, Shantibai and Chandanbai executed a partition deed alloting different properties to each one of the widows. The partition deed was registered and necessary mutation entries were made. The suit filed by Chandanbai was dis posed of in terms of the Partition Deed. In September. 1955, Shantibai made a will in favour of the respondent and she died on 29 5 1956. After her death, the appellant took forcible possession of the suit land from the respondent. The respondent, therefore, filed a suit against the appel lant for possession of the land in dispute. The Trial Court, the first Appellate, Court and the High Court in Second Appeal came to the conclusion that the appellant had relinquished her right of survivorship in lands which fell to the share of Shantibai and, therefore, decreed the respondefts suit. In an appeal by Special Leave the appellant contended: 1. The appellant did not relinquish her right of survivorship. It is not permissible for a Hindu co widow. to give up her right of survivorship even by an agreement. Even if right of survivorship can be given up during the lifetime of the widows con cerned, the property could have been trans ferred inter vivos but could not have been disposed of by a will. Dismissing the appeal, HELD: 1. It is clear from the Partition Deed and the evidence of the appellant herself that she had relinquished her right of survivor ship. The findings of all the courts below to the effect that the appellant relinquished her right of survivorship are correct. [990 B C] 2. It is permissible under Hindu Law for a co widow to relinquish by agreement her right of survivorship ' in the property which falls to the share of the other widow. [990 G] Karpagathachi & Ors. vs Nagarathipathachi ; followed. Bhuowan Deen Doobey vs Myna Baee ; Gauri Nath Kakaji vs Gaya Kaur (1928) LR 55 IA 299 re ferred. Commissioner of Income Tax vs Smt. Indira Balakrishna ; , 517 distinguished. Ramakkal vs Ramasami Naichan Mad. 522, Sudalai Ammal vs Comathi Ammal ; Kailash Chandra Chuckerbutty vs Kashi Chandra Chuckerbutty Cal. 339; Subbammal vs Lakshmana Iyer ; Ammani Ammal vs Perissemi Udayan re ferred to. 3. The power of a co widoW to execute a will in respect of the property falling to her share in the partition with the other co widows is co extensive with her power to trans fer it inter vivos. 989

vil Appeal No. 62 (N) of 1970 etc. From the Judgment and Order dated 13.10. 1969 of the Madras High Court in W.A. No. 464 of 1967. K. Parasaran, Attorney General, Dr. Y.S. Chitale, F.S. Nariman. T.S. Krishnamurthy Iyer, A.K. Ganguli, B. Sen, L.N. Sinha, R.N. Sachthey, R.B. Datar, R.F. Nariman, K.J. John, H.N. Salve, Praveen Kumar, A.V. Rangam, T.Sridharan, K.D. Prasad, Mrs. Naresh Bakshi, K. Rajendra Choudhary, Ms. Seita Vaidialingam, V. Krishnamurthy, Ms. A. Subhashini, N. Net tar, G.S. Narayan, Badrinath Babu, Anip Sachthey and S.K. Agnihotri for the appearing parties. The Judgment of the Court were delivered by SABYASACHI MUKHARJI, J. The question involved in these appeals, special leave petitions and writ petitions is, whether levy of cess on royalty is within the competence of the State Legislature. In order to appreciate the question, it is necessary to refer to certain facts. Civil appeal No. 62/79 is an appeal by special leave from the judgment and order of the High Court of Madras, dated 13th October, 1969, in writ appeal No. 464/67. The appellant is a public limited 698 company incorporated under the Indian Companies Act, 1913. The Company at all relevant times, used to manufacture cement in its factory at Talaiyuthu in Tirunelveli district, and at Sankaridrug in Salem district of Tamil Nadu. By G.O. Ms. No. 3668 dated 19th July, 1963, the Govt. of Tamil Nadu sanctioned the grant to the appellant mining lease for limestone and kankar for a period of 20 years over an extent of 133.91 acres of land in the village of Chinnagoundanur in Sankaridrug Taluk of Salem district. Out of the extent of 133.91 acres comprised in the mining lease, an extent of 126.14 acres was patta land and only the balance extent of 7.77 acres Govt. The lease deed was in accordance with the Mineral Concession Rules, 1960. The rates of royalty, dead rent and surface rent, were as follows: "Royalty: LIMESTONE Government Lands: Re.O.75 per tonne, but subject to a rebate of Re.O.38 per tonne to be given on Imestone beneficiated by froth flota tion method. Patta Lands: Re.O.38 per tonne but subject to a rebate of Re.O. 19 per tonne to be given on limestone beneficiated by froth flotation method. KANKAR Government Lands: Five per cent of the sale price at the pit 's mouth. Patta Lands: 2 1/2% of the sale price at the pit 's mouth Dead rent: Government lands: Rs.25 (Rupees twentyfive only) per hectare per annum. Patta lands: Rs. 12/50 (Rupees twelve & naya paise fifty only) per hectare per annum. Surface rent and water rate: At such rate as the land revenue and cess assessable on the land are paid. " The appellant started mining operations soon after the execution 699 of the lease deed and has ever since been paying the royal ties, dead rents and other amounts payable under the Deed. Under section 115 of the Madras Panchayats Act (XXXV of 1958) (hereinafter called 'the Act '), as amended by Madras Act XVIII of 1964 (herein after called 'the amended Act '), as royalty the appellant was required to pay local cess @ 45 paise per rupee. It may be mentioned that the said imposi tion was with retrospective effect along with local cess surcharge under section 116 of the Act. The contention of the appellant is and was, at all relevant times, that cess on royalty cannot be levied. This is the common question which falls for consideration and requires determination in these appeals and petitions. To complete the narration of events, however, it has to be noted that the Collector sent a communication on 10th April, 1965, demanding cess or royalty payable under the Act on minerals carried on during the period 1.7.1961 to 31.12.1964, and the petitioner was threatened of serious consequences in case of default of payment on receipt of that communication. Thereafter, writ petition No. 1864/65 was filed in the High Court of Madras. By the judgment delivered and order passed on 23rd February, 1967. a learned Single Judge of the Madras High Court Justice Kailasam dismissed the writ petition holding that the cess levied under section 115 of the act is a tax on land and, as such, falls under Entry 49 of the State List of the Schedule VII of the Constitution, and was within the competence of the State legislature. Reliance was placed by the learned single Judge on the decision of this Court in H.R.S. Murthy vs Collector of Chittoor & Anr., ; He held that the cess levied under section 115 was a tax on land, though fixed with reference to the land revenue. In regard to section 116 of the Act, the learned Single Judge held that the maximum limit had been prescribed by the Government by rules flamed under the Act, and, therefore, there was no arbitrariness about the levy. Sub section 1 of section 115 of the Act enjoins that there shall be levied in every panchayat development block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Govt. in respect of any land for every Fasli. An Explanation to the said section was added and deemed always to have been incorporated by the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act, 1964 being Tamil Nadu Act 18 of 1964, which provided as follows: "[Explanation. In this section and in section 116, 'land revenue ' means public revenue due on land and includes 700 water cess payable to the Government for water supplied or used for the irrigation of land, royalty, lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the sur charge payable under section 116, provided that land revenue remitted shall not be deemed to be land revenue payable for the purpose of this section.]" Sub section 2 of section 115 of the Act provides that the local cess shall be deemed to be public revenue due on all the lands in respect of which a person is liable to pay local cess and all the said lands, the buildings upon the said lands and their products shall be regarded as the security for the local cess. Sub section 3, 4 (a), (b), (c) and (d) of section 115 of the said Act deal with the application of the cess so collected for various purposes mentioned therein. In the controversy before us, the said provisions need not be considered. Section 116 of the Act is as follows: "116. Every panchayat union council may levy on every person liable to pay land revenue to the Government in respect of any land in the panchayat union a local cess surcharge at such rate as may be considered suitable as an addition to the local cess levied in the panchayat development block under section 115 provided that the rate of local cess surcharge so levied (shall not exceed two rupees and fifty paise on every rupee of land revenue) payable in respect of such land. " The words "shall not exceed two rupees & fifty paise on every rupee of land revenue" were substituted for the words "shall be subject to such maximum as may be prescribed" by section 3 of the Tamil Nadu Panchayats ' (2nd Amendment and Validation) Act, 1970, and these words were substituted for the words "shall not exceed one rupee and fifty paise on every rupee of land revenue" by section 2 of the Tamil Nadu Panchayats (Amendment) Act, 1972. There was an appeal from the said decision of the learned Single Judge, to the division bench of the High Court. The division bench by its judgment and order dated 13th October, 1969, dismissed the writ appeal, and held that local cess authorised by section 115 as aforesaid "was not land revenue but is a charge on the land itself and Section 115 701 merely quantified on the basis of the quantum of land reve nue". The division bench held that the meaning of the Expla nation added to section 115 was that the cess is levied as a tax on land and is measured with reference to land revenue, royalty, lease amount etc. as mentioned in the Explanation. The division bench also relied on the decision of this Court in H.R.S. Murthy (supra), and further held that in the aforesaid view of the matter, it was not possible to accept the contention that section 115 of the Act read with the Explana tion contravened in any manner section 9 of the Mines and Miner als (Regulation and Development) Act, 1957. By leave granted by this Court on 12th January, 1970 the appeal has been filed. The appellant is bound to pay royalty to the Govt. according to the rates provided in the Second Schedule to the said Act of 1957. Clause (1) of Part VII of the lease document provides as follows: "The lessee/lessees shall pay the rent, water rate and royalties reserved by this lease at such times and in the manner provided in Part V and VI of these presents and shall also pay and discharge all taxes, rates, assessment and impositions whatsoever being in the nature of public demand which shall from time to time be charged, assessed or imposed by the authority of the Central and State Government upon or in respect of the premises and works of the lessee/lessees in common with other premises and work of a like nature except demands for land revenue. " As mentioned hereinbefore, there is an obligation of the lessee to pay rent and other charges mentioned in the said Clause, and all other Central and State Government dues "except demands for land revenue". The question, therefore, which arises is, is cess on royalty a demand of land revenue or additional royalty? For the appellants and/or petitioners we have heard Mr. Nariman,_ Dr. Chitale and Mr. Salve, and for the interven ers, S/Shri K.D. Prasad, Rajendra Choudhary and Ms. Seita Vaidialingam have made their submissions. For the State of Tamil Nadu, Mr. Krishnamurthy Iyer and Mr. V. Krishnamurthy have made their submissions. We have had the advantage of the submissions made by learned Attorney General on behalf of Union of India. The issues are common in the writ peti tions as well as in the appeal and in the special leave petitions. The question involved in the appeals and the writ petition is about the constitutional validity of Section 115(1) of the Act, in so far as it 702 sought to levy as local cess @ 45 naya paise on every rupee of the land revenue payable to the Government, the meaning of land revenue being artificially expanded by the explana tion so as to include royalty payable under the mining lease. In this connection, it may be appropriate to refer to the Statement of Objects and Reasons for the amendment which stated, inter alia, as follows: "Under the Explanation to section 115 of the Act "land revenue" means public revenue due on land and includes water cess payable to the Government for water supplied or used for the irrigation of land but does not include any other cess or surcharge payable under section 116. The Explanation does not cover "royal ties", lease amount or other sum payable to the Government in respect of land held direct from the Government on lease or licence which were included in the definition of "land revenue" under the Madras District Boards Act, 1920. As under the Madras District Boards Act, 1920, certain panchayat union councils contin ued to levy the cess and surcharge under the Madras Panchayats Act, 1958 also. It is con sidered that the levy should be on the same basis as under the Madras District Boards Act, 1920. It is, therefore, proposed to include "royalty, lease amount and other sums payable to the Government" in the definition of land revenue in the Explanation to section 115 of the Act and also to validate the levy and collection of the cess and surcharge made hitherto on the said basis. " It is obvious that the said amendment was intended to bring royalty within the Explanation and the definition of land revenue in section 115 as well as section 116 of the Act, and was effected by the Gazette Notification of 2nd Septem ber, 1964 by Act No. 18 of 1964. In order to appreciate the controversy, it has no be understood that in this case royalty was payable by the appellant which was prescribed under the lease deed, the terms whereof have been noted hereinbefore. The royalty had been fixed under the statutory rules and protected under those rules. The royalty was fixed under the Mines and Minerals (Regulation & Development) Act, 1957 which is a Central Act by which the control of mines and minerals had been taken over by the Central Government. It was an Act for the regulation of mines and development of minerals under the control of Union of India. That 703 Act was to provide for the regulation of mines and the development of minerals under the control of the Union of India. 2 of the Act declares that it is expedient in the public interest that the Union of India should take under its control the regulation of mines and the develop ment of the minerals to the extent provided in the Act. Section 9 of the Act provides as follows: "9. (1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. (2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. (2A) The holder of a mining lease, whether granted before or after the commencement of the Mines and Minerals (Regulation and Devel opment) Amendment Act, 1972, shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a col liery provided that such consumption by the workman does not exceed one third of a tonne per month. (3) The Central Government may, by notifica tion in the Official Gazette. amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years. " The Act was passed by virtue of the power of the Parliament 704 under Entry 54 of list I of the 7th Schedule. Since the control of mines and the development of minerals were taken over by Parliament, the question that arises here is whether the levy or the impost by the State Legislature imposed in this case can be justified or sustained either under entry 49, 50 or 45 of list II of the 7th Schedule. Courts of law are enjoined to gather the meaning of the Constitution from the language used and although one should interpret the words of the Constitution on the same princi ples of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation. It has to be remembered that it is a Consti tution that requires interpretation. Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be. See the obser vations of Justice Higgins in the Attorney General for the State of New South Wales vs The Brawery Employees Union of New South Wales, ; at 611 2. In re: C.P. and Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, [1939] FCR at p. 1, Chief Justice Gwyer of the Federal Court of India relied on the observations of Lord Wright in James vs Common wealth of Australia, and observed that a Constitution must not be con strued in any narrow or pedantic sense, and that construc tion most beneficial to the widest possible amplitude of its powers, must be adopted. The learned Chief Justice empha sised that a broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but they are not free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors. A Federal Court will not strengthen, but only derogate from, its position, if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution of a country is a living and organic thing, which of all instruments has the greatest claim to be con strued ut res magis valeat guam pereat. 'It is better that it should live than that it should perish '. Certain rules have been evolved in this period, and it is wellsettled now that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by article 246 and other articles of the Constitution. See the observations of this Court in Calcutta Gas Co. vs State of West Bengal, [1962] Suppl 3 SCR 1. The entries in the three lists of the Seventh Schedule to the Constitution, 705 are legislative heads or fields of legislation. These demar cate the area over which appropriate legislature can oper ate. It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists. See the observa tions of this Court in H.R. Banthia & Ors. etc. vs Union of India & Ors. , ; at 489 and Union of India vs Shri H.S. Dillon; , at 792. The lists are designed to define and delimit the respective areas of respective competence of the Union and the States. These neither impose any implied restriction on the legislative power conferred by Article 246 of the Constitution, nor prescribe any duty to exercise that legislative power in any particular manner. Hence, the language of the entries should be given widest scope, D.C. Rataria vs Bhuwalka Brothers Ltd., ; , to find out which of the meaning is fairly capable because these set up machinery of the Govt. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. In interpreting an entry it would not be reasonable to import any limitation by comparing or con trasting that entry with any other one in the same List. It is in this background that one has to examine the present controversy. Here, we are concerned with cess on royalty. One can have an idea as to what cess is, from the observations of Justice Hidayatullah, as the learned Chief Justice then was, in M/s Guruswamy & Co. etc. vs State of Mysore & Ors., where at page 571, the learned Judge ob served: "The word 'cess ' is used in Ireland and_. is still in use in India although the word rate has replaced it in England. It means a tax and is generally used when the levy is for some special administrative expense which the name (health cess, education cess, road cess etc.) indicates. When levied as an increment to an existing tax, the name matters not for the validity of the cess must be judged of in the same way as the validity of the tax to which it is an increment." The said observations were made in the dissenting judg ment, but there was no dissent on this aspect of the matter. Relying on the aforesaid observations, Mr Nariman appearing for the appellant and 706 the petitioners suggested that the impugned levy in this case is nothing but a tax on royalty and is therefore ultra vires the State legislature. Mr. Krishnamurthy Iyer appear ing for the State of Tamil Nadu submitted that the cess in question in the instant case is a levy in respect of land for every fasli. He urged that the words "a local cess at the rate of 45 naya paise on every rupee of land revenue payable" qualify the words "land revenue". These words were only intended, according to Mr. Krishnamurthy Iyer, to mean cess payable. It is, however, not possible to accept this submission, in view of the obligation indicated by the language of the provisions. Cess is not on land, but on royalty which is included in the definition of 'land reve nue '. None of the three lists of the 7th Schedule of the Constitution permits or authorises a State to impose tax on royalty. This levy has been sought to be justified under Entry 45 of List II of the 7th Schedule. Entry 45 deals with land revenue, which is a well known concept and has existed in India before the Constitution came into force. In N.R. Reddy & Ors. vs State of A.P. & Ors., [1965] 2 Andhra Law Times 297, Jaganmohan Reddy, J. as the learned Judge then was of the Andhra Pradesh High Court, while sitting in a division bench observed that no land revenue Act existed in the composite State of Madras nor had the ryotwari system ever been established by legislative enactment. The learned Judge at p. 306 of the report observed that in the earlier days, sovereigns had in exercise of their prerogative right claimed a share of the produce of all cultivated land known as 'Rajabhagam ' or by any of the various other names, and had fixed their share or its commuted money value from time to time, according to their will and pleasure. The learned Judge noted that as long as the share of the sovereign was being paid, the sovereign had no right to the possession of the lands, and the proprietorship of these lands was vested in the occupier, who could not be removed because another offered more. The right of the sovereign to a share in the produce as observed by the Govt. of Madras in 1856 "is not rent which consists of all surplus produce after paying the cost of cultivation and the profits of agricultural stock but land revenue only which ought, if possible, to be so lightly assessed as to leave a surplus or rent to the occu pier, when he in fact lets the land to others or retains it in his own hands. " It was noted that the amount of tax that was levied before the Mohamedan Rule, amounted to 1/8th, 1/6th or 1/12th according to Manu depending on the differ ences in the soil and the labour necessary to cultivate it, and it even went up to 1/4th part, in times of urgent neces sity, as of war or invasion. The later commentators, Yajnav alkya, Apastamba, Gautama, Baudhayana and Narada, have all asserted not only the right but the extent of the share. When the British came to India they followed not only the precedent 707 of the previous Mohamedan Rulers who also claimed enormous land revenue, with this difference that what the Mohamedan Rulers claimed they could never fully realise, but what the British Rulers claimed they realised with vigour. It is not necessary to refer in detail how land revenue developed in India after the advent of the British Rule. There was an appeal from the said decision of the High Court of Andhra Pradesh and this Court dismissed the appeal in State of A. P. vs N.R. Reddy & Ors., ; It is, however, clear that over a period of centuries, land revenue in India has acquired a connot active meaning of share in the produce of land to which the King or the Govt. is entitled to receive. It was contended on behalf of the appellants that the impugned measure being a tax, not on share of the produce of the land but on royalty; royalty being the return received from the produce of the land, revenue was payable for winning minerals from the land. In the premises it was contended that it cannot be attributable to Entry 45 of List II of the 7th Schedule, being not a land revenue. It has, however, to be borne in mind that Explana tion to Section 115(1) was added and there was an amendment as we have noted before. That very Explanation makes a distinction between land revenue as such and royalty which by amendment is deemed to be land revenue. It is, therefore, recognised by the very force of that Explanation and the amendment thereto that the expression 'royalty ' in sections 115 & 116 of the Act cannot mean land revenue properly called or conventionally known, which is separate and dis tinct from royalty. It was also contended on behalf of the respondent State of Tamil Nadu of Mr. Krishnamurthy Iyer that it could also be justified under Entry 49 of List II of the 7th Schedule as taxes on lands and buildings. This, however, cannot be accepted. In this connection, reference may be made to the decision of this Court in Raja Jagannath Baksh Singh vs The State of U.P. & Anr., ; where at p. 229 it was indicated that the expression 'lands ' in Entry 49 is wide enough to include agricultural land as well as non agricultural land. Gajendragadkar, J. as the learned Chief Justice then was, observed that the cardinal rule of inter preting the words used by the Constitution in conferring legislative power was that these must receive the most liberal construction and if they are words of wide amplitude the construction must accord with it. If general word was used, it must be so construed so as to extend to all ancil lary or subsidiary matters that can reasonably be included in it. So construed, there could not be any doubt that the word 'land ' in Entry 48, List II of the 7th Schedule 708 includes all land whether agricultural or non agricultural. Hence, since the impugned Act imposed tax on land and build ing which was within the competence of the State Legislature and its validity was beyond challenge but the Court observed that as there was Entry 46 in List H which refers to taxes on agricultural income, it is clear that agricultural income is not included in Entry 49. If the State Legislature pur ports to impose a tax on agricultural income it would not be referable to Entry 49. Mr. Krishnamurthy Iyer relied on the said principle. But in the instant case, royalty being that which is payable on the extraction from the land and cess being an additional charge on that royalty, cannot by the parity of the same reasoning, be considered to be a tax on land. But since it was not a tax on land and there is no Entry like Entry 46 in the instant situation like the posi tion before this Court in the aforesaid decision, enabling the State to impose tax on royalty in the instant situation, the State was incompetent to impose such a tax. There is a clear distinction between tax directly on land and tax on income arising from land. The aforesaid decision confirmed the above position. In New Manek Chand Spinning & Weaving Mills Co. Ltd. & Ors., vs Municipal Corpn. of the City of Allahabad & Ors. , ; at 696, this Court after referring to the several decisions observed that Entry 49 of list II of the 7th Schedule only permitted levy of tax on land and building. It did not permit the levy of tax on machinery contents in or situated on the building even though the machinery was there for the use of the building for a particular purpose. Rule 7(2) of the Bombay Municipal Corporation Rules was held to be accordingly ultra vires in that case. In S.C. Nawn vs W.T.O., Calcutta & Ors., ; this Court had occasion to consider this and upheld the validity of the Wealth Tax Act, 1957 on the ground that it fell within Entry 86 of List I and not Entry 49 of List II. Construing the said Entry, this Court observed that Entry 49 list II contemplated a levy on land as a unit and the levy must be directly imposed on land and must bear a definite relationship to it. Entry 49 of list Il was held to be more general in nature than Entry 86, list I, which was held to be more specific in nature and it is well settled that in the event of conflict between Entry 86, list I and Entry 49 of list II, Entry 86 prevails as per Article 246 of the Constitution. In Asstt. Commissioner of Urban Land Tax & Ors. vs The Buckingham & Carnatic Co. Ltd. etc.; , at 278, this Court reiterated the principles laid down in S.C. Nawn 's case (supra) and held that entry 49 of list II was confined to a tax that was directly on land as a unit. In Second Gift Tax Officer, Mangalore etc. vs D.H. Nazareth etc. ; , at 200 it was held that a tax on the gift 709 of land is not a tax imposed directly on land but only on a particular user, namely, the transfer of land by way of gift. In Union of India vs H.S. Dhillon, (supra), this Court approved the principle laid down in S.C. Nawn 's case as well as Nazareth 's case (supra). In Bhagwan Dass Jain vs Union of India, ; at 816 this Court made a distinction between the levy on income from house property which would be an income tax, and the levy on house property itself which would be referable to entry 49 list II. It is, there fore, not possible to accept Mr. Krishnamurthy Iyer 's sub mission and that a cess on royalty cannot possibly be said to be a tax or an impost on land. Mr. Nariman is right that royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit. In this connec tion, reference may be made to the differentiation made to the different types of taxes for instance, one being profes sional tax and entertainment tax. In the Western India Theatres Ltd. vs The Cantonment Board, Poona Cantonment, ; at 69 it was held that an entertain ment tax is dependent upon whether there would or would not be a show in a cinema house. If there is no show, there is no tax. It cannot be a tax on profession or calling. Profes sional tax does not depend on the exercise of one 's profes sion but only concerns itself with the right to practice. It appears that in the instant case also no tax can be levied or is leviable under the impugned Act if no mining activi ties are carried on. Hence, it is manifest that it is nor related to land as a unit which is the only method of valua tion of land under entry 49 of list II, but is relatable to minerals extracted. Royalty is payable on a proportion of the minerals extracted. It may be mentioned that the Act does not use dead rent as a basis on which land is to be valued. Hence, there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on land. On behalf of the State of Tamil Nadu, learned counsel Mr. Krishnamurthy Iyer sought to urge that it can also be sustained under entry 50, list II. Entry 50 of list II of the 7th Schedule deals with taxes on mineral rights subject to limitation imposed by Parliament relating to mineral development. Entry 23 of List II deals with regulation of mines and mineral development subject to the provisions of list I with respect to regulation and development under the control of the Union and entry 54 in list I deals with regulation of mines and minerals under the control of Union declared by the Parliament by law to be expedient in public interest. Even though minerals are part of the State List they are treated separately, and therefore the principle that the specific excluded the general, must be applied. See the observations of Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd., [1963] 3 710 SCR 209 at 220, where it was held that land in entry 49 of list II cannot possibly include minerals. In this connection, learned Attorney General appearing for the Union of India submitted before us that in order to sustain the levy, the power of the State Legislature has to be found within one or more of the entries of list II of the 7th Schedule. The levy in question has to be either a tax or a fee or an impost. If it is neither a tax nor a fee then it should be under one of the general entries under List II. The expression 'land ' according to its legal significance has an indefinite extent both upward and downwards, the surface of the soil and would include not only the face of the earth but everything under it or over it. See the obser vations in Anant Mills Co. Ltd. vs State of Gujarat & Ors., [19751 3 SCR 220 at 249. The minerals which are under the earth, can in certain circumstances fall under the expres sion 'land ' but as tax on mineral rights is expressly cov ered by entry 50 of list II, if it is brought under the head taxes under entry 49 of list II, it would render entry 50 of list II redundant. Learned Attorney General is right in contending that entries should not be so construed as to make any one entry redundant. It was further argued that even in pith and substance the tax fell to entry 50 of list II, it would be controlled by a legislation under entry 54 of list I. On the other hand, learned Attorney General submitted that if it be held to be a fee, then the source of power of the state legislature is under entry 66 read with entry 23 of list II. Here also the extent to which regulation of mines and mineral development under the control of the Union is declared by Parliament by law to be expedient in the public interest, to the extent such legislation makes provi sions will denude the State Legislature of its power to override the provision under entry 50 of list II. In view of the Parliamentary legislation under entry 54, list I and the declaration made under section 2 and provisions of section 9 of the Act, the State Legislature would be overridden to that extent. section 2 declares that it is expedient in the public interest that Union should take under its control the regu lation of mines and the development of minerals to the extent provided therein. In this connection, reference may be made to the decision of this Court in The Hingir Rampur Coal Co. Ltd. & Ors. vs The State of Orissa & Ors., ; See also the observations in State of Orissa vs M.A. TuIloch & Co., ; and Baijnath Kedia vs State of Bihar & Ors., ; at 111 115. Our attention was drawn to the decision of the division bench 711 judgment of the High Court of Mysore in M/s. Laxminarayana, Mining Co., Bangalore vs Taluk Der. Board. , AIR There speaking for the court, one of us, Venkataramiah J of the Mysore High Court, as the learned Chief Justice then was, observed that a combined reading of entries 23 and 50 in list II and entry 54 of list I, establishes that as long as the Parliament does not make any law in exercise of its power under entry 54, the powers of the State Legisla ture in entries 23 & 50 would be exercisable by the State Legislature. But when once the Parliament makes a declara tion by law that it is expedient in the public interest to make regulation of mines and minerals development under the control of the Union, to the extent to which such regulation and development is undertaken by the law made by the Parlia ment, the power of the State Legislature under entries 23 & 50 of List II are denuded. There the court was concerned with the Mysore Village Panchayats & Local Boards Act, 1959. Thus, it was held that it could not, therefore, be said that even after passing of the Central Act, the state legislature by enacting section 143 of the Act intended to confer power on the Taluk Board to levy tax on the mining activities carried on by the persons holding mineral concessions. It followed that the levy of tax on mining by the Board as per the impugned notification was unauthorised and liable to be set aside. At p. 306 of the said report, it was held that royal ty under section 9 of the Mines and Minerals Act was really a tax. To the similar effects are the observations of the High Court of Patna in M. Lal & Ors. vs The State of Bihar & Ors. , AIR 1965 Patna 491 at 494. Mr. Krishnamurthy Iyer, however, referred to the decision of this Court in H.R.S. Murthy 's case (supra). There under the terms of a mining lease the lessee worked the mines and won iron ores in a tract of land in a village in Chittor district and bound himself to pay a dead rent if he used the leased land for the extraction of iron ore, to pay a royalty on iron ore if it were used for extraction of iron and in addition to pay a surface rent in respect of the surface area occupied or used. In the said decision the legislative competence of sections 78 & 79 of the Madras District Boards Act was upheld by which land cess was made payable on the basis of royalty. This Court proceeded on the basis that other cess related to land and would therefore be covered by entry 49 of list II. It was held that land cess paid on royalty has a direct relation to the land and only a remote relation with mining. This, with respect, seems to be not a correct approach. It was further observed that it was not necessary to consider the meaning of the expression 'tax on mineral right ' follow ing under Entry 50 of List II in as much as according to this Court, Parliament has not made any tax on mineral rights. This is not a correct basis. 712 In H.R.S. Murthy 's case (supra), at p. 676 of the re port, it was observed by this Court as follows: "When a question arises as to the precise head of legislative power under which a taxing statute has been passed, the subject for enquiry is what in truth and substance is the nature of the tax. No doubt, in a sense, but in a very remote sense, it has relationship to mining as also to the mineral won from the mine under a contract by which royalty is payable on the quantity of mineral extracted. But that, does not stamp it as a tax on either the extraction of the mineral or on the miner al right. It is unnecessary for the purpose of this case to examine the question as to what exactly is a tax on mineral rights seeing that such a tax is not leviable by Parliament but only by the State and the sole limitation on the State 's power to levy the tax is that it must not interfere with a law made by Parlia ment as regards mineral development. Our attention was not invited to the provision of any such law created by Parliament. In the context of sections 78 and 79 and the scheme of those provisions it is clear that the land cess is in truth a "tax on lands" within Entry 49 of the State List. " It seems, therefore, that attention of the Court was not invited to the provisions of Mines and Minerals (Development & Regulation) Act, 1957 and section 9 thereof. section 9(3) of the Act in terms states that royalties payable under the 2nd Sched ule of the Act shall not be enhanced more than once during a period of 4 years. It is, therefore, a clear bar on the state legislature taxing royalty so as to in effect amend 2nd Schedule of the Central Act. In the premises, it cannot be right to say that tax on royalty can be a tax on land, and even if it is a tax, if it falls within entry 50 will be ultra vires the State legislature power in view of section 9(3) of the Central Act. In Hingir Rampur Coal Co. Ltd. vs The State of Orissa (supra), Wanchoo J. in his dissenting judg ment has stated that a tax on mineral rights being different from a duty of excise, pertains only to a tax that is levi able for the grant of the right to extract minerals, and is not a tax on minerals as well. On that basis, a tax on royalty would not be a tax on mineral rights and would therefore in any event be outside the competence of the state legislature. The Rajasthan, Punjab, Gujarat and Orissa High Courts have held that royalty is not a tax. Bherulal vs State of Rajasthan & Anr., AIR ; Dr. S.S. Sharma & Anr. vs State of 713 Pb. & Ors., AIR at 84; Saurashtra Cement & Chemicals India Ltd. vs Union of India & Anr., AIR 1979 Guj. 180 at 184 and L.N. Agarwalla & Ors. vs State of Orissa & Ors. , AIR 1983 Orissa 210. It was contended by Mr. Krishnamurthy Iyer that the State has a right to tax minerals. It was further contended that if tax is levied, it will not be irrational to corre late it to the value of the property and to make some kind of annual value basis of tax without intending to tax the income. In view of the provisions of the Act, as noted hereinbefore, this submission cannot be accepted. Mr. Krish namurthy Iyer also further sought to urge that in entry 50 of list II, there is no limitation to the taxing power of the State. In view of the principles mentioned hereinbefore and the expressed provisions of section 9(2) of the Mines & Minerals (Regulation & Development) Act, 1957, this submis sion cannot be accepted. This field is fully covered by the Central legislation. In any event, royalty is directly relatable only to the minerals extracted and on the principle that the general provision is excluded by the special one, royalty would be relatable to entries 23 & 50 of list II, and not entry 49 of list II. But as the fee is covered by the Central power under entry 23 or entry 50 of list II, the impugned legisla tion cannot be upheld. Our attention was drawn to a judgment of the High Court of Madhya Pradesh in Miscellaneous Peti tion No. 410/83 M/s Hiralal Rameshwar Prasad & Ors. vs The State of Madhya Pradesh & Ors., which was delivered on 28th March, 1986 by a Division Bench of the High Court. J.S. Verma, Acting Chief Justice, as His Lordship then was, held that development cess by section 9 of the Madhya Pradesh Karadhan Adhiniyam, 1982 is ultra vires. It is not necessary in the view taken by us, and further in view that the said decision is under appeal in this Court, to examine it in detail. In the aforesaid view of the matter, we are of the opinion that royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of list II. In any event, we are of the opinion that cess on royalty cannot be sustained under entry 49 of list II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land. Mr. Krishnamurthy Iyer, however, submitted that in any event, the decision in H.R.S. Murthy 's case (supra) was the decision of the Constitution Bench of this Court. Cess has been realised on that basis 714 for the organisation of village and town panchayats and comprehensive programme of measures had been framed under the National Extension Service Scheme to which our attention was drawn. Mr. Krishnamurthy Iyer further submitted that the Directive Principle of State Policy embodied in the Consti tution enjoined that the State should take steps to organise village panchayats and endow them with power and authority as may be necessary to enable them to function as units of self Government and as the amounts have been realised on that basis, if at all, we should declare the said cess on royalty to be ultra vires prospectively. In other words, the amounts that have been collected by virtue of the said provisions, should not be declared to be illegal retrospec tively and the State made liable to refund the same. We see good deal of substance in this submission. After all, there was a decision of this Court in H.R.S. Murthy 's case (supra) and amounts have been collected on the basis that the said decision was the correct position. We are, therefore, of the opinion that we will be justified in declaring the levy of the said cess to be ultra vires the power of the State Legislature prospectively only. In that view of the matter, the appeals must, therefore, be allowed and the writ petitions also succeed to the extent indicated above. We declare that the said cess by the Act under section 115 is ultra vires and the respondent State of Tamil Nadu is restrained from enforcing the same any fur ther. But the respondents will not be liable for any refund of cess already paid or collected. The appeals are disposed of accordingly. The special leave petitions and writ peti tions are also disposed of in those terms. In the facts and the circumstances of the case, the parties will pay and bear their own costs. OZA, J. While I agree with the conclusions reached by my learned brother Hon ' Mukharji, J. I have my own reasons for the same. The main argument in favour of this levy imposed by the State Legislature is on the basis of Entry 49 in List II of the Seventh Schedule conferring jurisdiction on the State Legislature. The question therefore to be determined is whether the jurisdiction of the State Legislature under Item 49 of List II could be so exercised to impose a cess on the royality prescribed under Section 9 of the . The entries which are relevant for the purpose of deter mining this questions are: Entry 54 List I reads: 715 "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. " Entry 23 List II reads: "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. " Entry 49 List II reads: "Taxes on lands and buildings. " Entry 50 List II reads: "Taxes on mineral rights subject to any limi tations imposed by Parliament by law relating to mineral development. " The language of Entries 23 and 50 in List I1 clearly sub jects the authority or jurisdiction on the State Legislature to any enactment made by the Parliament. Entry 23 talks of regulation and Entry 50 talks of taxes on mineral rights. It therefore could not be disputed that if the cess imposed under section 115 of the Madras Village Panchayat Act is a cess or tax on mineral rights then that jurisdiction could be exercised by the State Legislature subject to the law enacted by the Parliament. The Parliament in Section 9(1) of the has fixed the limits of royality on the mining rights. It was therefore contended on behalf of the State that in fact what is imposed under Section 115 is not a cess on the mining rights or on royality but is a tax on land which clearly falls within the authority of the State legislature in Entry 49 of List II. Section 9 of the reads: "9(1) The holder of a mining lease granted before the commencement of this Act shall, notwithstanding anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his gent, manager, employee, contractor or sub lessee from the leased area 716 after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral. (2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. (2A) The holder of a mining lease, whether granted before or after the commence of the Mines and Minerals (Regulation and Develop ment) Amendment Act, 1972 shall not be liable to pay any royalty in respect of any coal consumed by a workman engaged in a colliery provided that such consumption by the workmen does not exceed one third of a tonne per month. (3) The Central Government may, by notifica tion in the Official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be specified in the notification. Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of three years. " It is clear that by this Act alongwith Schedule limits on royality has been fixed and the authority has been given to Parliament alone to vary it and that too not more than once in a period of three years. Admittedly royality as not based on the area of land under mining but per unit of minerals extracted. Section 115 of the Madras Village Panchayat Act reads as under: "(1) There shall not be levied in every pan chayat development block, a local cess at the rate of 45 naye paise on every rupee of land revenue payable to the Government in respect of any land for every Fasli. Explanation: In this Section and in section 116, 'land revenue ' means public revenue due on land and includes water cess payable to the Government for water supplied 717 or used for the irrigation of land, royalty, lease amount for other sum payable to the Government in respect of land held direct from the Government on lease or licence, but does not include any other cess or the surcharge payable under Section 116, provided that land revenue remitted shall not be deemed to be land revenue for the purpose of this Section. (2) The local cess payable under this Sub section (1) shall be deemed to be public revenue due on the lands in respect of which a person is liable to pay local cess and all the said lands, the buildings upon the said lands and their products shall be regarded as the security for the local cess. (3) The provisions of the Madras Revenue Recovery Act, 1864 (Madras Act II of 1864) shall apply to the payment and recovery of the local cess payable under this Act just as they apply to the payment and recovery of the revenue upon the lands in respect of which the local cess under this act is payable. (4)(a) Out of the process of the local cess so collected in every panchayat development block, a sum representing four ninths of the proceeds shall be credited to the Panchayat Union (Education) Fund. (b) Out of the proceeds of the local cess collected in every panchayat town in a pan chayat development block, a sum representing two ninths of the said proceeds shall be cred ited to the town panchayat fund. (c) Out of the balance of the local cess credited in the panchayat development block, such percentage as the panchayat union council may fix shall be credited to the village panchayat fund, and the percentage shall be fixed so as to secure as nearly as may be that the total income derived by all the village panchayats in the panchayat union does not fall short of an amount calculated at 20 naye paise for each individual of the village population in the panchayat union. (d) The balance of the proceeds of the local cess collected in the panchayat develop ment block shall be cre 718 dited to the funds of the panchayat union council. " The explanation to sub clause I is the subject matter of controversy in this case. Sub clause I provides for levy of 45 naye paise for every rupee of land revenue payable to the Government in the explanation a fiction is created thereby even the royalty payable have been included within the definition of "land revenue". As it provides "royalty, lease amount or any other sum payable to the Government in respect of land. " This phraseology has been incorporated by an amendment in 1964 by the Madras Village Panchayat Amendment Act, 1964 Section 13 wherein the explanation to Section 115 was substituted and substituted retrospectively wherein this royalty has also been included in the definition of 'land revenue ' and it is on this ground that it was mainly con tended that land revenue being a tax on land is within the authority of the State Legislature under Item 49 of List II and therefore the cess which is a tax on land revenue itself or an imposition on the land revenue and hence could not be anything else but a tax falling within the ambit of tax on land as provided by entry 49 List II and it was therefore contended that it would not fall within the ambit of entry 50 List II as if it falls within the ambit of entry 50 of List II, it would be beyond the authority of the State legislature as by passing the Parliament has denuded the State Legislature of its authority to levy any tax on mining rights. Whether royality is a tax is not very material for the purpose of determination of this question in this case. It is admitted that royality is charged on the basis of per unit of minerals extracted. It is no doubt true that mineral is extracted from the land and is available, but it could only be extracted if there are three things: (1) Land from which mineral could be extracted. (2) Capital for providing machinery, instruments and other requirements. (3) Labour It is therefore clear that unit of charge of royalty is not only land but land + Labour + Capital. It is therefore clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral (land), labour and capital employed in extraction of the mineral. It therefore is clear that royalty if is imposed by the Parlia 719 ment it could only be a tax not only on land but no these three things stated above. It is not in dispute that the cess which the Madras Village Panchayat Act proposes to levy is nothing but an additional tax and originally it was levied only on land revenue, apparently land revenue would fall within the scope of entry 49 but it could not be doubted that royalty which is a levy or tax on the extracted mineral is not a tax or a levy on land alone and if cess is charged on the royalty it could not be said to be a levy or tax on land and therefore it could not be upheld as imposed in exercise of jurisdic tion under Entry 49 List II by the State Legislature. Thus it is clear that by introducing this explanation to Section 115 clause (1) widening the meaning of word 'land revenue ' for the purposes of Section 115 and 116. When the Legislature included Royalty, it went beyond its jurisdic tion under entry 49 List II and therefore clearly is without the authority of law. But this also may lead to an interest ing situation. This cess levied under Section 115 of the Madras Village Panchayat Act is levied for purposes indicat ed in the scheme of the Act and it was intended to be levied on all the lands falling within the area but as this cess on royalty is without the authority the result will be that the cess is levied so far as lands other than the lands in which mines are situated are concerned but lands where mines are situated this levy of cess is not in accordance with that law. This anomaly could have been averted if the Legislature in this explanation had used words 'surface rent ' in place of royalty. Even if the lands where mines are situated and which are subject to licence and mining leases even for those lands there is a charge on the basis of the surface of the land which is sometimes described as surface rent or sometimes also as 'dead rent '. It could not be doubted that if such a surface rent or dead rent is a charge or an impo sition on the land only and therefore will clearly fall within the purview of entry 49 List H and if a cess is levied on that it will also be justified as tax on land falling within the purview of entry 49 and it will also be uniform as this cess would be levied in respect of the lands irrespective of the fact as to whether the land is one where a mine is situated or land which is only used for other purposes for which land revenue is chargeable. R.S.S. Appeal allowed.

The appellant company used to manufacture cement and was granted mining lease for limestone and kankar by the Govern ment of Tamil Nadu in accordance with the Mineral Concession Rules, 1960. The royalty was fixed under the Mines and Minerals (Regulation & Development) Act, 1957 which is a Central Act by which the control of mines and minerals had been taken over by the Central Government for the regulation and development of minerals. Sub section 1 of section 115 of the Madras Panchayats Act, 1958 enjoins that there shall be levied in every pan chayat development block, a local cess at the rate of 45 paise on every rupee of land revenue payable to the Govern ment in respect of any land for every Fasli. An explanation to the said section was added, and was deemed always to have been incorporated by the Tamil Nadu Panchayats (Amendment and Miscellaneous Provisions) Act, 1964. In this explanation a fiction was created whereby even the royalty payable had been included within the definition of "land revenue". The appellant filed a writ petition in the High Court challenging the competence of the State legislature to levy cess on royalty. A learned Single Judge dismissed the writ petition holding that the cess levied 693 under section 115 of the Madras panchayats Act was a tax on land and, as such, fell under Entry 49 of the State List of Schedule VII of the Constitution. The Division Bench dis missed the appellant 's appeal and held that local cess authorised by section 115 was not land revenue but was a charge on the land itself, and section 115 merely quantified the basis of the quantum of land revenue. The learned Single Judge, as well as the Division Bench, relied on the decision of this Court in H.R.S. Murthy vs Collector of Chittoor, ; Before this Court, it was contended on behalf of the appellant that the levy of cess on royalty in this case was nothing but a tax on royalty and was therefore ultra vires the State legislature. On the other hand, it was contended that the cess in the present case was a levy in respect of land and could be justified or sustained either under entry 49, 50 or 45 of List II of the 7th Schedule to the Constitu tion. It was further submitted that the cess having been realised on the basis of the decision of this Court in "H.R.S. Murthy" case, if at all, the Court shall declare the said cess on royalty to be ultra vires prospectively. Allowing the appeal, this Court, HELD: (E.S. Venkataramiah, C J, Sabyasachi Mukharji, Ranganath Misra, B.C. Ray, K.N. Singh and section Natarajan, JJ. per Sabyasachi Mukharji, J.) (1) Courts of law are enjoined to gather the meaning of the Constitution from the language used, and although one should interpret the words of the Constitution on the same principles of interpretation as one applied to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation. It has to be remembered that it is a Constitution that requires interpretation. Constitution is the mechanism under which the laws are to be made and not merely an Act which declares what the law is to be. [704B C] The Attorney General for the State of New South Wales vs The Brewery Employees Union of New South Wales; , , referred to. (2) A Constitution must not be construed in any narrow or pedantic sense, and construction most beneficial to the widest possible amplitude of its powers, must be adopted. A broad and liberal spirit should inspire those whose duty it is to interpret the Constitution, but 694 they are not free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory, or even for the purposes of supplying omissions or correcting supposed errors. [704D E F] In re. ' C.P. Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, [1939] FCR p. 1 and James vs Common wealth of Australia, , referred to. (3) It is well settled now that the various entries in the three lists are not powers but fields of legislation. The power to legislate is given by Article 246 and other articles of the Constitution. [704G] Calcutta Gas Co. vs State of West Bengal, [1962] Suppl. 3 SCR 1, referred to. (4) It is well settled that widest amplitude should be given to the language of these entries, but some of these entries in different lists or in the same list may overlap and sometimes may also appear to be in direct conflict with each other. Then, it is the duty of the court to find out its true intent and purpose and to examine a particular legislation in its pith and substance to determine whether it fits in one or the other of the lists. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. [705A B & D] H.R. Banthia & Ors. etc. vs Union of India & Ors. , ; ; Union of India vs H.S. Dhillon, ; and D.C. Rataria vs Bhuwalka Brothers Ltd., ; , referred to. (5) It is clear that over a period of centuries, land revenue in India has acquired a cannot active meaning of share in the produce of land to which the King or the Gov ernment is entitled to receive. [707B] N.R. Reddy & Ors. vs State of A.P., [1965] 2 Andhra Law Times 297 and State ofA.P.v. N.R. Reddy & Ors., ; , referred to. (6) There is a clear distinction between tax directly on land and tax on income arising from land. [708C] Raja Jagannath Baksh Singh vs The State of U.P. & Anr. , ; , referred to. 695 (7) Explanation to section 115(1) itself makes a dis tinction between land revenue as such and royalty which by amendment is deemed to be land revenue. It is, therefore, recognised by the very force of that explanation and the amendment thereto that the expression 'royalty ' in sections 115 & 116 of the Act cannot mean land revenue property called or conventionally known, which is separate and dis tinct from royalty. [707D E] (8) In the instant case, cess is not on land, but on royalty, which is included in the definition of 'land reve nue ', None of the three lists of the 7th Schedule of the Constitution permits or authorises a State to impose tax on royalty. (9) Royalty which is indirectly connected with land, cannot be said to be a tax directly on land as a unit. Royalty is payable on a proportion of the mineral extracted. The Act does not use dead rent as a basis on which land is to be valued. Hence, there cannot be any doubt that the impugned legislation in its pith and substance is a tax on royalty and not a tax on land. [709E] New Manek Chand Spinning & Weaving Mills Co. Ltd. & Ors. vs Municipal Corporation of the City of Allahabad & Ors. , ; ; S.C. Nawn vs W.T.O. Calcutta & Ors., ; ; Asstt. Commissioner of Urban Land Tax & Ors. vs The Buckingham & Carnatic Co. Ltd. etc.; , ; Second Gift 'Fax Officer, Mangalore etc. vs D.H. Nazareth etc. ; , ; Bhagwan Dass Jain vs Union of India, ; and The Western India Theatres Ltd. vs The Cantonment Board, Poona Cantonment, ; , referred to. (10) Royalty is directly relatable only to the minerals extracted and on the principle that the general provision is excluded by the special one, royalty would be relatable to entries 23 & 50 of List II, and not entry 49 of List II. [713D] (11) Royalty is a tax, and as such a cess on royalty being a tax on royalty, is beyond the competence of the State Legislature because section 9 of the Central Act covers the field and the State Legislature is denuded of its competence under entry 23 of List II. In any event, cess on royalty cannot be sustained under entry 49 of List II as being a tax on land. Royalty on mineral rights is not a tax on land but a payment for the user of land. [713F G] 696 Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd.; , ; Anant Mills Co. Ltd. vs State of Gujarat & Ors., ; The Hingir Rampur Coal Co. Ltd. & Ors. vs The State of Orissa & Ors., ; ; State of Orissa vs M.A. Tulloch & Co., ; ; Baijnath Kedia vs State of Bihar & Ors., ; M/s. Laxminarayana Mining Co. Bangalore vs Taluk Dev Board, AIR ; M. Lal & Ors. vs The State of Bihar & Ors. , AIR 1965 Patna 491; Bherulal vs State of Rajasthan, AIR ; Dr. S.S. Sharma & Anr. vs State of Punjab & Ors., AIR ; Saurashtra Cement & Chemi cals India Ltd. vs Union of India & Anr., ; L.N. Agarwalla & Ors. vs State of Orissa, AIR 1983 Orissa 210 and M/s Hira lal Rameshwar Prasad & Ors. vs The State of Madhya Pradesh & Ors., M.P. High Court Misc. Petition No. 410/83, referred to. H.R.S. Murthy vs Collector of Chittoor & Anr., ; , overruled. (12) The amounts of cess have been collected on the basis of the decision of this Court in H.R.S. Murthy 's case. The Court is therefore justified in declaring the levy of the said cess under section 115 to be ultra vires the power of the State legislature prospectively only. The respondents will not be liable for any refund of cess already paid or collected. [714C D & E] Per G.L. Oza, J. (1) Sub clause (1) of Section 115 provides for levy of 45 naya paise for every rupee of land revenue payable to the Government. In the explanation a fiction is created whereby even the royalty payable has been included within the defi nition of 'land revenue '. [718A] (2) The language of Entries 23 and 50 in List II clearly subjects the authority or jurisdiction on the State Legisla ture to any enactment made by the Parliament. Entry 23 talks of regulation and Entry 50 talks of taxes on mineral rights. It therefore could not be disputed that if the cess imposed under section 115 of the Madras Panchayats Act is a cess or tax on mineral rights then that jurisdiction could be exer cised by the State Legislature subject to the law enacted by the Parliament. [715D E] (3) Unit of charge of royalty is not only land but land + labour + capital. It is therefore clear that if royalty is a tax or an imposition or a levy, it is not on land alone but it is a levy or a tax on mineral (land), 697 labour and capital employed in extraction of the mineral. It therefore is clear that royalty if it is imposed by the Parliament it could only be a tax not only on land but on the three things stated above. [718H; 719A] (4) When the Legislature included royalty, it went beyond its jurisdiction under Entry 49 of List II and there fore clearly is without the authority of law. [719D] (5) This may lead to an interesting situation. As this cess on royalty is without the authority, the result will be that the cess is levied so far as lands other than the lands in which mines are situated are concerned but lands where mines are situated this levy of cess is not in accordance with the law. This anamoly could have been averted if the Legislature had used words 'surface rent ' in place of royal ty. Even if the lands where mines are situated and which are subject to licence and mining leases, even for those lands there is a charge on the basis of the surface of the land which is Sometimes described as surface rent or sometimes also as 'dead rent '. [719E F]

nch of two members in their reasoned order pointed out what they perceived to be an error of law in the earlier decision and stated the points for the President to make a, reference to a larger Bench. Accordingly the Bench of two members acted within their power is stating the points of law which required clarification and the President acted equally within the bounds of his power in constituting a larger Bench to hear and decide those points. [795E; 796C] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3955 of 1990. From the Judgment and Order dated 7.12.1989 of the Delhi High Court in C.W. No. 1060 of 1987. Dr. V. Gauri Shanker, C.V. Subba Rao, section Rajappa and M. Chandershekharan (N.P.) for the Appellants. G.L. Sanghi. Raju Ramachandran, Dhruv Mehta and R.K. Sanghi for the Respondent. 792 The Judgment of the Court was delivered by THOMMEN, J. Special Leave is granted. This appeal by the Union of India arises from the Judg ment dated 7.12.1989 of the Delhi High Court in Civil Writ No. 1060 of 1987 setting aside Orders dated 22.10.1986 and 4.3.1987. The former order was made by a Bench of two mem bers of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter called the 'Tribunal ') and the latter order was made by the President of the Tribunal. By their Order dated 22.10.1986, the Bench of two members of the Tribunal stated that they doubted the correctness of an earlier decision of a Bench of three members of the Tribunal in Bakelite Hylam Ltd. Bombay & Anr. vs Collector of Cus toms, Bombay & Anr., and directed that the case of the present respondent, Paras Laminates (P) Ltd., be placed before the President of the Tribunal for referring it to a larger Bench of the Tribunal. The President by his Order dated 4.3. 1987 referred the case to a larger Bench of five members. These two orders were struck down by the High Court stating that the Bench of two members ought to have followed the earlier decision of the larger Bench of 3 Judges and a reference of the case to a still larger Bench was contrary to judicial precedent and judicial discipline. In Bakelite Hylam, (supra) a Bench of three members had held that the goods in question fell under Tariff Item 84.60 as claimed by the importer in the Bills of Entry. In the present case, the importer claimed in its Bills of Entry that the goods imported by it fell under Tariff Item 84.60. But the customs authorities rejected the contention of the importer and classified the goods under Tariff Item 73.15(2). The importer appealed to the Collector of Customs, but without success. In its second appeal before the Bench of two members, the importer relied upon the earlier deci sion in Bakelite Hylam (supra) and contended that an identi cal classification ought to have been adopted by the Customs Authorities for identical goods. The Bench of two members, however, referred the case to the President of the Tribunal for referring the same to a larger Bench. The order of the Bench of two members and that of the President have been struck down by the High Court by the impugned judgment for the reasons stated above. Mr. V. Gauri Shanker, appearing for the appellant Union of India, submits that section 129 C of the contains 793 express provisions enabling the President of the Tribunal to constitute larger Benches to resolve conflicts in opinion arising between members of a Bench or between Benches of the Tribunal. The Tribunal has ample powers to regulate its own procedure, apart from the express provisions of the statute in that behalf. Counsel contends that the Tribunal has inherent or incidental or ancillary powers to effectuate the statutory powers expressly granted to it. Counsel submits that the statute must be so construed as to make the confer ment of power efficacious and meaningful. To deny the power of a Bench of two members to doubt the correctness of an earlier decision and to refer the case to the President for being heard by a larger Bench is to fetter the jurisdiction expressly vested in the Tribunal and thus stifle the growth of law evolving from the decisions of the Tribunal exercis ing judicial powers like a Court, albeit within the statuto ry limits of its jurisdiction. Mr. G.L. Sanghi, appearing for the respondent (the importer) submits that the Tribunal is a creature of the statute. Its jurisdiction is limited to the specific powers conferred by the statute. It has no inherent jurisdiction and its powers are not plenary and are limited to the ex press provisions contained in the statute. While the powers of a civil court are plenary and unlimited unless expressly curtailed by statute, the powers of a tribunal are the result of express grant and cannot exceed the bounds limited by the constituting statute. In the present case the powers of the Tribunal are expressly specified in the and those powers, counsel says, do not contain any provision enabling the President to refer a case to a larger Bench whenever a doubt about an earlier decision is ex pressed by another Bench of the same Tribunal. According to Mr. Sanghi, the Bench should have followed the earlier decision even if the members doubted its correctness, and should have left it to this Court to correct the error, if any. The Tribunal is constituted by the Central Government under section 129 of the Act. One of the members of the Tribunal is appointed by the Central Government as its President. Section 129 C says that the powers and functions of the Tribunal may be exercised and discharged by Benches constituted by the President from amongst its members. Subject to certain exceptions, a Bench shall consist of one judicial member and one technical member [section 129c(2)]. Sub section (5) of section 129 C provides for a reference of a case by the President in the event of differences in opinion arising amongst members on any point. This sub section reads: 794 "(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ and the case shall be referred by the President for hearing on such point or points by one or more of the other members of the Appellate Tribunal, and such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case including those who first heard it: Provided that where the members of a Special Bench are equally divided, the point or points on which they differ shall be decided by the President. " Sub section (6) Section 129C says that the Tribunal shall have the power to regulate its own procedure. It reads: "(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or the discharge of its functions, including the places at which the Benches shall hold their sitting. " Sub sections (7) and (8) of this Section provide that the Tribunal shall, for certain specific purposes, be deemed to be a civil court. There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recog nised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised, the powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and im pliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all 795 such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes, (eleventh edition) "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. " See also: Income Tax Officer, Camanore vs M.K. Mohammed Kunhi, ; , 819. It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question. This is particularly true when the earlier decision is rendered by a larger Bench. The ration ale of this rule is the need for continuity, certainty and predictability in the administration of justice. Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters. Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions, lest such judicial inconsistency should shake public confidence in the adminis tration of justice. It is, however, equally true that it is vital to the administration of justice that those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings being to light what is perceived by them as an erroneous decision in the earlier case. In such circum stances, it is but natural and reasonable and indeed effica cious that the case is referred to a larger Bench. This is what was done by the Bench of two members who in their reasoned order pointed out what they perceived to be an error of law in the earlier decision and stated the points for the President to make a reference to a larger Bench. That the President has ample power to refer a case to a larger Bench is not in doubt in view of sub section (5) of section 129 C, which we have set out above. That provision clearly says that in the event of the members of a Bench differing in opinion on any point, and the members are equally divided, the case shall be referred to the President for hearing on any such point by one or more of the members of the Tribunal, and such point shall be decided according to the opinion of the majority of the members. It is true that sub section (5) refers to difference of opinion arising amongst members of a Bench in a particular case, and not specifically where the members of a Bench doubt the correctness of an earlier decision. However, section 129 C confers power of reference upon the 796 President. That power should be construed to be wide enough to enable the President to make a reference where members of a Bench find themselves unable to decide a case according to What they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree. In such cases, it is necessary for the healthy functioning of the Tribunal that the Presi dent should have the requisite authority to refer the case to a larger Bench. That is a power which is implied in the express grant authorising the President to constitute Bench es of the Tribunal for effective and expeditious discharge of its functions. In our view, the Bench of two members acted within their power in stating the points of law which required clarifica tion and the President acted equally within the bounds of his power in constituting larger Bench to hear and decide those points. In the circumstances, we set aside the impugned judgment of the High Court. The appeal is allowed with costs here and in the High Court. T.N.A. Appeal allowed.

The respondent, a bus conductor in the appellant State Road Transport Corporation, was dismissed on the charge that he had erased the way bills and resold some already sold tickets. He filed a suit challenging the dismissal order on the ground that carbon copies of certain important documents were not made available to him during the enquiry and this had caused serious prejudice to him. The trial court dis missed the suit and the first appellate court also dismissed his appeal. However, the High Court allowed his second appeal, and held that the important documents had been purposely withheld, which had resulted prejudice to the employee. The appellant Corporation filed a Special Leave Petition before this Court, contending that the High Court had gross ly erred in interfering in second appeal with the concurrent findings, and that the failure to produce the carbon copies of some of the documents did not cause any prejudice and. at any rate, it was a question of fact. Disposing of the appeal, by special leave, this Court, HELD: 1. The High Court has not committed any error which warrants interference. 1780E] The respondent 's plea has been that from the carbon copies he would have shown that he could not have carried on the erasures or made false entries and, therefore; non supply of these carbon copies had caused great prejudice to him. However, the trial court and the first appellate court held that no prejudice was caused since he was 778 shown the originals. The High Court no doubt has considered this aspect in detail and in doing so referred to the con tents of various documents. From this alone it cannot be said that the High Court has not kept in view the scope of second appeal. [779G H; 780A B] Since the employee has been throughout pleading that he did not make the erasures or any other false entry, it naturally became necessary to see whether they were also found in carbon copies. Therefore, the High Court considered the various figures and entries in the originals in which such erasures were alleged to have been made by the employee and eventually observed that the entire enquiry was based on some of these documents, and if a carbon copy of the docu ments had been shown, the authority may well have been convinced that the charge levelled against him was not correct, and that, therefore, the non supply of these docu ments had caused prejudice. [780 D E] 2. The litigation is going on for the last 25 years and the respondent has already reached the age of superannua tion. Hence the parties need not be driven to go through the indefinite execution proceedings again for backwages and allowances and ends of justice require that a lump sum compensation should be granted. Accordingly, a lump sum amount of Rs.35,000 is awarded and the amount should be paid to the respondent without deducting the income tax. The respondent may make an application under Section 89 of the Income Tax Act, 1961 for spreading over this amount, and the concerned Income Tax Officers should also give the necessary relief without any further enquiry. [780F; 781C E] Sohan Singh vs Union of India & Anr., and Sundaram Motors Pvt. Ltd. vs Ameerjan & Ant., , relied on.

Civil Appeal No. 230 of 1978. From the Judgment and Order dated 19th January, 1978 of the 31 High Court of Judicature at Allahabad in Civil Misc. Writ No. 355 of 1977. Yogeshwar Prasad and Mrs. Rani Chabbra, for the Appellant J.P. Goyal, Rajesh and S.K. Jain for the Respondents. The Judgment of the Court was delivered by MISRA, J. The present appeal by special leave is directed against the judgment dated 19th of January, 1978 of the Allahabad High Court. The short question for consideration in this appeal is whether a sub tenant is entitled to the protection of the fourth proviso to s.21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The material facts to bring out the point for consideration lie in a narrow compass. One Murari Lal was the owner of the disputed shop. During his lifetime a partition took place between him and the other members of his family in 1937. The shop in dispute fell to the share of Murari Lal and Narendra Mohan, his eldest son. After the death of Murari Lal in 1960 his interest devolved upon his sons Rajendra Kumar and Brijendra Kumar along with their brother Narendra Mohan. It appears that the shop in suit had been let out to one Krishan Kumar. He in his turn inducted Shyam Babu, the present appellant, as his sub tenant in 1962. Rajendra Kumar and Brijendra Kumar filed a suit No. 181 of 1968 in the Court of Munsif for the eviction of the original tenant as well as the sub tenant, on the ground of illegal subletting as also for the recovery of arrears of rent. That suit was contested by the tenant as well as the sub tenant on the ground that the sub tenancy had been created with the consent of the then landlord and therefore subletting was legal. The learned Munsif dismissed the suit by his order dated 24th April, 1973 holding that the sub tenancy created by Krishan Kumar in favour of the appellant Shyam Babu was with the consent of the landlord and as such neither Krishan Kumar nor Shyam Babu was liable to eviction on that ground. It appears that during the pendency of the suit the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 32 (hereinafter referred to as the new Act) came into force on 15th July, 1972. Rajendra Kumar and Brijendra Kumar, the landlords, moved an application under s.21 of the new Act for the release of the premises in occupation of the appellant and Krishan Kumar on the ground that the same is bonafide required for their personal use. The application was resisted by the tenant as well as the sub tenant. They denied that the need of the landlords was genuine. They also set up their own needs and contended that they would suffer greater hardship if the application for release was allowed. The prescribed authority allowed the application with respect to the portion in occupation of the appellant Shyam Babu but dismissed the same as against the original tenant Krishan Kumar. Feeling aggrieved the landlords as well as the sub tenant filed two separate appeals before the District Judge to the extent the order went against them. The landlords were aggrieved by the order insofar as their application was rejected against Krishan Kumar, the original tenant, while the appellant challenged the release of the premises granted to the landlords against him. Both the appeals were disposed of by a common judgment of the District Judge on 24th March, 1977 confirming the order passed by the prescribed authority. The landlords submitted to the order passed by the District Judge. The appellant, however, sought to challenge the order of the District Judge by filing a writ petition in the High Court. The contention raised by the appellant was that the prescribed authority as well as the Appellate Court committed a manifest error of law in allowing the application for release of the premises in favour of the landlords without considering the comparative hardship likely to be caused to the appellant or to the respondent land lords by the order of release or refusal to release the premises within the meaning of fourth proviso to s.21 of the new Act. In the opinion of the High Court the proviso contemplated the consideration of the likely hardship of the tenant or the landlord and as the appellant was only a sub tenant the proviso did not obligate the authority to consider his hardship. It will be appropriate at this stage to read the relevant proviso to s.21 as the decision of the case hinges on the construction of the proviso: "Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into 33 account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed. " It may be recalled that in the earlier suit No. 181 of 1968 filed by the landlords it was found as a fact that the appellant Shyam Babu was inducted as a sub tenant by the tenant in chief with the consent of the landlords. It was on this ground that the landlords ' suit was dismissed against the tenant in chief as well as the sub tenant. A feeble attempt was made before the High Court on behalf of the landlords to challenge that finding but that was rejected and we think rightly. Even an erroneous finding of fact between the parties will be binding on them. The landlords, therefore, cannot possibly urge that the sub letting was not with the consent of the landlords. If once it is accepted that the sub tenancy created by the tenant in chief in favour of the appellant was with the consent of the landlords his possession cannot be said to be illegal. In this view of the matter we see no reason why he should be deprived of the protection of the fourth proviso to s.21 of the new Act. It is true that the new Act was intended to give relief to the tenant. 'Landlord ' and 'tenant ' are defined terms in the Act. Clause(j) of s.3 defines 'landlord ' thus: "(j) "landlord", in relation to a building, means a person to whom its rent is or if the building were let would be, payable, and includes, except in clause (g), the agent or attorney, or such person:" Section 3 (a) defines tenant as; "(a) "Tenant" in relation to a building, means a person by whom its rent is payable,. . " The appellant who is a sub tenant pays rent to the tenant in chief and the tenant in chief in his turn pays rent to the landlord. Between the appellant and the tenant in chief the tenant in chief would be the landlord and the appellant, the sub tenant, would be the tenant. All that the relevant proviso to s.21 requires is that the comparative hardship of the tenant as also that of the landlord shall be taken into account before passing any order of release or refusal to release. If the sub tenancy had been created without the consent 34 of the landlord the position might have been different. The sub tenant for the purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the sub tenant. To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purpose of the new Act. A similar question came up for consideration before a Division Bench of the Allahabad High Court in Bhullan Singh vs Babu Ram based on cl. (g) of s.2 of the U.P. (Temporary Control of Rent and Eviction Act, 1947. The High Court took the view that the term 'tenant ' as defined in cl. (g) of s.2 of the Act includes a sub tenant. Having considered the argument of the counsel for the parties we are of the firm view that the appellant was entitled to the protection of the fourth proviso to s.21 and the comparative hardship of the appellant as well as that of the landlords should have been taken into account before disposing of an application under s.21 of the new Act. The Court below in our opinion have failed to exercise jurisdiction vested in them in not considering the likely hardship of the appellant. For the reasons given above the appeal must succeed. It is accordingly allowed and the impugned judgment of the High Court and those of the District Judge as well as of the prescribed authority on the question of comparative hardship are set aside. The case is remanded to the District Judge who will send it to the prescribed authority under the new Rent Act to dispose of the application under s.21 in the light of the observations made above after considering the likely hardship of the appellant and that of the landlord respondents. In the circumstances of the case, we direct the parties to bear their costs. H.S.K. Appeal allowed.

The petitioner asked for a writ of habeas corpus under article 32 of the Constitution to be issued to the respondents to produce the two persons, C. Daniel and C. Paul in the Court, who, according to the petitioner, were whisked away by the army jawans from Huining village to Phungrei Camp and unauthorisedly detained by the Officer incharge of 21st Sikh Regiment and were held incommunicado and whose whereabouts were not made known. The petitioner averred that some jawans attached to 21st Sikh Regiment visited village Huining on March 5, 1982 and rounded up some villagers. These villagers were released on March 6, 1982. On March 7 the Deputy Commissioner accompanied by the Additional District Magistrate of that area visited Huining village to enquire about the incidents of the previous day. Some of the army jawans who had obtained, under duress, certificates from some villagers exonerating them of the allegation of ill treatment and praising the conduct of the jawans, showed these certificates to these officers. On March 10, 1982 C. Daniel C. Paul were arrested by the army jawans and were taken away from Huining village. At the same time some jawans had obtained signatures on blank papers from Machihan, village headman and from one Shangnam, a member of the village authority. On the next day Machihan reported this fact to the Deputy Commissioner. As C. Daniel and C. Paul did not return, their wives went to the Phungrei Camp in search of their respective husband and while waiting there they saw C. Daniel and C. Paul being led away by four army jawans towards the West. The village headman and others made a written complaint to the Deputy Commissioner. They also complained that they had not issued any certificate showing that C. Daniel and C. Paul were released in their presence on March 11, 1982. The Deputy Commissioner had an enquiry made into the complaint by the Superintendent of Police and reported to the Chief Secretary of the State that the village headman and other members of the village authority had given in writing that it was not correct that C. Daniel and C. Paul were released in their presence and that both of them were still missing. In response to the notice the respondents stated that both C. Daniel and C. Paul were called to the army camp for the purpose of identification of certain suspects on March 10, 1982 and after spending the night at the army camp they were allowed to go on March 11, 1982 in 905 the company of Machihan and Shangnam, their friends, and since then the security force had no knowledge about their whereabouts. The respondents denied that the respective wives of C. Daniel and C. Paul ever visited the army camp on March 15, 1982. They further denied having obtained signatures on blank papers from the village headman and others. In response to the rule the respondents reiterated their earlier stand. The respondents contended that once they had adopted the position the C. Daniel and C. Paul had come to the army camp at the request of the army authority and they left that place on their request in company of their friends, a writ of habeas corpus cannot be issued, and the respondents cannot be called upon to file a return to the writ. Allowing the petition, ^ HELD: A writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce C. Daniel and C. Paul before this court and file the return. [626 B] When a petition for a writ of habeas corpus under article 32 of the Constitution is moved before the court, ordinarily the court would not issue ex parte a writ of habeas corpus unless the urgency of the situation so demands or issuing of a notice of motion was likely to result in defeat of justice. Further, the court will be reluctant to issue a writ of habeas corpus ex parte where the facts of detention may be controverted and it may become necessary to investigate the facts. The normal practice is that when a petition for a writ of habeas corpus is moved, the court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply. If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence, the court would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus. If on investigation of facts, the court rejects the contention of the respondents and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought, the Court would issue a writ of habeas corpus which would make it obligatory for the respondents to file a return. [923 A D] Halsbury 's Laws of England, 4th Edn., Vol. 11, para. 1482 referred to. Even if upon a notice of motion, it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. [923 E] Thomas John Barnardo vs Mary Ford and Reg. vs Barnardo Tye, referred to. In the instant case, when the petition was moved before this Court, rule nisi was issued calling upon the respondents to submit their version about the detention of C. Daniel and C. Paul. The respondents 1, 2 and 4 in their various affidavits adopted a positive stand that C. Daniel and C. Paul were taken by the army jawans on March 10, 1982, though not under arrest, to the army 906 camp for the purpose of identifying Rashing and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of H.L. Machihan and C. Shangnam, The petitioner and those filing affidavits in support including H.L. Machihan, C. Shangnam and Smt. Thingkhuil wife of C. Daniel and Smt. Vangamla wife of C. Paul denied that C. Daniel and C. Paul left army camp on March 11, 1982 and returned to the village, therefore, an issue squarely arose to ascertain whether the positive stand of respondents was borne out by the facts alleged and proof offered. The burden obviously was on the respondents to make good the defence. In view of the direct evidence furnished by the affidavit of H.L. Machihan and C. Shangnam, coupled with the suspicious circumstances discussed in the judgment and effort made to bolster up the stand by entries of dubious character in the register kept at the gate of Phungrei Camp as also the eloquent silence maintained by the respondents in the earlier stage of the proceedings about existence of any record leave the Court with no alternative but to hold that the respondents have failed to prove that C. Daniel and C. Paul left the army camp on March 11, 1982 around 10.00 A.M. Now that the facts are clearly established which led to the rejection of the contention of the respondents that C. Daniel and C. Paul ever left the army camp on March 11, 1982 around 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and command of the army authority at Phungrei Camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1, 2, and 4 but to file the return. [924 D H; 918 H; 919 A; 925 A]

iminal Appeal No. 171 of 1968. 479 Appeal by special leave from the judgment and order dated September 13, 1967 of the Calcutta High Court in Criminal Reference No. 36 of 1967. D. N. Mukherjee, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Dua, J. The appellant, Basudev Hazra, was a leaseholder in respect of tolls of the public ferry at Sadar Ghat on the outskirts of Burdwan town for crossing the river Damodar. This lease was for a period of three years (August 14, 1963 to August 13, 1966) : exhibit 2. On November 30, 1964 Matiar Rahman Mandal filed a complaint against the appellant in the court of the Sadar Sub Divisional Officer (Judicial), Burdwan alleging that the appellant used to realise illegally 20 nP. per cart from the cultivators who used to drive their carts across the dry bed of the river. The matter was reported to the S.D.O. who directed an enquiry. This infuriated the appellant. On November 29, 1964 the appellant realised double the amount of toll and on protest and refusal by the complainant he was threatened with violence by the appellant. The Magistrate trying the appellant for offences under sections 23 and 24 of the Bengal Ferries Act, I of 1885 convincted him of both the offences. The appellant was sentenced to a fine of Rs. 10/ under section 23 and to fine of Rs. 20/ under section 24 : in default of payment of fine in the former case he was to undergo simple imprisonment for ten days and in the latter for 20 days. On the appellant challenging his conviction on revision in the Court of the Sessions Judge, the Additional Sessions Judge, Burdwan made a reference to the High Court recommending the appellant 's acquittal. It was observed by the Additional Sessions Judge in his reference that according to the appellant 's defence the complainant 's party were in fact using the landing stage and the path constructed and repaired by him and, therefore, they were liable to pay the usual toll tax. After reproducing section 24 he added : ". the complainant 's case as it appears from the petition of complaint and also from the evidence of the three witnesses examined on the point, is that they do not take advantage of any of the facilities provided by the lessee and that the lessee demanded toll from them even though they were using their own path. The defence as I have already stated, was that the pathway and the landing stage belonged to the lessee and that, therefore, he was entitled to collect toll. Forgetting the defence for the moment, it seems to me that no conviction 480 u/s 24 can be sustained on the case of the complainant as it is." According to him the collection of money from the people using their own pathway might amount to extortion but it would not attract section 24. We need not refer to the recommendation with respect to the appellant 's conviction under section 23 as this was accepted by the High Court and there is no appeal against acquittal under that section. The High Court accepted the recommendation with respect to the conviction under section 23 and acquitted the appellant of that offence. In regard to the; conviction under section 24 the High Court observed that the trial Magistrate had found (i) that the appellant had been realising toll charges in excess of the scheduled rate of 20 ps. per cart and also realising such charges from persons who did not use the ferry and (ii) that though the complainant had not availed of the ferry and: had taken the cart over the sandy bed of the river 40 ps. per cart were realised from him. These findings of fact were held not open to re examination on revision. The High Court added that realisation of 40 ps. fell within the mischief of section 24 which forbids every lessee from realising more than lawful toll even in cases in which he is entitled to demand ferry charges. Repelling the argument that the present was a case of extortion and it did not fall within the purview of section 24 the High Court, after referring to the complainant 's case, observed that it was a case of illegal realisation of toll in excess, when the appellant was not entitled to realise it at all and not a case of extortion under the Indian Penal Code. The amount had been illegally demanded as a toll and that also ' in excess of permissible rate. The reference with respect to section 24 was, as observed earlier, rejected. The appellant has secured special leave to appeal under article 136 of the Constitution and his counsel Mr. D. N. Mukherjee has strenously contended that the realisation of 40 ps. per cart from those who do not use the ferry can not as a matter of law fall within the mischief of section 24 of the, Bengal Ferries Act. His contention in essence is that unless someone actually uses a ferry no charges realised from him for permitting him to cross the river, even if the demand is made by way of toll, can attract the provisions of section 24. The contention though prima facie somewhat attractive does not stand scrutiny. Section 24 reads as under : "Penalty for taking unauthorised tolls, and for causing delay : Every such lessee or other person as aforesaid asking or taking more than the lawful toll, or without due cause 481 delaying any person, annual, vehicle or other thing, shall be punished with fine which may extend to one hundred rupees. " It is obvious that this section does not speak of taking toll in excess of the lawful limit only from those persons who use the ferry. This Act was enacted for regulating ferries but that does not mean that an illegal demand, under the pretext of claim by way of toll under this Act when it is not legally claimable was not intended by the legislature to be prohibited and made punishable by the language of section 24, Shri Mukherjee drew our attention to section 5 of the Act in which "ferry" is defined to include a bridge of boats, pontoons or rafts, a swing bridge, a flying bridge, a temporary bridge and a landing stage. According to him, this definition suggests that it is only when a ferry is used and excessive, charges realised that section 24 would be attracted. The submission is difficult to accept. This definition which is not exhaustive does not seem to us to control or otherwise to throw helpful light in the interpretation of section 24. This section seems to have been designed in effect to protect the persons crossing the river against harassment and abuse of the privileged position which the lessee or other person authorised to collect the tolls of a public ferry occupies under the statute in the matter of control over the passage or pathway for crossing, fording or ferrying across the river. Demanding or re ceiving more than lawful dues and unduly delaying persons, animals, vehicles or things. in crossing the river are both rendered penal and punishable. Whether the person from whom the amount is demanded or received is under no obligation to pay anything by way of toll while crossing the river bed or is bound by law only to pay 20 ps. per cart as toll would thus be immaterial when payment is demanded or received on the pretext that it is due as toll when it is legally not so due. In either case section 24 would seem to be attracted : this construction would serve to suppress the mischief at which this section appears to be aimed. The question whether or not the appellant 's case falls within the mischief of extortion as defined under the Indian Penal Code is not strictly relevant to the point arising in the controversy because if the appellant 's case is covered by section 24 of the Act then he is liable to be punished thereunder. His liability to be prosecuted under the Indian Penal Code cannot by itself in law exclude the applicability of section 24 to his case. The Additional Sessions Judge was, in our opinion, not quite right in observing that the defence that the accused was entitled to claim the toll may be ignored, because defence of an accused person can legitimately be taken into consideration while assessing the value of the evidence and judging the guilt or innocence of the accused. The appellant 's defence in this case would clearly tend to support the complainant 's case that the amount received was demanded as toll which was an unlawful 482 ,demand. To exclude cases like the present from the operation of section 24 would unduly restrict its effectiveness and would indeed facilitate illegal recoveries prohibited by it. To that extent it would defeat the object and purpose which this section is intended to achieve. When the appellant 's counsel took us through the evidence we found that the appellant had also delayed the prosecution witnesses without due cause in crossing the river in violation of section 24. It is, however, unnecessary to pursue this aspect. Finally it may be pointed out that article 136 of the Constitution does not confer a right of appeal on a party. It only confers a discretionary power on this Court to be exercised sparingly to interfere in suitable cases where grave miscarriage of justice has resulted from illegality or from misapprehension or mistake in reading evidence or from ignoring, excluding or illegally admitting material evidence. The present case suffers from no such infirmity. The appeal accordingly fails and is dismissed. R.K.P.S. Appeal dismissed.

The respondent company appointed a managing director who was to retire at the age of 55. The company arranged to provide a pension to him on retirement, or a pension to his widow if he died before attaining the age of 55. It executed a trust deed on September 16, 1948, and paid to the trustees certain amounts to enable the trustees to take out an annuity policy to cover the pension. On October 29, 1954, the company arranged to give enhanced pension to the director or his wife and set apart an ,additional sum on the same terms. The director died in 1955 before attaining the age of 55, and the company claimed, in the return of its taxable income for the assessment year 1956 57, the total amount paid by it to the trustees as a permissible expenditure in the computation of the company 's business profits in the previous year. The Appellate Tribunal, held; (i) that the setting apart of the funds amounted to expenditure Within the meaning of s.10(2)(xv), and (ii) that it amounted to revenue expenditure and not capital expenditure. The Tribunal did not however consider whether the outgoing represented expen diture laid out or expended wholly and exclusively for the purpose of the business and whether it was authorised under s.10(4A). The Tribunal referred to the High Court two questions, namely : (1) whether the amounts constituted expenditure during the relevant accounting year 1955 within the meaning of the section and (2) whether it represented a revenue expenditure. The High Court held in favour of the company. When the Department sought to urge the plea that before the section could be called in aid, it had also to be established that the expenditure was wholly and exclusively for the purpose of the business and that it was authorised by s.10(4A), the High Court did not permit the plea to be raised as it was not expressly raised before the Tribunal. In appeal to this Court, HELD : (1) The amounts set apart became subject to the obligation to pay the pension arranged to be given, only when the director died, and since he died in May 1955, they must be deemed to have been expended only then, that is during the accounting year 1955. [776 H; 777 A B] 774 Indian Molasses Co. (P) Ltd. vs Commissioner of Income tax, West Bengal, , referred to. I I (2) An amount proved to be expended by a tax payer carrying on business is a permissible allowance under s.10(2) (iv) in the computation of the taxable income of the business if it is established; (i) that the allowance claimed is expenditure which, is not of the nature described in cls. (i) to (xiv) of section 10(2); (ii) that it is not of the nature of capital expenditure or personal expenses of the assessee; (iii) that the expenditure was laid out or expended wholly and exclusively for the purposes of such business; and (iv) that it was authorised under section 10 (4A). [778 C F] (3) The expression 'question of law arising out of such order ' in s.66(1), is not restricted to take in only those questions which have been expressly argued before and decided by the Tribunal. If a question of law is raised before the Tribunal, even if an aspect of the question was not raised, that aspect may be urged before the High Court. In the present case, the second question as framed and referred, does not exclude an enquirY whether the expenditure was wholly and exclusively laid out or expended for the purpose of the business of the company. It cannot be held that, because before the Tribunal, stress was not pointedly laid upon the ingredients which enable an expenditure to be claimed and allowed, the question did not arise out of the order of the Tribunal. Therefore the High Court was in error in refusing to allow the argument to be raised that the requirements of section 10(2) (xv) were not satisfied. [779 H; 780 A; 781 B F] Commissioner of Income tax, Bombay vs Scindia Steam Navigation Co. Ltd. ; , explained and followed. (4) Since the Tribunal gave no finding on that part of the case, a supplementary statement could be called from it, but such a supplementary statement would be restricted to the evidence on record and may result in injustice to the parties. [781 F] New Jahangir Vakil Mills Ltd. vs Commissioner of Income tax, 'Bombay North, Kutch & Saurashtra, Petlad Turkey Red Dye Works Co. Ltd. vs Commissioner of Income tax and Keshav Mills Co. Ltd. vs Commissioner of Income tax, Bombay North. Ahmedabad, , referred to. (5) Therefore. it is appropriate to decline to answer the second question on the ground that the Tribunal bad failed to consider and decide the question whether the expenditure was laid out or expended wholly and exclusively for the purpose of the business of the company and that it had not considered all appropriate statutory provisions. and to leave it to the Tribunal to dispose of the appeal under section 66(5) of the Act [782 A C]

Criminal Appeal No. 26 of 1989. From the Judgment and Order dated 17.4.1984 of the Gujarat High Court in Crl. Appeal No. 1097 of 1980. V.B. Ganatra and V.N. Ganpule for the Appellant. Girish Chandra, M.N. Shroff and M.N. Goswami for the Respondents. The Judgment of the Court was delivered by 142 VENKATACHALIAH, J. By this petition for grant of Special Leave under Article 136 of the Constitution, coming up after notice to the State of Gujarat, the applicant seeks leave to appeal to this Court from the judgment of the High Court of Gujarat in Criminal Appeal No. 1097 of 1980 restoring the conviction and sentence passed by the Chief Judicial Magis trate, Valsad, against the petitioner in Criminal Case of 48 of 1979 for an offence under the Prevention of Food Adulter ation Act 1954. ( 'Act ' for short) Special Leave is granted and the appeal is taken up for final hearing, heard and disposed of by this judgment. Appellant was charged before the Chief Judicial Magistrate, Valsad, by the Food Inspector, Navasari Munici pality, with the offence of selling "Kesari coloured sweet supan sali" alleged to have been adulterated with "Yellow basic coal tar dye". The learned Magistrate found the appel lant guilty of the offence and imposed a sentence of an year 's simple imprisonment and a fine of Rs.2,000, both of which were the statutorily compulsory minimum sentences under Section 16(1)(A)(i) of the Act. Learned Sessions Judge, Valsad, by his judgment, dated 14.3.1980, in Criminal Appeal 32 of 1979 preferred by the appellant, however, set aside the conviction and sentence and acquitted the appellant of the charge. On further appeal by the State against the said acquit tal, the High Court of Gujarat allowed the State 's appeal and, in reversal of the judgment of acquittal of the learned Sessions Judge, restored the conviction and sentence passed by the learned Chief Judicial Magistrate. Appellant is a tradesman carrying on business within the limits of Navsari Municipality. On 7.12.1978, respondent No. 2, the ' food inspector of Navsari Municipality, pur chased from the appellant 600 gins. of "kesari coloured sweet supari sali" and after complying with the procedural formalities packed and sealed the "supari" into three sepa rate packages of 200 gins. each and one of them was sent to the Public Analyst who by his report dated 20.12.1978 (Ext. 12) affirmed that the sample contained a "yellow basic coal tar dye" and that it did not conform to the standard laid down under the Rules. On 19.1.1979, the Food Inspector with the prior sanction of the District Health Officer, Valsad, (Ext.14), filed a complaint in the Court of the 143 Chief Judicial Magistrate, Valsad. The prosecution culminat ed, as aforesaid, in the conviction and sentence imposed by the learned Chief Judicial Magistrate, and later restored by the High Court. Appellant now seeks to assail the legality of the conviction. We have heard Sri V.B. Ganatra, learned counsel for the appellant and Sri Girish Chandara and Sri M.V. Goswami, learned counsel for Respondents. 1 and 2, respectively. Though a number of grounds are taken in the memorandum of the Petition for special leave, however, at the hearing Sri Ganatra confined his submission only to one aspect of the matter which, if accepted as correct, would go to the root of the case for the prosecution. Apparently, this contention in the form in which it is presented here was not placed before the High Court as we find no reference to it in the judgment. Appellant 's Learned Counsel contended that "Supari" or "Betel nut" is basically and essentially an yield of the Areca Palm and must, therefore, be held to fall under "Fruit products" within the meaning of Rule 29(f) of the Prevention of Food Adulteration Rules, 1955, ( 'Rules ' for short) and, accordingly, the use of permitted coal tar food colours in it is not prohibited by law. It was further urged that the Public Analyst had not held that the "Yellow basic coal tar dye", found in the sample, was not one of those food colours prohibited under Rule 28 and that, there fore, its use in "supari" which was a "Fruit product" cannot be said to be prohibited. Alternatively, Sri Ganatra con tended that the "supari" in this case was a "flavouring agent" within the meaning of Rule 29(m) in which case also the use of permitted coal tar food colours, was not prohib ited. On the contentions urged at the hearing, the points that fall for consideration are, first, whether the "supari" concerned in this case was a "Fruit product" or, alterna tively, a "Flavouring Agent" within the meaning of Rule 29(f) or (m) respectively and, accordingly, the use in it of permitted coal tar dyes or food colours was not prohibited and, secondly, whether, even if, after an elaborate enquiry, it was held that "supari" was not a "Food product" appellant having acted bonafide on a possible and not an unreasonable view of the nature and classification of the goods, was, at all events, entitled to the benefit of the doubt. It was not disputed that supari was an article of food. It was so held in Pyarali K. Tejani vs M.R. Dange, [1974] 2 SCR 154. It was also not disputed that if "supari" did not admit itself of being classified 144 under "Fruit products" or under "Flavouring Agents" under Rule 29(f) or 29(m) respectively, the use in "supari" of even a coal tar food colours permitted under rule 28 would amount to adulteration. The argument that "Supari". or "Betel nut" is a "Flavou ringAgent" has clearly no substance. The first contention, therefore, narrows itself down to whether "supari" in the form in which it was offered for sale though vegetative in origin and is derived from the usufruct of areca palm, can be said to be a "Fruit Product" in the sense in which that expression is used and is required to be understood in Rule 29(f). To appreciate Sri Ganatra 's contention, the scheme of the relevant rules, in particular rules 23, 28 and 29, requires notice. Rule 23 prohibits the addition of any colouring matter to any article of food except as specifi cally permitted by the rules. Rule 28 provides that no coal tar food colour or a mixture thereof, except the food colours specifically enumerated in rule 28, shall be used in food. Item 2 of the list of food colours permitted under Rule 28 includes 'Sun set Yellow FCF '. We shall proceed on the premise that the basic yellow coal tar dye found in the "supari" by the Public Analyst is amongst those enumerated food colours excepted from the prohibition under Rule 28 and is, therefore, permitted to be used. Then, Rule 29 prohibits the use of even the coal tar food colours permitted under rule 28 in or upon any food other than those enumerated in rule 29. "Fruit Products" is one such item of food so enu merated under clause (f) of rule, 29. The result is that permitted coal taar food colours, i.e. foodcolours permitted by Rule 28, can be used if the food articles in question are "Fruit Products" as understood in Rule 29(f). But this exception from prohibition, in favour of "Fruit Products" is further subject to such exceptions or restrictions as are otherwise made in Appendix 'B '. Sri Ganatra 's contention is that there having been no provision otherwise made in Appen dix 'B ' in respect of supari and supari being includible in "Fruit Products", the use in it of permitted coal tar food colours is prohibited. Shri Ganatra submits that the legis lation being penal the expression "Fruit Products" in rule 29(f) should receive a reasonably liberal construction and that, so construed, "supari" would reasonably admit of being considered such a "Fruit Product". We have had our attention drawn by Sri Ganatra to certain passages in 'Common Trees of India ' by Dr. Santatau (at page 111); in "Wealth of India Raw Materials" Vol. I A (pages 390, 402 03) and certain passages in the 'Dravya Guna Vignyan ' (Part II & III: at page 145 672) in support of Sri Ganatra 's contention that "Supari" or "Betelnut" being the usufruct of "Areca" tree must be held to be a "FruitProduct". Sri Ganatra says that having regard to the accepted cannons of construction appropriate to penal statutes, "supari" or "Betel nut" which was derived from the usufruct of Areca palm admits of being classified amongst "Fruit Products" in Rule 29(f). At all events, says learned counsel, such a construction being a plausible one, the appellant who had conducted his affairs on such a plau sible meaning of the statute should be entitled to the benefit of the doubt. In Encyclopaedia Britannica (Vol. 3, p. 55 1) with reference to "Betel nut" it is mentioned: "The name betel is applied to two different plants which in the east are very closely associated in the purposes to which they are applied. The betel nut is the fruit of the areca or betel palm (Areca catechu) . . " "For chewing, the fruits are annually gathered between the months of August and November, before they are quite ripe, and deprived of their husks. They are prepared by boiling in water, cutting up into slices and drying in the sun, by which treatment the slices assume a dark brown or black colours . " " . . Betel nuts are used as a source of inferior catechu (g.v.); its chief alkaloid is arecoline, to which anthelmintic properties are attributed. The drug finds some use in veterinary medicine as an anthelmintic. " There is no dispute that "supari" is derived from and pre pared out of the usufruct of the Areca palm. But the ques tion as to what is the context of the idea of "Fruit Products" in Rule 29(f). The argument, no doubt, is somewhat attractively presented; but we are afraid, it is more attractive than sound. The fact that a particular article of food, as indeed most of the articles of food of vegetative origin are, was of plant origin did not render that article necessarily a "Fruit Product". Even products derived from, or associated in their origin with fruits need not ipso facto be "Fruit Products" for purposes and within the meaning of rule 29(f). What were envisaged as "Fruit Products" in rule 29(f), will be indicated by the array of items dealt with in Appendix 'B ' under item 16 "Fruit 146 Products" though the list was in the nature of an exception of R.29. Under the relevant head in Appendix 'B ' items referred are: "Fruit Juice"; "Tomato Juice"; "Fruit Syrup"; "Fruit Squash"; "Fruit Beverage" or "Fruit Drinks"; "Tomato Sauce"; "Tomato Ketchup"; "Tomato Relish";"Marmalade"; Fruit Chatni" and "Sauce" etc. The object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome arti cles of food. The legislation is on the Topic 'Adulteration of Food Stuffs and other Goods ' [Entry 18 list III Seventh Schedule]. It is enacted to curb the wide spread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration is a socio economic offence. In Municipal Corpn. vs Kacheroo Mal, ; Sarkaria, J. said: "The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stretching or straining the language of such a statute, should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention . . " (Emphasis Supplied) The construction appropriate to a social defence legis lation is, therefore, one which would suppress the mischief aimed at by the legislation and advance the remedy. The offences under the 'Act ' are really acts prohib ited by the police powers of the State in the interests of public health and wellbeing. The prohibition is backed by the sanction of a penalty. The offences are strict statutory offences. Intention or mental state is irrelevant. In Good fellow vs Johnson, at 944 referring to the nature of offences under the Food and Drugs Act, 1955, it was said: "As is well known, section 2 of the Food and Drugs Act, 1955, constitutes an absolute offence. If a person sells to the 147 prejudice of the purchaser any food, and that includes drink, which is not of the nature or not of the substance or not of the quality demanded by the purchaser he shall be guilty of an offence. The forbidden act is the sell ing to the prejudice of the purchaser . " Smedleys Limited vs Breed, is a case, both interesting and illustrative. Smedleys Ltd. were manu facturers of canned peas of repute. Out of the three and a half million tins of peas the company produced in the year 1971, only 4 complaints were received about the presence of extraneous matter in the tins. One of them had been pur chased by a certain Mrs. Voss from a well known stores. On opening the tin, Mrs. Voss found a small larva of a moth in the tin. The commendable civic zeal of Mrs. Voss who report ed the larva infestation of the peas to the local authority had the effect of arraigning Smedleys Ltd. before court on charge of violation of the Food and Drugs Act, 1955. Section 3(3) of the Act enabled a defence which the company raised that the extraneous matter was "an unavoidable consequence of the process of collection or preparation" The company, it would appear from the facts appearing in the report, had installed and elaborate system of spot checking of the peas by mechanical screening process before canning which elimi nated extraneous matter of significantly higher or lower specific gravity than that of the peas. This process was also strengthened and supplemented by visual inspections by properly trained and experienced employees who worked for short periods to enable sustained concentration along the conveyer belt carrying the peas to the canning site. To the strange ill luck and embarrassment of Smedleys the larva which had a specific gravity and size similar to that of the peas beat the screening machine and also managed, by virtue of its colour and shape, to escape the surveillance of the alert visual inspectors, who, it is said, were also paid a bonus if they detected and extracted any extraneous matter. The peas, incidentally, would be pressure cooked for 20 minutes at 250xF which, would render the larva harmless to human health even if consumed. The company contended that the existence of the larva was despite every possible pre caution and was "an unavoidable consequence of the process of collection and preparation" within the meaning of Section 3(3) of the Act. The defence did not succeed. Smedleys as well as the seller were convicted. The House of Lords con firmed the conviction. Lord Hailsham said: " . . This innocent insect, thus deprived of its natural destiny, was in fact entirely harmless, since, prior to its 148 entry into tin, it had been subjected to a cooking process of 20 minutes duration of 250xF, and, had she cared to so, Mrs. Voss could have consumed the caterpillar without injury to herself, and even, perhaps, with benefit . . " [p. 24] "Thereafter, the caterpillar achieved a sort of posthumous apotheosis. From local authority to the Dorchester magistrates, from the Dorchester magistrates to a Divisional Court presided over by the Lord Chief Justice of England,from the Lord Chief Justice to the House of Lords, the immolated insect has at length plodded its methodical way to the highest tribunal in the land. It now falls to me to deliver my opinion on its case." [p. 24] Referring to the nature of the penalties under laws against food adulteration, Lord Chancellor said: "My Lords, as has been pointed out by my noble and learned friend, Lord Diplock, the expres sion 'absolute offence ' is imprecise. Clearly the offence contemplated in section 2(1) of the Food and Drugs Act 1955 is an absolute offence if all that is .meant by that is an absence of mens rea. It is one of those offences de scribed by Wright J in Sherras vs De Rutuzen which 'are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty '." [p. 26] Confirming the conviction, Lord Chancellor held: " . . sympathise as one may with a manu facturer with a reputation and record as excellent as that of the appellants, to con strue the Food & Drugs Act 1955 in a sense less strict than that which I have adopted would make a serious in road on the legisla tion for consumer protection which Parliament has adopted and by successive Acts extended, over a period, now, of more than a century . . " [ p.29] In Pyarali K. Tejani vs Mahadeo Ramchandra Dange, [1974] 2 SCR 154 this court held that what constitutes the offence under the 149 'Act ' is nothing more than the 'actus reus ' and mens rea need not separately be established. In Criminal Law by J.C. Smith & Brian Hogan, (5th Edn.), referring to offences in their social context the authors say: "The courts are greatly influenced in their construction of the statute by the degree of social danger which they believe to be in volved in the offence in question. They take judicial notice of the problems with which the country is confronted. The greater the degree of social danger, the more likely is the offence to be interpreted as one of strict liability. Inflation, drugs, road accidents and pollution are constantly brought to our attention as pressing evils; and in each case the judges have at times invoked strict li ability as a protection for society." [p.9 2] 9. We now come to the specific question whether "supari" is includible under "Fruit Products" under rule 29(f). Sri Girish Chandra says that in arriving at the meaning of "Fruit Products", it is not the technical or scientific sense, but the sense as understood in commonparlance that matters. That sense is one Sri Girish Chandra says, which people conversant with the subject matter with which the statute is dealing would attribute to it. The words must be understood, says counsel, in their popular sense, in their common commercial understanding, "for the legislature does not suppose our merchant to be naturalists or geologists or botanists. " The standard of the test for ascertaining the meaning of words in common parlance is set by the Candanian case in Planters Nut and Chocolate Co. Ltd. vs The King, "Would a house holder when asked to bring home fruits or vegetables for the evening meal bring home salted Peanuts, cashew nuts or nuts of any sort? The answer is obviously 'NO '. " This test has been referred to with approval by this court. [See: Ramavatar Budhai Prasad vs The Assistant Sales Tax Officer, (XII STC 286)] Sri Girish Chandra says that in the context of the Indian House holder we may, with justifica tion, add Betel nut to the list of salted pea nuts, cashew nuts etc. 150 10. The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes. The court is not entitled to decline to determine the legal meaning of a statute on the principle 'non liquet '. In the present case, a wider con struction of "Fruit Products" in clause (f) which is in the nature of exception to Rule 29 results automatically in a corresponding narrower construction of the substantive provision in Rule 29. This is not a case of a relieving provision excepting from the definition of an offence where the Rule of construction against doubtful penalisation operates. The offence is really a violation of a prohibition imposed on a penalty as a social defence mechanism in a socio economic legislation. No form of words have ever yet been framed, with regard to which some ingenious counsel could not suggest a difficulty. But in the context of the present statute, it would be a strain on the statutory language and the statutory scheme to include "supari" in the form in which it was sold, within "Fruit Products" as under stood in clause (f) of Rule 29. The first contention has, accordingly, no substance. The second contention is that petitioner had acted bona fide on a particular understanding of the Rule 29(f) which could not be said to be wholly implausible and that, therefore, even if that understanding is found to be defec tive, he should be entitled to the benefit of the doubt. The question of what a word means in its context within the 'Act ' is a question of legal interpretation and, therefore, one of law. The choice of the proper rule of construction to be applied to ascertain the meaning is again a matter of law. To countenance the contention of Sri Ganatra would be to "contradict one of the fundamental postulates of a legal order that Rules of law enforce objective meanings to be ascertained by the courts" and to "substitute the opinion of the person charged with the breach of the law for the law itself. " Otherwise, the consequence would be that whenever a defendant in a criminal case "thought that the law was thus and so, he is to be treated as though the law was thus and so, that is, the law actually is thus and so". [See Criminal Law: Smith & Hogan p. 70]. Justice Holmes in United States vs Wurzbach, ; at 399 said: "Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line maybe uncer tain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk. " 151 Referring to the principles that guide the matter, learned authors in Criminal Law (Smith & Hogan) say: " . . for, in the great majority of cases, it is irrelevant whether he knows it or not. It must usually be proved that D intended to cause, or was reckless whether he caused, the event or state of affairs which, as a matter of fact, is forbidden by law; but it is quite immaterial to his conviction (though it may affect his punishment) whether he knew that the event or state of affairs was forbidden by law . " [p.68 ] " . It was held that a Frenchman might be guilty of murder in the course of duelling in England, even if he did not know that duelling was against English law . ." [p.68] 12. The plea in the last analysis reduces itself to one of ignorance of the law. This would be no justification. Ten thousand difficulties, it is said, do not make a doubt. As the learned authors (supra) put it. "One who, being ignorant of the law, sells goods at a price in excess of the miximum fixed by the statute, could hardly be said to have been led astray by his conscience while the 'harm prescribed ' lacks objective wrongness". The Statute we are concerned with prescribes a strict liability, without need to establish Mens Rea. The Actus Reus is itself the offence. There might be cases where some mental element might be a part of the Actus Reus itself. This is not one of those cases where anything more than the mere doing of the prescribed act requires to be proved. There is thus no merit in the second point either. The appeal would, therefore, require to fail. The sen tence, which is the statutory minimum, cannot also be light ened by the court. But there is one poignant aspect on which learned counsel made an impassioned plea. Sri Ganatra pointed out the hardship of a small time tradesmen who, as here, purchase the goods from big manufac turers and sell them in retail. Very often, the manufactur ers or wholesalers are not touched, but the small fry are exposed to prosecution. 152 Indeed in Ganeshmal Jashraj vs Govt. of Gujarat and Anr. , ; Bhagwati, J. had occasion to say: " . . It is common knowledge that these small tradesmen purchase the food stuff sold by them from the wholesalers and sometimes even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers. Ordinarily it is not the small retailers who adulterate the articles of food sold by them. Yet it is only the small retailers who are caught by the food inspectors and the investi gative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufactures. The small tradesmen who eke out a precarious existence living almost from hand to mouth are sent to jail for selling food stuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and fatten themselves on the misery of others escape the arm of the law . . " [p. 1117] " . . The result is that a wrong impres sion is being created on the public mind that the law is being properly enforced, whereas in fact what is really happening is that it is only. the small tradesmen who are quite often not themselves responsible for adulteration who are caught and sent to jail while there is no effective enforcement of the law against the real adulterators. This is a failing which we notice in the implementation of many of our laws. It is only the smaller flies which get caught in the web of these law while the bigger ones escape . . " [p.1118] " . . The implementation of the law does create an impression that it is a law meant to be operative only against the smaller men and that the rich and the well to do are beyond its reach. Moreover the law operates very harshly against the small tradesmen because a minimum sentence is provided and the small tradesmen are liable to be sent to jail . . " [p .1118 9] (Emphasis Supplied) 153 Krishna Iyer, J. in Inderjeet vs U.P. State, ; said: " . . We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders . . " [p. 257] " . . Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principled basis when small men get caught by the law." [p. 257] (Emphasis Supplied) The present case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free. Unfortunately, appellant did not, and perhaps could not, invoke the benevolent provisions of Section 19(2) of the Act. The offence was ten years ago and the appellate court had acquitted the appellant. The expression "Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey, was not a model of preci sion. The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand. Indeed this somewhat imperfect definition of "Fruit Products" in Rule 29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by Rule 28 could be used leaving no room for the possibility of any argument of the kind advanced in this case. This amendment which came into force with effect from 15.11.1984 deleted the expression "Fruit Products" and in its place specifically enumerated the items under Rule 29(f) in which the use of permitted coal tar food colours was allowed. It is for these reasons that we think we should hold that this is a 'fit case in which the appropriate Government should exercise its executive powers of remission of the substantive sentence of imprisonment though not of the fine under Section 432 Cr. P.C. or under other law appro priate to the case. We, therefore, direct that the 154 imposition of the substantive sentence of imprisonment shall be postponed till appellant 's prayer for remission, which appellant shall make within a month from now before the appropriate Government or Authority, is considered and disposed of taking into account the observations made in this judgment. Subject to these circumstances, the appeal is dismissed. P.S.S. Appeal dismissed.

Rule 23 of the Prevention of Food Adulteration Rules, 1955 prohibits the addition of any colouring matter to an article of food, except as specifically permitted by the rules. Rule 28 interdicts use of coal tar food colours or a mixture thereof, except those specifically enumerated there in, in food. Item 2 of the said list includes 'sun set yellow FCF '. Rule 29 prohibits the use of even the coal tar food colours permitted under Rule 28, in or upon any food, other than those enumerated in Rule 29. 'Fruit products ' was one such item of food so enumerated under cl.(f) of Rule 29 as it stood at the relevant time. Section 16 of the Preven tion of Food Adulteration Act, 1954 provides for punishment of the offenders. The appellant, a tradesman, was found guilty by the Trial Court of the offence of selling 'Kesari coloured sweet supari sali ' adulterated with yellow basic coal tar dye and sentenced to one year 's simple imprisonment and a fine of Rs.2,000, both being statutorily compulsory 139 minimum sentences under section 16(1)(a)(i) of the Act. He was, however, acquitted of the charge by the first appellate court but on appeal by the State the High Court reversed the judgment of acquittal and restored the conviction and sen tence. In this appeal by special leave, it was contended for the appellant that the legislation being penal, the expres sion 'Fruit products ' in Rule 29(1 ') should receive a rea sonably liberal construction, and if so construed, 'supari ' being basically and essentially an yield of the arecapalm would reasonably admit of being considered such a fruit product in which the use of coal tar colours was not prohib ited. In the alternative, it was contended that 'supari ' in the form in which it was offered for sale in this case was a 'flavouring agent ' within the meaning of Rule 29(m), in which case also the use of permitted coal tar food colours was not prohibited. It was further contended that the appel lant having acted bona fide on a particular understanding of Rule 29(1) which could not be said to be wholly implausible, he should be entitled to the benefit of doubt. Lastly, a grievance was made that the appellant, who was a small time tradesman and had purchased the supari from a big manufac turer to sell in retail, had alone been exposed to prosecu tion while the distributor had gone scot free. Dismissing the appeal, HELD: 1.1 The scheme of Rule 23, 28 and 29 of the Pre vention of Food Adulteration Rules, 1955 makes it apparent that coal tar food colours permitted by Rule 28 can be used if the food articles in question are 'Fruit products ' as understood in Rule 29(1). [144C, F] 1.2 'Supari ' in the form in which it was offered for sale in the instant case though vegetative in origin and derived from and prepared out of the usufruct of areca palm, does not admit of being classified as a 'Fruit product ' under Rule 29(1). Merely because a particular article of food was of plant origin did not render that article neces sarily a 'Fruitproduct '. Even products derived from, or associated in their origin with fruits need not ipso facto be 'Fruit products ' for purposes and within the meaning of Rule 29(1). Item 16 of Appendix B to the Rules, which dealt with 'Fruit products ', referred to juice, syrup, squash, beverage, drinks, sauce, ketchup, relish, marmalade, chatni etc. That indicated what were envisaged as 'Fruit products ' in Rule 29(1). 'Supari ' also does not admit of being classi fied as a 'flavouring agent ' under Rule 29(m). [145F H; 146A] 140 2. The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes. The Court is not entitled to decline to determine the legal meaning of a statute on the principle of non liquet. In the instant case, a wider con struction of 'Fruit Products ' in cl.(f) which is in the nature of exception to Rule 29, results automatically in a corresponding narrower construction of the substantive provision in Rule 29. This is not a case of relieving provi sion excepting from the definition of an offence where the rule of construction against doubtful penalisation operates. The offence is really a violation of a prohibition imposed on a penalty as a social defence mechanism in a socio eco nomic legislation. The construction appropriate to such a legislation would be one which would suppress the mischief aimed at and advance the remedy. It would, therefore, be a strain on the statutory language and the statutory scheme to include 'supari ' in the form in which it was sold, within 'Fruit products ' as understood in cl.(f) of Rule 29. [150A D] Planters Nut and Chocolate Co. Ltd. vs The King, ; Ramavatar Budhai Prasad vs The Assistant Sales Tax Officer, XII STC 286; Municipal Corpn. vs Kacheroo Mal, ; ; Goodfellow vs Johnson, [1965] 1 All E.R. 941 and Criminal Law: Smith & Hogan, 5th Edn. p. 92, re ferred to. 3.1 The question of what a word means in its context within the Act is a question of legal interpretation and, therefore, one of law. The choice of the proper rule of construction to be applied to ascertain the meaning is again a matter of law. To countenance the contention of the appel lant that he had acted bona fide on a particular understand ing of Rule 29(f) would be to contradict one of the funda mental postulates of a legal order that rules of law enforce objective meaning to be ascertained by the courts, and to substitute the opinion of the person charged with the breach of the law for the law itself. Otherwise, the consequence would be that whenever a defendant in a criminal case thought that the law was thus and so, he is to be treated as though the law was thus and so, that is, the law actually is thus and so. [150D G] United States vs Wurzbach, ; (@) 399; Criminal Law: Smith & Hogan, 5th Edn. p. 70, referred to. 3.2 The statute prescribes a strict liability without need to establish mens rea. The actus reus is itself an offence. There might be cases where some mental element might be a part of the actus reus itself. This is not one of those cases where anything more than the mere doing 141 of the prescribed act requires to be proved. The appellant is, therefore, not entitled to the benefit of doubt. [151F] Pyarali K. Tejani vs M.R. Dange, [1974] 2 SCR 154; Goodfellow vs Johnson, ; Smedleys Limited vs Breed, and Criminal Law: Smith & Hogan, 5th Edu. p. 92, referred to. The big offenders who manufactured the 'supari ' and who distributed them to the retailer in the instant case have gone scot free. The offence was committed ten years ago and the appellate court had acquitted the appellant. Fur thermore, the expression 'Fruit products ' in Rule 29(f) in the context of what the delegated legislative authority really meant and wanted to convey was not a model of preci sion and has since been deleted enumerating in its place precisely the specific products in which the food colours permitted by Rule 28 could be used, leaving no room for the possibility of any argument of the kind advanced in this case. [153D E, F] This is, therefore, a fit case in which the appropriate Government should exercise its executive powers of remission of the substantive sentence of imprisonment, though not of fine, under section 432 Cr. P.C. or under other law appropriate to the case. The imposition of the substantive sentence of imprisonment on the appellant to be postponed till his prayer for remission, which he shall make, is considered and disposed of. [153G H; 154A B] Ganeshmal Jashraj vs Govt. of Gujarat and Anr. , ; and Inderjeet vs U.P. State, ; , referred to.

Appeal No. 4702 of 1991. From the Judgment and Order dated 26.8.88 of the Bombay High Court in W.P. No. 2264 of 1984. T. Andharujina, F.H. Talyarkha, R.F. Nariman, R. Narain, Ashok Sagar and Ms Amrita Mitra for the Appellants. K.K. Singhvi, B.N. Singhvi and Anil K. Gupta for the Re spondents. The Judgment of the Court was delivered by 451 V. RAMASWAMI, J. Leave granted. The First appellant Tara Engineering and Locomotive Company Limited (hereinafter called the 'Company ') is a. company registered under the Indian Companies Act, 1913 and the second appellant is one of its Directors. The Company is carrying on business of manufacture and sale of motor vehi cles and spare parts of motor vehicles and excavators. Their manufacturing units are at Pune and Jamshedpur outside the Thane Municipal Corporation limits. They have a bonded warehouse within the municipal limits in which they bring and stock motor vehicles parts 'and excavators parts from their own factories at Pune and Jamshedpur. They also bring in parts manufactured by their ancillaries within India and also parts imported from aboard. These products or parts are brought in bulk and thereafter taken or sent out from the Municipal limits in smaller packings depending on the re quirements of the customers in various parts of the country. It is stated that the parts imported or purchased from others and brought in are relatively very small in quantity and the major portion of the activity related to their own factory produced parts. On and from 1 st October, 1982 with the notification under Section 3 of the Bombay Provincial Municipal Corpora tion Act, 1949, the Thane Municipal Council became a Munici pal Corporation (hereinafter called the Corporation). Prior to the constitution of the Corporation it was a municipality and were governed by the Thane Municipal Council constituted under the Maharashtra Municipality Act, 1965. Prior to 1 st October, 1982 the Thane Municipal Council had granted to the Company current account facilities in respect of payment of octroi under the Maharashtra Municipalities Act, 1965 and the Maharashtra Municipalities (Octroi) Rules, 1968 made thereunder. The Municipal Council had also granted permis sion under Rule 10 (2) to the Company for maintaining a godown or warehouse of their own. Their is no dispute that even after the coming into existence of the Thane Municipal Corporation the appellants were permitted to have a ware house of their own and keep a current account facility without the requirement of immediate payment of octroi at the Octroi Naka. In terms of granting those facilities the Company had made as security a cash deposit of Rs. 7 lakhs with the Corporation and had also given a Bank Guarantee for an equivalent amount as agreed to between the Company and the Corporation. However, there is some dispute as to what were the formalities that were dispensed with in the matter of claiming refund of the octroi when the goods were export ed. But suffice it to say at this stage that the appellants were permitted to carry out their activities of imports and exports under the current account procedure with a facility of unpacking the bulk, repacking and exporting. 452 During the period 1st January, 1983 to 31st March, 1964 it is stated that the appellants had made 1182 claims for refund. All these claims were rejected by the letters of the Corporation dated 31.8.1983, 12.1. 1984, 5.4.1984 and 6.4.1984. They were rejected on the following two grounds: (1) the Company had "sold" the spare parts within the octroi limit (which is co terminus with the Corporation limit) in contravention of Rule 25 (3) (d) of the Maharashtra Munici palities (Octroi) Rules, 1968 (hereinafter called the "Rules"), (2) the procedure prescribed for export and the claim of refund had not been strictly followed. The non compliance with)the procedure prescribed referred to in the second ground according the Corporation were: (i) Form 4 of the Octroi Rules and the original invoices were not submit ted, or (ii) Forms 11 and 12 filed were incomplete and all the required information were not given or (iii) certificate of the Octroi exit Naka Officer had not been obtained. The rejection of the claim was either on one or more than one or all the grounds mentioned above. The appellants filed a writ petition under Article 226 in the High Court of Judicature at Bombay contending that the action of the Municipal Corpo ration in refusing refund is unconstitutional and illegal and for certain other reliefs. The Division Bench of the High Court which heard the same dismissed the writ petition on the 26th August, 1988. It is against this judgment that the present appeal has been filed. It appears that during the hearing of the writ petition the learned counsel appearing for the Corporation did not counter the contention of the Company that the rejection under Rule 25 (3) (d) was not correct and the learned Judges have also recorded the same in the judgment. But the learned counsel for the respondent before us stated that it is not correct to say that he had conceded any point and that since he could not argue that point in view of the decision of another Division Bench of the same High Court in Khandelwal Trader Akola vs The Akola Municipal Council, AIR 1985 Bombay 218 which was binding on the Bench which heard the writ petition and also in view of certain observations of this Court in Burmah Shell Company vs Belgaum Municipal, [1963] Suppl. 2 SCR 216 and Hiralal Thakorlal Dalai vs Brash Broch Municipality, he did not press the point. We have therefore, permitted the point to be argued in this appeal. Before we discuss the points in controversy we may state that in the counter affidavit filed in the writ petition the respondents have admitted that the Company was enjoying the current account facility prior to 1.10. 1982 and the re spondent Corporation had also given the said facility to the Company even after 1st October, 1982 on their making a cash deposit of Rs. 7 Lakhs and furnishing a Bank Guarantee for a like sum as security 453 for grant of that facility. The respondent had also admitted that the Company had been given permission under Rule 10 (2) to maintain their own godown from 12th December, 1982. Broadly stated under the current account facility granted, no octroi duty is recoverable in cash from the appellants at the entry octroi naka point. However, the Company was re quired to submit a statement of goods imported in Form 5 before the 10th of the following month. The officers of the respondent after scrutiny of the statement so filed deter mine the octroi duty payable thereon and debit the amount in the current account kept and send a demand notice to the company. The Company is required to pay the amount to the Corporation within 15 days of the determination of duty. The first submission of Mr. Andharujina, learned counsel for the appellants was that the sales were not for consump tion or use within the octroi limits and that the parts were sold to parties outside the octroi limits and also for consumption or use outside such limits and therefore the rejection of the claims on the ground that the spare parts were sold within the municipal limits and that it amounted to a contravention of Rule 25 (3) (d) of the Rules is ille gal. Mr. K.K. Singhvi, the learned counsel for the Corpora tion on the other hand contended that the meaning of words "sales therein" in the definition of octroi in the Acts and in Entry 52 of List II could not be limited to sales of the goods for purposes of consumption or use within the munici pal limits. When an importer wants to export dutiable goods tempo rarily detained by him in his own godown he shall present an intimation cumapplication for written permission in Form 11 to the Superintendent of Octroi to export such goods. Rule 25 (3) (d) states that no such intimation shall be accepted unless: .LM15 "the exporter and the importer of these goods are one and the same person and such articles have not undergone change of ownership" .LM0 The case of the Corporation was that there was a change in the ownership of the goods since a sale in law had taken place inside the octroi limits though the purchaser was residing and carrying on business outside the octroi limits and under the sale the goods were intended to be and in fact exported for the purpose of consumption and use outside the octroi limits. Section 127 of the Bombay Provincial Municipal Corporation Act,1949 and the corresponding section 105 of the Maharashtra Municipalities Act,1965 authorises the Muncipality to levy "Octroi". Both these Acts define 454 octroi as meaning a tax on the entry of goods into the municipal area "for consumption, use or sale therein". The Maharashtra Municipalities (Octroi) Rules 1968 made under the Maharashtra Municipalities Act, 1965, provides for the levy, collection and refunds of octroi duty on the goods specified in the schedule thereunder and the procedure for the same. These Rules were in force in Thane Municipality before Thane was declared as "City" under the Bombay Munici pal Corporations Act LIX of 1949. However these Rules are continued in the Thane Municipal Corporation by virtue of paragraph 5 of Appendix IV to the Act LIX of 1949. The legislative entry relating to the constitutional power to levy this tax is found in List II Entry 52 of the 7th Schedule to the Constitution which reads: "52. Taxes on the entry of goods into a local area for consumption, use or sale therein". The Bombay Municipal Boroughs Act, 1925 which was in force prior to the enactment of the Maharashtra Municipali ties Act, 1965 also contained a similar provision in section 73 enabling the Municipalities covered by that Act to levy "Octroi on animals or goods or both brought within the octroi limits for consumption or use therein". This provi sion was amended by Amending Act 35 of 1954 by substituting the words "use or sale" for the words "or use" with effect from May 5, 1954. In other words before 1954 the word "sale" was not included in the provision of octroi on goods which the Municipality was authorised to impose. After the amend ment the Municipality could levy octroi on goods brought within the octroi limits "for consumption, use or sale therein". This provision came up for consideration in Burmah Shell case (supra). Two of the categories of transactions which were considered in this case related to transactions under which (1) goods were sold by the Company through its dealers or by itself and consumed within the octroi limits by persons other than the Company and (2) goods sold by the Company through its dealers or by itself inside the octroi limits to other persons but consumed by them outside the octroi limits. The Company contended that the tax could not be collected on goods which were merely sold but not con sumed inside the octroi limits. In connection with this con tention this Court considered the meaning of words "consump tion, use or sale therein" and observed: "It is not the immediate person who brings the goods into a local area who must consume them him self, the act of consumption may be post poned or may be performed by someone else but so long as the goods have been brought into the local 455 area for consumption in that sense, no matter by whom, they satisfy the requirements of the Boroughs Act and octroi is payable". " . . The goods must be regarded as having been brought in for purposes of consumption when a person brings them either for his own use or consumption, or to put them in the way of others in the area, who are to use and consume". And concluded holding: "In our opinion, the Company was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The Company was, however, not liable to Octroi in respect of goods which it brought into the local area and which was re exported". The ratio is thus not a mere sale inside that attracts octroi but a sale intended for consumption of the goods inside the octroi area though ultimately the person to whom it was sold for consumption does not consume the goods inside but does the same outside the limit. After consideration of the judgment in Burmah Shell Company 's case (supra) the Gujarat High Court in one of the cases arising for refund of octroi duty paid, took the view that octroi leviable on goods brought within the octroi limits 'for consumption, use or sale therein ' and that the word 'sale ' could not be given the narrow meaning of a sale for consumption to the ultimate consumer within the octroi limits. Accordingly if the goods were sold within the octroi limits by the importer even if it resulted in export and consumption was also outside the octroi limit, octroi duty paid is not refundable. This decision came up in appeal before this Court and the decision of this Court is reported in Hiralal Thakorlal Dalai vs Brash Broach Municipality, On facts that case related to a con signment sale and the goods were despatched to destination outside octroi limits for consumption there. A plea for review of the decision in Burmah Shell Company s case (supra) was also made in this case. However a Constitution Bench rejected the request for reconsideration and held that the word "sale" in the colloquium of the words "consumption, use or sale therein" means sale for consumption within the octroi limits. The ratio of these two decisions was consid ered by the Bombay High Court in Khandelwal Traders Akola 's case (supra), which was referred to in the Judgment under appeal. It was held in this case also 456 that where a dealer imports goods within the octroi limits not for ultimate consumption or sale for consumption within the limits but for the purpose of export and obtain permis sion for export he is not liable to pay octroi on such goods notwithstanding that in the larger sense for purposes of export he sells the goods within the octroi limits, that is to say even where the situs of the sale could be fixed within the octroi limit. The matter is now put beyond any pale of doubt by the latest decision of this Court in Munic ipal Council, Jodhpur vs M/s. Parekh Automobiles Ltd. & Ors., ; Rule 13 (4) of the Rajasthan Munici pal Octroi Rules, 1962 which was one of the provisions considered in this case provided that "In cases provided for in sub rule (3) (that is who is given the account current facility)amount of octroi duty payable shall be based on the total amount of the octroi as shown by the entry passes less the total amount of goods transported outside the munic ipal limits as shown by the transport passes: Provided that in computing the octroi duty payable under subsection (4), the goods trans ported outside the municipal limits shall be lessened only if such goods have not been sold within the municipal limits and if they have been exported out of such limits within a period of six months from the date of their import in such limits". Relying on this provision the municipality in that case contended that if the sale had taken place within the octroi limits though the sale was not for consumption or use within the octroi limits, duty was payable and no refund could be claimed. The learned Single Judge who heard the matter in the High Court did not permit the importer to raise the question that the sale took place only outside the octroi limits of Jodhpur and proceeded on the footing that the sale of product in question took place within the octroi limits of Jodhpur. He however accepted the contention of the Indian Oil Corporation (importer) that the sale to the dealer was for the purpose of export and the dealer did export the goods outside the octroi limits and that, therefore, even if the sale was said to have been effected within the octroi limits no octroi was leviable. Since admittedly the goods had been sold in Jodhpur octroi limits only for their on wards transmission for use and consumption in Dangia was outside the octroi limits he held that no octroi duty was payable. This view of the learned Single Judge was confirmed on appeal by the Division Bench of the High Court. On appeal this Court confirmed this view and held that the Indian Oil Corporation (importer) who had the current account facility and gov 457 erned by the terms of rule 13 was entitled to go on paying octroi duty "on to basis of the goods brought by it within the municipality less the goods transported outside the municipality even where the transport outside the municipal ity may be in pursuance of a sale within the municipality so long as such sale is in pursuance of an intention that the goods should be consumed or used outside the municipal limits". In the present case the sales were to person who were carrying on business outside the limits of the Corporation and the goods were also intended to be consumed or used outside such limits and in fact the goods were also export ed. The ratio of the decisions above referred clearly, therefore, governs this case, even if it were to be assumed that the sale in the general sense took place inside the municipal limits. However we may state that it was the contention of the learned counsel for the appellant that the sale in fact took place outside the municipal limits and in support of this contention he relied on the following facts among others. The spare parts were consigned by the Company to out station purchasers. The goods were transported by the Company them selves across the octroi limits. The consignment or lorry receipt mentioned the consignee as self. The bills for collection were sent through Bank and the goods were not to be delivered to the consignee until the payment was made by the consignee through the Bunk. Right of disposal expressly reserved with the vendor. On the other hand on behalf of the Corporation it was contended that orders were both received and accepted in Thane, goods were despatched from Thane and challans were also made in the name of the buyers and the property in the goods passed within Thane. The sale had in fact taken place within municipal area. In fact he further contended that being a question of fact we are not entitled to go into the same in view of the finding of the High Court. It is not necessary for us, however, to consider this aspect and we would for the purpose of this case proceed on the assumption that technically the sale in law had taken place inside the municipal limits. Since the goods were sold by the Company to outside purchasers and the goods under the transactions of sale, were intended to be exported and were in fact exported, for consumption or use outside the municipal limits no octroi duty was leviable and the octroi duty paid on entry into the municipal limits was, therefore, liable to be refunded. Accordingly the rejection of the refund claims on the ground that Rule 25 (3) (d) had not been strictly complied with is illegal and could not be sustained. Such of those claims which were rejected only on the grounds of contravetion of 458 Rule 25 (3) (d) shall now be taken up by the respondent and passed for payment. In the case of impost of octroi the taxable event is the entry of goods which are meant to reach an ultimate user or consumer in the area. Mere physical entry into the octroi limits would not attract levy of octroi. When the goods are brought in not for consumption within the area but for temporary detention and eventual export, octroi is not leviable. But in order to ensure, in such circumstances, that the goods are exported and to prevent evasion of octroi on goods consumed inside the octroi limit, Rules provide for deposit of a certain sum of money or the actual octroi duty payable subject to a right to get a refund of the same when the goods are exported. When the goods in respect of which octroi was paid are exported, the octroi became refundable and that is the very scheme of the ' levy of octroi. The octroiable event in such a case shall be deemed not have happened. Right to refund arises because the goods are not consumed inside the area but exported and the tax becomes not leviable. The rules merely regulate the system on which refunds shall be allowed. The procedure prescribed and the need to adhere to the procedure shall have to be considered in the light of these legal incidence and nature of octroi duty. Before we deal with the question whether the Company had not followed any of the procedure prescribed and the right of the Corporation to deny refund of octroi on non compli ance with any of those provisions in the Rules, it is neces sary to broadly set out the different types of procedures prescribed, depending on different purposes of imports and exports, contemplated under the Rules. This may be broadly classified into five categories, (i) goods imported for Consumption, use or sale in the municipal area, (ii) goods imported not for consumption, use or sale within the munici pality but for immediate export, (iii) goods intended to be temporarily detained within the municipality in the bonded warehouse maintained by the Corporation and eventual export; (iv) goods intended for temporary detention in the private licensed bonded wharehouse of the importer and eventual export; and (v) goods imported by any person, mercantile firm or body which has been permitted by the municipal Corporation to keep an current account. In the first case, since octroi is attracted on arrival of the dutiable goods at the Octroi Naka the importer pays the amount of octroi assessed by the octroi officer and takes the goods inside the municipal limits. In the second case, the importer gives a declaration cum application that the goods are not being imported in the municipal limits for consumption, use or sale but are intended for immediate export outside the octroi limits. He is required to deposit an amount in 459 accordance with the scale fixed under clause (b) of sub rule (1) of Rule (5). On such deposit being made a receipt is given in the form prescribed by the Entrance Naka Inspector and a written permission cum transit pass issued by the Octroi Officer. On arrival of the goods at the exit Naka and on surrender of the written permission cum transit pass the deposit amount is refunded. In the third category of cases, the importer makes an application to the Octroi officer at the Entrance Naka for a written permission to deposit such goods at the bonded warehouse maintained by the Corporation. The Octroi Officer then makes an entry on the application that the importer is allowed to proceed with the goods to the bonded warehouse. The Officer in charge of the bonded warehouse will receive the goods and keep them in the bonded warehouse until exported. When the importer wants to export the goods he is required to apply for a written permission cum export pass in the prescribed form and also deposit an amount equal to the octroi leviable therein. On such deposit made a written permissioncum export pass is issued. When the goods are taken out of the municipal limits the Officer Incharge of the Exit Naka endorses the export pass certify ing the export and the refund of the deposit is claimed thereafter producing the certificate issued by the Exit Naka Officer. In the fourth category, the importer gives a decla ration in Form 4 that the goods are meant for temporary detention with him at his own warehouse for eventual export. After verification of the particulars furnished in that form with the invoices and other documents produced he is re quired to deposit at the Entry Octroi Naka point itself an amount equal to the amount of full octroi duty thereon as deposit. A receipt is given by the Octroi Inspector stating that the said amount "on account of deposit" has been recov ered. When he wants to export the dutiable goods detained with him he presents an intimation cum application in Form 11 for written permission to export the goods. He is also required to produce the goods at the Central Octroi officer along with the application. On satisfaction that all the conditions prescribed have been fulfilled and after verifi cation of the goods a written permission cum refund export pass in Form No. 12 is given to the importer. On presenta tion of these documents the Octroi officer at the Exit Naka gives a certificate that the goods mentioned therein have passed octroi limits and with that the refund application is made and refund obtained. The instant case falls under the fifth category. The Company has been permitted by the Municipal Corporation to keep the dutiable goods in a bonded warehouse of their own with a current account facility. The rules which were relied on by the Respondent and some of which are said to have not been complied with by the Company may be set out: "10. Maintenance of Bonded Warehouses. 460 (1) x x x (2) A Council may permit any importer to maintain a private Bonded Warehouse for keep ing goods which are imported by such importer for temporary detention and eventual export and grant a licence to such importer for that purpose subject to the conditions and restric tions laid down in such licence. A fee shall be charged for such licence at the rates specified in the bye laws relating to the grant of such licence." "14. Declarations to be made by importer, etc. (1) On arrival of any dutiable goods at the Octroi Naka, the Octroi Officer shall call upon the importer or the driver of the Vehicle or conveyance or the person incharge of the pack animal or other persons bringing the goods (a) X X X X (b) X X X X (C) X X X X (d) to make a declaration in Form 4, in respect of the goods intended for temporary detention with himself and eventual export; (e) to make a declaration in Form 5, in respect of the goods imported by, or on behalf of, any person, mercantile firm or body which has been permitted by the Council to keep an account current under Section 142; "15. Procedure for assessment and recovery of octroi. (4) On receipt of a declaration in Form 5 under the last preceding rule, the Octroi Officer shall ascertain whether the name of the person, mercantile firm or body on whose behalf the goods are being imported is on the list of persons, firms or bodies allowed to keep an account current, and if so, check the goods with the details entered in the declara tion and fill up the certificate below the declaration and issue a pass in Form 6. The Octroi Officer shall forward all such declara tions together with a list in duplicate there of to the Central Octroi Officer for further action in accordance with the provisions of Section 142. "24.Procedure for temporary detention of dutiable goods meant for eventual export, with importer himself. (1) Where dutiable goods intended for temporary detention within the octroi 461 limits and eventual export are to be detained by the importer at his residence or a Bonded Warehouse licensed under sub role (2) of rule 10 within the octroi limits, he may do so on giving a declaration to the Octroi officer in Form 4, and on payment of an amount equal to the amount of full octroi due thereon as deposit either in cash or in the form of Bank Guarantee at the Entrance Naka. (2) In case the importer cannot export the goods without breaking bulk or without assem ble and testing in the case of machinery, he shall do the same only with the sanction of the Superintendent of Octroi in the presence of an officer deputed for this purpose by the said Superintendent. Such goods, if necessary shall be formed into packages, which may be sealed and marked by the Officer so deputed. "25.Procedure for export of dutiable goods temporarily detained with importer. (1) When the importer wants to export dutiable goods detained with him, he shall present an intima tion cum application for written permission in Form 11 to the Superintendent of Octroi to export such goods, giving necessary details; and produce such goods for verification on any working day during the hours fixed by the Chief Officer at the Central Octroi Office or at any other Branch Office, as may be estab lished by the Council for the purpose. (2) A separate intimation cum application shall be given by each importer or his own goods. One such intimation cumapplication shall be sufficient for a single consignment. When such consignment contains goods of dif ferent descriptions, full details shall be given separately in the intimation cum appli cation. Not more than one intimation cum application for export can be given by an importer for goods passing through an Exit Naka in a day. (3) No such intimation cum application shall be accepted unless (a) it is complete in all respects and signed by the importer himself or by a person authorised by him in writing in this behalf; (b) it is supported by the receipt for the deposit paid at the time of import and is accompanied by the original invoice, if any, filed at the time of import; 462 (c) the goods produced for inspection and intended to be exported are, subject to the provisions of sub rule (2) of the last preced ing rule, identical with what they were at the time of import. (d) the exporter and the importer of these goods are one and the same person and such articles have not undergone change of ownership. The requirement of clause (c) shall not be applicable in the case of dutiable goods to which sub rule (3) or (4) of the last preceding rule applies. (4) On receipt of such intimation cum applica tion and on arrival of the goods intended for export, at the Central Octroi Office or Branch Office, the Superintendent of Octroi or any officer authorised by him shall (a) satisfy himself that all the condi tions prescribed above are fulfilled; (b) verify that the goods actually pro duced for inspection are as described in the intimation cum application and in the relevant import invoice, if any, or in the import declaration in Form 4, and seal and mark such goods whenever deemed necessary; and (c) issue a written permission cum refund export pass in Form 12 after obtaining a specimen signature of the importer or his authorised agent on such pass. (5) The importer accompanied by an escort, if provided by the Council, shall then take the goods beyond the octroi limits through the Exit Naka within the time limit and by the route specified in the pass. Before crossing the Exit Naka, the impoter shall present the goods to the Octroi Officer at the Exit Naka for inspection, with the pass. The time limit shall be fixed with due regard to the distance of the Exit Naka from the Central Octroi Office or the Branch office, but in no case it shall exceed 12 hours from the time of issue of the permission cumrefund export pass. (6) The Octroi Officer at the Exit Naka, on presentation of such goods as well as the pass, shall satisfy himself that (a) the pass as well as the goods are presented within the specified time limit; 463 (b)the seals or marks, if any, are inact; and (c) the goods actually tally with those men tioned in the pass. On being so satisfied, he shall make relevant entries in the register maintained for the purpose, obtain signature of the importer thereon, sign a certificate as given on the pass, deliver the same to the importer and allow the goods to pass beyond the octroi limits. Provision for refund of deposit. (1) When any goods for which a deposit has been paid under rule 24 at the time of their import are exported, the amount of deposit recovered shall, subject to the provision of sub rule (2), be refunded. (2) The refund shall be admissible, if all the conditions below are satisfied. (a) The refund is applied for within one month from the date of e x port. (b) The goods are exported out of the octroi limits within a period of six months of their import. (c) The application for refund is supported by a duly certified written permission cum refund export pass. (d) All the conditions in sub rule (3) of rule 25 are fulfilled. (e) The amount claimed as refund is with drawn within three months from the date of intimation to the importer to receive the amount. (f) The goods exported were declared to be intended for temporary detention with the importer and eventual export at the time of import: Provided that the said period of six months shall not apply to goods imported by the Food Corporation of India established under section 3 of the Food Corporation Act, 1964. Procedure for refund. (1) The Applica tion for refund of deposit shall be made in Form 13 by the importer himself or by his duly authorised agent in this behalf in writing on any working day during the hours fixed for money transactions by the Council at the Central Octroi Office within one month from the date of the actual export. If the last day for claiming refund falls on a public holiday such application shall be accepted on the next working day. 464 (2) Such application shall be accompanied by the duly certified relevant written permis sion cure refund export pass and shall contain reference to the connected export intimation cum application already given by the importer. There shall be a separate application for each written permission cure refund export pass. (3) If the refund application is in order and satisfies all the conditions specified in the last preceding rule, the amount of the refund shall be correctly determined subject to the limitation prescribed in the next succeeding rule". Value, weight, etc. of goods for purposes of refund. When the refund is claimed in respect of goods on which duty is leviable ad valorem, the value for the purposes of refund shall be the value as per invoice on the strength of which the duty was originally paid together with such cost of carriage and other incidental charges that were then deter mined. Where the value was determined in the absence of invoice on the basis of market rate prevalent on the day of import, that value only should be considered and not the market price prevalent in the local market on the day of export". FORM 4 (Rules 14, 24 and 25) Declaration in respect of the dutiable goods imported into the Municipal octroi limits, which are intended for temporary detention with the importer and eventual export. To The Octroi Officer, Octroi Naka No. . . . . Municipal Council. I, . . . . (insert full name and address of the importer) hereby declare that the below mentioned goods are meant for temporary detention with me at . . (specify address at which to be kept) for eventual export outside the octroi limits. I am willing to pay an amount equal to the amount of full octroi due thereon as deposit either in cash or in the form of Bank Guarantee and may claim refund according to the rules if these goods are exported outside limits within six months from the date of their import. The below mentioned details are true and according to the original invoice, true copy of which is filed herewith. The said invoice covers all the goods im ported by me as per Bill of Entry/Railway Receipt/Goods Transport Memo/Air consignment Note No. . .dated . . 465 Sr. No No.and Description Weight Value Senders Rem No &date descri of the or plus all name& arks of ption of goods goods incidental address import packages charges in full document which are to given seper ately 1 2 3 4 5 6 7 8 Full residential/business address of the importer. Date . . Signature of the Importer I have checked the above particulars with the invoice and verified the goods, which are found to be correct. True copy of the invoice appended is verified and found to be correct. The weight or quantity or value, together with the incidental charges declared, is correct. The taxable weight/quantity/value of the goods is . . and the rate of octroi . . Date. . Inspector/Clerk. The amount of Rs. . on account of deposit has been recovered under receipt No. . . dated . . . Date . . Inspector/Clerk. FORM5 (Rules 14 and 15) Declaration in respect of the dutiable goods imported on behalf of person, firm, or body allowed to keep an account current. To, The Cetroi Officer, Octroi Naka No. . Municipal Council. I,. . . . (insert the full name and address of the importer) hereby declare that the below mentioned goods are being imported into the Municipal Octroi limits on behalf of . . . (insert the name of persons, firm or body allowed to keep an account current) and that the below mentioned value and weight/quantity of the goods is true and correct and is according to the original invoice, true copy of which is filed herewith. The said invoice fully covers all the goods imported by me today as per Bill of Entry/Railway Receipt/Goods Transport Memo/Air Consignment Note No. . dated . . , I further undertake to produce the said invoice for your inspection whenever demanded by you within one year from today. 466 To be filled in by the importer To be filled in at the Central Octroi Office 1.Sr. No. 2. Bill of Entry 'Railway Receipt ' Goods Transport Memo/ Air Consignment Note. Number description of packages. Goods. Value plus incidental charges which are to be given seperately. 7.Rate of Ovctroi. Amount of Octroi recoverable. Date. .Signature of the importer Dues entered in I have checked the above particulars Account Current with the invoice and verified the goods, Date . . which are found to be correct. True Octroi copy of the invoice appended is Superintendent verified and found to be correct. The weight or quantity or value, together with the incidental charges declared, is correct. Issued pass No . dated . Date . . . Inspector/Clerk FORM6 (Rule 15) Pass for goods imported on behalf of person, firm or body allowed to keep an account current . Municipal Council:. .Municipal Council Book No. Entrance Naka No. : Book No. En trance Naka No. Counterfoil of pass Pass for goods imported by in account current . (Name of Person, firm or body) Description No. and Description Weight, Description of the quantity of packages goods or value 1 2 3 Dated . . Dated . . Entrance Naka Inspector/Clerk Entrance Naka Inspector/Clerk 467 Form 11 (Rules 25 and 26) Intimation cum application for written permission for Export of Goods Temporarily detained with the Importer To The Superintendent of Octroi, . . Municipal Council. Sir, I. . . . . (insert the full name and address of the importer) hereby declare my intention to export the goods to. . .through Naka No. . as detailed below. The certified copy of original invoice/invoices under which these goods were imported are appended herewith. I have produced the goods for actual verification. Kindly grant me the permission to carry the goods to the said Naka. Description Quantity Date of Import Deposit Gross No. of the (Number of Import invoice receipt weight goods bags or & No. of No. and number & cases) entrance date date Naka 1 2 3 4 5 6 7 Value Amount to be Number of Name and How Remarks refunded Refund Export address of exported pass granted the consignee 8 9 10 11 12 13 Date . . . Signature of Importer Verified the contents and the weight as above and found correct. Countersigned. Octroi Officer. Signature of the Refund Inspector/Clerk. Receipt No. . 468 FORM Rule 25) Written Permission cum Refund Export Pass Receipt No. . . Date . . . 19 Sl. Month Name and Name and Description Quantity Gross No. and address of address of of the (number of weight date the impoter the consignee goods bags or cases) 1 2 3 4 5 6 7 Value Deposit How Exist Date & time by Whether Remarks to be exported Naka which the goods goods refunded No. should reach the sealed or Export Naka escort given 8 9 10 11 12 13 14 *Fee for Written Permission Cum Refund Pass Rs . . Miscellaneous Receipt No. . , dated. . , Signature of the importer Signature of Octroi Officer I hereby certify that the goods mentioned above have passed outside the octroi limits this day the. . of the month. . 19 Time. . . a.m./p.m. in my presence Railway receipt. . /Vehicle No. . The seals, if any, thereon were intact when the goods were presented to me for verification. Date . . . Signature of the Exist Naka Officer Naka No. . *This fee should be levied in accordance with the bye laws framed under section 338 for granting permission to take the goods from the Central Octroi Office or Branch Office to the Exist Naka. FORM13 (Rule 29) Application for Refund of Deposit To The Superintendent of Octroi, . . Municipal Council. 469 Sir, I, . . . the resident of. . hereby apply for refund of deposit as per enclosed Written Permis sion cum Refund Export Pass No. . .dated. . , as the goods mentioned in the pass were exported on. .under my intimation cum application, dated. . , I therefore, request you to grant the refund of Rs. . and oblige. Enclosure: Date. . Signature of Importer On a reading of these rules it appears to be that Rules 24, 25 and 28 in terms would apply only to cases failing under category four, stated above. The declaration in Form 4 referred to in Rule 24 and deposit of the amount equivalent to octroi duty payable at the entry point, production of the goods for verification at the Central Octroi Office are all consistent with its being applicable to a case where dutia ble goods are imported for temporary detention and eventual export by a person having a bonded warehouse of his own contemplated in Rule 14 (1) (d) and not Rule 14 (1) (e). However, Rules 29 and 30 are general in terms and may be invoked in both the cases falling under Rule 14 (1) (d) and (e). Sub rule (3) of Rule 29 refers to the compliance of the conditions in Rule 28 and that is how it may be said that the provisions of Rule 28 are attracted to the cases of a person having a bonded warehouse and the facility of account current. However, the Rules have to be read and applied in such way that they do not conflict with but are consistent with the facility of current account given to the Company. Form 5 which is applicable to a case falling under Rule 14 (1) (e) does not require the Company (importer) to give a declaration at the time of arrival of the goods at the entry Naka point that the "goods are meant for temporary detention with" the Company at its warehouse "for eventual export outside the octroi limits". The Company need not also make any deposit with the Naka Inspector at the point of entry. An amount equivalent to the octroi duty payable in respect of the goods is only entered in the account current after the goods have reached the warehouse and verified by the Octroi Officer. Form 4is not applicable to the case of the Company which has got a current account facility. The Compa ny, is, therefore, bound to give a declaration only in Form 5, and need not give a declaration as in Form 4 nor is there any obligation to deposit an amount equivalent to the full octroi duty with the Octroi Inspector at the Entry Naka Point. Further reference to original invoices/in Forms 4 and 5 is only for the purpose of checking the particulars en tered into in the forms. The production of an invoice is not, having regard to the 470 purpose of such production, to be insisted blindly. If the particulars furnished in the form including weight/quantity or value could be established satisfactorily by other docu ments, we have no doubt that will be sufficient compliance with the Rules. Column 5 of Form 11 also refers to invoice and the date of invoice. This is again to correlate the goods exported with the goods imported. If the identity of the goods could be established by evidence other than the production of invoices that should satisfy the Rules. The invoice as such has no bearing on the liability of the goods for octroi or the right of the Company for refund. So far as the production of the original invoices are concerned, the learned counsel for the Company pointed out that the goods are brought from their own manufacturing units at Pune and Jamshedpur and it will only be a stock transfer and this requirement of producing original invoice could not be complied with and is not applicable. Under the current account procedure the invoices, if any and all the other documents are verified when the goods reach the ware house with reference to the description of the goods, weight/quantity, value and other particulars and it is only after verification the octroi duty leviable is determined and amount is debited in the account current and the demand also is issued. The learned counsel for the appellant also referred to certain documents to show that for every category of arti cle, the Company has given a distinctive number and the goods are easily identifiable and the number of items or quantity imported are all record in the register and com puterised for easy verification. It is these identifying numbers of the articles that are mentioned in the intima tion cure application for written permission for export. He also relied on the fact that the Company has no manufactur ing unit within the Thane Municipality. Similarly, Column 6 of Form II also could not be complied with as it is not applicable to a person who is having current account facili ty. So far as the value is concerned the learned counsel for the appellants have fairly stated that the respondent was taking 72% of the list price of the articles for determining octroi payable, for which he has no objection. In fact, he has suggested that since the Company publishes the price list periodically and that which shows the current price at any point of time may be taken as the basis for such valua tion. The Octroi Exit Naka Officer had refused to give the certificate of export pass on the ground that the particu lars in Columns 5 and 6 of Form 11 could not be verified as the original invoices and the deposit receipts were not produced. Since these columns could be filled only to the extent possible by a person having an account current facil ity and there is no dispute about the export of the goods mentioned therein the refusal to give the export pass cer tificate. by the Exit Naka Officer could not be sustained. 471 The next point to be considered is the procedure to be followed when the importer wants to "breaking the hulk" and repack the goods in smaller quantities and also the proce dure relating to filling up Forms 11 and 12 and the refund applications in such circumstances. Rules 24 (2.) states that for breaking the bulk and repacking in smaller pack ages, sanction of the Superintendent of Octroi is necessary and the "breaking bulk" shall also be done in the presence of an officer deputed for this purpose. Rule 62 of Chapter VIII of the Schedule to the Bombay Provincial Municipal Corporation Act, 1949 provides that subject to the standing orders not less than 90% of the octroi paid on any goods shall be refunded if such goods are exported beyond the limits of the city within six months of payment: "provided that. (C) in the case of goods which have been broken bulk prior intimation has been given to the officers specified in this behalf in the standing orders and the place or places of storage have been reported to him from time to time". Paragraph 5 of Appendix IV to this Act which we have noticed earlier states that the rules flamed under the Municipal Act shall "in so far as it is not inconsistent with the provisions of this Act, continue in force". Rule 62 of Chapter VIII forms part of the Act. The learned counsel for the appellant, therefore, contended that Rule 62 shall prevail and prior intimation of the intention to 'breaking bulk ' shall be enough and there was no necessity for the Company to get the sanction of the Superintendent of Octroi or break the bulk in the presence of an officer deputed for the purpose as required under sub rule (2) of Rule 24. In other words according to the learned counsel Rule 24 (2) of the Octroi Rules is inconsistent with Rule 62 of Chapter VIII of the Schedule to the Act and to the extent. _ of inconsistency it shall be deemed to be not applicable. On the other hand the learned counsel for the respondent con tended that Rule 62 (c) deals with prior intimation and Rule 24 (2) deals with the sanction and breaking of the bulk in the presence of an officer deputed for that purpose and both the rules can stay together and operate and there is no inconsistency. We are not impressed with the argument that there is an inconsistency between Rule 62 and Rule 24 (2). The intimation contemplated in Rule 62 imply that the break ing the bulk shall be done with the knowledge of the octroi authorities. But it Cannot be said that the rules further provide that after intimation the breaking of the bulk shall be done in the presence of the officers and after sanction that would in any case be inconsistent. Both the rules thus can stand together. In H.M.M. Limited vs Administrator, ; this Court had occasion to consider the effect of non com pliance with this require 472 ment of a similar provision, on the right to get refund. Shortly stated the facts in that case were these: The appel lant brought into the municipal limits Horlicks in bulk containers (large steel drums) for being packed in unit containers (glass bottles) at the packing station in Banga lore and thereafter exported outside the municipal limits. In respect of the milkfood so exported in glass bottles the appellants sought refund of octroi on the ground that there was no consumption, use or sale within the municipal limits and the goods were exported. Rule 24 of the Octroi Rules that were in force in Bangalore city provided: "24. 0n all articles on which octroi duty has been paid and which are subsequently exported beyond the octroi limits without breaking bulk, refunds shall, subject to the following rules, be granted at the rate originally charged at the time of import; provided that no such refunds shall, except in the ease of timber imported and re exported in log be granted unless such goods are exported within three months from the date on which octroi was levied". Relying on this provision it was contended by the Munic ipality that breaking the bulk amounted to "use" within the municipal limits attracting levy of octroi and no refund was permissible. The refund application had also not been made within three months from the date on which octroi was levied. It was admitted that the appellants had not followed that procedure prescribed in Rule 24. This Court held that mere transferring of a bulk product in small containers like packets or bottles for the purpose of sale does not amount to use of the goods in the sense the word is used in rela tion to levy of octroi. It was further held that the words "without breaking bulk" is not an expression of art and that meant only transferring the product from the drums by break ing the seal of the drums, to the bottles for the purpose of exporting or for taking them out of the municipal limits, and that would not amount to either use or consumption of the Horlicks powder within the municipal limits attracting the levy of octroi. The ratio of the judgment clearly is that merely on the ground that the goods are not exported in bulk as originally imported, the levy does not become valid or that the import er who exported the goods loses his right to a refund of the octroi paid. The goods neither loose their identity nor cease to be identifiable. Once we reach the conclusion that there is no consumption or use, octroi is not attracted and if any levy has been made and the amount collected, the same becomes legally refundable even when the goods are exported in parts and in smaller packages. This is particu 473 larly so because in the case of goods not consumed or used within the octroi area but exported there is a constitution al bar for the levy of octroi. In this connection we may also refer to another decision reported in Municipal Committee, Khurari vs Dhannalal Sethi & Ors., [1969] I SCR 166. The rules considered in that case also provided that an application for refund was to be made in the prescribed form and that the exporter after filling in the particulars had to present his application at the office appointed for that purpose. There were other rules which provided an elaborate procedure to be followed at the time of export of the goods. These rules related to the octroi officers satisfying himself that the goods brought for export agree with those mentioned in the application, presentation of the claim within the prescribed time, iden tifying of the goods exported with those imported and other matters. This Court held that: "these rules do provide a procedure which an exporter wishing to claim refund has to fol low. But the question is whether in a case where an exporter has not done so, is he disentitled from claiming the refund. The real difficulty in the way of the appellant Commit tee is that though the rules lay down a proce dure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in r.r. 35 to 39 would be disentitled to claim the refund. In the absence of such a provision coupled with the categorical language of r. 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 such a refund. We are, therefore, of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court". It may be pertinent to mention that the Maharashtra Municipalities (Octroi) Rules, 1968 also do not contain any specific provision that an applicant for refund who has failed to follow the procedure would be disentitIed to claim the refund. It may be noted that the amount collected which is equivalent to the octroi duty payable on the goods, on entry into the octroi limits while in detention in the warehouse is only as a deposit pending export of the goods. The other aspect is that once octroi is not leviable the deposit made by the importer pending export is in the nature of a trust and refundable in the event of the export of the goods. Further in a given set of facts, whether the rules have been complied with will have 474 to be tested having regard to the nature of the particular transaction and whether the object of the procedure provided is otherwise fully satisfied. ` Rule 28 also merely states that the refund shall be admissible if all the conditions in sub rule 2 of that Rule are satisfied. The object of requiring intimation or sanction and presence of an officer when breaking the bulk in the scheme of octroi levy and refund is to ensure that dutiable goods do not escape the assessment and refunds are made only in respect of goods exported. In other words the whole requirement relates to the identification of the goods. In that sense if the same is otherwise complied with the right to refund cannot be denied. These rules cannot be read as enabling the municipality to levy and collect octroi even in cases where the goods have not been imported for consumption or use. As held by this Court in Kirpal Singh Duggal vs Municipal Board, Ghaziabad, ; the octroi rules are intended to regulate the system on which the refunds shall be allowed and paid. What are merely matters of procedure which the municipality was entitled to require compliance with in granting refund cannot be treated as condition precedent for the entitlement of the refund itself. The Constitution prohibits levy of tax except in accordance with law. When the goods are not imported for consumption or use within the octroi area the municipality ceases to have any constitutional right to levy octroi. If the goods therefore have merely entered into the octroi limits and passed out of the same no octroi duty is attracted. The concept of octroi as held by this Court in Burma Shell s case (supra) may include "the bringing in of goods in a local area so that the goods come to a repose there". It is this concept that is reflected in Rule 28 (2) Co) when it requires evidence that the goods were exported out of the octroi limits within a period of six months of their im ports. The learned counsel for the appellants Mr. Andharuji na had expressed certain difficulties in satisfying the Corporation that the goods imported were exported within the period of six months as provided in the rules in view of certain peculiar circumstances in this case. He pointed out the goods received in bulk are small small items and there are about 16000 distinctive types of articles and when the bulks are broken and each of the categories items are mixed up together it becomes difficult for him to individually identify when the goods were received and when they were exported. However, he was sure that the goods were exported before six months. When this difficulty was pointed out during the pendency of the appeal, as an interim direction this Court by Order dated 1.5. 1989 directed the parties to proceed on the basis that the goods which came in first had gone out first unless some factors or features indicate otherwise. This is not equitable principle unknown to law. Even as early as in 1816 with reference to money paid on account to a creditor, in Clayton 's case (1814) 475 23 All. E.R. Rep. P. 1, it was held that in the absence of an agreement to the contrary, in the case of current account containing debit and credit entries there is a presumption that the first item on the credit side of the account is intended to be applied in the payment of the first item on the debit side of the account. This is an equitable princi ple which could be followed in the instant case and it may be presumed that the goods which came in first have gone out first and the six months period could be determined on that basis. In any case in view of the interim direction given by this Court on May 1,1989 that may be usefully be followed for the future also in this case. To sum up: Having regard to the nature and incidence of octroi unless the octroiable goods are consumed or used or are meant to reach an ultimate user or consumer in the octroi area no octroi is leviable. The words 'sale therein in the words "consumption, use or sale therein in the defi nition octroi means sale of octroiable goods to a person for the purpose of consumption or use by such person in the octroi area. If sale was intended for consumption or use in the octroi area whether the purchaser actually consumed inside or outside octroi area is irrelevant. Rules 24 to 30 and the forms in the system of levy of octroi are intended to regulate the procedure for collection, identification of dutiable goods and correlation of goods exported with the goods imported for the purpose of refunds of octroi collect ed. In view of constitutional bar octroi is not leviable if the goods are not brought into the octroi area for purposes of consumption or use in the area but for export and in fact exported by the importer himself or the sale by him occa sions the export. Compliance with the procedure prescribed in the Rules for filing claims of refunds are not condition precedent for the right or eligibility for refund or the liability to refund but are provisions regarding proof of export of the goods imported and are not meant to be exhaus tive either. They are to be interpreted and understood in that sense. The object of the Rules fixing a period of limitation for export however is different. The export cannot be put in perpetual doubt and the goods may be con sidered to have come to a repose if they were not exported within a particular period provided in the rules. Applying these principles to the instant case, on facts the rejection of refund applications on the ground that Rule 25 (3) (d) had not been complied with was illegal. Since the rejection of the claims for refund was merely on the ground that either Form 4 and original invoices were not produced or columns 5 and 6 of Form 11 or the corresponding columns in Form 12 had not been filled with reference to an original invoice or Form 4 or deposit receipt and the refusal to issue export pass certificates on those very grounds which we have stated are untenable the other orders of rejections are also invalid. If the goods are mixed up and unidentifia ble 476 due to breaking bulk and repacking in smaller and assorted packages before export the principle that the first export was of the goods first imported, subject to any evidence available to the contrary, may be applied and the six months period prescribed for export may be determined accordingly. When these appeals were pending by way of interim ar rangement this Court by order dated 25.4.1990 directed that in order to obviate the difficulty of identifying the goods at the time of export by reason of the breaking of the)bulk and in order avoid doubts, the respondent Corporation may depute their officer or officers on all working days at the warehouse of the Company to supervise the breaking of the bulk subject to the Company reimbursing the entire monthly payments and other allowances to be paid to the said officer or officers as per bill or pay slips sent by the Corporation to the Company. We think that this procedure could be con tinued and followed in future also so that while the pur poses of the rules are served the free trade and commerce of the Company which is stated to have a large turnover is also not affected. The learned counsel for the respondent then contended that the appellants have recovered the amounts paid by them by way of octroi duty from the dealers or the customers to whom they had sold the goods and therefore they are in any case not entitled to get a refund. The argument was that if refund is ordered it would amount to allowing the appellants to unjustly enrich themselves at the cost of the public to whom the burden had already been passed. This argument is based on the ground that in the selling price the company had merged the octroi duty originally paid as deposit and if a refund is made the company would be getting an additional amount over and above normal price which they would have charged but for the fact that they were initially asked to deposit octroi. There is no evidence that any of the arti cles sold by the Company is subject to any price control by the Government or that the Company had charged any octroi separately in the bills, Invoices and the other documents of sale to the outside purchasers produced before us do not also show that any octroi was separately charged and col lected by the Company. It may be mentioned that in the rejoinder filed by the appellant in the writ petition they have specifically denied that they "have recovered the amount paid by them by way of octroi duty from the dealers to whom they had sold the goods or that the dealers in turn have recovered the octroi duty from the customers". In view of this the question of unjust enrichment does not arise. 477 This appeal is accordingly allowed on the above terms. There will 'however be no order as to costs. T.N.A. Appeal allowed.

The appellant, a Havildar, was charge sheeted on the ground that during an armed action against a group of mili tants when the militants opened fire he ran away in a cow ardly manner and left his post without permission of his superior. The respondent authorities proceeded on the ground that his offence was covered by section 36 of the and accordingly section 120 (1) of the Act was applicable. Consequently, he was tried by a summary court Martial and was convicted and reduced in rank and imprisoned for one year. He filed an application under Article 226 before the Delhi High Court which was dismissed. In appeal to this Court it was contended on behalf of the appellant that having regard to the nature of the charge against him section 34 of the was attracted and in view of section 120(2) of the Act trial by summary Court was not permitted. Allowing the apeal and setting aside the judgment of the High Court, this Court, HELD: 1. Under section 120 (2) of the if an offence is covered by section 34 and immediate action for the specified reasons is not warranted, the summary court martial shall not have jurisdiction to hold the trial. [372 D F] 2. Section 36 covers a wide range of offences and the scope of 371 section 34 is limited to a smaller area where the offence is more serious attracting more severe punishments. The opera tion in which the appellant was engaged was directed against the militants who were undisputedly included in the expres sion 'enemy within section 3 (x). If the allegations are assumed to be true, than the appellant, on the militants ' opening fire shamefully abandoned the place comitted to his charge and which he was under a duty to defend. Both clauses (a) and (h) of section 34 are clearly attracted. The appel lant was therefore guilty of a more serious offence under clauses (a) and (h) of section 34 of the Act than under section 36. 1373 D G] It is also not suggested on behalf of the respondents that there was in existence any grave reason for immediate action so as to justify trial by an officer holding summary court martial. Consequently the impugned, hed trial by Summary Court Martial and the decision thereby must be held to be without jurisdiction and is quashed. The conviction and sentence passed against the appellant is set aside. [373 E G] 3. The respondents authorities can proceed to hold a fresh trial of the appellant in accordance with law. [374. C]

Appeal Nos. & 1511 of 1974. (Appeals by certificate./Special Leave from the Judg ment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Misc. Petition No. 136/73). Criminal Appeal No. 255 of 1974. (From the Judgment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Criminal Revision No. 159/71) and Civil Appeal NOs. 344 346 of 1976. (Appeals by Special Leave from the Judgment and. Order dated 24 10 1972 of the Orissa High Court in C.J.C. 185, 186 and 217 of 1969). Frank Anthony, in CA 1489, CrI. A. 255/74 and CA 346/76 for the appellant in CAs 1489 and 1511/74 and Crl. A. No. 255/74 and RR. 1 and 2 in CAs 346/76. Soli J. Sorabiee in CA 1511, Crl. A. 255/74 1. B. Dadac hanji, K. J. John O.C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl. A. No. 255/74 and RR. 1 and 2 in CAs 346/76. Gobind Das (In CAs 344 346/76) B. Parthasarthi, for the appellants in CAs 344 346/76. Soli J. Sorabjee, B.P. Maheshwari and Suresh Sethi, for R. 3 in CA 346/76. Brijbans Kishore, B.R. Sabharwal, for RR. in CA 345/76. Gobind Das,Raj Kumar Mehta,for the Intervener (State of Orissa) in C.A. 1489/74. The Judgment of the Court was delivered by RAY, C.J. These appeals were heard together because they raise common questions of law relating to the interpre tation of the Constitution. Civil Appeals No. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 are directed against a judgment of the Madhya Pradesh High Court dated 23 April, 1974. We shall refer to these as the Madhya Pradesh cases. Civil Appeals No. 344 346 of 1976 relate to a judgment. of the orissa High Court dated 24 October, 1972. We shall refer to these appeals as the Orissa cases. 613 The controversy in the Madhya Pradesh cases relates to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, hereinafter referred to as the Madhya Pradesh Act. The controversy in the Orissa cases arises out of the Orissa Freedom of Religion Act, 1967 hereinafter referred to as the Orissa Act. The provisions of the 'two Acts in so far as they relate to. prohibition of forcible conversion and punishment there for, are similar and the questions which have been raised before us are common to both of them. It will, therefore, be enough, for the purpose of appreciating the controversy, to make a somewhat detailed mention of the facts of the Madhya Pradesh case. The Sub Divisional Magistrate of Baloda Bazar sanctioned the prosecution of Rev. Stainislaus for the commission of offences under sections 3, 4 and 5(2) of the Madhya Pradesh Act. When the case came up before Magistrate, First Class, Baloda Bazar, the appellant Rev. Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act was ultra vires the Constitution as it did not fall within the purview of Entry I of List II and Entry I of List III of the Seventh Schedule. The appellant 's conten tion was that it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature. An objection was also raised that the provisions of sections 3, 4 and 5(2) of the Act contra vened Article 25 of the Constitution and were void. The Magistrate took the view that there was no force in the. objection and did not refer the case to the High Court under section 432 of the Code of Criminal Procedure, 1898. The appellant applied to the Additional Sessions Judge for a revision of the Magistrate 's order refusing to make a reference to the High Court. The Additional Sessions Judge also took the view that no question of constitutional impor tance arose in the case and he did not think it necessary to make a reference to the High Court. The appellant thereupon applied to the High Court for revision under section 439 of the Code of Criminal Procedure and he also filed a petition under Articles 226 and 227 of the Constitution. The High Court heard both the revision and the writ petition together. The appellant raised the following three questions in the High Court : (i) that sections 3, 4, 5(2) and 6 of the M.P. Dharma Swatantraya Adhiniyam, 1968 are viola tive of the petitioner 's fundamental rights guaranteed by Article 25 ( 1 ) of the Consti tution of India; (ii) that in exercise of powers conferred by Entry No. 1 of List II, read with Entry No. 1 of List III of the Seventh Schedule the Madhya Pradesh Legislature in the name of public order could not have enacted 614 the said legislation. But the matter would fail within the scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary powers on Parliament to legislate in respect of any matters not covered by List I, List I1 or List III. Therefore, it is contended that Parliament alone had the power to legislate on this subject and the legisla tion enacted by the State Legislature is ultra vires the powers of the State legislature; (iii) that section 5(1) and section 5(2) of the M.P. Dharma Swatantraya Adhiniyam, 1968 amount to testimonial compulsion and, therefore, the said provisions are violative of Article 20(3) of the Constitution of India. The High Court examined the controversy with reference to the relevant provisions of the Madhya Pradesh Act and the Madhya Pradesh Dharma Swatantraya Rules, 1969 and held as follows : "What is penalised is conversion by force, fraud or by allurement. The other element is that. every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force, fraud or allurement cannot, in our opinion, be said to contravene Article 25(1) of the Con stitution of India, as the Article g uarantees religious freedom subject to public health. As such, we do not find that the provisions of sections 3, 4 and 5 of the M.P. Dharma Swatantraya Adhiniyam, 1968 are violative of Article 25(1) of the Constitution of India. On the other hand, it guarantees that religious freedom to one and all includ ing those who might be amenable to conversion by force, fraud or allurement. As such, the Act, in our opinion, guarantees equality of religious freedom to all, much less can it be said to encroach upon the religious freedom of any particular individual. " The High Court therefore held that there was no justi fication for the argument that sections 3, 4 and 5 of the Madhya Pradesh Act were violative of Article 25(1) of the Constitution. The High Court in fact went on to hold that those sections "establish the equality of religious freedom for all citizens by prohibiting conversion by objec tionable activities such, as conversion by force, fraud and by allurement". As regards the question of legislative competence, the High Court took note of some judgments of this Court and held that as "the phrase 'public order ' conveys a wider connotation as laid down by their Lordships! of the Supreme Court in the different cases. We are of the opinion that the subject matter of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 fails within the scope of Entry No. I of List II of the Seventh Schedule relating to the State List regarding public order". 615 On the remaining point relating to testimonial compul sion with reference to Article 20(3)of the Constitution, the High Court held that section 5 of the Madhya Pradesh Act read with Form A, prescribed by the Rules, merely made provision for the giving of intimation to the District Magistrate about conversion and did not require its maker to make a confession of any offence as to whether the conver sion had been made on account of fraud, force or allurement, 'which had been penalised by the Act. The High Court thus held that mere giving of such information was not violative of Article 30(1) of 'the Constitution. But the question of testimonial compulsion within the meaning of Article 20(3) of the Constitution has not been raised for our considera tion. The Orissa cases arose out of petitions under Article 226 of the Constitution challenging the vires of the Orissa Act. The High ,Court stated its conclusions in those cases as follows: (1) Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion. (2) Prohibition of conversion by 'force ' or by 'fraud ' as defined by the Act would be covered by the limitation subject to which the right is guaranteed under Article 25 (1). (3) The definition of the term 'inducement ' is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25 (1) cannot be said to cover the wide definition. ' (4) The State LegisLature has no power to enact the impugned legislation which in pith and substance is a law relating to religion. Entry No. 1 of either List II or List III does not authorise the impugned legislation. (5) Entry 97 of List I applies. The High Court has therefore declared the Orissa Act to be ultra vires the Constitution and directed the issue of mandamus to the State Government not to give effect to it. The criminal cases which were pending have been quashed. The common questions which, have been raised for our consideration are (1) whether the two Acts were violative of the fundamental right guaranteed under Article 25(1) of the Constitution, and (2) whether the State Legislatures were competent to enact them ? Article 25(1) of the Constitution reads as follows: "25(1) Subject to public order, ' morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. " 616 Counsel for the appellant has argued that the right to 'propagate ' one 's religion means the right to convert a person to one 's own religion. On that basis, counsel has argued further that the right to convert a person to one 's own religion is a fundamental right guaranteed by Article 25 (1) of the Constitu tion. The expression 'propagate ' has a number of meanings, including "to multiply specimens of (a plant, animal, disease etc.) by any process of natural reproduction from the parent stock", but that cannot, for obvious reasons, be the meaning for purposes of Arti cle 25 (1) of the Constitution. The Article guarantees a right to freedom of religion, and the expression 'propagate ' cannot there fore be said to have been used in a biologi cal sense. The expression 'propagate ' has been de fined in the Shorter Oxford Dictionary to mean "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)" According to the Century Dictionary (which is an Encylopaedic Lexicon of the English Language) Vol. VI, 'propagate ' means as follows : "To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as propagate a report; to propagate the Christian religion". We have no doubt that it is in this sense. that the word 'propagate ' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one 's own religion, but to transmit or spread one 's religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the follow ers of one particular religion, and that, in turn, postu lates that there is no fundamental right to convert another person to one 's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the coun try alike. The meaning of guarantee under Article 25 of the Con stitution came up for consideration in this Court in Ratilal Panachand Gandhi vs The State of Bombay & Ors. (1) and it was held as follows : "Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such, religious belief as may be approved of by his judgment or con science but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." (1) [1954]S.C.R. 1055. 617 This Court has given the correct meaning of the Article, and we find no justification for the view that it grants. a fundamental right to convert persons to one 's own reli gion. It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons follow ing the other religions. What is freedom for one, is free dom for the other, in equal measure, and there can there fore be no such thing as a fundamental right to convert any person to one 's own religion. It was next been argued by counsel that the Legislatures of Madhya Pradesh, and Orissa States did not have legisla tive competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'rel igion ' and fall under the Residuary Entry 97 in List 1 of the Seventh Schedule to the Constitution. It is not in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to. another by use of force or allurement, or by fraudulent means, and matters incidental thereto. The expressions "allurement" and 'fraud ' have been defined by the. Section 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and section 4 pena lises such forcible conversion. Similarly, section 3 of the Orissa Act prohibits forcible conversion by the use of force or by inducement or by any. fraudulent means, and section 4 penalises such forcible conversion. The Acts therefore dearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States. The expression "Public order" is of wide conno tation. It must have the connotation which it is meant to provide as the very first Entry in List II. It has been held by this Court in Ramesh Thapper vs The State of Madras(1) that "public order" is an expression of wide connotation and signifies state of tranquility which pre vails among the members of a political society as a result of internal regulations enforced by the Government which they have established". Reference may also be made to the decision in Ramjilal Modi vs State of U.P. (2) where this Court has held that the right of freedom religion guaranteed by Articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that "it cannot be predicat ed that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order". It has been held that these two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order. Refer ence may as well be made to the decision in Arun Ghosh vs State of WeSt Bengal(a) where it has been held that if a thing disturbs the current of the life of the community, (1) ; (2) ; (3) ; 618 and does not merely affect an individual, it would amount to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g. on the ground that some one has been "forcibly" converted to anoth er religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. The impugned Acts therefore fall within: the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community. The two Acts do not provide for the regulation of religion and! we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule. In the result Civil Appeals No. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 fall and are dismissed while Civil Appeals No. 344 346 of 1976 are allowed and the impugned judgment of the Orissa High Court dated 24 October, 1972 is set aside. The parties shall pay and bear their own costs, in Madhya Pradesh appeals. The State shall pay the respondent costs in the Orissa appeal according to previous direction. P.H.P. C.As. 1489 & 1511 of 1974 and Cr. A. No. 255 of 1974 dismissed. 344 346 of 1976 allowed.

The appellants contended that the Forward Market Commis sion under the Forward Contract (Regulation) Act 1952 cannot impose conditions under sections 14A and 14B on the commodities in respect of which business can be carried out by persons who apply for registration. Secondly, the provisions. contained in section 4 of the Act do not confer power on the Commission to impose conditions. Thirdly, in respect of recognised associations, the Commission had no power to impose conditions with regard to commodities in which they deal. Dismissing the appeal, HELD: All the 3 conditions raised in the present appeal are covered against the appellant by the decision of this Court in the case of Union India vs M/s Rajdhani Grain and Jaggery Exchange Ltd. reported in [1975], Supp, SCR 1. [605 B F]

Appeal No. 2568 of 1991. From the Judgment and Order dated 10.5.1991 of the Madhya Pradesh High Court in M.P. No. 2727 of 1990. S.K. Mehta, R.D. Sharma, Dhruv Mehta, Arvind Verma and Aman Vachher for the Appellants. Rameshwar Nath and Ravinder Nath (for Rajinder Narain & Co.) for the Respondents. The Judgment of the Court was delivered by R.M. SAHAI, J. The only legal question that arises for consideration, in this appeal directed against judgment of the Madhya Pradesh High Court is, if an application filed by an operator for renewal of his permit under Section 58 of , became extinct and was rendered non existent. in eye of law, after coming into force of or it being a right within meaning of clause (c) of Section (6) of survived and continued despite repeal of 1939 Act. The appellant, holder of a permit, for operating stage carrier on route Eklera Narsinghgarh in District Rajgarh, applied for its renewal, as required, on 18th October, 1988, 120 days before the date of its expiry on 18th February 1989 under Section 58(2) of the 1939 Act. The application was published on 23rd June, 1989, under Section 57(3) of the Act. But before renewal could be granted 1988 Act came into force on 1st July 1989. The respondent who, too, had applied on 30th December 1988 for a fresh permit on the same route and on the same time schedule, withdrew his application and filed a fresh application on 18th May, 1990. The Regional Transport Authority after considering both the applications, allowed renewal of the appellant 's permit from 18th Febru ary, 1989 to 18th February, 1994. The application of re spondent was rejected as that could be considered only if the appellant 's existing permit was cancelled, but since the appellant was operating on the route regularly and paying taxes etc. there was no reason to refuse renewal. In an appeal to the State Transport Appellate Tribunal held that no appeal against renewal was maintainable against which the respondent filed writ petition which was 308 allowed and it was held that right to seek renewal of permit under a Motor Vehicle Act was not a vested right. It was merely an incohate right with ripens into a right only on being granted. But before this could happen the 1939 Act was repealed. Effect of it was that the application ceased to exist. Thus there was nothing pending which could empower the Regional Transport Authority to grant renewal. Is this correct? Could the application for renewal be dismissed, only, because of enforcement of 1988 Act or the right of the appellant to get his application under the earlier Act decided in accordance with law subsisted and survived under the new Act as well. The answer shall depend on construction of Section 217, 'the repealing and saving provision, in 1988 Act read with Section 6 of the . Sub Section (1) of Section 217 of 1988 Act repeals 1939 Act. But Sub Section (2) saves certain notifi cations, rules, regulations, Acts etc. Clause (b) of sub section (2) reads as under: 217(1) Notwithstanding the repeal by sub section (1) of the repealed enactments, "(b) any certificate of fitness or registra tion or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;" On strength of this it was urged on behalf of the respond ents that the only saving was in respect of unexpired period of a permit. However what is relevant is sub section (4) of Section 217 which provides as follows: "S.217(4) The mention of particular matter in this Section shall not be held to prejudice or affect the general application of section 6 of the (10 of 1897), with regard to the effect of repeals. " How such a provision should be construed was explained by this Court in The Brihan Maharashtra Sugar Syndicate Ltd. vs Janardan Ramchandra Kulkarni & Others, ; It was held that such a provision was not by way of abundant caution and any proceedings pending under repeated Act could be continued in view of Section (6) of . Section 658 of which was a repealing and saving provision which was considered by the Court read as under: "The mention of particular matters in sections 645 to 657 or in any other provision of this Act shall not prejudice the general ap 309 plication of s(6) of the (X of 1897), with respect to the effect of repeals. " It should be noticed that phraseology of Section 658 of the and sub section (4) of Section 217 of the is identical. Therefore the reason ing given in the decision squarely applies for construction of sub section (4) of Section 217. Consequently it could not be, successfully, argued that sub section (2) of Section 217 is exhaustive and sub section (4) should be read by way of abundant caution and applied only to the field which is already covered by sub section (2). Section (6) of the may now be extracted: "S.6. Effect of repeal Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; ( e ) . . . . . . . . . . " The objective of the provision is to ensure protection of any right or privilege acquired under the repealed Act. The only exception to it is legislative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability. The controversy thus narrows down to if the renewal of a permit under 1939 Act was a right. In other words whether any right accrued to the appellant under the repealed Act which could be said to continue unaffected by the repeal of the Act. A permit could be renewed under Section 58(2) of 1939 Act which reads as under: "S.58(2). A permit may be renewed on an appli cation made and disposed of as if it were an application for a permit: Provided that the application for the renewal of a permit shall be made (a) in the case of a stage carriage permit or a public carrier 's permit, not less than one hundred and twenty days before the date of its expiry, and 310 (b) in any other case, not less than sixty days before the date of its expiry Provided further that, other condi tions being equal, an application for renewal shall be given preference over new applica tions for permits." Although the Section uses the word 'may ' but read with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal. A holder of a permit thus stands on a better footing. The preference created by sub section (2) of Section 58 for consideration of the permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law. It may not be a vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any authority acting in contravention of it can be forced to act in accordance with it. For instance, if a Regional Transport Authority under the old Act refused renewal even though the person applying for renewal was in all respects similar to other new applicants then it could be corrected either by the tribunal or by way of writ peti tion under Article 226. Therefore. It is a right which is enforceable in law. This right accrued to appellant as he had already applied for renewal and his application had been notified. The legal machinery was set in motion by him. He theretore had a right to get his application for renewal processed and considered in accordance with 1939 Act. It would be too artificial to say that it was not a right or it had not accrued under 1939 Act. Therefore, in our opinion, by virtue of Section 6(c) of the the right of the appellant to get his application considered and decided in accordance with law was saved by sub section (4) of Section 217 of . In Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr, ; at 390 It was held that the setting of a legal process in accordance with law for renewal of permit was itself a right. This principle was laid down by this Court even when a scheme under Section 68(f) had been pub lished which debarred grant or renewal of any permit yet the court was of the opinion t.b, at since there was undue delay and the applicant had done all that he could do in law he could not be deprived of his right of consideration of his application for renewal so long the scheme was not pub lished. This was again approved in D. Nataraja Mudaliar vs State Transport Authority Madras, [1979] 1 SCR 552. The Court pointed out that a permit holder had an ordinary right of renewal. It is thus obvious that the High Court committed a manifest error of law in throwing out the application of renewal as the new Act had come into force. 311 Does the new Act indicate any intention to the contrary? No express provision debarring renewal of permits, applied for, under old Act could be pointed out. Reliance was placed on absence of preferential provision under Section 81 of the Act which provides for renewal of permits. It was urged that there was a definite departure from the old Act therefore any right under the old Act, could not be continued to under the new Act. The submission does not appear to be sound. The new Act is a legislation on the same subject. Section 81 specifically provides for renewal. It cuts across the argu ment of intention to the contrary. Rather it is kept alive by Sub section (4) of Section 217. The scheme of renewal having been continued even under new Act mere absence of preference clause in Section 81 of the new Act could not be construed as destroying the claim for renewal set in motion under the old Act. In the result this appeal succeeds and is allowed. The order passed by the High Court is set aside. Parties shall bear their own costs. T.N.A. Appeal allowed.

The appellant, a Stage Carriage Operator, filed an appli cation for renewal of his permit under section 58(2) of the and his application was notified. However, before the renewal could be granted the came into force. The respondent had also applied for a fresh permit on the same route on which the appellant was operating his carriage. The Regional Transport Authority allowed renewal of the appellant 's permit and rejected the respondent 's application. On respondent 's appeal the State Transport Appellate Tribunal held that no appeal against renewal was maintainable. The respondent filed a writ petition and the High Court allowed it by holding that right to seek renewal of a permit was not a vested right but was merely an incohate right which ripened into a right only on being granted; with the coming into force of 1988 Act, the 1939 Act was repealed as a result of which the appellant 's application for renewal ceased to exist and consequently the Regional Transport Authority was not empowered to grant a renewal of permit. Against the decision of the High Court an appeal was filed in this Court. Allowing the appeal and setting aside the order of the High Court, this Court, 306 HELD: 1. The High Court committed a manifest error of law in rejecting the appellant 's application of renewal on the ground that the new Act had come into force. [310 H] 1.1 Although section 58(2) of the uses the word 'may ' but read with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal. A holder of a permit thus stands on a better footing. The preference created by sub section (2) of Section 58 for consideration of the permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law. It may not be a vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any authority acting in contravention of it can be forced to act in ac cordance with it. [310 B C] 1.2 The right accrued to appellant as he had already applied for renewal and his application had been notified. The legal machinery was set in motion by him. He therefore had a right to get his application for renewal processed and considered in accordance with 1939 Act. It would be too technical to say that no right had accrued to him under 1939 Act. By virtue of Section 6(c) of the the right of the appellant to get his application considered and decided in accordance with law was saved by subsection (4) of Section 217 of . [310 D E] The Brihan Maharashtra Sugar Syndicate Ltd. vs Janardan Ramchandra Kulkarni & Ors, [1960] 3 S.C.R.85, followed. Cheran Transport Co. Ltd. vs Kanan Lorry Service & ,Anr, ; ; D. Nataraja Mudsliar vs State Transport Authority, Madras , referred to. 2. The objective of Section 6(c) of the is to ensure protection of any right or privilage ac quired under the repealed Act. The only exception to it is legislative intention to the contrary. That is, the repeal ing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability. [309 E] 3. The new Act is a legislation on the same subject and Section 81 of the said Act specifically provides for renewal of permits. The scheme of renewal having been continued even under new Act mere absence of preference clause in Section 81 of the new Act 307 could not be construed as destroying the claim for renewal set in motion under the old Act. [311 B C]

Appeal No. 313 of 1993. From the Judgment and Order dated 9.10.1992 of the Karnataka High Court in Election Petition No. 8 of 1991. P.N. Misra for the Appellants. R.N. Narasimha Murthy, E.C. Vidyasagar and Gopal Singh for the Respondents. The Judgement of the Court was delivered by B.P. JEEVAN REDDY, J. Heard the counsel for the parties. Leave granted. This appeal raises the question whether Section 5 of the is applicable to a recrimination notice given under Section 97 of the Representation of People Act, 1951. The learned Single Judge of the, Karnataka High Court has held that it does not. His ,view is questioned by the returned candidate (first respondent in the election petition) before us. The first respondent in the Election Petition who shall hereinafter be referred to as "appellant ', was declared elected from Koppal parliamentary constituency during the general elections held for the 10th Lok Sabha. He contested on the Congress (1) ticket. The election petitioner, referred to hereinafter as "the first respondent" had also contested from the said constituency on the ticket of Janata Dal. Having lost the election, the first respondent filed an election petition No. 8 of 1991 for a declaration that the election of the appellant from the said parliamentary constituency was void and for a further declaration that he himself has been duly elected therefrom. Since the appellant and some other respondents to the election petition could not be served in the ordinary course, the High Court directed publication of notice in a Kannada Daily Newspaper. It was so published on 4.11.1991 fixing the date of appearance of the respondents on 25.11.1991. The appellant (first respondent in the election petition) ap peared before the High Court on 4.11.1991 and sought time for filing his written statement which he did on 6.11.1992. Thereafter, on 21.1.1992 he submitted the recrimination notice under Section 97 of the Act. By the said notice, the appellant expressed his intention to give evidence to prove that 316 the election of the first respondent would have been void if he had been . he returned candidate and a petition had been presented calling in question his election. Along with the recrimination notice he filed an application under Section 5 of the requesting the High Court to condone the delay in filing the same for the reasons stated therein. According to the proviso to Section 97(j) notice of such intention should have been given to the High Court "within 14 days from the date of commencement of trial". Admittedly, the appellant gave notice under Section 97(1) beyond the period of 14 days and hence the application under Section 5. For a proper appreciation of the question arising herein, it would be appropriate to notice the relevant provisions of the Representation of People Act besides Section 29(2) of the . First the provisions of the Representation of People Act. Section 97 reads as follows: "97. Recrimination when seat claimed. (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of Ins intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. (2)Every notice referred to in sub section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner. " Sub section (1) of Section 97 permits the returned candidate or any other party to give evidence (in an election petition seeking a declaration that any candidate other than the returned candidate has been duly elected) to 317 prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. Sub section (2) says that such a notice shall be accompanied by a statement and particulars required by Section 83 in the case of an election petition and shall also be signed and verified in the same manner. Proviso to sub section (1) says that such a notice shall be given within fourteen days from the date of "commencement of trial" and the security and further security referred to in Sections 117 and 118 respectively is furnished. The expression "commencement of trial" has been defined in Explanation to Sub section(4) of Section 86. The Explanation reads: "For the purposes of this sub section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition." According to the said definition, the notice of the recrimination should have been given in this case within fourteen days of 4.11.91. Admittedly, it was submitted beyond the said period. Section 83 deals with "contents of petition". According to sub section (1) an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of all the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such practice and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso to sub section (1) says that where a petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such practice and particulars therein. Sub section (2) says that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Section 117 requires the election petitioner to deposit in the High Court, at the time of presenting an election petition, a sum of Rs. 2,000 as security for the costs of the petition in accordance with the rules of the High Court. Section 118 says that no person shall be entitled to be joined as a respondent under Sub section (4) of Section 86 unless he has given such security for costs as the High Court may direct. Section 86(1) declares that "the 318 High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. " There is no provision in the Representation of People Act, 1951 making all or any of the provisions of the applicable to the proceedings under the Act. The appellant, however, relies upon Section 29(2) of the . According to him by virtue of the said provision, all the provisions contained in Sections 4 to 24 (both inclusive) apply to the proceedings under the Act including the recrimination notice under Section 97. Sub section(2) of Section 29, which alone is relied upon before us reads: "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." In H.N. Yadav vs L.N. Misra, ; , this court held that the words "expressly excluded ' occurring in Section 29(2) of the do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the , the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the are necessarily excluded then the benefits conferred by the cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of People Act and the question was whether Section 5 of the is applicable to the filing of the election petition. The test to determine whether the provisions of the applied to proceedings under Representation of People Act by virtue of Section 29(2) was stated in the following words "The applicability of these provisions has, therefore, to be judged not from the terms of the but by the provisions of the Act relating to the fifing of election 319 petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the mentioned in Section 29(2) of that Act." On an examination of the provisions of the Representation of People Act and the earlier decisions of the Court, it. was held that the Representation of People Act is a self contained code and accordingly, it was concluded that "the provisions of section 5 of the do not govern the filing of election petitions. or their trial. " This decision, in our view, practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are: "the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. " The proviso to sub section (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub section (1) of section 86. Sub section (2) of Section 97 further says that the "notice referred to in sub section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner. " We may also say that the proviso to sub section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the "date fixed for the respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice. In view of the above position, we do not think it necessary to deal with the several decisions cited before us relating to the interpretation of Sub section (2) of Section 29 of the . The counsel for the appellant brought to our notice a decision of this 320 Court holding that the provisions of the Section 12(2) of the Limitation Act, 1908 are applicable to an appeal under Section 116(A) of the Representation of People Act, 1951 viz., V.C Shukla vs Khubchand Baghel and Ors., [1964] 6 S.C.R.129. It is also brought to our notice that certain High Courts have taken the view that both Section 5 and Section 12(2) of the Limitation Act are applicable to the proceedings under the Act. Reference is to , 1968 Calcutta 69 and (1976) 89 Madras La. Weekly 32. So far as the decision of this court in V.C Shukla is concerned, it is a decision dealing with the applicability of the provision in Section 12(2) of the Limitation Act to an appeal preferred under Section 116(A) and not with the filing of an election petition. The said decision was considered and distinguished in H.N. Yadav on the above basis. At page 42 of the S.C.R., the Division Bench which decided H.N. Yadav distinguished the decision in V.C. Shukla in the following words : "Vidyacharan Shukla 's case (supra) is one which dealt with an appeal under the Act while what we have to consider is whether the Limitation Act is at all applicable to elec tion petitions under the Act. Thirdly, section 29(2) of the new Limitation Act does not now give scope for this controversy whether the two limbs of the old section are independent or integrated. No doubt section 5 would now apply where section 29(2) is applicable to even applications and petitions, unless they are expressly excluded. Even assuming that the Limitation Act applies to election petitions under the Act, what has to be seen is whether section 5 is excluded from application to such petitions. " The Division Bench then proceeded to examine whether the applicability of Section 5 is excluded in the matter of filing of an election petition and came to the conclusion that it was so excluded. This aspect has already been dealt with hereinabove. So far as the decisions of the High Courts are concerned, we cannot agree with them in so far as the applicability of Section 5 to filing on election petition and/or recrimination notice is concerned in view of the decision of this Court in H.N. Yadav. For the above reasons, the appeal fails and is accordingly dismissed with costs. N.P.V. Appeal dismissed.

The appellant took the suit premises situate in Ludhiana on a monthly rent of Rs. 800 from respondent 1. Both the respondents are medical practitioners. The respondent riled a petition for eviction of the appellant tenant on three grounds: their personal need under Section 13(3)(a)(i)(a); change of user under Section 13(2)(ii)(b) and impairment of the value and utility of the rented building under Section 13(2) (iii) of the East Punjab Urban Rent Restriction Act 1948. The Rent Controller dismissed the petition. The appellate authority held that the personal need of the respondents and the ground of change of user was proved. Since the building though let out to the tenant for a residential purpose was used partly for his profession and had become a 'scheduled building ' under Section 2(h), he could not be evicted on the ground of personal need. The order of eviction was, however, made on the ground of change of user of the building. Ile High Court on revision affirmed the finding and order of eviction made by the appellate authority. 150 In the Supreme Court, it was argued for the appellant that there was no change of user to justify the order of eviction on that ground and that the finding on the question of personal need was erroneous. Relying on legislative intent evidenced in amendments to the Act, it was further contended that no order of eviction can be made on the ground of personal need contained in Section 13(3)(a)(i)(a) in respect of a 'scheduled building ' since that ground is available for eviction only from a residential building. The omission of the words 'or a scheduled ' after the word 'residential ' in Section 13 (3) (a) (i) (a) in 1956 and their addition in Section 13A in 1985 were referred to advance the argument The respondents submitted that there was no ground to interfere with the order of eviction; that 'scheduled building ' In section 2(h) continues to be a 'residential building ' in section 2(g) and that personal need in section 13(3) (a) (i) (a) is available as a ground for eviction; and that the finding of fact relating to personal need of the landlord in not open to challenge. In the alternative, if a "scheduled building ' is not a "residential building" then the ground of change of user, unilaterally was available. Dismissing the appeal, this Court HELD: 1. The finding of fact of personal need is unassailable. That respondent 2 is carrying on his profession at some distance from Ludhiana is not sufficient to negative the landlords ' need. [155B] Non examination of respondent 2 is immaterial when respondent 1 has examined himself and proved the need of the landlord; it Is at best a matter relating to appreciation of evidence, on which ground this finding of fact cannot be assailed particularly when it was not seriously challenged in the High Court. (pp.6/7) [155C] 2. All buildings are divided into two categories: "non residential" and "residential". Building, * used for the purpose of business or trade are " non residential" and the remaining buildings are all 'residential '. This is clear from the definitions in section 2(a), (d) and (g). (pp.23/24) [167D] 3. 'Scheduled building as defined in section 2(h) is merely a kind of 'residential building, as defined in section 2(g), its characteristic being its part user for a scheduled purpose. (p.24) [167E] 151 4. 'The Act makes a distinction between a residential building which is being partly used for a scheduled purpose, i.e. a scheduled building, for the purpose of determination of fair rent. A separate definition of 'scheduled building ' in clause (h) while making it clear therein that it means a residential building used partly for a specific purpose does not, therefore indicate that a scheduled building ceases to be a residential building or is a category of building separate from a residential building for the purpose of eviction of tenants in the scheme of section 13 of the Act This is the only manner in which a harmonious construction can be made of these provisions. (pp.24/25) [167H, 168A] 5. The object of the 1956 amendment was to equate the Punjab tenants with the Delhi tenants and exclude the ground of landlord 's personal need for eviction of tenants of non residential property. Obviously the definition of 'scheduled building ' in section 2(h) clearly indicating that scheduled building is residential building, the words 'or a Scheduled" after "residential" were considered superfluous. The use of the word "scheduled" after "residential ' in section 13A inserted in 1985 may have been used to avoid any controversy like the present raised on the basis of the 1956 Amendment. (p.26) [168D E] 6. Section 13A which provides for an expeditious remedy is not a separate distinct provision but has to be read along with section 13 of the principal Act forming a part of the general scheme contained in section 13 for eviction of tenants on the ground of personal need from buildings which are not non residential. (p.27) [168H] 7. This construction of section 13(3) (a) (i) as it stood after the 1956 amendment, is the only construction which can be made to harmonise with the definitions in section 2. (p.27) [169C] 8. The question of change of user is not necessary to be considered. However, the general principle is that if the express terms of lease restrict the user solely for purpose of residence, then use of any part thereof for even a scheduled purpose without the written consent of the landlord may amount to use of the building for a purpose other than that for which it was leased. That, however, is a question of fact in each case. In that case while the ground of eviction in section 13 (3) (a) (i) (a) would remain available to the landlord for eviction of the tenant, in view of the express 152 covenant against user of any part of the residential building even for a scheduled purpose, it may make available also the ground of change of user under section 13(2) (ii) (b) of the Act. (pp.28/29) [169G 170A] Bishamber Dass Kohli (dead) by L.rs. vs Smt. Satya Bhalla, referred to.

Appeal No. 155 of 1971. (Appeal by Special Leave from the Judgment and Order dated 24 3 1975 of the Andhra Pradesh High Court in Appeal No. 19/72). B.V. Subrahmanyam and A. Subba Rao, for the Appellant. A. K. Sen, K.R. Chaudhary, Miss Nihar Saha and Mrs. Veena Devi Khanna, for the ReSpondent. The Judgment of the Court was delivered by BEG, J. This is a defendant 's appeal by special leave against the judgment of the High Court of Andhra Pradesh decreeing, with costs, the claim of the plaintiffs respond ents, the Andhra Pradesh State Electricity Board and the Andhra Pradesh State Government for Rs. 3,34,443.77 as arrears of electricity charges said to be due from the Vijayawada Municipal Council in respect of amounts which were shown in its books as payable to it by consumers of electricity. The plaintiff 's claim flowed from the terms of the Andhra Pradesh (Andhra Area) Electricity Supply Undertaking (Acquisition) Act 15 of 1954 (hereinafter refered to as 'the Act '), the provisions of which were applied to the electric ity undertaking of the appellant Municipal Council with effect from 22nd December, 1961,. by the Government of Andhra Pradesh. The rights of the State were transferred to the Andhra Pradesh Electricity Board the co plaintiff re spondent. The amounts claimed were shewn in the books of the Council 's electricity undertaking on the date of its acquisition as due to it from direct consumers of electric ity to whom it used to sell electricity supplied to it in bulk. The "Electricity undertaking" was taken over by the Government by an order under Section 4 (1 ) of the Act. This section provided: "4. Power of Government to take over any undertaking : (1 ) The Government may, in respect of any undertaking not taken over by them before the commencement of this Act, by order in writing, declare that it shall vest in them on the 848 date specified therein, such date not being earlier than four months from the date of the declaration :" The Municipal Council was the licensee from whom the "undertaking", as a commercial concern, was taken over. A licensee is de fined by section 2(j) to mean: " . a person licensed under part II of the Electricity Act to supply electricity energy, or a person who has obtained sanction under section 28 of that Act to engage in the business of supplying electricity and in relation to an undertaking taken over.or an undertaking which has vested in the Government under section 4 the person, who was the licen see at the time the undertaking was taken over or vested in the Government, as the case may be, and includes the successorin interest of any such person;" The State Electricity Board stepped into the shoes of the licensee on behalf of the State, to discharge all the existing obligations of the licensee, arising out of past transactions, and, for this reason, became entitled to the benefits of all contracts, whether they had accrued in the past or were to arise in future, which existed at the time of the taking over of the undertaking. The effect of the "taking over" of an undertaking and the vesting the rights and liabilities of the former licensee in the State, by operation of law, was indicated by sections 5 and 6 of the Act. Section 5 provided for compensation to be paid on one of three alternative bases specified in this provision. The licensee could opt for one of the three bases. The provisions of section 6(2) of the Act give the consequences of vesting. Section 6(2) of the Act enacts: "6(2) (a) If compensation is payable in respect of an undertaking under Basic C, only the property, rights liabilities and obliga tions specified herein shall vest or be deemed to have vested in the Government on the vest ing date : (i) all the fixed assets of the licensee and all the documents relating to the under taking; (ii) all the rights, liabilities and obligations of the licensee under hire pur chase agreements, if any, for the supply of materials or equipment made bonafide before the vesting date; (iii) all the rights, liabilities and obligations of the licensee under any other contract entered into bona fide before the vesting date, not being a contract relating to the borrowing or lending for money. (b) All the assets specified in clause (a) (i) shall vest or shall be deemed to have vested in the Government free from any debts, mortgages or similar obligations of the licen see or attaching to the undertaking. 849 Provided that such debts, mortgages or obligations shall attach or shall be deemed to have attached to the. compensation. payable under this Act for the assets". A glance at clause (2) (a) (iii) of section 6 indicates that it clearly provides for the vesting of "all the rights liabilities and obligations of the licensee" under contracts entered into "before the date of vesting". Therefore, we find no merit in the objection, on behalf of the Municipal Council, that past dues of consumers of electricity, shown in the books of Vijayawada Municipal Council, could not vest in the State Government, in a case in which basis C is applicable for compensation. The compensation provided by Section 5(3)(vi) applicable to basis 'C ' takes in "the book value of all intangible assets to the extent such value has not been written off in the books of the licensee". The result ' is that "the aggregate value" of all items speci fied in section 5(3), including items falling under sub clause (vi), became payable as compensation to the licensee on principle 's specified in the Act. The learned Counsel for the appellant has placed a great deal of reliance on the provi sions of Section 10(2)(b) (iii), which are applicable to cases of compensation payable on basis 'C '. Section 10 gives a list of deduc tions from compensation. One of the items of this ,deduction is found in section 10(2)(b)(iii) which lays down: "all sums paid by consumers by way of security deposit and arrears of interest due thereon on the vesting date, in so far as they have not been paid over by the licensee to the Government, less the amounts which according to the books of the licensee are due from the consumers to the licensee for energy supplied by him before that date;" The provision set out above is sought to be made the corner stone of the arguments of the learned Counsel for the Appel lant Municipal Council, although this very provision was held by the High Court to be decisive against the appel lant 's case that the amounts shown as due from the consumers of the licensee for energy supplied before the vesting date were claims for amounts which the Vijayawada Municipal Council was entitled to appropriate as they must be deemed to be exempted from the effects of vesting of rights and obligations of the undertaking in the State. It is true, as the learned Counsel for the Municipal Council points out, that only those rights and liabilities and obligations which are specified in section 6(2) (a) are to vest in the State Government. But, the contention based on alleged non specification of the claims of the licensee against direct consumers to whom it used to supply electric ity over looks, the sweep of section 6(2) (a) (iii), already indicated above, which will cover all rights and liabilities under contracts entered into bona fide before the date of vesting. It is not possible to assert that the rights of the Municipal Council to realise arrears of dues from the consumers will not be transferred to the State Government when they are covered by the specific language of section 6(2) (a) (iii). The 850 explicitly wide language used dispenses with the need to specify by enumerating all items which are covered by it. That is the very object of such language. We have also indicated how section 5(3)(vi), meant for application to basis 'C ', mentions all intangible rights shewn in the books of the licensee. This also supports the interpretation we place on section 6(2)(a)(iii) and on the wide ambit of the specification here which must, obviously, not conflict with section 5(3)(vi). We are, therefore, completely unimpressed by arguments based on supposed non specification of the claims of the former licensee under taking against consumers to whom it had supplied electricity in the past and against which it had claims which vested, from the specified date, in the State Government. Learned Counsel 's argument, on the meaning of Section 10(b) (iii), is really meant to reinforce the argument indicated above, based on alleged non specification of the claims of the Municipal Council as a licensee for supplying electrici ty to consumers. If the meaning of relevant provisions of section 5 and 6 is clear, we do not think that any assist ance could be derived ' by the appellant Municipal Council from the provisions of section 10(2)(b)(iii) unless these clearly conflicted with the other provisions. If, however, two interpretations were possible of these provisions, we should, we think, prefer the one which is in harmony with the clear meanings of the terms of section 5(3), read with section 6(2) (a) of the Act as indicated above. This is the salutary rule of construction resting upon the doctrine that a statute, like any other document, must be read as a whole to extract its meaning and intendment correctly. Learned Counsel for the appellant submits that the exclu sion by section 10(2)(b)(iii) of the amounts which, accord ing to the books of the licensee, "are due from the consum ers to the licensee for energy supplied by him before that date" (i.e. the date of vesting), from the ambit of deduc tions from compensation, necessarily implies that these amounts can be appropriated by the appellant Municipality. 'We are, quite unable to see how this inference follows from an exclusion from items of deduction from compensation. A deduction from an item of compensation may, if there was nothing else to furnish a clue as to its meaning, imply that it was not being compensated for because the party whose rights were acquired was retaining the item. But, an exclusion from an item of deduction from compensation itself could, according to its natural meaning, only indicate that this was being done because this was an item which is cov ered by the compensation provided for and to be paid. A close examination of section 10(2)(b)(iii) wilt show that it is meant for security deposits and arrears of inter est due on them which are generally held in trust by the licensee so as to be ultimately returned to the consumers, if the dues of the consumers have been met without resorting to the amounts deposited. They are used for a deduction of dues where these have not been paid; We know that these deposits are required so as to cover claims from defaulting consu 851 mers in order to avoid the trouble of litigating to enforce them. If these deposits have not been made over by the licensee to the Government, they will be claimable by the depositors from the licensee. Hence, it seems fair to deduct them from any item of compensation as these deposits are not meant to be kept by the licensee. They do not constitute profits of the business or price for anything supplied or payment for services rendered or an asset out of which liabilities of the licensee may be met. If, howev er, there are any amounts shewn in the books o[ the licensee as due from the consumers of energy supplied before the date of vesting, they would become realisable by the Govt. Hence, the amounts for which deductions from items of compensation will have to be made is reduced by the amounts which are due from consumers to the licensee for energy supplied by the licensee before the date of vesting as they become the claims realisable by the successor in interest of the licensee. Therefore, the High Court 's interpretation was, obviously, correct. This provision supports the case of the respondents rather than that of the former licensee Municipal body. It is very difficult to see how it supports the appellant 's case. It appears that no question was raised before 'the High Court as to the nature of the obligation incurred by the Municipal Council to pay the amount claimed apart from its right to appropriate the amount itself as part of the assets which had, it was asserted, not vested in the State Govern ment. An attempt was, however, made before us to confuse it with the payment made by the Municipal Council itself to the Government for the bulk supply of electricity used, inter alia, for street lighting and other purposes by the Council itself. But, no question was raised in the plead ings to indicate that the plaintiff 's claim included these past dues. We do find that the licensee had set up certain reasons for its inability to realise certain amounts from the consumers. We do not know what all these reasons precisely were or whether the licensee, was really unable to realise them for any of these reasons. But, ground No. 1 of the special leave petition shows that the Municipal Council had Rs. 9 lakhs with it in deposit for the recovery of the claims not realised from which it proposed to deduct the amounts claimable towards dues and to. appropriate them itself. The ground runs as follows: "In the instant; case the learned trial judge found that there was a deposit of 3 lakhs of rupees with the Vijayawada Municipal ity and the Vijayawada Municipality by virtue of section 10(2)(b)(iii) is certainly entitled to adjust and by virtue of section 10(2)(b)(iii) of the Act 15 of 1964, the Government can deduct that security from out of compensation less the amount due to the licensee from its consumers upto the vesting date. " We may also mention that it was not argued on behalf of the Municipal Council that what was vested in the Government was only the right to realise the claims itself and not an amount of money which the Municipal Council had actually realised or could have realised if 852 it took steps to make realisations. On the other hand, ground No. 1 of the grounds of appeal quoted above, shows that the case of the Municipal Council was simply that it is 'entitled to deduct amounts claimed from whatever may be the amounts in deposit be cause. the claims against the consumers had vested in the Municipal Council and not in the Government. We think that legal questions of interpretation of the Act, to which the learned Counsel for the parties rightly con fined their arguments, apart from some at tempts to raise questions outside the plead ings which could not succeed, were rightly answered by the High Court when it held that the relevant provisions, if correctly inter preted, meant that the claims for dues on electricity supplied at enhanced rates, the validity of which had been unsuccessfully challenged by some consumers in certain other proceedings initiated before filing of the suit now before us, had vested in the State Government. Consequently, we affirm the judgment and decree of the High Court and dismiss this appeal with costs. V.P.S. Appeal dismissed.

The respondents are the owner of a building known as Viram Lodge. They run a hotel in the said building. The annual gross rental value of the. building was determined at Rs. 6,600/ in 1956. It was revised to Rs. 43,405/ by the Assessment Officer in 1965. Section 138(b) of the Madhya Pradesh Municipal Corporation Act, 1956, provides that notwithstanding anything contained in any ,other law for the time being in force, the annual value of any building shall be deemed to be the gross annual rent at which such building might be reasonably at the time of assessment be expected to let from year to year at the time of the less an allowance of 10 per cent for repairs etc. The respondent challenged the valuation on the ground that the rental value of the premises could not be fixed at a rate higher than the stand ard rent under section 7 of the Madhya Pradesh Accommoda tion Control Act, 1961. The Municipal Commissioner negatived the respondents ' contention. An appeal filed by the respondents to the Additional District Judge also failed. The High Court however allowed the Revision filed by the respondents. Allowing the appeal by Special Leave held: 1. In the. present case the building in ques tion was never let on rent and is being used by the owners as a hotel. [1019 A] 2. On a proper construction of section 138(b) where the standard rent of a building has been fixed under section 7 of the Accommodation Control Act, and there is nothing to show that there has been fraud or collusion that would be its reasonable letting value but where the building has never been let out the question of fixation standard rent does not arise. In that case it would be permissible to fix its reasonable rent without regard to the provi sions of Madhya Pradesh Accommodation Control Act. This view gives proper effect to the nonobstante clause in section 138(b). [1019 D F] The Corporation of Calcutta vs Smt. Padma Debi and others ; , Corporation of Calcutta vs Life Insurance Corporation of India , Guntur Municipal Council vs Guntur Town Rate Payers ' Association ; and New Delhi Municipal Committee vs M.N. Soi and another ; , distinguished.

Special Leave Petition (Civil) No. 9524 of 1987. From the Judgment and order dated 25.5.1987 of the Delhi High Court in F.A.O. No. 58 of 1987. R.B. Datar and Ranjit Kumar for the petitioner. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. The respondent No. 1 herein was awarded the contract in question for the construction of staff quarters for the Municipal Corporation of Delhi, the petitioner herein and the work had to be completed within the stipulated period mentioned in the contract. Since, however, the work was not being done in the manner as the Delhi Municipal Corporation thought it ought to have been done, the petitioner wrote 29 letters during June, 1978 to July, 1980 regarding the timely completion of the work. It is alleged that the work was not completed by the 15th of January, 1980 as per the schedule in the contract. Show cause notice was given to the respondent contractor. The contractor failed to give satisfactory reply and according to the petitioner, the contract was rescind. Thereafter several other letters were written which are not material to refer. 183 There was an arbitration clause in the agreement. On 2nd November, 1982 an application was filed under section 20 of the (hereinafter called 'the Act ') in the Delhi High Court. A learned Single Judge of the said High Court directed reference of the dispute and directed the Commissioner of the Municipal Corporation or anyone nominated by him to enter into reference. The Commissioner on 17th of March, 1983 appointed one Shri S.M. Hasnain, Arbitrator and Superintending Engineer No. II, of the Municipal Corporation of Delhi as the arbitrator. He is respondent No. 2 in this petition. The said arbitrator entered upon the reference and thereafter on 21st of August, 1984 submitted his award allowing some claims of the contractor and some counter claims of the Municipal Corporation. The Municipal Corporation filed its objections to the said award. The learned Single Judge of the High Court by his judgment and order dated 22nd of October, 1986 directed that the award be made a rule of the Court. A Letters Patent Appeal was filed thereafter but the same was summarily dismissed by a Division Bench of the Delhi High Court on 25th May, 1987. The petitioner seeks leave in this petition under Article 136 of the Constitution to challenge the said order. As the learned Division Bench did not give reasons, we must refer to the order of the learned Single Judge. The arbitrator gave reasons in support of the award. The question is whether reasonableness of the reasons in a speaking award is justiciable under Article 136 of the Constitution. We are of the opinion that such reasonableness of the reasons given by an arbitrator in making his award cannot be challenged in a proceeding like the present. It is desirable, however, that we state our reasons for so holding. In order to appreciate this the award of the arbitrator must be looked into. The arbitrator in his award has dealt with various claims, one of the main claims was the claim of 23,850 out of which 8,300 was in the form of fixed deposit receipt carrying interest and the balance amount of 15,520 was deducted as security of 10% from the bills of the claimant. According to the claimant this amount had wrongly been forfeited by the Corporation at the time of rescission of the contract and that the same should be refunded to him. It was held by the arbitrator that there was provision in the agreement for extension of time for completion of the contract, as well as for levy of compensation for delay. Therefore, it could not be taken that time was the essence of the contract. The arbitrator had opined that according to the respondents ' own admission there was delay of nearly four 184 Months in the commencement of the work due to giving of the layout etc. There was also delay in the execution of sanitary work by another contractor previously employed by the petitioner and this work was still incomplete at the time of the making of the award and as such complete site had not been made available to the present contractor in time. Further there was provision in the agreement for extension of time or levy of compensation for delay and, therefore, according to the arbitrator time could not be considered in such a contract to be the essence of the contract. Furthermore, subsequent to the expiry of the stipulated period of completion, the Corporation did not make time the essence of the contract by directing the claimant to complete the work within a specified period but instead rescinded the contract. In those circumstances it was held by arbitrator that the decision of rescission of the contract has bad, wrongful and hence the claim of Rs.23,820 was considered to be just. We do not find any lack of reason in the reasons given by the arbitrator. Whether in a particular contract time was the essence of the contract or not is a mixed question of law and fact. But the reasons given by the arbitrator appear to be reasonable and have rational nexus with the conclusion arrived at by him. It was stated that it was admitted on behalf of the Corporation that there was initial delay of four months. This was controverted by the Corporation. They say that there was no admission. This, in our opinion was a significant factor that there was some delay and in spite of the delay the corporation gave letters to the contractor to complete the work and in the contract itself there was provision for extension of time. In our opinion, where reasons germane and relevant for the arbitrator to hold in the manner he did have been indicated, it cannot be said that it was unreasonable. Another factor the arbitrator had noted was that the site was not available due to the conduct of another contractor previously employed by the petitioner. This factor is also a relevant factor. The fourth item of the award was a claim for damages for Rs.60,000(). This amount was not granted on the ground that the claimant was not able to prove this amount. The fifth item in the award was a claim for interest at 18 % per annum on certain items from the date of rescission of the contract to the date of payment of decretal amount. The arbitrator allowed the interest as the amount had been withheld due to unjustified and wrongful rescission of the contract. Reasons given by the arbitrator appear per se not unreasonable. The arbitrator has not awarded any costs. There were also counter claims by the Corporation against the contractor. The first counter claim was forfeiture of Rs.23,820 on account on the rescission of the contract. Inasmuch as the rescission was held to be unjustified in the facts of this case, the forfeiture was also held to be wrongful. There was a claim of 185 Rs.32,640 as payment of compensation at 10% of Rs.3,28,400, but as the time was not the essence of the contract and the rescission of the contract was unjustified, this claim could not be sustained and it was so rejected by the arbitrator. The next claim was for Rs.85,620 for the execution of the remaining work at the risk and cost of the respondent. The arbitrator found that the contractor had as far as possible discharged his contractual obligation and the rescission of the contract was unjustified and wrongful. Therefore, the Corporation 's claim for getting the work executed at the risks and costs of the contractor was unjustified and the claim was so logically rejected and no amount was awarded on that score. The next claim was for Rs.2739 on account of mild steel Lying with the contractor. On examination it was found that some quantities of steel had been consumed in the work and as such recovery could only be made for the balance quantity of 1172 kgs. at the recovery rate of Rs.1.50 per kg. and the claim was, therefore, allowed in favour of the Corporation for Rs.1,758. The Corporation further claimed a sum of Rs.6,083.20 on account of non return of certain steel. After taking into account the steel consumed in the work and after allowing for permissible variation and wastage, it was held that recovery claim for Rs.3,862 only was justified. The award was made accordingly. There was another claim of Rs.6,473 on account of penal rate recovery of mild steel. It was held for good reasons indicated in the award that the claim for Rs.5,620 was justified. The Corporation claimed Rs.13,578 for penal rate recovery of cement for the quantity in excess of the theoretical consumption. After going into the material the arbitrator found that the cement issued to the claimant was consumed in the work and the claim of the Corporation for the penal rate recovery was not justified. The next was the claim for Rs.1400 by the Corporation on account of non return of 700 empty cement bags to the Municipal store. This was enquired into and found to be justified and a sum of Rs.1400 was awarded in favour of the Corporation. There was a further claim of Rs.65 for adjustment of cost of steel on account of three transfer entries. From the documents produced the claim was awarded in favour of the Corporation. The next claim was for interest at the rate of 12% per annum w.e.f. 1.9.81 on the amount of alleged counter claim preferred against the claimant. As it was held that the rescission of the contract was unjustified and wrongful, the Corporation was at liberty to recover its justified claims from the dues of the claimant at its disposal and pay the balance amount to the claimant within a reasonable time. There was a further claim for Rs.10,000 as arbitration costs and the claim was rejected. It appears to be very reasonable and fair award. 186 In this case, there was no violation of any principles of natural justice. It is not a case where the arbitrator has refused cogent and material factors to be taken into consideration. The award cannot be said to be vitiated by non reception of material or non consideration of the relevant aspects of the matter. Appraisement of evidence by the arbitrator is ordinarily never a matter which the Court questions and considers. The parties have selected their own forum and the deciding forum must be conceded the power of appraisement of the evidence. In the instant case, there was no evidence of violation of any principle of natural justice. The Arbitrator in our opinion is the sole judge of the quality as well as quantity of evidence and it will not be for this Court to take upon itself the task of being a judge of the evidence before the arbitrator. It may be possible that on the same evidence the Court might have arrived at a different conclusion than the one arrived at by the arbitrator but that by it self is no ground in our view for setting aside the award of an arbitrator. It is familiar learning but requires emphasis that section 1 of the Evidence Act, 1872 in its rigour is not intended to apply to proceedings before an arbitrator. P.B. Mukharji, J. as the learned Chief Justice then was, expressed the above view in Haji Ebrahim Kassam Cochinwall vs Nothern Indian oil Industries Ltd., A.I.R. 1951 Calcutta 230 and we are of the opinion that this represents the correct statement of law on this aspect. Lord Goddard, C.J. in Mediterranean & Eastern Export Co. Ltd. vs Fortress Fabrics Ltd., observed at pages 188/189 of the report as follows: "A man in the trade who is selected for his experience would be likely to know and indeed to be expected to know the fluctuations of the market and would have plenty of means of informing himself or refreshing his memory on any point on which he might find it necessary so to do. In this case according to the affidavit of sellers they did take the point before the Arbitrator that the Southern African market has slumped. Whether the buyers contested that statement does not appear but an experienced Arbitrator would know or have the means of knowing whether that was so or not and to what extent and I see no reason why in principle he should be required to have evidence on this point any more than on any other question relating to a particular trade. It must be taken I think that in fixing the amount that he has, he has acted on his own knowledge and experience. The day has long gone by when the Courts 187 looked with jealousy on the jurisdiction of the Arbitrators. The modern tendency is in my opinion more especially in commercial arbitrations, to endeavour to uphold Awards of the skilled persons that the parties themselves have selected to decide the questions at issue between them. If an Arbitrator has acted within the terms of his submission and has not violated any rules of what is so often. called natural justice the Courts should be slow indeed to set aside his award. " This in our opinion is an appropriate attitude. In this case the reasons given by the arbitrator are cogent and based on materials on record. In Stroud 's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child 's toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the verdict of a jury or the decision of a judge sitting as a jury usually determines what is "reasonable" in each particular case. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. See the observations, in Re a Solicitor [ 1945] K.B . 368 at 371 of the report . After all an arbitrator as a Judge in the words of Benjamin N. Cardozo, has to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". F Indeed reading the award of the arbitrator, one would say that he acted reasonably and rationally. In the premises the award of the arbitrator was assailed on trivial grounds and the challenge was rightly rejected by the High Court. The respondent is entitled to the costs of the challenge upto the High Court. So far as the costs of this petition to this Court is concerned, parties are directed to bear their respective costs. The petition for leave to appeal is, therefore, dismissed and the leave refused. P.S.S. Petition dismissed.

The respondents mortgaged a house property in Bhavnagar with ID possession to a business firm in July, 1947. The ground floor of the house was already in the occupation of a tenant and hence the mortgagors endorsed the rent deed to the mortgagee for the remaining period of the lease. Clause 5 of the mortgage deed gave option to the mortgagee to give the house property on rent to anyone and made the mortgagors accountable for loss of rental income. Clause 7 empowered the mortgagee to keep the property in his possession till the mortgage debt was repaid. Clause 10 entitled the mortgagors to redeem the mortgage at any time and stated that as soon as redemption took place, the mortgagee should return the documents of title and re deliver possession of the house to the mortgagors. Notwithstanding the mortgage purporting to be possessory the deed provided for payment of interest, and for the mortgagee to demand repayment of the mortgage amount at any time it deemed fit. When the existing tenant vacated the portion occupied by him, in November, 191;6, the mortgagee inducted the appellant as a tenant. The Saurashtra Rent Control Act, 1951 had in the meantime come into force. This was replaced by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 with effect from 1.1.1964. The ejectment proceedings initiated by the mortgagee against the tenant appellant were pending when the mortgage was discharged in October, 1972 in terms of the memo of compromise, which stated that the ground floor of the house had been given on rent to the appellant, that the mortgagee had filed a case against him, that in such circumstances the 77 vacant possession of the ground floor could not be delivered, and that the mortgagors were entitled to obtain vacant possession of the said portion from the appellant. In the execution proceedings taken out by the mortgagors thereafter the executing court held that they were entitled to get only symbolic delivery and not physical possession of the leased property. The High Court held that as the mortgage was an anomalous mortgage, the rights of the mortgagee have to be determined with reference to the terms of the mortgage deed, that though the mortgage deed permitted the mortgagee to create tenancies, the said permission did not extend to granting lease beyond the term of the mortgage and it was subject to the stipulation in the mortgage deed that the mortgagee should deliver possession whenever the mortgage was redeemed, and hence when the mortgagee 's right to possession came to an end, he ceased to be a lessor and the appellant was bound to surrender possession and he had no right to invoke the provisions of the Rent Acts to continue his tenancy, and that the appellant was not a necessary party to the suit or the execution application, as his possession was akin to that of a sub lessee and the execution application was therefore legally maintainable against him. In this appeal by certificate it was contended for the appellant tenant that his tenancy rights were protected under the Saurashtra Rent Act and the Bombay Rent Act, that the mortgagors had given an unrestricted power to the mortgagee to create a tenancy for any length of time, and were therefore, bound to accept the lease transaction even after the redemption of the mortgage deed, that his tenancy rights became enlarged by the subsequent legislation enacted for affording protection to tenants, and that by reason of the authority given to the mortgagee to create tenancy the mortgagors had constituted the mortgagee as their agent and hence they as principals were bound by the acts of their agent. Dismissing the appeal, ^ HELD: 1.1 A tenancy created by a mortgagee in possession may be binding even after the termination of the title of the mortgagee in possession if the mortgagors had concurred to the grant of the lease. [88B] 1.2 In the instant case, the mortgagors had not empowered the mortgagee to create a tenancy which would be binding on them after the 78 redemption of the mortgage. The authorisation given to the mortgagee was not an unconditional and absolute one. It was circumscribed by the stipulation that the mortgagee should re deliver the possession of the property whenever the mortgage was redeemed. The lease granted by the mortgagee could not thus enure beyond the term of the mortgage. [9lE, 90A, 91BC] 1.3 This was not a case where the mortgagee was put in possession of the mortgaged property in older to appropriate the usufructs in lieu of interest. The mortgagors had agreed to pay interest to the mortgagee at mercantile rate and also as per contractual rate. Furthermore, the mortgage deed absolved the mortgagee of any liability for loss of income from the mortgaged property due to fall in rent or non payment of rent or due to non leasing of the property and keeping the house vacant. On account of these guarantees the mortgagee was under no compulsion to lease out the property just because of the permission given to him to grant lease, either to secure rental income in lieu of interest or on grounds of prudent management. The mortgagee should have realised that by inducting the appellant, he was running the risk of being unable to deliver possession of the house to the mortgagors when the mortgage was redeemed and thereby he would be contravening clauses 7 and 10 of the mortgage deed. [90D E] 1.4 The mortgage in the instant case was an anomalous mortgage and not an usufructuary one. The rights of the parties to the mortgage therefore would be governed by section 98 of the , which provides for determination of the rights of the parties in accordance with the terms of the mortgage deed. Consequently, the appellant could claim tenancy rights only as against his landlord viz. the mortgagee and not against the mortgagors. As soon as the mortgagee 's rights became extinguished by redemption of the mortgage, neither he nor anyone inducted by him had a right to be in possession of the mortgaged property. [85CE, 91F] Film Corporation Ltd. vs Gyan Nath, ; Purshottam vs Madhavaji Meghaji, ; AIR 1976 Gujarat 161; ; SV Venkatarama Reddiar vs Abdul Gani Rowther & Ors. AIR 1980 Madras 276; and Devkinandan vs Roshan Lal, AIR , referred to. No question of imprudence can arise where the rights of the tenant were enlarged by tenancy legislation enacted after the tenant was put in possession by the mortgagee. In the instant case, the appellant 's rights, as a tenant, did not become enlarged by means of any tenancy 79 legislation which came to be enacted after the lease was granted. The Saurashtra Rent Control Act, 1951 was already in force when the appellant was inducted into possession from December 4, 1956. It cannot be claimed that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which had replaced the Saurashtra Act from January 1, 1964, was a subsequent tenancy legislation that had enlarged the tenancy rights of the appellant, since the second appeal pertaining to the standard rent application and the suit for ejectment filed by the mortgagee were instituted in 1963 before the repeal of the Saurashtra Act. [88A, 91E, 88F,H, 89AB,DE] Mahabir Gope vs Harbans Narain, ; ; Asa Ram vs Ram Kali, ; Dahya Lal vs Rasul Mohammed Abdul Rahim, [1963] 3 SCR l; Prabhu vs Ram Dev, ; and Mula 's , 7th Edn. p. 514, referred to. The relationship between the parties to the mortgage was always one of debtor and creditor. There was, thus, no question of the mortgagors constituting the mortgagee as their agent. [9lD] D 4. The appellant had no independent rights and hence it was not necessary that he should have been made a party to the suit filed by the mortgagors after the redemption of the mortgage. His position was akin to that of a sub tenant whose rights were co terminus with those of the tenant himself. The mortgagors were, therefore, entitled to seek ejectment of the mortgagee and the tenant inducted by him. The execution application taken against the mortgagee would be binding on the appellant. [9lG H]

Appeal No. 341 of 1960. Appeal from the judgment and order dated March 3,1960, of the Madras High Court, in W. P. No. 1051 of 1959. N. C. Chatterjee, B. R. L. Iyengar and D. Gupta, for the appellants. 589 section Mohan Kumaramangalam, M. K. Ramamurthy, R. K. Garg and T. section Venkataraman, for the respondent and the intervener. April, 28. The Judgment of Gajendragadkar, Sarkar and Das Gupta, JJ., was delivered by Gajendragadkar, J. Wanchoo and Ayyangar, JJ., delivered separate Judgments. GAJENDRAGADKAR, J. On a writ petition filed by the respondent K. Rangachari in the Madras High Court under article 226 of the Constitution a writ of mandamus has been issued by the said High Court restraining the appellants, the General Manager, Southern Railway, and the Personnel Officer (Reservation), Southern Railway, from giving effect to the directions of the Railway Board ordering reservation of selection posts in Class III of the railway service in favour of the members of the Scheduled Castes and Scheduled Tribes and in particular the reservation of selection posts among the Court Inspectors in Class III one of which is held by the respondent. After the writ was thus issued the appellant applied for and obtained a certificate from the said High Court under article 132(1) of the Constitution as it involved a substantial question of law, namely, the scope of article 16(4) of the Constitution. It is with this certificate that the appeal has been brought to this court, and the. only question which it raises for our decision is about the scope and effect of article 16(4). This question is of considerable public importance though the dispute raised by it lies within a very narrow compass. In the railway services there are four grades of Court Inspectors included in Class III, (1) Court Inspectors on Rs. 200 300, (2) Court Inspectors on Rs. 260 350, (3) Chief Court Inspectors on Rs. 300400, and (4) Chief Court Inspectors on Rs. 360 500. It appears that Inspectors of the first category are recruited partly directly and partly by selection from other categories of railway services. To the remaining three grades appointments are made by promotion and they are classified as selection posts. Selection to 75 590 these grades is made by a committee of officers constituted for the purpose. In respect of non selection posts seniority in service is the qualification but in regard to selection posts seniority is only one of the qualifications for promotion to such posts; suitability to promotion is considered on other relevant grounds .as well. The respondent was initially recruited to the grade of Rs. 200 300 and was confirmed in that, grade on November 21, 1956. Between May 23, 1958, and August 22, 1958 as well as between December 8, 1958 and December 31, 1958, he was promoted to officiate in the grade of Rs. 260 350. He got a chance of another similar promotion to officiate on April 8, 1959. These promotions were in the nature of ad hoc promo tions and were consequently of temporary duration. Later, on June 16, 1959, he was interviewed by the selection committee and his promotion to the said higher grade was regularised and an order was passed in that behalf on June 30, 1959. By this order lie was allowed to continue to officiate in the said grade. Since then he has been officiating in that grade. On April 27, 1959, and on June 12, 1959, the two impugned circulars were issued by the Railway Board and addressed to the General Managers. As a result of the said circulars the selection committee decided to consider the case of Hiriyanna for promotion to the grade of Rs. 260 350, Hiriyanna being a member of the Scheduled Castes. The record shows that at the time when the respondent was interviewed and selected he was placed as Number One by the selection committee and one Partliasarathy was placed as Number Two. On the said occasion Hiriyanna was not selected and put in the panel. The selection committee desired to examine the case of Hiriyania in order to decide whether he was suitable for promotion to higher grade in the light of the two directives issued by the Railway Board and so a meeting of the selection committee was called on November 18, 1959. The respondent thought that the proceedings of the said proposed meeting may result prejudicially to his interest and so on November 16, 1959, he filed the 591 present Writ Petition No. 1051 of 1959. In this petition he applied for a writ in the nature of mandamus and also prayed for an interim injunction restraining the holding of the meeting of the selection committee proposed to be held on November 18, 1959. An interim injunction as prayed for by the respondent was issued by the High Court and in consequence the proposed meeting has not been held. According to the respondent the two directives issued by the appellants under the two impugned circulars were ultra vires, illegal, inoperative and unconstitutional in that they were not justified by article 16(4). He alleged that a reading of articles 16, 335, 338 and 339 would show that the Constitution draws a clear distinction between Scheduled Castes or Tribes on the one hand and backward classes on the other and so it was urged by him that the impugned circulars were illegal. The petition further urged that the safeguard provided by article 16(4) applied only to reservation Of posts at the stage of appointment and not for reservation of posts for promotion after appointment and so the circulars were outside the provisions of article 16(4) and as such contravened article 16(1). The petition expressed the apprehension that if the circulars are implemented the respondent would be reverted and that would cause great loss both financially and in status to him. It is on these allegations that the respondent prayed for the issue of a writ in the nature of mandamus directing the appellants to forbear from implementing the two impugned circulars. These pleas were denied by the appellants. It was alleged by them that the expression "backward class" appearing in article 16(4) would include not only the Scheduled Castes and Scheduled Tribes but all backward communities who could not stand on their own legs. Therefore the reservations made by the impugned circulars were fully covered by article 16(4). The appellants ' case was that the safeguards provided by article 16(4) would extend not only to initial appointment but also to promotions made by selection and that clearly brought the impugned circulars within the 592 protection of article 16(4). The appellants categorically denied that the respondent would suffer any loss or because persons who had already been promoted on the basis of earlier regular selections were not intended to be reverted as a consequence of the implementation of the impugned circulars. According to the appellants the petition filed by the respondent was permature and on the merits no case had been made out for the issue of a writ of mandamus. At this stage it would be material to set out the relevant portions of the impugned circulars. The circular issued by the Railway Board on April 27, 1959, contained, inter alia, the following directions. "There are different grades of Class III posts. Some of these posts are 'non selection ' posts, promotion to which is made on 'seniority cum suitability ' basis, while, in the case of others which are 'Selection ' posts, promotion is made by a positive act of selection. There will be no quota for Scheduled Castes and Scheduled Tribes candidates in respect of promotion to 'non selection ' posts. For promotion to 'Selection ' posts, however, there will be the prescribed quota of reservation. The field of consideration in the case of Scheduled Castes and Scheduled Tribes candidates should be four times the number of posts reserved without any condition of qualifying period of service in their case, subject to the condition that consideration should not normally extend to such staff beyond two grades immediately below the grade for which selection is held. " There is one more direction given by the said circular which must be read. The decision of the Railway Board providing reservation for Scheduled Castes and Scheduled Tribes in promotion vacancies as laid down above comes into effect from January 4, 1957. It will, therefore, be necessary to calculate the number of posts that should have been made available to the Scheduled Castes and Scheduled Tribes during 1957 and 1958 and these should be carried forward to be filled in 1959. Thus it would be noticed that the effect of this circular was to prescribe a quota of reservation for selection posts and to give effect to this reservation retrospectively from January 4, 593 1957. In a sense it is this retrospective operation of the circular which appears to be the main cause of the present dispute. On June 12,1959, another circular was issued giving guidance and directions as to how the earlier circular should be implemented. This circular directed, inter alia, by paragraphs 2(ii) and 2(iii) as follows: "2(ii). The Special Rosters in force for section C. & section T. in direct recruitment categories are to be followed to work out the number of posts to be reserved for section C. & section T. in promotions made in Selection Grades and for promotion from Class IV to Class 111. 2(iii). As the Board 's orders have retrospective effect from 4th January, 1957, it is necessary that the promotions made in each selection grade on your Division/Office from 4th January, 1957, are reviewed and the number of posts due to section C. & section T. worked out applying the Roster referred to in item (ii) above. " It appears certain doubts were raised in regard to the manner in which the reservation circulars had to be implemented and so on September 11, 1959, the Railway Board issued a letter clarifying the doubts raised. One of the points thus clarified was whether the instructions issued in the Board 's letter contemplated reversion of staff already promoted to selection posts after January 4, 1957, to accommodate section Cs. and section Ts. (which stand for Scheduled Castes and Scheduled Tribes) according to percentage basis. The clarification issued was that the said orders did not contemplate such reversion. It was, however, desired that the shortfalls should be made good against the existing as well as the future vacancies. It is by virtue of this clarification that the respondent was assured by the appellants during the proceedings before the High Court that he need not entertain any apprehension of reversion as a result of the implementation of the impugned circulars. We would now briefly summarise the findings and conclusions of the High Court on the points raised before it by the contentions of the parties in the 595 whether article 16(1) and (2) refer to promotion or whether they are confined to the initial appointment to any post in civil service. In the appeal before us the s, appellants and the respondent both conceded that cases of promotion fell within article 16(1) and (2) though they differed as to whether they were included in article 16(4). It would be immediately noticed that the respondent 's petition postulates the inclusion of promotion in article 16(1) and (2) for it is on that assumption that he challenges the validity of the impugned circulars. Similarly, the appellants ' defence postulates that article 16(1) and (2) as well as article 16(4) refer to cases of promotion for it is on the basis that article 16(4) includes promotion that they seek to support the validity of the impugned circulars. When this appeal was argued before the Constitution Bench on the first occasion it became clear that neither party was interested in contending that the guarantee afforded by article 16(1) and (2) is confined only to initial appointment and does not extend to promotion, and so notice was ordered to be issued to the Attorney General. In response to the notice the Attorney General has appeared and is represented by Mr. Sen. He has also taken the same stand as the appellants have done and so in the result nobody before us is interested in challenging the inclusion of promotion within article 16(1) and (2). However, we would briefly indicate our reasons for accepting the concession made by the parties that promotion is included in article 16(1) and (2). Article 16(1) reads thus: "There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State." In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach must be avoided. We must have regard to the nature of the fundamental right guaranteed and we must seek to ascertain the intention of the Constitution by construing the material words in a broad 596 and general way. If the words used in the Article are wide in their import they must be liberally construed in all their amplitude. Thus construed it would be clear that matters relating to employment cannot be confined only to the. initial matters prior to the act of employment. The narrow construction would confine the application of article 16(1) to the initial employment and nothing else; but that clearly, is only one of the matters relating to employment. The other matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity, as to pension and as to the age of superannuation. These are all matters relating to employment and they are, and must be, deemed to be included in the expression "matters relating to employment" in article 16(1). Similarly, appointment to any office which means appointment to an office like that of the Attorney General or Comptroller and Auditor General must mean not only the initial appointment to such an office but all the terms and conditions of service pertaining to the said office. What article 16(1) guarantees is equality of opportunity to all citizens in respect of all the matters relating to employment illustrated by us as well as to an appointment to any office as explained by us. This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more. Article 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of the equality of opportunity; but in regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment, and even in regard to such a promotion to a selection post all that article 16(1) guarantees is equality of opportunity to all citizens who enter service. 597 If the narrow construction of the expression "matters relating to employment" is accepted it would make the fundamental right guaranteed by article 16(1), illusory. In that case it would be open to the State ' to comply with the formal requirements of article 16(1) by affording equality of opportunity to all citizens in the matter of initial employment and then to defeated its very aim and object by introducing discriminatory provisions in respect of employees soon after their employment. Would it, for instance, be open to the State to prescribe different scales of salary for the same or similar posts, different terms of leave or superannuation for the same or similar post? On the narrow construction of article 16(1) even if such a dis criminatory course is adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by article 16(1). Such a result could not obviously have been intended by the Constitution. In this connection it may be relevant to remember that article 16(1) and (2) really give effect to the equality before law guaranteed by article 14 and to the prohibition of discrimination guaranteed by article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment. Article 16(2) provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. This sub Article emphatically brings out in a negative form what is guaranteed affirmatively by article 16(1). Discrimination is a double edged weapon; it would operate in favour of some persons and against others; and article 16(2) prohibits discrimination and thus assures the effective enforcement of the fundamental right of equality of 76 598 opportunity guaranteed by article 16(1). The words "in respect of any employment" used in article 16(2) must, therefore, include all matters relating to employment as specified in article 16(1). Therefore, we are satisfied that Mr. Sen is right when on behalf of the Attorney General he conceded that promotion to selection Posts 'is included both under article 16(1) and (2). Broadly stated the Bombay and the Patna High Courts sup , port the concession made by Mr. Sen (Vide: Pandurang Kashinath More vs The Union of India(1); Sukh nandan vs State (2) ) whereas the Allahabad High Court is against it (vide: Moinuddin vs State of Uttar Pradesh (3) ). In this connection we ought to add that Civil Appeal No. 579 of 1960 (4) in which the Union of India challenged the correctness of the Bombay decision was set down for hearing along with this appeal, and in the judgment which we are pronouncing in the said appeal today we are accepting the appellants ' contention that the question about the invasion of the fundamental right guaranteed by article 16(1) was not properly raised by the respondent in his plaint in that case and had in fact not been proved; accordingly we are holding that 'the High Court was in error in proceeding to deal with the dispute on the basis that violation of article 16(1) had been admitted by the Union. In the result we are allowing the said appeal and setting aside the decision of the High Court on this narrow ground. Article 16(3) provides for one exception to the provisions of article 16(1) and (2) in that it authorises Parliament to make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. We are not concerned with this provision in the present appeal. (1) I.L.R. (2) Pat. (3) A.I.R. 1960 All. 484. (4) Union of India vs Pandurang Kashinath More. 599 That takes us to article 16(4). It reads thus: "Nothing in this article shall prevent the State, from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State." In construing article 16(4) the respondent is no doubt entitled to contend that this sub Article in substance provides for an exception to the fundamental rights guaranteed by article 16(1) and (2) and as such it must be strictly construed. On the other hand, the appellants may well urge that in construing its provisions the Court should not lose sight of the fact that the Constitution has, if we may say so wisely, showed very great solicitude for the advancement of socially and educationally backward classes of citizens. Article 15(4) which provides, inter alia, for an exception to the prohibition of discrimination on grounds specified in article 15(1) lays down that nothing contained in the said Article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Similarly, article 335 requires that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. For historical reasons which are well known the advancement of socially and educationally backward classes has been treated by the Constitution as a matter of paramount importance and that may have to be borne in mind in construing article 16(4). On one point in relation to the construction of article 16(4) the parties are in agreement. It is common ground that article 16(4) does not cover the entire field covered by article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by article 16(1) and (2) do not fall within the mischief of non obstantive 600 clause in article 16(4). For instance, it is not denied by the appellants that the conditions of service relating 'to employment such as salary, increment, gratuity, y pension and the age of superannuation there can be no exception even in regard to the backward classes of citizens. In other words, these matters relating to employment are absolutely protected by the doctrine of equality of opportunity and they do not form the subject matter of article 16(4). That is why we have just observed that part of the ground covered by article 16(1) and (2) is admittedly outside the scope of article 16(4). The point in dispute is: Is promotion to a selection post which is included in article 16(1) and (2) covered by article 16(4) or is it not? It is on, this point that there is a sharp controversy between the parties. Before construing article 16(4) it would be convenient to deal with the question as to whether posts specified by it are posts inside the services or outside them. As we have already seen the High Court has taken the view that the posts in the context must necessarily mean posts outside the services and that in fact is the sole basis of the decision of the High Court against the appellants. The High Court has held that the legislative history of the words "appointments" and "Posts" justifies the conclusion that "posts" are ex cadre posts. Is that really so? In our opinion, the answer to this question must be in the negative. The argument that legislative history about the use of the relevant words is decisively in favour of excluding service posts from the purview of article 16(4) ignores the fact that there can be no legislative history for the provisions of article 16(4) which have found a place in the Constitution for the first time. Besides, it is not correct to assume that even the legislative history shows that "posts" always and inevitably meant posts outside services though it may be conceded that in the majority of corresponding constitutional provisions they do refer to ex service posts. Let us look at the relevant provisions of the Constitution itself. Article 309 empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and 601 posts in connection with the affairs of the Union or of any State. In the context "posts" means posts outside services. Similarly article 310(1) refers to every person 'who is a member of a defence service or of a civil service of the Union or of an all India service or holds any post connected with defence or any civil post under the Union. The word "post" in the context means an ex cadre post. Likewise the expression "civil post" in article 311(1) means a civil post outside the services. Article 335 to which we have referred uses the word "posts" in the same sense. But, when we go to article 336 the word "posts" in the context means posts in the services therein enumerated. The position disclosed by the corresponding provisions of the Constitution Act of 1935 is substantially the same. Sections 240 and 241 for instance use the word "posts" in the sense of ex service posts; whereas section 246 refers to civil posts in the sense of posts inside the services. In our opinion, it would, therefore, be unreasonable to treat the word "posts" as a term of art and to clothe it inexorably with the meaning of excadre posts. It is the context in which the word "posts" is used which must determine its denotation. What does the context of article 16(4) indicate? That is the next question which we must consider. Article 16(4) clearly shows that the power conferred by it can be exercised in cases where the State is of the opinion that any backward class of citizens is not adequately represented in the services under it. In other words, the opinion formed by the State that the representation available to the backward class of citizens in any of the services is inadequate is a condition precedent for the exercise of the power conferred by article 16(4), and so the power to make reservation as contemplated by article 16(4) can be exercised only to make the inadequate representation in the services adequate. If that be so, both "appointments" and "posts" to which the operative part of article 16(4) refers and in respect of which the power to make reservation has been conferred on the State must necessarily be appointments and posts in the ser vice. It would be illogical and unreasonable to 602 assume that for making the representation adequate in the services under the State a power should 'be given to the State to reserve posts outside the cadre of services. If the word "posts" means excadre posts reservation of such posts cannot possibly cure the imbalance which according to the State is disclosed in the representation in services under it. Therefore, in our opinion, the key clause of article 16(4) which prescribes a condition precedent for invoking the power conferred by it itself unambiguously indicates that the word "posts" cannot mean ex cadre posts in the context. In fairness to Mr. Kumaramangalam, who appeared for the respondent, we ought to add that he did not resist the contention of Mr. Chatterjee, for the appellants, that the context requires that "Posts" should be deemed to be posts inside services and not outside them. Therefore, the main, if not the sole, reason given by the High Court in support of its conclusion does not appear to us to be well founded, and so article 16(4) must be construed on the basis that both "appointments" and "posts" to which its operative clause refers are appointments and posts in the services under the State. Incidentally, we may repeat what we have already pointed out that the tenor of the judgment under appeal shows that if the High Court had construed the word "posts" as posts inside the services it would not have issued the writ in favour of the respondent. Having in substance conceded that "posts" does not mean posts outside services Mr. Kumaramangalam presented a very plausible argument in support of his case that the impugned circulars fall outside article 16(4). He contends that the key clause on which Mr. Chatterjee relies in construing the word "posts" as meaning posts in the services itself shows that direct promotion to selection posts by reservation is not permissible under article 16(4). His argument is that if it is discovered that any backward class of citizens is not adequately represented in the services under the State the State may no doubt seek to introduce the balance by giving adequate representation to the backward class by making reservations for initial 603 appointments. It may decide the proportion of the said reservation in order to introduce the balance and then give effect to it by making adequate number of appointments by reservation at the initial stage. If ' this process by itself appears to the State to be slow and tardy it may even reserve selection posts but this reservation can be given effect to again by promoting( suitable backward candidates to the said posts after they fall vacant and making a proportionately larger number of appointments at the initial stage. In any case reservation must work from the bottom and reservation cannot be permitted to allow direct appointment to selection posts as the impugned circulars seek to do. It may be conceded that reservation of appointments or posts maybe made in the manner suggested by Mr. Kumaramangalam. It may also be assumed that giving retrospective effect to reservations may well cause heart burning or dissatisfaction amongst the general class of employees and in that sense it would be an act of wisdom not to give effect to reservation retrospectively. But, with the propriety or the wisdom of the policy underlying the circulars We are not directly concerned. Even if it be assumed that it would be open to the State to adopt the method suggested by Mr. Kumaramangalam to give effect to the power of reservation in order to make the representation of the backward classes adequate in its services does it follow that it is the only method permissible under article 16(4)? We are inclined to hold that the answer to this question cannot be in favour of the respondent. If it is conceded that selection posts can be reserved it is difficult to see how it would be open to the respondent to contend that these reserved selection posts must be filled only prospectively and not retrospectively. The concession that selection posts can be reserved on which the argument is based itself provides the answer to the argument that if the said posts can be reserved the reserved posts can be filled either prospectively or retrospectively. In adopting the latter course there can be no violation of the constitutional provision contained in article 16(4). 604 The condition precedent for the exercise of the powers conferred by article 16(4) is that the state ought to be satisfied that any backward class of citizens is not adequately represented in its services. This condition precedent may refer either to the numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation. The advancement of the socially and educationally backward classes requires not only that they should have adequate representation in the lowest rung of services but that they should aspire to secure adequate representation in selection posts in the services as well. In the context the expression 'adequately represented ' imports considerations of "size" as well as "values", numbers as well as the nature of appointments held and so it involves not merely the numerical test but also the qualitative one. It is thus by the operation of the numerical and a qualitative test that the adequacy or otherwise of the representation of backward classes in any service has to be judged; and if that be so, it would not be reasonable to hold that the inadequacy of representation can and must be cured only by reserving a proportionately higher percentage of appointments at the initial stage. In a given case the state may well take the view that a certain percentage of selection posts should also be reserved, for reservation of such posts may make the representation of backward classes in the services adequate, the adequacy of such representation being considered qualitatively. If it is conceded that "posts" in the context refer to posts in the services and that selection posts may be reserved but should be filled only in the manner suggested by the respondent then we see no reason for holding that the reservation of selection posts cannot be implemented by promoting suitable members of backward class of citizens to such posts as the circulars intend to do. We must in this connection consider an alternative argument that the word "posts" must refer not to 605 selection posts but to posts filled by initial appointments. On this argument reservation of appointments means reservation of certain percentage in the initial appointments and reservation of posts means reservation of initial posts which may be adopted in order to expedite and make more effective the reservation of appointments themselves. On this construction the use of the word "posts" appears to be wholly redundant. In our opinion, having regard to the fact that we are construing the relevant expression "reservation of appointments" in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word "posts" to initial posts seems to us to be entirely unreasonable. On the other hand, under the construction by which the word "posts" includes selection posts the use of the word "posts" is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment. This construction has the merit of interpreting the words "appointMents" and "posts" in their broad and liberal sense and giving effect to the policy which is obviously the basis of the provisions of article 16(4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction, in our opinion, would serve to give effect to the intention of the Constitution makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services. Our 77 06 conclusion, therefore, is that the High Court was in error in holding that the impugned circulars do not all within article 16(4). It is true that in providing for the reservation of appointments or posts under article 16(4) the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of article 335. Reservation of appointments or posts may theoretically and conceivably mean some impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under article 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under article 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration; but, in the present case, as we have already seen ' the challenge to the validity of the impugned circulars is based on the assumption that the said circulars are outside article 16(4) because the posts referred to in the said Article are posts outside the cadre of services and in any case, do not include selection posts. Since, in our opinion, this assumption is not well founded we must hold that the impugned circulars are not unconstitutional. In the result the decision of the High Court under appeal is reversed and the respondent 's application 607 for a writ is dismissed. There would be no order as to costs. WANCHOO, J. I have read the judgment just delivered by my learned brother Gajendragadkar J., and I agree with him as to the scope of article 16(1) of the Constitution. I also agree with him that the scheduled castes and the scheduled tribes are included in the words "backward class of citizens" in article 16(4) and that the word "Posts" in that Article refers to posts in the services and not to posts outside the services. I regret however that I have not been able to persuade myself that article 16(4) permits reservation even in grades within a particular service in case the service has various grades in its cadre, and proceed to give my reasons for the same. Before I construe the words of article 16(4), I may state that I am not unmindful of the fact that article 16(4) is a constitutional provision and that constitutional provisions are not to be interpreted in any narrow or pedantic sense. At the same time it cannot be forgotten that article 16(4) is in the nature of an exception or a proviso to article 16(1), which is a fundamental right providing equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. This aspect of article 16(4) in my opinion inevitably requires that the proviso or the exception should not be interpreted so liberally as to destroy the fundamental right itself to which it is a proviso or exception. The construction therefore of article 16(4) cannot ignore this aspect of the matter. I now read article 16(4): "Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. " Before I turn to the actual words used in the Article I must refer to what I consider is implicit in that Article. The Article provides for reservation of 608 appointments or posts and it seems tome obvious that it is implicit in the Article that the reservation of appointments or posts cannot go to the length of reserving all appointments or posts or even to the length of reserving a majority of them. The reason why I say that all appointments or posts cannot be reserved under article 16(4) (though that would be the result if the widest possible interpretation is given to the words used in the Article) is that if all appointments or posts could be reserved under article 16(4) it would mean complete destruction of the fundamental right guaranteed under article 16(1). It could not be the intention of the Constitution makers that the proviso or exception in article 16(4) should be so used as to destroy completely the fundamental right enshrined in article 16(1). Nor do I think that it is permissible under article 16(4) to reserve a majority of appointments or posts, for that again, in my opinion, though it may not completely destroy the fundamental right guaranteed under article 16(1) will certainly make it practically illusory. Again it could not be the intention of the Constitution makers that article 16(4) should be so interpreted as to make the fundamental right guaranteed under article 16(1) illusory. I may in this connection refer to article 335, which occurs in Part XVI dealing with Special Provisions relating to certain Classes, which reinforces what I have said above. That Article provides that "the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State." Now the scheduled tribes and the scheduled castes are included in the words "backward class of citizens" used in article 16(4). Therefore in considering the claims of, at any rate, a part of, those included in article 16(4) (and I presume the same will apply to the whole) the maintenance of efficiency of administration must be kept in mind, for the reservation provided in article 16(4) is to meet the claims of the members of the 609 scheduled castes and the scheduled tribes. Reservation, therefore, of all appointments or posts or even a majority of them is certain to result in the impairment of efficiency of administration and therefore what I consider as implicit in article 16(4) is borne out also by the provision in article 335. It is in this background that the interpretation of article 16(4) falls to be considered. Turning now to the words in article 16(4), it appears to me that the key words in that Article are "not adequately represented in the services under the State." Obviously, reservation can be made under this Article only if the State comes to the conclusion that any backward class of citizens is not adequately represented in the services under it. If, for example, the State is of opinion that backward classes are adequately represented in the services it can make no reservation under article 16(4). What then is the meaning of these key words in this Article? What these words require is that reservation may be made in order to make the representation of any backward class of citizens adequate in the services. Does the word "adequate" imply only numerical representation in the services or does it imply something more than that? The three meanings of the word "adequate" given in the Shorter Oxford English Dictionary are (i) equal in magnitude and extent; (ii) commensurate in fitness, sufficient, suitable; and (iii) fully representing (logic). It seems to me that it is the second meaning (namely, sufficient) which properly applies to the words "adequately represented" as used in this Article. "Sufficient" has two meanings: (i) Sufficing, adequate, esp. in amount or number to the need, (ii) enough, adequate quantity. Therefore, when article 16(4) says that reservation may be made in order that any backward class of citizens may be adequately represented in the services it means that reservation may be made in order to make the number of any backward class sufficient in the services under the State. These words do not in my opinion convey any idea of quality and can only mean sufficient quantitative representation in the services under the State. If 610 the intention of the Constitution makers was that there may also be reservation in various grades in a particular service where there are grades in the ser vice, I should have expected different words being used in article 16(4) to convey that meaning. These key words used in this Article further convey the idea of representation in the services as a whole, for there are no words which suggest that the service should be broken up in case there are grades in it for the purposes of adequate representation. The conclusion therefore at which I arrive is that these key words convey the idea of adequate numerical representation for any backward class of citizens in a particular service as a whole and it is for this purpose alone that reservation can be made of appointments or posts in the services. This brings me to the question as to bow the reservation is to be made. article 16(4) tells us that it may be made either by reserving appointments to the services or reserving posts in the services. Appointments in my opinion clearly mean the initial appointments to a service, for a person is appointed only once in a service and thereafter there is no further appointment. Therefore, when the Article speaks of reservation of appointments it means reservation of a per centage of initial appointments to the service. Posts refer to the total number of posts in the service and when reservation is by reference to posts it means reservation of a certain percentage of posts out of the total number of posts in the service. The reason why these two methods are mentioned in this Article is also to my mind plain. The method of reservation of appointments would mean that the goal of adequate representation may be reached in a long time. Therefore, in order that the goal. may be reached in a comparatively shorter period of time, the Article also provides for the method of reservation of posts. This will be clear from an example which I may give. Suppose there are 1,000 posts in a particular service and the backward classes have no representation at all in that service. The State considers it necessary that they should have adequate representation in that 611 service. Suppose also that the annual appointments to be made to the service in order to keep it at full strength is thirty. Now the State if it chooses the method of reservation of appointments will reserve a percentage of appointments each year for backward classes. Now suppose that percentage is fixed at ten per century. In order therefore to reach the ten per centum of the total number of posts in the service by the method of reservation of appointments, the period taken would be roughly 34 years. This period may be considered too long and therefore the State may decide to adopt the other way, i.e., the reserva tion of posts; and suppose it is decided to reserve ten per centum of the posts, i.e., 100 in all. It will then be open to the State having reserved 100 posts in this particular service for backward classes to say that till these 100 posts are filled up by backward classes all appointments will go to them provided the minimum qualifications that may be prescribed are fulfilled. Suppose further that it is possible to get annually the requisite number of qualified members of backward classes equal to the annual appointments, the representation of the backward classes will be made adequate in about four years. Once the representation is adequate there will be no power left for making further reservation. Thus by the method of reserva tion of appointments the representation is made adequate in a long period of time while by the method of reserving posts the representation is made adequate in a much shorter period. That seems to be the reason why the Article speaks of reservation of appointments as well as of posts. It is however said that this construction of article 16(4) makes the use of the word "posts" therein superfluous, and that the same result of making the representation adequate quickly could have been achieved if the word "appointments" only had been used therein. I am of opinion that this is not so and the use of the word "appointments" only in article 16(4) would not have made it possible for the State to make the representation of backward classes adequate in a short space of time. In the example I have given the 612 representation of backward classes was made adequate in four years by the method of reservation of posts; it would however not have been possible to make the representation adequate in this hypothetical case in such a short time if the Article only provided for reservation of appointments. I have already said that it is implicit in the Article that reservation cannot be of all appointments or even of a majority of them, for that would completely destroy the fundamental right enshrined in article 16(1) to which article 16(4) is in the nature of a proviso or an exception or at any rate make it practically illusory. Therefore, it would not be open to the State to reserve all or even a majority of the appointments for backward classes, if the word "appointments" only had been used in article 16(4). Even if a larger percentage than ten per centum were reserved for backward classes in the matter of appointments in the hypothetical case given by me it would not be possible to reach the total of 100 posts for the backward classes in the service in less than twice or thrice the time taken by the method of reservation of posts, for the State could not reserve all or even the majority of appointments in any particular year, in view of what is implicit in article 16(4), if the word " a appointments" only had been there. It seems to me therefore that the use of the word "posts" in that Article was with a purpose, namely, that by the method of reservation of posts the inadequate representation may be made adequate within a short space of time and the objection that could be raised to the reservation of all appointments, if only the word "appointments" had been used in the Article, would no longer be available. It cannot therefore be said that on the interpretation I have placed on article 16(4) the use of the word "posts" therein becomes superfluous. I have already said that if the intention was not only to make reservation in the service as a whole whether by the method of reserving appointments or by the method of reserving posts but also to include reservation in various grades in which a service may be divided, the words of article 16(4) would have been different. I may in this connection refer to article 335 613 again, which lays down that the claims of the scheduled castes and the scheduled tribes (which are part of backward classes of citizens) shall be considered So,. , consistently with the maintenance of efficiency of administration. It seems to me that reservation of posts in various grades in the same service is bound to result, for obvious reasons, in deterioration in the efficiency of administration; and reading article 335 along with article 16(4) which to my mind is permissible on the principle of harmonious construction (see Pandit M. section M. Sharma vs Shri Sri Krishna Sinha (1)), it could not be the intention of the Constitution makers that reservation in article 16(4), for at any rate a part of those comprised therein, should result in the impairment of the efficiency of administration. It also seems to me equally obvious that what applies to a part of those comprised in the words "any backward class of citizens" also applies to the whole. Therefore, in the absence of clear words in article 16(4) which would compel one to hold that reservation was meant to apply not only to the service taken as a whole but also to various grades in which the service might be divided, I feel that an interpretation should not be given which would result in the impairment of efficiency of administration, which is jealously safeguarded even when considering the claims of the scheduled castes and the scheduled tribes. I am therefore of opinion that giving the words used in article 16(4) as liberal an interpretation as is possible without destroying or making illusory the fundamental right guaranteed in article 16(1) to which article 16(4) is in the nature of an exception or a proviso, article 16(4) can only mean that the State has the power thereunder to reserve numerically a certain percentage of appointments or posts in the manner I have indicated above and it has no power to split the service into various grades which might exist in it and make reservation in each grade because of the use of the word "posts" therein. I would therefore dismiss the appeal but for different reasons. (1) , 859 60 78 614 AYYANGAR, J. I regret that I cannot share the view of my learned brethren expressed by Gajendragadkar, J. that the appeal should be allowed and I agree with Wanchoo, J. that the appeal should be dismissed and the order of the High Court maintained. The facts of the case have been set out in great detail in the judgments already delivered and it is unnecessary to repeat them. Mr. Chatterji when he opened the appeal appeared to claim that the scope and content of article 16(1) and of sub article (4) thereof were identical and that if article 16(1) guaranteed by the use of the wide expression "matters relating to employment", "equality of opportunity" in relation to promotions also, article 16(4) should be construed to have the same width. But this argument however he abandoned at a later stage. The point therefore does not call for any consideration and the judgments now delivered proceed on the basis that the scope of the limitation on the equality of opportunity which is provided in article 16(4) is not co extensive with the freedom guaranteed by article 16(1). The only question therefore is in what respect is article 16(4) narrower than article 16(1). In considering this the rule of construction should be borne in mind that a restriction on a guaranteed freedom should be narrowly construed so as to afford sufficient scope for the freedom guaranteed. The judgment of the learned Judge now under appeal proceeds on the basis that the expression "Posts" in article 16(4) was a reference to what are termed in service parlance 'ex cadre posts ' and not posts in the service. Mr. Chatterji 's submission was that the learned Judge had no basis for importing the nomenclature and the classifications to be found in Part XIV into Part III dealing with fundamental rights. In particular, Mr. Chatterji quarrelled with the statement by the learned Judge that the expression appointments and posts ' occurring in article 16(4) were "virtually terms of art which had to be interpreted and understood in the light of the legislative history of the constitutional enactments that 615 preceded the Constitution, and in consonance with the scheme that underlies the provisions of the Constitution, which have reference to the civil services ' and civil servants in this country." Mr. Chatterji ' further pointed out that the learned Judge went wrong in observing that "The expressions appointments and posts in article 16(4) have really to be read as appointments to services and appointments to posts" on the ground that the words used in article 16 '4) were merely "appointments and posts" and not "appointments to services" etc. , the latter occurring only in Part XIV. It was,, however, common ground that if the learned Judge was right in considering that "appointments" in article 16(4) meant "appointments to services," the notification now impugned should be held to be unconstitutional. Mr. Chatterji did not dispute that when the expressions 'appointments to services and appointments to posts ' occurred in Ch. XIV vide for instance in articles 309, 311, etc. , being phrases borrowed from statutory provisions of the Government of India Act, 1935, the expression 'appointment to a post ' designated an 'ex cadre post '. The submission, however, of learned Counsel was that there was no justification for importing the phraseology employed in Part XIV in article 16(4), notwithstanding that article 16 dealt with equality of opportunity for employment in the services of the State and sub article (4) was concerned with the reservation of appointments in Services under the State. His submission was that article 16(4) had no legislative precedent in the previous constitutional enactments to justify the importation of service rules and service jargon as an aid to its construction. My learned Brothers have acceded to this submission of Mr. Chatterji. With great respect to them I consider that the view of the learned Judge of the High Court is correct. In the first place, the Article being one concerning the right to be employed in the Services of the State, one has necessarily to turn on the relevant provisions in relation to the Services to discover the precise import of the expressions used in relation to the Services. Besides, we are not left in 616 doubt as to the inter connection between article 16 and Part XIV dealing with Services, because article 335 forms, as it were, the link between Part XIV and the provisions for reservation in favour of the backward communities in article 16(4) Betting out as it does the principles that should guide the State in the matter of reservation in the Services which could obviously be only a reference to that provided for by article 16(4). article 335 runs: "The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. " In this Article, at any rate, it cannot be contended, and I did not understand Mr. Chatterji to contend, that 'Posts ' had any reference to 'posts in the services. ' If it were so then in my judgment it would follow that the phraseology employed in this Article which deals with the same subject as that dealt with by article 16(4) throws light on and explains the meaning of the expression 'posts ' in article 16(4). It is only necessary to add that article 320(4) which runs: "Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335." to which learned Counsel for the respondent drew our attention indicates, if other indication were necessary., that articles 16(4) and 335 have to be read together and not as if the 'posts ' referred to in article 335 indicated a different idea or connoted a different concept from the same word used in article 16(4). Even if the above view were wrong and the expression 'Posts ' were intended to designate not 'ex cadre posts ' but 'posts in the service, ' I am unable to hold that the appellant derives any advantage. As my learned Brother Wanchoo, J. has pointed out, the crucial words in article 16(4), and which form as it were 617 the key to its interpretation, from which the power of the State to make the reservation stems, are that a class of citizens "is not adequately represented in the Services of the State." The action permitted to be taken to redress this inadequacy is by reservation of appointments and posts. If by the expression 'posts ' are meant 'posts in the service. itself ' I feel unable to attribute to the expression 'posts ' any special significance beyond an appointment to the service. Every appointment in a service must be to "a post" in a service, because there cannot be an appointment in the air but can only be to a "post" in a service. In that sense, in my view, the expression 'post ' would be really redundant unless, of course, as I have said earlier, it meant not posts in a service but ex cadre posts. There is also one other aspect to which I might advert. In some of the top grades there are single posts in the Service. If at any point of time the incumbent is not a member of the backward class, it would certainly be a case of inadequate representation as regards that post which would mean that such posts which are single may be reserved for all time to be held by members of the backward classes, because if at any moment such a person ceases to hold the post there would be inadequate representation in regard to that post. I have drawn attention to this because it pointedly demonstrates that the correct view is that when "inadequacy of representation" is referred to in article 16(4) as justifying a reservation, the only rational and reasonable construction of the words are that it refers to a quantitative deficiency in the representation of the backward classes in the service taken as a whole and not to an inadequate representation at each grade of service or in respect of each post in the service. Besides, even on the footing that "posts" mean posts in the Services, article 16(4) properly construed in the light of article 335 of the Constitution whose inter. action has been discussed in great detail by Wanchoo, J. in the judgment just now pronounced with which entirely agree, contemplates and permits 618 reservation only in respect of appointments to Services at the initial stage and not at each stage even after the appointment has taken place. There is one other matter also which I consider relevant in this context. Under article 16(4) the State is enabled to make provision for the reservation of appointments if in their opinion certain backward classes of citizens are not adequately represented in the Service. The Article therefore contemplates action in relation to and having effect in the future when once the State forms the opinion about the inadequacy of the Service. If an inadequacy exists today, to give retrospective effect to the reservation, as the impugned notification has done, would be to redress an inadequate representation which took place in the past by an order issued today. In my judgment that is not contemplated by the power conferred to reserve which can only mean for the future. As this point however has not been argued I do not desire to rest my judgment on it, but have mentioned it to draw attention to another feature of the notification which deserves consideration. I would therefore dismiss the appeal with costs. By COURT: In accordance with the opinion of the majority the appeal is allowed; the decision of the High Court under appeal is reversed and the respondent 's application for a writ is dismissed. There will be no order as to costs.

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

ppeal No. 79 of 1962. Appeal by special leave from the judgment and decree dated February 20, 1958 of the Madras High Court in Second Appeal Lo. 91 of 1955. M. section K. Sastri and M. section Narasimhan, for the appellants. K. N. Rajagopal Sastri and B. K. B. Naidu, for respondents Nos. 1 to 4. March 6, 1964. The Judgment of the Court was delivered by GAJENDRAGADKAR, C.J. This appeal by Special leave raises a short question about the correctness, propriety and legality of the decree passed by the Madras High Court in second appeal No. 91. of 1955. The respondents had sued the appellants in the Court of the District Munsif of Thiruvaiyaru for a mandatory injunction directing the removal of certain masonry structure standing on the suit site which was marked as A B C D in the plan attached to the plaint and for a permanent injunction restraining the appellants from building upon or otherwise encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village in which the suit property was situated. According to the respondents, the plot on which encroachment had been caused by the construction of the masonry structure by the appellants was a street and the reliefs they claimed were on the basis that the said property formed part of a public street and the appellants had no right to encroach upon it. This suit had been instituted by the respondents in a representative capacity on behalf of themselves and other residents in the locality. The appellants disputed the main allegation of the res pondents that the masonry structure to which the respondents had objected, stood on any part of the public street. According to them, the plot on which the masonry structure stood along with the adjoining property belonged to them as 51 absolute owners and as such, they were entitled to use it in any manner they pleased. On these pleadings, appropriate issues were framed by the learned trial Judge and on considering the evidence, findings were recorded by him in favour of the respondents. In the result, the respondents ' suit was decreed and injunction was issued against the appellants. The appellants then took the dispute before the Subordi nate Judge at Kumbakonam. On the substantive issues which arose between the parties, the learned Subordinate Judge made findings against the respondents and in consequence, the decree passed by the Trial Court was set aside. The learned Subordinate Judge, however, made it clear that it might be open to the respondents to agitate "against any case of customary rights in the nature of an easement in their favour, if they can legally do so, without any bar, and if they are so advised. " That question was left by him as undecided as it did not arise before him in the present suit. This decree was challenged by the respondents by preferring a second appeal before the Madras High Court. BasheerAhmed Sayeed J. who heard this appeal, passed a decree which is challenged before us by the appellants in the present appeal. All that the learned Judge has done in his judgment is to state that "after a careful consideration of all the issues that arise for decision in this Second Appeal, 1 am of the opinion that the best form in which a decree could be given to the plaintiffs is in the following terms," and then the learned Judge has proceeded to set out the terms of his decree in clauses (1), (2) & (3), the 3rd clause being sub divided into clauses (a), (b) & (c). As to the costs, the learned Judge directed that parties should bear their own costs throughout. The appellants contend that the method adopted by the learned Judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannot be sustained. Before dealing with this contention, however, it is neces sary to refer to a preliminary objection raised by Mr. Raja gopal Sastri on behalf of the respondents. He contends that it was open to the appellants to apply for leave to file a Letters Patent appeal against the judgment of the learned Single Judge and since the appellants have not adopted that course, it is not open to them to come to this Court by special leave. He has, therefore, argued that either the leave granted by this Court to the appellants should be revoked, or the appeal should be dismissed on the ground that this was not a matter in which this Court will interfere having regard to the fact that a remedy available to the appellant under the Letters Patent of the Madras High Court has not been availed of by them. In resisting this preliminary objection, Mr. M. section K. Sastri for the appellants has relied on the decision of this Court in 52 Raruha Singh vs Achal Singh and Others(1). In that case, this Court allowed an appeal preferred against a second appellate decision of the Madhya Pradesh High Court on the ground that the said impugned decision had interfered with a finding of fact contrary to the provisions of section 100 of the Civil Procedure Code. It appears that a preliminary objection had been raised in that case by the respondents similar to the one which is raised in the present appeal, and in rejecting that preliminary objection, this Court observed that "since leave has been ranted, we do not think we can or should virtually revoke the leave by accepting the preliminary objection. " It is because of this observation that this appeal has been referred to a larger Bench. It is true that the statement on which Mr. M. section K. Sastri relies does seem to support his contention; but we are satisfied that the said statement should no, be interpreted as laying down a general proposition that if special leave is ranted in a given case, it can never be revoked. On several occasions, this Court has revoked special leave when facts were brought to its notice to justify the adoption of that course, and so we do not think Mr. M. section K. Sastri is justified in contending that leave granted to the appellants under article 136. as in the present case, can never be revoked. The true position is that in a given case, if the respondent brings to the notice of this Court facts which would justify the Court in revoking the leave already granted, this Court would, in the interests of justice, not hesitate to adopt that course. Therefore, the question which falls to be considered is whether the present appeal should be dismissed solely on the ground that the appellants did not apply for leave under the relevant clause of the Letters Patent of the Madras High Court. There is no doubt that if a party wants to avail himself of the remedy provided by article 136 in cases where the decree of the High Court under appeal has been passed under section 100 C. P. C., it is necessary that the party must apply for leave under the Letters Patent, if the relevant clause of the Letters Patent provides for an appeal to a Division Bench against the ,decision of a single Judge. Normally, an application for special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent Appeal has been availed of. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that article 133(3) expressly provides that normally an appeal will not lie to this Court from the judgment, decree, or final order of one Judge of the High Court, It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such cases, it is necessary that the remedy 53 by way of a Letters Patent Appeal must be resorted to before a party comes to this Court. Even so, we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this Court under article 136, it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this Court under article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this Court has to decide on the facts of each case. In dealing with the respondents ' contention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had not applied for leave under the relevant clause of the Letters Patent it is necessary to bear in mind one relevant fact. If at the stage when special leave is granted, the respondent caveator appears and resists the grant of special leave on the ground that the appellant has not moved for Letters Patent Appeal, and it appers that the said ground is argued and rejected on the merits and consequently special leave is granted, then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. If, however, the caveator does not appear, or having appeared, does not raise this point, or even if he raises the point the Court does not decide it before granting special leave, the same point can be raised at the time of final hearing. In such a case, there would be no technical bar of res judicata, and the de cision on the point will depend upon a proper consideration of all the relevant facts. Reverting then to the main point raised by the appellants in this appeal, we do not think we would be justified in refus ing to deal with the merits of the appeal solely on the round that the appellants did not move the learned single Judge for leave to prefer an appeal before a Division Bench of the Madras High Court. The infirmity in the judgment under appeal is so glaring that the ends of justice require that we should set aside the decree and send the matter back to the Madras High Court for disposal in accordance with law. The limitations placed by section 100, C.P.C., on the jurisdiction and powers of the High Courts in dealing with second appeals are well known and the procedure which has to be followed by the High Courts in dealing with such appeals is also well established. In the present case, the learned Judge has passed an order which reads more like an award made by an arbitrator who, 54 by terms of his reference, is not under an obligation to give reasons for his conclusions embodied in the award. When such a course is adopted by the High Court in dealing with second appeals, it must obviously be corrected and the High Court must be asked to deal with the matter in a normal way in accordance with law. That is why we think we cannot uphold the preliminary objection raised by Mr. Rajagopal Sastri, even though we disapprove of the conduct of the appellants in coming to this Court without attempting to obtain the leave of the learned single Judge to file a Letters Patent Appeal before a Division Bench of the Madras High Court. Therefore, without expressing any opinion on the merits of the decree passed in second appeal, we set it aside on the ground that the judgment delivered by the learned judge does not satisfy the basic and legitimate requirements of a judgment under the Code of Civil Procedure. The result is, the appeal is allowed, the decree passed by the High Court is set aside and second appeal No. 91 of 1955 is sent back to the Madras High Court with a direction that it should be dealt with in accordance with law. The costs of this appeal would be costs in the second appeal. Appeal allowed.

A writ petition was filed in the Orissa, High Court by the father of the appellant challenging the validity of Shri Jagannath Temple Act, 1954. The petition was dismissed by High Court which held that the Act was valid and constitutional except section 28(2)(f). The High Court struck down that provision and upheld the constitutionality of the rest of the Act. The appellant came to this Court after obtaining a certificate of fitness to appeal to Supreme Court. The contentions raised before this Court were that the Act was discriminatory as the Jagannath Temple alone had been singled out for special treatment as compared to other temples in the State of Orissa. The Act took away the sole management of the Temple which had so far been vested in the appellant or his ancestors. section 15 (1) of the Act interfered with the religious affairs of the temple. The validity of sections 11, 19, 21, 21A and 30 of the Act was also attacked. Dismissing the appeal, Held: There is no violation of article 14 of the Constitution. The Jagannath Temple occupies a unique position in the State of Orissa, and is a temple of national importance and no other temple in that State can compare with it. It stands in a class by itself and considering the fact that it attracts pilgrims from all over India in large numbers, it could be the subject of special consideration by the State Government. A law may be constitutional even though it related to a single individual if on account of special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. (ii) There was no violation of article 19(1) (f) or article 31 (2) of the Constitution. All that the Act has done is that it has taken away the sole right of the appellant to manage the property of the Temple and another body has been set up in its place with the appellant as its Chairman. Such a process cannot be said to constitute the acquisition of the extinguished office or of the vesting of the rights in the person holding that office. The appellant occupied a dual position as Superintendent and Adya Sevak. His position as Superintendent hers gone and in that place he has become the Chairman of the Committee set up under section 6. The position of the applicant as Adya Sevak is safeguarded by section 8 of the Act inasmuch as the rights and privileges in respect of Gajapati Maharaja Seva axe protected even though he may cease to be Chairman on account of his minority or on account of some other reason. (iii) section 15(1) of the Act does not interfere with the religious, affairs of the Temple. Sevapuja of the Temple has two aspects. One aspect is the provision of materials and that is a secular, 33 function. The second aspect is the performance of the Sevapuja and other rights as required by religion. section 15(1) has nothing to do with the second aspect which is the religious aspect of Seva Raj puja. While section 15(1) imposes a duty on the committee to look after the secular aspect of the Sevapuja, it leave the religious part entirely untouched. (iv) Ss. 11, 19 and 21 were valid provisions and could not be attacked sections 5 and 6 constituting the committee in place of the Raja, were valid. 21A and 30 were also valid. articles 27 and. 28 had nothing to do with the matter dealt with under Act. It was not open to the appellant to argue that the Act was bad as it was hit by article 26(d). No such contention was _properly raised in the High Court. Tilkayat, Shri Govindlal ji vs State of Rajasthan, A.I.R. , referred to.

Appeal No. 221 of 1956. Appeal from the judgment and decree dated August 5,1955, of the Bombay High Court in Appeal No. 128/X of 1954. section N. Andley, J. B. Dadachanji, Rameshwar Nath and ,P. L. Vohra, for the appellants, 654 A V. Viswanatha Sastri and Tarachand Brij mohan Lal. for the respondents. January 31. , J. This appeal which has come to this Court with a certificate issued by the Bombay High Court raises for our decision a short and interesting question about the scope and effect of the provisions contained in section 89 of the Indian Companies Act, 1913, in relation to the law of banking. This question arises in this way. The appellant, the Oriol Industries, Ltd. (hereafter called the company) was incorporated on May 15, 1945, and it appointed as its managing agents M/s. Poddar Chack & Co. Soon after its incorporation the company passed a resolution on May 21, 1945, whereby it decided to open an account with the respondent, the Bombay Mercantile Bank, Ltd. (hereafter called the bank) and in accordance with the said resolution an account was opened with it on May 28, 1945. Twenty eight cheques were drawn on this account aggregating the total amount of Rs. 28,882 13 0 during the period between May 28, 1945 and July, 31, 1945. These cheques were drawn by K. Poddar and M. J. Chacko in pursuance of the authority conferred on them by the company. On September 28, 1948, by its liquidator the company brought the present suit claiming to recover from the bank the said amount of Rs. 28,882 13 0. The case for the company as set out in the plaint was that the payment of the said amount had been made by the bank wrongfully and negligently and the amount drawn under the said cheques had been wrongfully debited to the company in its account kept by the bank. It appears that the resolution for winding up of the company was held by the court to be null and void, and Bo the plaint was subsequently amended whereby the name of the liquidator was struck out and the suit then purported to be one which was instituted by the company itself The plea raised by the company that the cheques in question had been negligently 'and wrongfully honoured by the bank was 655 seriously disputed by the bank in its statement. Mr. Justice Tendolkar, who tried the suit on the Original Side of the Bombay High Court, however, upheld the plea raised by the company and came to the conclusion that the cheques had been wrongfully B, honoured. Even so, Mr. Justice Tendolkar held that out of the total amount in dispute an amount of Rs. 8,882 13 0 had been actually received by the company and so on equitable grounds he rejected the company 's claim in regard to the said amount. The company 's claim was, however, decreed in respect of the balance of Rs. 20,000. The decree thus passed by Tendolkar, J. was challenged by the bank in its appeal, whereas the rejection of the company 's claim in respect of Rs. 8,882 13 0 by the trial judge gave rise to cross objections by the company. The Court of Appeal has reversed the finding of Tendolkar, J., and has held that the bank was not liable to repay any amount to the company since it had accepted and honoured the cheques issued on it in good faith. It may be stated at this stage that the plea of negligence which had been originally urged by the company in its plaint was expressly given up at the trial. Since the Appeal Court accepted the bank 's case on the principal question of law it did not think it necessary to consider the question of limitation or the question about the applicability of the equitable doctrine on which the trial judge had relied. In the result the appeal filed by the bank was allowed, the cross objections preferred by the company were rejected, and the suit filed by the company was dismissed with costs. The company then moved the High Court for a certificate, and on a certificate being granted it has come to this Court; and on its behalf Mr. Andley has urged that in coming to the conclusion that the company 's claim was unsustainable the Appeal Court has misjudged;the effect of the provisions of section 89 of the Indian Companies Act in relation to the conduct of the bank in the present case. That is how the principal question which falls for our decision is about, the scope and effect of the provisions of s, 89 of the Indian Companies Act. 84 656 Before dealing with the said question of law it is necessary to dispose of a minor point raised by Mr. Andley. He contends that the cheques issued by K. Poddar and M. J. Chacko and honoured by the bank had not been issued in the form required by the resolution which gave them authority to operate on the company 's account with the bank. The relevant resolution passed by the company provided that "the banking accounts of the company be opened with the bank and another bank and that the said banks be and hereby authorised to honour cheques, bills of exchange and promissory notes, drawn, accepted or made on behalf of the company by the Managing Agents M/s. Poddar Chacko & Co., by both the Directors of the Managing Agents firm, namely, Mr. Keshavdeo Poddar and Mr. M. J. Chacko and to act on any instructions so given relating to the account whether the same be overdrawn or not or relating to the transactions of the company. " The argument is that two conditions had to be satisfied before the bank could accept a cheque issued under this resolution; the cheque had to be signed by both the Directors of the Managing Agents firm, and it had to be drawn on behalf of the company. In point of fact, all the cheques have been signed by the two individuals without describing themselves as Directors of the Manging Agents firm and without showing that they had drawn them on behalf of the company. These defects, it is urged, made the cheques irregular and inconsistent with the mandatory requirements of the resolution, and the bank was there fore not justified in honouring the said cheques. In our opinion, this argument is unsound. On a fair and reasonable construction of the resolution it is difficult to uphold the contention that the resolution required the drawers of the cheques to specify on each cheque that they were made or drawn on behalf of the company. The object of the resolution as well as its effect merely was to conform to the requirements of a. 89 of the Indian Companies Act to which we will presently refer. It cannot be said that the resolution required that the drawers of the cheques had to comply with the said condition apart from the requirements of section 89 ; and so it would be unreasonable 657 to treat the said requirement as a condition prescribed by the resolution independently of section 89. In this connection the subsequent resolution passed by the company is significant. It appears that on October 22, 1945, a resolution was passed by the, company authorising M. J. Chacko to sign cheques for the company, and when this resolution was communicated to the bank it was told that the cheques on behalf of the company would thereafter be signed as: it For and on behalf of the Oriol Industries Limited, For Poddar Chacko & Co."; in other words, by this communication the bank was told that it is only cheques signed by M. J. Chacko in the manner specified in the communication that the bank should honour. This communication affords an eloquent contrast to the communication made by the company to the bank in regard to the earlier resolution by which M/s. Poddar and Chacko were authorised to issue cheques on its behalf Therefore, in our opinion, the argument that the impugned cheques accepted by the bank were inconsistent with the specific mandatory requirements authorised by the resolution cannot be accepted. That takes us to the principal question of law. In dealing with the said question it is first necessary to refer to section 26 of the (26 of 1881). This section provides that " every person capable of contracting according to the law to which he is subject, may bind himself and be bound by the making, drawing, acceptance, endorsements, delivery and negotiation of a promissory note, bill of exchange or cheque." This section further provides, inter alia, that " nothing herein contained shall be deemed to empower a corporation to make, indorse or accept such instruments except in cages in which, under the law for the time being in force, they are so empowered. " This section does not purport to make any provision of substantive or procedural law. The latter part of the section merely brings out that a company cannot claim authority to issue a cheque under its first part. The law in regard to the company 's power to issue negotiable instruments has to be found in the relevant provisions of the Companies Act 658 itself We must, therefore, turn to section 89 of the said Act. Section 89 provides that " a bill of exchange, hundi or promissory note shall be deemed to have been made, drawn or accepted or endorsed on behalf of a company if made, drawn, accepted or endorsed in the name of, or by or on behalf of, or on account of, the company by any person acting under its authority express or implied. " It is clear that in order that a company may be bound by a negotiable instrument purporting to have been issued on its behalf two conditions must be satisfied; the instrument must be drawn, made, accepted or endorsed in the name of or by or on behalf of or on account of the company, and the person who makes, draws, endorses or accepts the instrument must have the authority given to him by the company on that behalf. This authority may be either express or implied. There is thus no doubt that before a company can be bound by a negotiable instru ment one of the essential conditions is that the instrument on its face must show that it has been drawn, made, accepted or endorsed by the company. This may be done either by showing the name of the company itself on the instrument, or by the statement of the person making the instrument that he is doing so on behalf of the company. In other words, unless the plain tenor of the negotiable instrument on its face satisfies the relevant requirement the instrument cannot be validly treated as an instrument drawn by the company. This position is not disputed. The importance and significance of the said requirement can be illustrated by reference to a decision of the Privy Council which had occasion to consider a similar requirement under section 27 of the . The said section provides that "every person capable of binding himself or of being bound, as mentioned in Section 26, may so bind himself or be bound by a duly authorised agent acting in his name." In Sadasuk Janki Das vs Sir Kishan Pershad (1) the Privy Council held that the name of the person or the firm to be charged upon a negotiable document should be stated clearly on the face or on (1) Cal. 659 the back of the document so that the responsibility is made plain and can be instantly recognised as the document passes from hand to hand. It is not sufficient that the name of the principal should be in some way disclosed; it must be disclosed in such a way that, on any fair interpretation of the instrument his name is the real name of the person liable on the bill. " According to the Privy Council " sections 26, 27 and 28 of the contained nothing inconsistent with the principles just set out, and there was nothing to support the contention urged before it that in an action on a bill of exchange or promissory note against a person whose name properly appears as a party to the instrument it is open either by way of claim or defence to show that the signatory was in reality acting for an undisclosed principal. " This decision was no doubt given under section 27 of the , but the principles enunciated in it apply with equal force to a negotiable instrument issued under section 89 of the Indian Companies Act. The inevitable consequence of this requirement is that wherever a negotiable instrument is issued without complying with the said requirement it would not bind the company and cannot be enforced against it. In The Bank of Bombay vs H. R. Cormack (1) it was held by the Bombay High Court that in order to make a company liable on a bill or note it must appear on the face of such bill or note that it was intended to be drawn, accepted or made on behalf of the company, and no evidence dehors the bill or note is admissible under section 47 of the Indian Companies Act, X of 1866, equal to section 89 of the present Act. In support of this decision Sargent, C.J., has cited the observations of Lord Justice James in Miles ' Claim (2) " that it is the law of this country, and always has been the law of this country, that nobody is liable upon a bill of exchange, unless his name, or the name of some partnership, or body of persons of which he is one, appears either on the face or the back of the bill. " Thus there can be no doubt that the failure to comply with the essential requirements of section 89 must necessarily mean that the.negotiable instrument in question (1) Bom. (2) 643. 660 defectively issued cannot be enforced against the company. But the question which arises for our decision is whether this principle can be invoked in the present case where the action is not based on a negotiable instrument. The present dispute is between the bank and its constituent the company, and the claim made 'by the latter proceeds on the assumption that in honouring the cheques irregularly drawn the bank has acted improperly and exposed itself to the charge that it has honoured the cheques wrongfully and improperly. In considering this question it may be relevant to recall that both the courts below have found that the bank has acted bona fide and that the charge of negligence levelled against it by the company had been expressly given up. It is also necessary to bear in mind that when the company opened its account with the bank it was furnished with a book of cheques and it is from the said book that the impugned cheques have been issued. Evidence also shows that K. Poddar and M. J. Chacko had no other joint account with the bank so that it is clear that when the impugned cheques were issued the bank was justified in thinking that the said cheques must have been issued by the two drawers on behalf of the only account on which they could operate, and that the bank thought was done in pursuance of the authority conferred on them by the company by its resolution. In such a case, if the bank honours the cheques can it be said that the company on whose behalf the cheques were purported ,to have been issued can contend that the cheques should not have been honoured and that the amount debited to the company by the bank in its accounts has been improperly and wrongfully debited? It would be noticed that the principle underlying section 89 which is a very healthy and salutary principle affords to the companies protection against claims made on negotiable instruments defectively or irregularly drawn; but, when we deal with a dispute between a company and the bank of which it is a constituent it is difficult to extend the said principle. The said principle in terms is applicable only when a claim is made against a company on a negotiable instrument; in other words, 661 it is only in the matter of enforcement of negotiable instrument against a company that the principle comes into play. It is, therefore, difficult to see how the principle enunciated in section 89 can be extended to a claim made by the company against the bank. In our., opinion, therefore, the High Court was right in coming to the conclusion that section 89 cannot be invoked by the company against the bank in making the present claim. The decisions on which the company relied are all decisions in cases where a negotiable instru ment was sought to be enforced against the company and had thus given rise to a cause of action. No case has been cited before us in which section 89 has been extended to a claim like the present. On the other hand, there is authority of the House of Lords in support of the view which the High Court has taken in the present case. In Mahony vs East Holyford Mining Co. (1), a similar point arose for the decision of the House of Lords. One of the two points in that case had reference to eight cheques which had been defectively or irregularly drawn on behalf of the company and honoured by the bank. In reject ing the company 's claim against the bank in respect of the amount covered by the said cbeques Lord Chelmsford observed as follows: " With respect to the objection that the name of the company is not on eight of the cheques paid by the Bank, and therefore by the Companies Act, 1862, they are invalid, and the official liquidator is entitled, at all events, to the amount of these cheques the short answer is, that although the bankers might have perhaps required that these cheques should be made formally correct before they were paid; yet having paid them upon the demand of the only persons whom they knew as representing the company in the operations upon the account, there is not the slightes t pretence for insisting upon the liability of the Bank to repay the amount of these cheques on the ground of an unauthorised payment of them. " The Lord Chancellor Lord Cairns disposed of the point in these words: " The question being merely as (1) (1875) 7 Eng. & Irish Reports, 869, 662 to the authority given to the bankers to make the payment, it appears to me that when those who drew and those who honoured the cheque knew the account on which it was intended to operate, the result was ,the same as if the account had been mentioned on the face of the cheque, and that no distinction is to be made as to the money paid upon these cheques." Lord Penzance agreed with this opinion and observed that " looking at the way in which the cheques were drawn, and understood by those who drew them, and by those who paid them, they stand in no different way from the rest of the cheques in the case. " It would thus be clear that the authority of this decision of the House of Lords is in favour of the view taken by the High Court that the principle enunciated by section 89 of the Indian Companies Act cannot be extended to a claim made by a company against its bank on the ground that the cheque which the bank accepted and honoured was defective in that it did not comply with the requirements of section 89 and could not have been enforced against it. We ought to add that section 47 of the corresponding English Act of 1862 is exactly in the same terms as section 89 of the Indian Act. It also appears that Chalmers has expressed the same opinion for he says, ,So, too, bankers may be justified in paying cheques out of the funds of a company, where clearly, by the form of the cheques the company would not be liable as drawers if they should not be paid " (1). Similarly, Halsbury approves of the same principle in these words: " although documents omitting the name of the company therefore cannot be relied on as against the company, monies paid under them to persons known to represent the company are not on that account payable over again " (2). The result is the appeal fails and is dismissed with costs. Appeal dismissed. (1) Chalmers on " Bills of Exchange ", P. 63. (2) Halsbury 's Laws of England, 3rd Edn., Vol. , paragraph 830.

The Managing Agents of the appellant company withdrew certain sums of money from its a count with the respondent (1) Mad. 871. (2) Lah. (3) (4) I.L.R. (5) (6) Pat. 106 (7) (1953) I.L.R. K. All. 64. (8) Pat. 653 Bank, which the company had by a resolution authorised the Managing Agents to operate on. The Managing Agents had no other account with the said Bank. The company brought the suit, out of which the present appeal arises, against the Bank for recovery of the said amounts on the ground that the cheques issued by the Managing Agents had been wrongfully honoured by the Bank in that they were signed by them without describing themselves as Directors of the Managing Agents firm and on behalf of the company, as required by the resolution. The trial judge decreed the suit except with regard to a part of the claim which he found to have actually been received by the company. The appeal court dismissed the suit holding that the Bank had paid in good faith and that the company was not entitled to rely on section 89 of the Indian Companies Act. Held, that the court of appeal was right in holding that section 89 of the Indian Companies Act could not be invoked by the appellant in the present case. There can be no doubt that before a negotiable instrument can be enforced against a company under section 89 of the Indian Companies Act, it must on the face of it show that it was drawn, made, accepted or endorsed by the company, and this may be done either by showing the name of the company itself on the instrument, or by statement of the person making the instrument that he was doing so on behalf of the company. Sadasuk janki Das vs Sir Kishan Pershad, Cal. 663, applied. The Bank of Bombay vs H. R. Cormack, Born, 275 and Miles ' claim, , referred to. But the said principle is applicable only to the claim made against a company on a negotiable instrument and cannot be extended to a dispute between a bank and its constituent where the claim is not so based and proceeds on the basis that in honouring the cheques wrongfully drawn the bank acted improperly. Mahony vs East Holiford Mining Co., (1875) 7 Eng. & Irish Reports 869, referred to. Held, further, that the object of the resolution as well as its effect was merely to conform to the requirements of section 89 of the Indian Companies Act, 1913, and not to prescribe any condition precedent independently of that section.

Appeal No. 24 of 1958. Appeal by special leave from the judgment and order dated October 4, 1956, of the former Bombay High Court in I.T.A. No. 49 of 1956. R.J. Kolah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant. K.N. Rajagopal Sastri and D. Gupta, for the respondent. September 22. The Judgment of the Court was delivered by S.K. DAS J. For the assessment year 1946 47 the appellant Homi Jehangir Gheesta was assessed to income tax on a total income of Rs. 87,500 under section 23(3) of the Indian Income tax Act, 1922. The circumstances in which he was so assessed were the following. The appellant 's case was that M. H. Sanjana, maternal grand father of the appellant, died on or about May 10, 1920. There was litigation between his widow Cursetbai and Bai Jerbanoo, Sanjana 's daughter by his first wife, about the validity of a will left by Sanjana. Bai Jerbanoo was the appellant 's mother. The litigation was compromised and the appellant 's mother got one third share in the estate left by Sanjana the total value of which estate was about Rs. 9,88,000. Bai Jerbanoo died in 1933, leaving her husband Jehangirji (appellant 's father), her son Homi (appellant) and a daughter named Aloo. It was stated, though there was no evidence thereof, that Bai Jerbanoo left an estate worth about Rs. 2,10,000 when she died. The appellant was a minor at the time of 772 his mother 's death. He had two uncles then, Phirozeshaw and Kaikhusroo. Phirozeshaw was the eldest member of the family. On his mother 's death the appellant 's share of the estate was Rs. 70,000. Phirozeshaw took charge of it and made investments. He died on December 12, 1945. Kaikhusroo, younger brother of Phirozeshaw and one of the executors of his will, took charge of the estate of Phirozeshaw. When he opened a safe belonging to Phirozeshaw he found a packet with the name of the appellant on it. That packet contained high denomination currency notes of the value of Rs. 87,500. On January 24, 1946, the appellant tendered those notes for encashment and made a declaration which was then necessary and in the declaration he said: "Legacy from my mother who died in 1933 when I was minor and money whereof was invested from time to time by my father and late uncle Phirozeshaw who recently died." When the appellant received a notice from the Income tax Officer to submit a return of his income for the relevant year, he submitted a return showing " nil " income. When asked about the high denomination notes which he had uncashed, he said in a letter dated January 7, 1947, that his uncle Phirozeshaw who used to manage his estate during his minority handed over to him and his father the sum of Rs. 87,500 sometime before his (i. e., Phirozeshaw 's) death in 1945. This was a story different from the one later given, about the opening of the safe by Kaikhusroo after Phirozeshaw 's death and the finding of a packet there in the name of the appellant. The appellant also filed an affidavit before the Income tax Officer on September 29, 1949, which also contained contradictory statements. On a consideration of all the materials before him, the Income tax Officer did not accept the case of the appellant but came to the conclusion that the true nature of the receipt of Rs. 87,500 was not disclosed. He treated the amount as appellant 's income from some source not disclosed and assessed him accordingly. The appellant preferred an appeal to the Assistant 773 Commissioner of Income tax. At the appellate stage the statements of the appellant 's father and uncle were taken by the Income tax Officer, D 11 Ward, Bombay, and a further statement of the appellant 's uncle Kaikhusroo was taken by the appellate authority. That authority came to the same conclusion as the Income tax Officer had come to. Then there was an appeal to the Income tax Appellate Tribunal, which again reviewed the facts of the case. The Tribunal pointed out the following important discrepancies in the case sought to be made out by the appellant: "(i) Declaration dated 24 1 1946 by the assessee says that mother 's legacy was invested " by my father and my late uncle Phirozeshaw ". His letter dated 7 1 1947 says that his uncle (i. e., Phirozeshaw) only managed his estate. The object of this variation is obviously to shield his father from inconvenient examination. The uncle had already departed for his eternal home. (ii)Assessee 's letter dated 7 1 1947 says that the uncle Phirozeshaw handed over money " to me and my father " before his death. The affidavit dated 29 9 1949 tells another story, viz., the executor Kaikhusroo handed over money to the assessee after Phirozeshaw 's death. In another part of the said affidavit it is said that the said executor handed over money to assessee 's father. The affidavit assures us that the declaration regarding high denomination notes was made on the information given him by his father. The assessee son nowhere refers to any " packet ". Indeed, the theory of " packet " was pronounced by the Executor Kaikhusroo only when he appeared before the Income tax Officer on 22 2 1952. (iii) In his statement dated 22 2 1952 Mr. Kaikhusroo says that he " found an envelope containing Rs. 87,500 1 took charge of this money and handed over the money to Homi." Before the Appellate Assistant Commissioner H. Range, the same Mr. Kaikhusroo later on said: " I handed over the packets as they were. I did 774 not count the Dotes or verify the contents. " Some of the answers given as to " receipts " and " inventory " by the executor Kaikhusroo show that he did not take even the reasonable precautions that an ordinary person would take, not to talk of an executor. " The Tribunal then expressed its conclusion thus: " We have, in these circumstances, no hesitation whatever in holding that the assessee has miserably failed to explain satisfactorily the source of the sum of Rs. 87,500. It is properly taxed as income. " It dismissed the appeal by its Order dated October 7, 1955. The appellant then moved the Tribunal to refer certain questions of law to the High Court, which questions according to the appellant arose out of the Tribunal 's order. The Tribunal held that no question of law arose out of its order dated October 7, 1955, and by its order dated March 8, 1956, dismissed the application of the appellant for a reference under section 66 of the Income tax Act, 1922. The appellant unsuccessfully moved the Bombay High Court by means of a petition under section 66(2). This petition was summarily dismissed by the High Court on October 4, 1956. The appellant then filed a petition for special leave to appeal to this Court. By an order dated December 3, 1956, this Court granted Special Leave to Appeal to this Court from the order of the Bombay High Court dated October 4, 1956, but made no order at that stage on the petition for special leave to appeal from the orders of the Tribunal dated October 7, 1955, and March 8, 1956. The present appeal has been filed pursuant to the special leave granted by this Court. The short point for consideration is this was the High Court right in summarily rejecting the petition under section 66 (2) ? In other words, did the order of the Tribunal dated October 7, 1955, on the face of it raise any question of law ? On behalf of the appellant it has been argued that the principles laid down by this Court in Dhirajlal Girdharilal vs Commissioner of Income tax, Bombay (1) apply, because though the decision of the (1) 775 Tribunal is final on a question of fact, an issue of law arises if the Tribunal arrives at its decision by consider ing material which is irrelevant to the enquiry, or by considering material which is partly relevant and partly irrelevant, or bases its decision partly on conjectures, surmises and suspicions. It is contended that on the face of it the decision of the Tribunal suffers from all the three defects mentioned above. Learned Counsel for the appellant has made a grievance of that part of the order in which the Appellate Tribunal states: " We were also not told why the deceased uncle, if he took charge of the minor 's money, did not hand it over to Bai Aloo when she became major in 1939 or even when she got married in 1944 ". It is contended that this was an irrelevant consideration, and Bai Aloo herself made a statement before the Income tax Officer, D II Ward, Bombay, on February 22, 1952, in which she indicated the cir cumstances how she also received a sum of Rs. 85,000 from her uncle Phirozeshaw before the latter 's death. She further stated that she also submitted a return to the Income tax Officer but was not subjected to any assessment on the sum received. The argument of learned Counsel for the appellant is that it was not a relevant consideration as to why Phirozeshaw did not hand over the money to Bai Aloo in 1939 or in 1944, and if Bai Aloo 's statements were to be taken into consideration, they were in favour of the appellant in as much as no assessment was made on Bai Aloo in respect of the sum she had received. We do not consider that the circumstances referred to by the Tribunal in connection with Bai Aloo 's statement were irrelevant. What the Tribunal had to consider was the correctness or otherwise of a story in which the mother was stated to have left Rs. 2,10,000 out of which the heirs got one third share each. The Tribunal had to consider each aspect of the story in order to judge of its probability and from that point of view it was a relevant consideration as to why Bai Aloo 's money was not paid when she became major or when she got married. It was also a relevant consideration as to what the father of the appellant did with his 776 share of the money and the Tribunal rightly pointed out that the father took cover tinder "mixing of investments ". These were relevant considerations for judging the probability of the story. The Tribunal also rightly pointed out that the fact that Bai Aloo was not assessed did not make the story any more probable. The Tribunal stated in its order that a summons was issued to the father by the Income tax Officer to appear before the latter on June 23, 1950. The father failed to comply with the summons. This circumstance, it is argued, should not have been used against the appellant, because the record showed that the summons was served on the father on June 22, 1950, for attendance on the next day and the father wrote a letter stating that it was not possible for him to attend on the next day and, therefore, asked for another date. We do not think that this circumstance vitiates the order of the Tribunal which was based on grounds much more substantial than the failure of summons issued against him. The father was actually examined later and his statements were taken into consideration. One point made by the Tribunal was that no explanation was forthcoming as to why the uncle took charge of the share of the appellant and his sister when their father was alive and why the father allowed himself to be effaced in the matter of custody and management of the funds belonging to his children. We consider that this circumstance was also a relevant consideration, and if the father was in a position to give an explanation, he should have done so when he made his statement before the Income tax Officer, D 11 Ward, Bombay, on February 8,1952. The Tribunal states: " We were also told that the assessee was taking his education between 1943 and 1950 and as such he bad no opportunity to earn any income. In a place like Bombay and particularly in the family of a businessman, a person may earn even when he learns. " These observations of the Tribunal has been very seriously commented on by learned Counsel for the appellant. Learned Counsel has stated that certificates from the school, college and 777 university authorities were produced by the appellant right upto 1950 which showed that the appellant was a student till 1950 and after seeing the certificates the Tribunal should not have said " We were also told etc. " According to learned Counsel this showed that, the finding of the Tribunal was coloured by prejudice. We are unable to agree. Even if it be taken that the appellant satisfactorily proved that he was a student till 1950, we do Dot think that it makes any real difference as to the main question at issue, which was whether the appellant received the sum of Rs. 70,000 from the estate of his mother, later increased by investments to Rs. 87,500 in 1945. The Tribunal rightly pointed out that no evidence was given of the value of the estate left by the mother, though there was some evidence of what the mother received from the estate of her father Sanjana; nor was there any evidence of the investments said to have been made which led to an addition to the original sum of Rs. 70,000. It has been argued that it was a mere surmise on the part of the Tribunal to say that in a place like Bombay a person may earn when be learns. Even if the Tribunal is wrong in this respect, we do not think that it is a matter of any consequence. We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with the due care; whether the evidence pro and con has been considered in reaching the final conclusion ; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned Counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned Counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in Dhirajlal Girdharilal vs Commissioner of Income tax, Bombay (1) or Omar Salay Mohamed Sait vs Commissioner of Income tax, Madras(2). We must make (1) (2) 778 it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions. It has also been argued before us that even if the explanation of the appellant as to the sum of Rs. 87,500 is not accepted, the Department did not prove by any direct evidence that the amount was income in the hands of the appellant. We do not think that in a case like the one before us the Department was required to prove by direct evidence that the sum of Rs. 87,500 was income in the hands of the appellant. Indeed, we agree that it is not in all cases that by mere rejection of the explanation of the assessee, the character of a particular receipt as income can be said to have been established; but where the circumstances of the rejection are such that the only proper inference is that the receipt must be treated as income in the bands of the assessee, there is no reason why the assessing authorities should not draw such an inference. Such an inference is an inference of fact and not of law. For the reasons given above we are of the view that no question of law arose from the order of the Tribunal and we see no grounds for interference with the judgment and order of the Bombay High Court, dated October 4, 1956. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

The firm consisting of the appellant and another, carrying on managing agency business, was on March 31, 1951, assessed to excess profits tax for the year 1942 and the broken period from January, 1943 to March 4, 1943. The prescribed notices were served not on the appellant but on the other partner who, under the terms of the partnership deed, was the managing partner. On March 4, 1943, the managing partner gave notice of dissolution of the firm and thereupon the appellant sued him for dissolution from such date as might be specified by the court. The trial Court upheld the dissolution as and from the date notified by the managing partner but on appeal the High Court by its judgment rendered in 1953 fixed March 10, 1949, as the date of the dissolution. An appeal taken to the Supreme Court from this decision of the High Court was still pending. The appellant challenged the validity of the order of assessment and the consequent proceedings for recovery of the tax assessed, under article 226 of the Constitution on the grounds, (a) that there was a dissolution of the firm on March 4, 1943, and that notices served thereafter on the managing partner would not bind him, (b) that there was no demand of the tax due from him under section 29 of the Indian Income tax Act and that, consequently, the tax could not be recovered from him under section 46(2) of the Act, but the High Court dismissed his application. Held, that the appellant could not be allowed to plead a prior dissolution and the assessment was binding on him. Even assuming that the partnership stood dissolved on the date of the assessment, his position would not be different. Under the Excess Profits Tax Act, 1940, the unit of assessment was not the firm but the business, and an order of assessment passed after notice to the managing partner would be valid and binding on the appellant under section 44 of the Indian Income tax Act, 1922, as modified by the Central Board of Revenue under section 21 of the Excess Profits Tax Act, 1940. A.G. Pandu Rao vs Collector of Madras, (1954) 26 I.T. R. 99 and Bose vs Manindra Lal Goswami, , approved. 789 No separate notice of demand under section 29 of the Indian Income tax Act, specifically addressed to the appellant, was necessary in order to recover the tax by the mode prescribed by section 46(2) of the Act. Under the proviso to section 21 of the Excess Profits Tax Act, 1940, the appellant was an assessee within the meaning of section 29 of the Indian Income tax Act, 1922, and the notice of demand served on the managing partner was notice to the appellant by virtue of section 63 of the latter Act made applicable by section 21 of the former.

Appeal No. 1943 of 1966. Appeal from the judgment and decree dated March 7, 1962 of the Calcutta High Court in Appeal from Original Decree No. 173 of 1956. section V. Gupte and D. N. Mukherjee, for the appellants. Purushottam Chatterjee, P. K. Chatterjee and Rathin Das, for respondent No. 2. The Judgment of the Court was delivered by Shah, J. One Sashi Bhusan was possessed of a piece of land at Mouza Behala District 24 Parganas admeasuring 98 acres. The land devolved on the death of Sashi Bhusan in 1920 upon his daughter Sarala. Under the Dayabhaga system of law; Sarala inherited the property of her father as a limited owner. Sarala married Kunja Behari. The latter died in 1937 leaving him surviving Sarala, two sons Tulsi and Gobinda, and four daughters were married during the life time of Kunja Behari. Kunja Behari left no estate except a residential house constructed on the land at Mauza Behala. Kunja Behari was ailing for about one year before his death in 1937. He was in an humble walk of life, and was apparently not profitably employed during his life time. At the time of his death the two sons Tulsi and Gobinda were minors. On October 22, 1941, Sarala executed a deed, Ext. E, agree ing to sell a part of the land (.90 acres) for Rs. 1,100/ to Chapalabala wife of Sakha Nath Ghosh. It was recited in the agreement of sale that Sarala had agreed to sell 90 acres of land possessed by her 'on account of financial need and to pay off certain debts". Sarala acknowledged receipt of Rs. 101/ as earnest money. It appears that Sarala was for some time thereafter disinclined to carry out the bargain. However on March 13, 1942 she executed a deed, Ext. C, conveying the land agreed to be sold for a consideration of Rs. 1,500/ to Chapalabala and Banikana. It was recited in the deed : "Now on account of financial needs and to meet certain debts and out of other legal necessity, I announced to sell 90 acre land at rent of Rs. 23/ per annum free from defects and encumbrances leaving a 605 portion of homestead land measuring. 08 acre. " It was also recited in the deed that Rs. 101/ were paid on the date of the agreement of sale, that Sarala had received Rs. 899/ before the date of sale, and Rs. 500/ were paid to her in the presence of the Sub Registrar. An endorsement of payment of Rs. 500/ before the Sub Registrar was made by that Officer. The thumb mark of Sarala was attested by Abinash Chandra Chakravarty and the deed was attested by four persons including her son Gobinda. On the date of the sale the rent in respect of the land was in arrears. It also appears that before the date of sale Mangala had been given in marriage and the youngest daughter Radha remained to be married. Sarala had also to provide for food and clothing for at least five persons. Sarala had only a residential house and the land in dispute and she had no source of income. Sarala died on April 12, 1950. On January 24, 1953 Tulsi and Gobinda sons of Sarala filed a suit in the Court of the Subordinate Judge, 24 Parganas, for a decree declaring that the sale deed dated March 13, 1942, executed by Sarala was not binding upon the plaintiffs, because it was executed without legal necessity. The suit was resisted by Chapalabala and Banikana (defendants 1 & 2) and by alianees of the land from them. The Trial Court held that the sale deed was supported by legal necessity. The learned Judge observed that Sarala was in " strained financial circumstances", and she executed the sale deed to meet expenses for maintaining herself and her family, and for payment of debts. She had, to meet municipal taxes, rent for the land, and expenses for the marriage of her daughter Radha. The learned Judge observed that the plea that execution of the sale deed was obtained by fraud, misrepresentation and undue influence was not seriously pressed "inasmuch as there was no evidence worth the name adduced" to support that case. Against the decree dismissing the suit the plaintiffs appealed to the High Court. the view of the High Court there was "no such serious and sufficient pressure on the estate" of Sarala as to compel her to sell her property, and the case of the plaintiffs that she was induced to do so "by persuasion and undue influence" of Sakha Nath Ghosh husband of defendant I must be accepted. The High Court also observed that it was doubtful whether even full consideration for the sale was paid. The High Court held that the defendants ' case of legal necessity was not proved and on that account the sale deed executed by Sarala was not binding upon the plaintiffs. But because one Dhiren Chandra an intermediate transferee was not made party to the suit and Dhiren Chandra had obtained a fresh settlement the High Court was of the opinion that the decree of the Trial Court in respect of 10 cotta has out of the land sold by Sarala could not be reversed. The High Court accordingly modified the decree passed by the Trial Court and allowed the appeal in part, and dismissed the plaintiffs ' suit against defendants 4, 5, 6 and 16 in respect of 10 cottahas of land in the northern part of the land. The plaintiffs were given by the decree opportunity to amend the plaint by making a claim for actual possession which was, not till then claimed in the plaint. Accordingly the suit was decreed in respect of the remaining defendants in respect of the portion of the land not covered by 10 cottahs in posses sion of defendants 4, 5, 6 and 16. With certificate granted by the High Court, the heirs of original defendants 2 and 3 have appealed to this Court. In the plaint it was averred in paragraphs that Sarala was "illiterate and unpractical in worldly matters", that "she was a simple and pardanashin lady", that Sakha Nath Ghosh husband of Chapalabala was an "officer" of one of the partner of the famous Roy family and was "shrewd and cunning", that Sarala called him "Dharamapita", and ustd to "depend upon him in many affairs" and used to be guided by his instructions, and on that account the said Sakha Nath and the husband of Banikana in collusion with the scribe made fraudulent representation and exercised undue influence over Sarala and got the sale deed executed in their favour. This plea was denied by the contesting defendants. At the trial no issue was raised and no evidence was led in support of that plea. It was conceded that the plea of fraud and undue influence could not be supported. The Trial Court observed : "Though it was also tried to be said that there was fraud, misrepresentation and undue influence exercised for the execution and registration of the Kobala (sale deed) yet that branch of argument was not seriously pressed inasmuch as there was no evidence worth the name adduced to show that there was really any fraud practised for the execution and registration of the kobala in favour of defendants 1 and 2 (Chapalabala and Banikana) by Sarala Bala Dasi." The High Court without adverting to this state of the record observed that the case of the plaintiffs that Sarala was induced to sell the land because of persuasion and undue influence of Sakha Nath Ghosh must be accepted. The High Court also observed that it was doubtful whether full consideration for the sale was paid, and that since Sakha Nath Ghosh was "a rent collector under one of Roy Babus of Behala, in order to grab the 607 valuable property belonging to Sarala he had induced Sarala to enter into a transaction of sale". These observations of the High Court are not supported by any evidence, and they seriously vitiate the appreciation of the evidence on record. In the sale deed it was expressly recited that Rs. 101/ were paid at the time of the agreement of sale. That recital was supported by the recital in Ext. E in the agreement of sale. It was also recited in the sale deed, Ext. C, that Rs. 899/ were received before the date of the sale, and Rs. 500/ were received before the Sub Registrar. Payment of Rs. 500/ is supported by the endorsement on the sale deed itself. It is true that apart from the recital about the payment of Rs. 899/ there is no other documentary evidence to prove that payment. The burden of proving that the consideration was not received by the vendor, however, lay upon the plaintiffs and no serious attempt was made to discharge that burden. The plaintiffs set up the case that Rs. 500/were taken back from Sarala after she left the Sub Registrar 's office. The High Court disbelieved this part of the case about repayment of the amount of Rs. 500/ by Sarala received by her before the Sub Registrar. The High Court observed that about the payment of the balance of the consideration, namely Rs. 899/ , "there was no evidence at all on the side of the defendants that the same was paid". In our judgment, the High Court misconceived the nature of the onus which lay upon the plaintiffs to prove that the consideration which it was recited in the deed was received by Sarala was not in fact received by her and a false recital was made. The recitals in the deed are supported by the testimony of Sailendra Nath Nandi who said that the entire consideration was received by Sarala. We are unable to accept the view of the High Court that the sale deed was not supported by full consideration. The agreement of sale and the sale deed were attested by Gobinda son of Sarala. Before us it was contended that Gobinda was at the date of the agreement of sale, and at the date of the sale deed, a minor and his attestation was of no value. But on this part of the case there is no reliable evidence. Jogindra Nath Mondal who wrote the two deeds was examined on behalf of the defendants. He deposed that Ext. E the agreement of sale was read over and the contents were explained to Sarala after it was written, and she understood the implications of the deed and also received Rs. 101/ . In his cross examination he stated that he had written down the deed according to what was said to him by Sarala, Gobinda and by Sakha Nath Ghosh and thereafter Sarala executed the deed. There is no reason to disbelieve the testimony of this witness. Abinash Chandra 608 Chakravarty who attested the sale deed Ext. C and the agreement of sale Ext. E could not be examined for he had died before the date of the trial. Attestation by him of the two deeds has significance. Gobinda Chandra Debnath a witness examined on behalf of the plaintiffs stated that the family of the plaintiffs had confidence in Abinash Chandra Chakravarty as he was "the friend and well wisher of the family". There is no ground for believing that Abinash Chandra Chakravarty who was present at the time of the execution and had attested the two deeds misused the confidence reposed in him and was guilty of being a party to the bringing into existence a deed containing false recitals to defraud Sarala and her sons. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited ,owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistance must be consi dered. Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity. Recitals in a deed of legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in ;evidence, their value varying according to the circumstances in which the transaction was entered into. The recitals may be used to corroborate other evidence of the existence of legal necessity. The, weight to be attached to the recitals varies according to the circumstances. Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession. Kunja Behari husband of Sarala had died in 1937 after a protracted illness : there is no reliable evidence that he left any property except the residential house, built on a part of the land which Sarala had inherited from her father. Sarala had two sons 609 who were then minors and two daughters who were yet to be married. There were five members in the ' family to be fed and clothed, and the marriage expenses of two daughters had to be met. The case that Tulsi the eldest son obtained gainful employment shortly after his father 's death and before the sale deed was executed was rightly disbelieved by the Trial Court. The story that Gobinda had taken to hawking vegetables has also been rightly disbelieved by the Trial Court. Sarala had to meet several obligations : she had to pay the annual rent accruing due. in respect of the land in dispute and also to pay municipal taxes :she had to feed and clothe herself and her children and to perform the marriage of her daughter Radha. She had no other property and she had no income. The recitals in the deed about the existence of pressure upon the estate are therefore amply corroborated by the circumstances. Mr. Purshottam Chatterjee appearing on behalf of the plain tiff 's contended that there was evidence only of the debts amounting to 75/ , Rs. 25/ as rent for the land payable to the head lessor and Rs. 50/ expenditure incurred for the marriage of the daughter Mangala. Counsel relied upon the recitals made in a. plaint filed in a suit for recovery of rent by the landlord against Sarala after the sale deed in which the rent for the years 1941, 1942 and 1943 was claimed. Counsel also relied upon the evidence that in the community to which Sarala belonged, the marriage of a daughter only costs Rs. 50/ . That evidence, in our judgment, is wholly unreliable. In any event apart from the obligation to pay rent and to meet the expenses of marriage of her daughter Mangala various other obligations had to be met. The argument that Sarala belonged to a community in which the male members used to be employed as "household servants" and that Tulsi and Gobinda were so employed is also not supported by any reliable evidence. In our judgment, the High Court ignored the strong inference which arose out of these Circumstances and especially out of the participation by Gobinda in the execution of the agreement of sale and the sale deed. In our view the case of the defendants 1 and 2 that the sale, deed was supported by legal necessity of Sarala was amply made out and the Trial Court was right in holding that the sale deed was executed for legal necessity. From the attestation by Gobinda one of the sons of the agreement of sale and the sale deed and the recitals in those deeds, viewed in the light of the other evidence, we are of the opinion that the level necessity set up by the defendants 1 and 2 is amply proved. It was urged before us that because the 10th defendant died before the certificate was given by the High Court for appeal to, 610 this Court, and the heirs of the 10th defendant were not brought on the record, the appeal abates in its entirety. There is, however, no clear evidence whether the 10th defendant died before or after the judgment of the High Court. Again, the plaintiffs had in the suit only claimed a relief for declaration that the alienation in favour of defendants 1 and 2, i.e. Chapalabala and Banikana made on March 13, 1942, was without legal necessity and was not binding upon them, and for a declaration of their title to the disputed land. The alienees from defendants 1 and 2 were, it is true, impleaded as parties, but no relief was claimed against them. Nor was any averment made in the plaint about the reasons for and the circumstances in which they were so impleaded. Since the plaintiffs only claimed relief against defendants 1 and 2, and that relief cannot be granted to the plaintiffs, we think, the circumstance that the heirs of the 10th defendant are not impleaded in this appeal does not affect the right of the defendants to claim that the appeal must be dismissed. The appeal is therefore allowed and the suit filed by the plaintiffs is dismissed with costs throughout. Y.P. Appeal allowed.

The South Indian Cinema Employees ' Association, a regis tered trade union whose members were the employees of the 24 cinema houses operating in the Madras City including some of the employees of the Prabhat Talkies, submitted to the Labour Commissioner a memorandum setting forth certain demands against their employers for increased wages etc. and requesting him to settle the disputes. The Labour Commissioner suggested certain, " minimum terms " which were accepted by some of the companies including the Prabhat Talkies and at a meeting of the employees of the Prabhat Talkies a resolution was passed to the effect that no action be taken about the demands of the Association. The Association decided to go on strike. The Labour Com missioner reported to the Government, and the Government made a reference to an Industrial Tribunal, the material portion of which " 'Whereas an industrial dispute has arisen between the workers was: and management of the Cinema Talkies in the Madras City in respect of certain matters and whereas in the opinion of His Excellency the Governor of Madras it is necessary, to refer the said industrial dispute for adjudication: now therefore etc. " The Prabhat 335 Talkies contended before the tribunal that as there was no dispute between them and their employees they should not be included in the reference or award, but the Tribunal did not exclude them and an award was passed, and the managing director of the Prabhat Talkies was prosecuted for non compliance with the award: Held by the Full Court, (i) that the Labour Commissioner 's report clearly showed that an industrial dispute existed between the management and the employees of the cinema houses; (ii) that as some of the workers of the Prabhat Talkies were members of the Union, and a reference could be made even when a dispute was apprehended, the Government had jurisdiction to make a reference even in respect of the Prabhat Talkies and the reference and the award were binding on the Prabhat Talkies. Held Per PATANJALI SASTRI C.J., MUKHERJEA, CHANDRA SEKHARA AIYAR and GHULAM HASAN JJ. (BosE J. dubitante) that the reference to the Tribunal under section 10 (1) of the , cannot be held to be invalid merely because it did not specify the disputes or the parties between whom the disputes arose. Per BOSE J. The order of reference must be read with the documents which accompanied it and there was sufficient compliance with section 10 (1) (c) of the even if the words " the dispute " in the said clause require the Government to indicate the nature of the dispute which the Tribunal is required to settle. Even if it is not legally necessary to indicate the nature of the dispute in a reference, it is desirable that that should be done. Per PATANJALI SASTRI C. T., MUKHERJEA, CHANDRASEKHARA AIYAR and GHULAM HASAN JJ. Though the Government will not be justified in making a reference under section 10 (1) without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or is apprehended in relation to an establishment or a definite group of establishments engaged in a particular industry and it is also desirable that the Government should, wherever possible, indicate the nature of the dispute in the order of reference, it must be remembered that in making a reference under section 10 (1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what, was referred by the Government, was not an industrial dispute within the meaning of the Act, and that, therefore, the Tri bunal had no jurisdiction to make the award But, if the dispute 336 was an industrial dispute as defined in the Act, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon, and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters. The Government must have sufficient knowledge of the nature of the dispute to be satisfied that it is an industrial dispute within the meaning of the Act, as, for instance, that it relates to retrenchment or reinstatement. But, beyond this no obligation can be held to lie on the Government to ascertain particulars of the disputes before making a reference under section 10 (1) or to specify them in the order. The adjudication by the Tribunal is only an alternative form of settlement of the disputes on a fair and just basis having regard to the prevailing conditions in the industry and is by no means analogous to what an arbitrator has to do in determining ordinary civil disputes according to the legal rights of the parties. Ramayya Pantulu vs Kuttti and Rao (Engineers) Ltd. [(1949) , India Paper Pulp Co. Ltd. vs India Paper Pulp Workers ' Union ([1949 50] F.C.R. 348), Kandan Textiles Ltd. vs Industrial Tribunal, Madras [(1949) and Western India Automobile Association 's case ([1949 50] 1 F.C.R. 321) referred to. Judgment of the High Court of Madras reversed.

Civil Appeal No. 1716 of 1969. Appeal by special leave from the award dated the 31st March, 1969 of the Labour Court, Kolhapur, Maharashtra in Reference (IDA) No. f 1968. B. Sen and I. N. Shroff, for the appellant. R. K. Garg, section C. Agarwal and V. J. Francis, for the respondent. The Judgment of the Court was delivered by GOSWAMI, J. The important question which has been pinpointed hl this appeal by special leave is whether when a domestic inquiry held by an employer is found by the labour court as violative of the principles of natural justice there is any duty cast upon that court to give an opportunity to the employer to adduce evidence afresh before it and whether to do so would vitiate its award. 362 In the present case the workman concerned was charged under the standing orders of the company for soliciting or collecting from the employees contributions for some purpose (allegedly purchase of microphone and loud speaker arrangements) within the factory premises. The workman denied the charge of soliciting or collecting contribution within the factory premises (for purchase of microphone and loudspeaker) but added that for this purpose I collect the said contribution outside the gate of the Company and this being so, such erroneous information supplied to you by someone should not be considered acceptable". After holding the domestic inquiry in which some witnesses were examined by the employer and cross examined by the workman and questioning the workman at the outset as well as at the end of the inquiry, the Enquiry Officer Submitted very brief report to the Works Manager (hereinafter the Manager) holding that the charges were established. He did not give any detailed reasons for preferring the evidence of the six witnesses examined on behalf of the employer in the inquiry to the version of the workman. The Manager after perusal of the report of the Enquiry officer passed the order of dismissal without adverting to the evidence in the inquiry. This was particularly necessary since the Enquiry Officer had not given his reasons for his finding. Another incident occurred during the inquiry before the Manager. The workman after answering the first question of the Manager. when another question was put, abruptly left the inquiry without paying any heed to the orders of the Manager and to persuasion of other officer resent asking him to wait. The dismissal order was passed the same afternoon. In this appeal we will proceed on the assumption that the domestic inquiry was rightly found by the labour court to be defective. The labour court is aware of the legal position that it was competent in this case to take evidence of the parties and come to its own conclusion on the merits of the case and to decide whether the order of dismissal was justified or not to enable it to consider about the relief, if any, to he awarded to the workman. The labour court, however, observed in its award that in the instant case no evidence regarding merits is led by the opponent before this Court. It is open to the Labour Court to hold an enquiry itself. But the opponent has chosen not to lead any evidence regarding the merits of the alleged misconduct. The natural result of vitiating the enquiry would therefore be to set aside the order of dismissal and to direct the reinstatement in service of the dismissed employee with all back wages". The question posed at the commencement of our judgment is thus highlighted by the aforesaid observations of the labour court and we are required to consider whether after the labour court comes to a decision about the inquiry being defective it has any duty to announce its decision in that behalf to enable the employer an opportunity to adduce evidence before it to justify the order on the charge levelled against a workman. 363 There is, however. no doubt that when the employer chooses to do so the workman will have his opportunity to rebut such evidence. There is also no doubt, whatsoever, that if the employer declines to avail of such an opportunity, it will be open to the labour court to make an appropriate award and the employer will thereafter be able to make no grievance on that score. In dealing with a case of dismissal of an industrial employee, this Court has time and again adverted to various principles and it is not necessary to recount all those decisions. It will be sufficient to concentrate our attention only on a few of the decisions so far as material for our purpose and which are also rightly referred to at the bar. The first case arising out of an award that has a material Bearing on the question is that of Workmen of Motipur Sugar Factory (Private) Limited vs Motipur Sugar Factory(1) which is a decision of four learned Judges. Inter alia, the question that arose in that appeal was as to whether, since the management held no inquiry as required by the standing orders, it could not justify the discharge before the Tribunal. In Motipur Sugar Factory 's case (supra), the Court observed at page 597 of the report as follows : "If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must he set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again. In that case, another industrial dispute would arise and the employer would be entitled to rely. upon the enquiry which he had held in the meantime. This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given. On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee. That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself. This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes". The consequence that can ensue from a contrary view, as noticed by the, Court in Motipur Sugar Factory 's case (supra), will appear from what took place in the Management of Northern Railway. Cooperative Society Ltd. vs Industrial Tribunal, Rajasthan, Jaipur and Anr.(2) where pursuant to the award after reinstating the employee the management (1) ; (2) ; 364 drew a fresh proceeding and passed a fresh order of removal and the A said order was again the subject matter of another reference to the industrial tribunal. The pertinent question that arises for consideration is whether it is the duty of the tribunal to make known its decision to the parties on this jurisdictional aspect of the case so that the employer can avail of the opportunity to justify the dismissal based on the charge. In Management of Ritz Theatre (P) Ltd. vs Its workmen (1), this Court was required to deal with rather ingenious argument. It was contended in that case by the workmen, in support of the tribunal 's decision, that since the management at the very commencement of the trial before the Tribunal adduced evidence with regard to the merits of the case it should be held that it had given up its claim to the propriety or validity of the domestic enquiry. While repelling this argument this court made some significant observations: "In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the finding recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. Ir the view taken by Tribunal was held to be correct, it would lead to this anamoly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence, it would follow that he gives up his stand based on the holding of the domestic enquiry. Other wise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer; if the finding on the said issue is against hm, permission will have to be given to the employer to cite additional evidence". Although this Court in Ritz Theatre 's case (supra) observed that such a procedure may be "elaborate and somewhat cumbersome" it was not held to be illegal nor had if been rejected out of hand In State Bank of India vs R. K. Jain & ors.(2), this Court had to deal with a similar question. The contention on behalf of the management in that case was that "Even assuming that the domestic inquiry conducted by the Bank was in any manner vitiated, the Industrial Tribunal (1) [1963] 3 S.C.R.461, 469 470. (2) [1972] I S.C.R. 755,766,777. 365 erred in law in not giving an opportunity to the management to adduce evidence before it to establish the validity of the order of discharge". In dealing with the above contention this Court observed as follows: "If the management defend its action solely on the basis that the domestic inquiry held by it is proper and valid and if Tribunal holds against the management on that point, the management will fail. It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal. It may be emphasised, that it is the right of the management to sustain its order by adducing also . independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail it self of the said opportunity". On the facts of that case this Court held that the management, having made it clear to the Tribunal that it was resting its case solely on the domestic enquiry, had no right to make a grievance that it should have been given an opportunity to adduce evidence on facts before the Tribunal in justification of its order. This Court further observed in that case that "no such opportunity was asked for by the appellant nor even availed of". This Court in that case took into account management 's consistent stand throughout before Tribunal as also that it made no grievance on the score of non availability of opportunity to adduce evidence even in the special leave petition. The claim of the Bank in that case was rejected on the peculiar facts found by this Court. Referring to the State Bank 's case (supra) in Delhi Cloth & General Mills Co. vs Ludh Budh Singh(l), this Court observed that "the grievance of the management before this Court that the Tribunal should have given such an opportunity Suo moto was not accepted in the circumstances of that case". There was a further observation in the Delhi Cloth & General Mills ' case (supra) to the following effect: "It may be pointed out that the Delhi and Madhya Pradesh High Courts had held that it is the duty of the Tribunal to decide, in the first instance, the propriety of the domestic enquiry held by the management and if it records, a finding against the management, it should suo moto provide an opportunity to the management to adduce additional evidence though the management had made no such request. This view was held to be erroneous by this Court, in State Bank of India vs R. K. Jain & others" (supra). (1) ; ,54 56 10 839Sup. CI/75 366 We may now refer to the propositions (4), (5) and (6) in the A Delhi Cloth and General Mills ' case (supra): (4) "When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of r the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the s domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end . " (5) "The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the . said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper". (6) "If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decodes that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it". In the Delhi Cloth and General Mills ' case (supra) dealing with the case of the management 's application to adduce evidence after close of arguments, although on the same day after the Court reserved judgment, this Court observed as follows: "The appellant did not ask for an opportunity to adduce evidence when the proceeding were pending nor did it avail itself of the right given to it in law to adduce evidence before he Tribunal during the pendency of the proceedings". 367 In Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. vs Management & Others, (1) this Court stated the law laid down by this Court as on December 15, 1971. For our purpose we will extract from that decision only propositions 4, 6, 7 and 8: (4) "Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the, Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action". (6) "The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective". (7) "It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective". (8) "An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct". We are particularly concerned with proposition ( 8 ) . What is the appropriate stage was specifically adverted to in the Delhi Cloth & General Mills ' case (supra) which we are now required to seriously consider whether this conclusion is correct and ensures justice to all concerned in an industrial adjudicating. Propositions (4), (6) and (7) set out above are well recognised. It is, however, fair and in accordance with the principles of natural justice for the labour court to withhold its decision on a jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the court to give an opportunity to adduce additional evidence at the commencement of the proceedings or at any rate, in advance of the pronouncement of the order in that behalf ? Tn our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the labour court prior embarking upon an enquiry to decide the dispute on its merits. The reference involves determination of the larger issue of discharge or (1) ; , 605 607. 368 dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal. Besides, even if the order of dismissal is set aside on the ground of defect of enquiry. a second enquiry after reinstatement is not ruled out nor in all probability a second reference. Where will this lead to ? This is neither going to achieve the paramount object of the Act namely industrial peace, since the award in that case will not lead to a settlement of the dispute. The dispute, being eclipsed, pro tempore, as a result of such an award, will. be revived and industrial peace will again be ruptured. Again another object of expeditious disposal of an industrial dispute (sec section 15) will be clearly defeated resulting in duplication of proceedings. This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace. We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice. When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty. But when the matter is in controversy between the parties that question must be decided as a preliminary issue. On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court. If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue. We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication. In the present case, however, besides the long delay that has already taken place, since the law laid down by this Court was not very clear at the time of the award in casting a duty upon the labour court to decide the preliminary issue and also in view of the submission of the appellant that it is prepared to pay the entire salary of the workman upto date it will meet the interest of justice if the order of reinstatement is converted to one of compensation in terms of his entire salary from the date of dismissal to the date of this decision except for what has already been paid to him instead of remitting the. matter to the labour court for disposal in the light of this judgment by setting aside the award. In the result the appeal is dismissed with the above modification of the relief There will be, however, no order as to cost. P.B.R. Appeal dismissed.

The appellant was charged under section 16(1)(a)(1) of the Prevention of food Adulteration Act, for contravening section 2(1)(f) and 7(1) of the said Act The Food Inspector purchased black Tils from the appellant. P.W. 1 Tambe was unable to give either the name of the shop or approximate date modity by the Food Inspector from the appellant and taking of the sample. Tambe was unable to give either the name of the shop or approximate date or time of his visit. He WAS also unable to say whether the shop of the appellant was a foodgrains shop. Timbe was unable to remember who made the cash memo and whether any one signed the cash memo in his presence. Tambe could remember nothing material and he was non committal. The Food Inspector in his deposition stated that the signature of Tambe was taken on the cash memo but not on the packets although in the examination in chief he stated that Tambe had signed the sealed packets also. The seals of the packets were found broken due to what the Inspector described as "handling". He admitted that no signature of the witness was obtained on the counterfoil of the cash memo. He stated that black; Tils can be used for human consumption and further stated that it is not correct to say that it is used only for Puja. The appellant denied the presence of Tambe and asserted that he clearly told the Food Inspector that the black; Tils in his shop were meant for Puja and not for Human consumption. The Presidency Magistrate after examining the whole evidence held that the version of the appellant that there was a talk about the actual purpose for which the Til seeds at his shop were meant was more probable because it was supported by what the appellant had written on the cash memo when he sold the Til seeds to the Food Inspector. The Magistrate also held that the Analyst 's report showed that the black til seeds were full of cocoons visible to the naked eye and nobody could be expected to purchase them for consumption as food. However, the Magistrate held that the purpose for which the Til seeds were kept was quite immaterial. Tho appellant was convicted by the Magistrate and the conviction was confirmed by High Court. On appeal to this Court by Special leave it was contended by the appellant. (1) That black Tils were sold to the food Inspector specifically for the purpose of Puja and that he was told by the appellant that these were not meant for human consumption. (2) It is the duty of the prosecution to prove beyond reasonable doubt that what was sold was food. The whole object of the Act is to prevent adulteration of food meant for human consumption. (3) It is a matter or common knowledge that black Til seeds arc not used as food. ^ HELD: Allowing the appeal: 1. It is true that mens rea in the ordinary or usual sense of this Word is not required for proving an offence defined by section 7 of the Act. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was food. The use of the article sold was not entirely irrelevant. In many eases, it can be presumed from the nature of the article itself or the circumstances 328 or manner of offering it for sale whether the food was for human consumption Where circumstances raise a genuine doubt on the question whether what was kept by a seller was food at all this must be resolved by evidence in the case Where section 7 prohibits manufacturer, sale or storage or distribution of certain types of food, it necessarily denotes articles intended for human consumption as food. It is the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human consumption is food whenever, reasonable doubts arise on this question. It is self evident that certain articles such as milk, or bread or butter or foodgrains are meant for human consumption as food. There are matters of common knowledge. Other articles may be meant for human consumption from representations made about them `from circumstances in which they are offered for sale. [330 E H, 331 D F] 2.About the use of black Tils no judicial notice can perhaps be take of its special purposes in Gujarat. The Statement of tile Food Inspector that the can be used as food also amounted at least to a partial admission that they are used for Puja. There is nothing in evidence to dislodge the statement of the accused. [331 F H, 332A] 3. The view of the High Court that the Tils could be consumed after the performance of Puja rests on bare conjectures. [332A] ^ HELD FURTHER : We are not impressed by the nature of evidence led by the prosecution It is Likely that Tambe was not present to witness the occurrence.[332C]

: Special Leave Petition (Criminal) No. 1481 of 1984. From the Judgment and Order dated the 23rd January, 1984 of the Punjab and Haryana High Court in Crl. Appeal No. 45 of 1983. Harbans Lal and Balmokand Goyal for the Petitioner. The Order of the Court was delivered by DESAI, J. We are not inclined to grant special leave, but we make this short speaking order in order to keep the record straight that the dismissal of the special leave petition does not tentamount to affirmance of the order of the learned Judge of the High Court who for reasons utterly untenable interfered with teh 215 sentence imposed by the trial court and reduced it to sentence already undergone which in the facts and circumstances of the case was wholly impermissible. In Meet Singh vs State of Punjab,(1) this Court pointed out that Sec. 5(2) of the Prevention of Corruption Act prescribes a minimum sentence and discretion is conferred on the court to give less than the minimum for any special reasons to be recorded in writing. This Court examined what constitute special reasons for the purpose of Sec. 5(2) and pointed out that the reasons which weighed with the learned Judge in reducing the sentence to the sentence undergone could not be special reasons. Therefore, in our view, the learned Judge was entirely in error in showing a misplaced sympathy unsustainable in law. With these observations we reject the special leave petition. N.V.K. Petition dismissed.

The third respondent Maharshi Dayanand University, Rohtak issued a prospectus on June 12, 1982, inviting applications for appearing at an Entrance Test for selecting candidates for admission to M.B.B.S./B.D.S. course 1982. In this prospectus, besides reservation for other candidates, 25 seats were shown as reserved for "Rural Areas" and further clarifying the term as for deciding the eligibility of a candidate from "Rural Areas" the following criterion will be observed; a candidate must have received education from Class I to Class 8 and passed 8th Class examination from any Rural School situated in any village not having any Municipality or notified area or Town Area Committee". The petitioners, therefore, challenged only the reservation of these 25 seats for candidates coming from the Rural Areas as being violative of Articles 14, 15 (4) and 29 (2) of the Constitution inasmuch as (1) the classification is arbitrary, unintelligible and unrelated to the objects sought to be achieved and not saved by Articles 15 (4) and (ii); to classify candidates on the basis of their education in a school in Rural Area and Urban Area is international in as much as before seeking admission to the Medical Faculty even the student coming from rural areas and having been educated in common rural school from 1st to 8th standard would have taken further education for a period of 4 years before seeking admission to the medical college and that even in respect of the earlier education from 1st to 8th standard in both the cases, there was identical syllabus and examination evaluation prescribed by a common authority Allowing the petitions, the Court ^ HELD: 1. It is well settled that Article 14 forbids class legislation but 273 permits reasonable classification in the matter of legislation. In order to sustain the classification permissible under Article 14, it has to satisfy the twin tests: (1) that classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the proup and (2) the differentia must have a rational relation to the object sought to be achieved by the impugned provision. [278H; 279A B] 2:1. Classification based on students coming from common rural schools meaning thereby educated upto 1st to 8th standard in common rural schools vis a vis students educated in urban schools from 1st to 8th standard would not provide intelligible differentia for founding a classification thereon. The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such a classification would be constitutionally invalid. The knowledge acquired in the years spent from class 1 to class 8th is of a general nature exposing the student to reading, writing, understanding simple Arithmetics, General Knowledge of History, Geography and introductory Mathematics. The introductory knowledge of these subjects could hardly be said to equip a student for admission to medical college. The education imparted in class IX and X is little more than introductory. In these classes, the student is being prepared for deeper study. The selection of specialised subjects has to be made in classes XI and XII and in respect of education in classes IX to XII, all students being educated in all schools are similarly situated, similarly circumstanced and similarly placed with no differentiation. The earlier handicap of education in classes I to VIII, if there be any, becomes wholly irrelevant and of no consequence and therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in common rural schools from those left out namely the rest. [282F; C E] Arti Sapru vs State of Jammu and Kahmir & Ors., ; , followed. Pradeep Tandon 's case followed. Amar Bir Singh & Ors. vs Maharishi Dayanand University, Rohtak & Ors. ILR Punjab & Haryana [1980] 2 493, overruled. The classification is not founded on intelligible differentia and at any rate, it has no rational nexus to the object sought to be achieved. It does not take into account the following: (i) in order to take advantage of the reservation, students from nearby urban areas can join any rural school on the periphery agglomeration; (ii) All rural schools without an exception cannot be condemned as ill house, ill staffed and ill equipped. Agriculture in Haryana has been a very profitable pursuit and standard of life of average farmer in rural area has gone up compared to middle class and industrial worker and the slum dwellers whose children will attend as a necessity urban schools. And yet the better placed will enjoy reservation; (iii) The knowledge acquired by the students while taking instructions in class I to VIII has hardly any relevance to his being equipped for taking the test for entrance to 274 the Medical College. The real challenge would come in standard XI and XII. In this behalf all students those coming from any rural schools and urban school are similarly placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided; and (iv) There is no guarantee save a wishful thinking that the candidates classified as coming from rural areas that is with education from class 1 to VIII or otherwise would return to rural areas after the M.B.B.S. degree. [285H; 284G; 285C D] Sukhvinder Kaur vs State of Himachal Pradesh & Ors., A.I.R. 1974 HP 35, distinguished.

Civil Appeal Nos. 4904 4908 of 1984. From the Judgment and Order dated 19.9.83 of the Bombay 376 High Court in Special Civil Application Nos. 97B/80, 98B/80, 100B/80, 99B/80 and 67B/80. VA Bobde, K.J. John and Ms. N. Srivastava for the appellant. F.S. Nariman, Miss A. Subhashini M.S. Usgaocar, S.K. Mehta, P.N. Puri and M.K. Dua for the respondents. The Judgment of the Court was delivered by DESAI, J. Special leave granted. Again the rigmarole of an utterly unsustainable preliminary objection, and valuable time of a decade is wasted in this bizarre exercise frustrating the search for socio economic justice, making it a distant dream, if not an optical illusion. The Central Government as an appropriate Government referred the Industrial dispute between the appellant Goa Sampling Employees ' Association ( 'Association ' for short) and the first respondent ( 'employer ' for short) in each petition under Sec. 10 (1) (d) of the ( 'Act ' for short) to the Central Government Industrial Tribunal No. 2, Bombay by different orders made in the year 1974 and 1975. Five separate references were made because even though the Association representing employees is common in all references, employer is different but each raising a common question. When the references came up before the Tribunal for hearing, it appears that the employer in each case raised a preliminary objection but what was the earliest preliminary objection eluded us. The Tribunal overruled the preliminary objection whereupon the employer filed some appeal to an authority which is not made clear in the record. It appears the matters were remitted to the Tribunal and thereafter all the five references stood transferred to the Central Government Industrial Tribunal No. 1 ( 'Tribunal ' for short). When the references again came up before the Tribunal for hearing, the history repeated. A preliminary objection was raised that the Central Government was not the appropriate Government in relation to the industrial dispute between the Association and the employer and therefore, the Central Government had no power under Sec. 10 (1) (d) of the to make the reference 377 and accordingly the Tribunal will have no jurisdiction to entertain A the same. The Association attempted to repell this contention by urging that the workmen were dock workers within the meaning of the expression in and as they are working in a major port, the Central Government will be the appropriate Government in relation to the industrial dispute between the Association and the workmen and therefore, the reference is valid and the Tribunal should deal with the same on merits according to law. As a second string to the bow, it was contended that in relation to a union territory Central Government is the appropriate Government. It appears that evidence was led before the Tribunal by both the sides. The Tribunal after exhaustively examining the evidence held that the workmen covered by the reference would be comprehended in the definition of expression 'Dock Workers ' as defined in the and as they were working at Mormugao Port which is a major port, in respect of the industrial dispute raised by them the Central Government would be the appropriate Government. The Tribunal then proceeded to examine whether the reference would be competent on the assumption that the employees are not covered by the expression 'Dock Workers ' and held that the work performed by the employees is in a major port and the dispute arise out of the duty performed and work rendered in the major port and therefore, the Central Government would be the appropriate Government to make the necessary reference. The Tribunal then proceeded to consider the alternative submission whether the reference would be competent even if the State Government is the appropriate Government in view of the fact that Goa, Damen and Diu constitute Union Territory as set out in the First Schedule to the Constitution and its administration is carried on by the Administrator appointed by the President under article 239 of the Constitution. Therefore, also the Central Government is the appropriate Government. After discussing the rival contentions the Tribunal did not record a finding on this contention. The Tribunal overruled the preliminary objection and set down the reference for final hearing by its order dated July 14, 1980. The employer in each reference filed special civil application under article 227 of the Constitution in the High Court of Judica 378 ture at Bombay. All the five special civil applications came up before the Panaji Bench of the Bombay High Court for final hearing and they were disposed of by a common judgment The High Court held that the iron ore samplers, the workmen represented by the appellant association are not involved in any work connected with or related to a major port. The High Court further held that the industrial dispute in which iron ore samplers are involved is not an industrial dispute concerning the major port within the meaning of Sec 2 (a) (i) of the nor are the workmen comprehended in the expression 'Dock Workers ' as defined in the and therefore the Central Government is not the appropriate Government for referring the industrial dispute to the Tribunal. Dealing with the second limb of the submission that the Central Government itself can be said to be the State Government for the Union Territory of Goa, Daman and Diu, the High Court held that the Central Government is not the State Government for the Union Territory of Goa, Daman and Diu under Sec 2 (a) (ii) of the but it is the administrator appointed under Art, 239 of the Constitution of India who is the State Government for the Union Territory of Goa Daman and Diu and he is the appropriate Government within the meaning of Sec. 2 (a) of the . The High Court felt that if the Central Government is also held to be the State Government for this purpose there would be two State Governments for the Union Territory of Goa, Daman and Diu and this would lead to utter confusion: The High Court accordingly concluded that the Administrator is the appropriate Government for the purpose of Sec 2(a) of the and therefore the Central Government was not the appropriate Government and had no jurisdiction to make the impugned references. In accordance with this finding, the High Court made the rule absolute quashing the references. Hence these appeals by special leave. The question that must engage our attention is whether in relation to the industrial dispute between the employees represented by the Association and the employer which is the appropriate Government which can exercise power under Sec. 10 of the . 10 provides that 'where the appropriate Government is of opinion that any industrial dispute exists or is 379 apprehended, it may at any time by order in writing refer the dispute etc. to a Tribunal for adjudication. ' There are two A provisos to the section. which are not material for the present purpose. Thus the power is conferred on the appropriate Government to make the reference for adjudication of an industrial dispute which either exists or is apprehended. 'Appropriate Government ' is defined in Sec. 2 (a) of the to mean C(i) in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government (omitting the words not relevant for the present purpose), a major port. The ( central Government, and (ii) in relation to any other industrial dispute, the State Government. ' The employer contended that the employees represented by the Association in each case are iron ore samplers and they are not connected with the work of a major port or their duties are not ancillary or incidental to the working of a major port and therefore, Sec. 2 (a) (i) would not be attracted. As a corroleory, it was submitted that the case would fall in the residuary clause (ii) and therefore, the State Government would be the appropriate Government. The employees repelled the contention by saying that they are employees working in a major port and the industrial dispute directly touches the functioning and administration of a major port and therefore, the Central Government is the appropriate Government. Alternatively it was contended on behalf of the Association/appellant herein that any rate in relation to a Union Territory, there is no State Government and the Central Government, if it at all can be said to be one, is the only Government and in the absence of a State Government the Central Government will also have all the powers of the State Government and therefore, the Central Government would be the appropriate Government for the purpose of making the reference. It is the second limb which we propose to examine in these appeals because in our opinion it goes to the root of the matter and the appeals can be finally disposed of by answering this contention. Before we deal with the contention on merits, it is necessary to focus attention on constitutional and statutory provisions relevant to the contention. 380 article 239 (1) provides that 'save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit through an Administrator to be appointed by him with such designation as he may specify. ' article 239A which was inserted by the Constitution (Fourteenth Amendment) . 1962 confers power Parliament by law to create local legislatures or Council of Ministers or both for certain Union Territories including Goa, Damen and Diu. The law by which the local legislature and/or Council of Ministers are created will also specify their constitution, powers and functions in each case. By sub art.(2) it was ensured that such law when enacted shall not be deemed to be an amendment of the Constitution for the purpose of article 368. article 240 confers power on the President to make regulations for the peace, progress and good government of the Union Territories specified therein. article 246 (4) provides that 'Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. ' The expression 'Central Government ' has been defined in Sec. 3 (8) of the (omitting the words not relevant for the present purpose) as under: "(8) "Central Government" shall (a) . . . ; . . . . . . . (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President, and shall include, (i) (ii) (iii) in relation to the administration of a Union Territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. " The expression 'State Government ' is defined in Sec. 3 (60) (omitting the words not necessary for the present purpose,) as under: "(60) "State Government", 381 (a) . . . . . . (b) . . . . . . . (c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government ;" The expression 'Union Territory ' is defined in Sec. 3 (62A) to mean "Union Territory specified in the First Schedule to the Constitution and shall include any other territory comprised within the territory of India but not specified in that Schedule. " Parliament enacted the ( '1963 Act ' for short). Its long title reveals the object underlying the enactment, namely to provide for Legislative Assemblies and Council of Ministers for certain Union Territories and for certain other matters. Union Territory of Goa, Daman and Diu is governed by the 1963 Act (See Sec. The expression 'Administrator ' has been defined in Sec. 2 (a) of the 1963 Act to mean 'the Administrator of a Union Territory appointed by the President under article 239. ' Sec. 18 specifies the extent of legislative power of the Legislative Assembly of a Union Territory to encompass any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule. 44 provides that there shall be a Council of Ministers in each Union territory with the Chief Minister at the head to aid and advise the Administrator in exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws except in so far as he is required by or under the Act to act in his discretion or by or under any law to exercise any judicial or quasi judicial functions. There is a proviso to Sec 44 (1) which sheds light on the position of the Administrator and powers of the Council of Ministers. According to the proviso in the event of a difference of opinion between the Administrator and the Ministers of any matter, the Administrator shall refer it to the President for decision given therein by the President etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President 382 decides the point. When President decides the point, it is the Central Government that decides the point. And that is binding on the Administrator and also the Ministers. Section 45 provides that 'the Chief Minister of a Union Territory shall be appointed by the President. ' Section 46 confers power on the President to make rules for the conduct of business. Section 55 provides that 'all contracts in connection with the administration of a Union Territory are contracts made in the exercise of the executive power of the Union and all suits and proceedings in connection with the administration of a Union Territory shall be instituted by or against the Government of India. ' In exercise of the power conferred by Article 240, the President has infer alia enacted the Goa, Daman and Diu (Laws) Regulation, 1962. By clause (3) of the regulation, the Acts enumerated in the Schedule appended to the Act were extended to the Goa, Daman and Diu subject to the modifications, if any, specified in the Schedule. The Schedule includes as a whole without any modification. Section 10 (l) of the Act confers power on the appropriate Government to refer an industrial dispute for adjudication to one or the other of the various authorities enumerated in the section. Thus the power is the power of the appropriate Government to make the reference. The cotention which found favour with the High Court is that in relations to the industrial dispute raised by the workmen represented by the Association by broadly described as iron ore samplers. the appropriate Government is the State Government and not the Central Government and that as the reference in this case is made by the Central Government, the same being without jurisdiction, the Industrial Tribunal did not acquire any jurisdiction to adjudicate upon the same. Would it be constitutionally correct to describe Administration of a Union Territory as State Government ? Article 1 provides that 'India, that is Bharat, shall be a Union of States '. Sub article (2) provides that 'the States and the territories thereof shall be as specified in the First Schedule ' Sub article (3) introduced a dichotomy between the State as understood in the Constitution and the Union Territory when it provides that 'the territory of India shall comprise (a) the territories of the States, and (b) the Union Territories specified in the First Schedule. The provisions of Part 383 VI of the Constitution do not apply to the Union Territories. Part VI of the Constitution which deals with States clearly indicates that A the Union Territory is not a State. Therefore, the Union Territory constitutionally speaking is something other than a State. As far as the States are concerned, there has to be a Governor for each State though it would be permissible to appoint the same person as Governor of two or more States. Part VIII provides for administration of Union Territories. Article 239 conferred power on the president for administration of Union Territories unless otherwise provided by an act of Parliament. Therefore, apart from the definitions of the expressions 'Central Government ', 'State Government ' and 'Union Territory ' as enacted in the , the Constitution itself makes a distinction between State and its Government called the State Government and Union Territory and the Administration of the Union Territory. Unless otherwise clearly enacted, the expression 'State will not comprehend Union Territory ' and the 'State Government ' would not comprehend Administration of Union Territory. Now if we recall the definition of three expressions 'Central Government ' (Section 3 (8), 'State Government ' (Section 3 (60)) and Union Territory ' ( Section 3 (62A)) in the , it would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression 'Central Government ' that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression 'Central Government '. When this inclusionary part is put in juxta position with exclusionary part in the definition of the expression 'State Government ' which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression 'State Government ' and the 'Administration of a Union Territory ' clearly emerges. Therefore, there is no room for doubt that the expression 'Administration of a Union Territory ', Administrator howsoever having been described, would not be comprehended in the expression state Government ' as used in any enactment. These definitions have been modified to being them to their present format by 384 adaptation of laws (No. 1) Order 1956. Section 3 of the provides that in all General Acts and Regulations made after the commencement of the Act unless there is anything repugnant in the subject or context, the words defined therein will have the meaning assigned therein. lndisputably the lndustrial Disputes Act, 1947 is ' a Central Act enacted after the commencement of the and the relevant definitions having been recast to meet the constitutional and statutory requirements, the expressions 'Central Government, 'Stale Government ' and 'Union Territory ' must receive the meaning assigned to each in the unless there is anything repugnant in the subject or context in which it is used. No such repugnancy was brought to our notice. Therefore, these expressions must receive the meaning assigned to them. The High Court after referring to the definitions of the aforementioned three expressions as set out and discussed herein first observed that on a careful reading of the definition, it appears 'that in relation to the administration of a Union Territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution is the Central Government. ' So far there is no dispute. The High Court then observed that it must follow that the Administrator is the State Government in so far as the Union Territory is concerned, and it is so provided in the definition of the State Government in Section 3(60) of the . ' The High Court fell into an error in interpreting clause (c) of Section 3 (60) which upon its true construction would show that in the Union Territory, there is no concept of State Government but wherever the expression 'State Government ' is used in relation to the Union Territory, the Central Government would be the State Government. The very concept of State Government in relation to Union Territory is obliterated by the definition. Our attention was, however, drawn to the two decisions of this Court in Satya Dev Bushahri vs Padam Dev & Ors. ( ') and the decision of this Court in The State of Madhya Pradesh vs Shri Moula Bux & Ors.(2) in which with reference to Part States, some observations have been made that the authority conferred under Article 239, as it then stood, to administer Part States has (1) ; (2) ; 385 not effect of converting those States into the Central Government, and that under Article 239 the President occupies in regard to Part States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part in States. ' It was also observed that 'though the Part States are centrally administered under the provisions of Article 239, they do not cease to be States and become merged with the Central Government. ' It was then urged that by the amendment to Articles 239 and 240 by the Constitution (Seventh Amendment) Act, 1956 and introduction of Article 239 A and 239 by the Constitution (Fourteenth Amendment) Act, 1962, only the nomenclature of the Part States has undergone a change, now being described as Union Territory, but the position the Union Territory is the same as it was as Part States and therefore, the view taken in the aforementioned decisions that the administration of Part States could appropriately be described as State Government would mutatis mutandis apply to the administration of Union Territories. In other words, it was said that they can be appropriately described as State Governments for various purposes. Both the decisions were rendered prior to the amendment of Part VIII of the Constitution in 1956 and the insertion of the Articles 239 A and 239 in 1962 and more specifically after the enactment of the 1963 Act. The concept of Union Territory with or without a Legislative Assembly and with or without a Council of Ministers with specified legislative and executive powers have been set out in the 1963 Act. Coupled with this, modifications were made in the definitions of aforementioned three expressions. Therefore, the two decisions are of no assistance in resolutation of the present controversy. It was then pointed out that the definition of the expression 'appropriate Government ' in Section 2(a)(i) of the Act unless it is shown in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or the enumerated industries or a banking or an insurance company, a mine, an oilfield, a Cantonment Board, or a major port, the appropriate Government will be the Central Government and in any other case a State Government It was therefore, submitted that unless it is shown that in relation to the industrial dispute raised by the Association, the appropriate Government would be the Central Government, the case would fall under the residuary provision, namely, that in relation to any other industrial dispute, the appro 386 priate Government would be the State Government. The submission does not commend to us because before one can say that the appropriate Government is the State Government in relation to an industrial dispute, there has to be some State Government in which power must be located for making the reference. If there is no State Government but there is some other Government called the Administration of Union Territory, the question would arise whether in such a situation the Administration of Union Territory should be described as State Government for the purpose of Section 2(a)(i) read with Section 10(1) ? The High Court clearly fell into an error when it observed that the inclusive definition of the expression 'State Government ' does not necessarily enlarge the scope of the expression, but may occasionally point to the contrary. Let as assume it to be so without deciding it. But where the High Court fell into the error was when it held that the President representing the Central Government and the Administrator, and appointee of the President and subject to all orders of the President constitute two different governments for a Union Territory. The position, the power, the duties and functions of the Administrator in relation to the President have been overlooked. On a conspectus of the relevant provisions of the Constitution and the 1963 Act, it clearly transpires that the concept of State Government is foreign to the Administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an administrator appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government. Therefore, at any rate the administrator of Union Territory does not qualify for the description of a State Government, Therefore, the Central Government is the 'appropriate Government '. If the Central Government as the appropriate Government has made the reference, the High Court was clearly in error in quashing the reference. Learned counsel for the appellant Association made an alter native submission that the workmen involved in the dispute are workmen working in a major port and are dock workers and there 387 fore, also the Central Government will be the appropriate Government for the purpose of making reference under Sec. 10(1). This contention found favour with the Tribunal. The High Court reached a contrary conclusion observing that the iron ore samplers are not involved in any work connected with or related to a major port nor are they dock workers. We do not propose to examine this alternative submission because if the reference is held to be competent, it is not necessary to undertake elaborate examination of the second contention to sustain the reference. It is, however, urged that this aspect is likely to figure again before the Tribunal while examining the industrial dispute referred to it for adjudication on merits. In this situation the proper thing is to keep the contention between the parties open. The Tribunal will be at liberty to examine this contention whether iron ore samplers are involved in any work connected with or related to a major port or are dock workers. The Tribunal may come to its own decision uninfluenced by the view taken by the High Court and if the question does require examination the same will have to be examined over again. Accordingly, all these five appeals are allowed and the judgment of the High Court is quashed and set aside and the award of the Tribunal on the preliminary point especially about the competence of the Central Government to make the reference under Section 10(1) of the , for the reasons hereinmentioned is confirmed. The respondents shall pay the costs of the appellant in each case quantified at Rs. 1,000 in all Rs. 5,000 shall be paid by the respondents to the appellant as costs. As the dispute is an old one, hanging resolution for years, the Tribunal is directed to give top priority to it and dispose it of on merits within a period of six months from today, N.V.K. Appeals allowed.

Section 14 of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act (For short, the Act) as it stood prior to its amendment in 1976 and also after its amendment by the U.P. Act No. 28 of 1976 deals with regularisation of occupation of existing tenants. The unamended section 14 of the Act provided that a person must satisfy two conditions in order to get the benefit of this section, namely, (i) that he was a tenant in occupation of a building with the consent of the landlord immediately before the commencement of this Act and (ii) that he was not a person against whom proceedings under section 7A of the old Act are pending immediately before such commencement. The amended section 14 of the Act lays down that a person shall be deemed to be an authorised licensee or tenant of building if (i) any licensee or tenant is in occupation of a building with the consent of the landlord immediately before the commencement of the Act as amended by the U.P. Act No. 28 of 1976 and (ii) that he was not a person against whom any suit or proceeding for eviction is pending before any court or authority on the date of such commencement. Section 3(a) of the Act provides that a tenant in relation to a building means a person by whom its rent is payable, and on the tenant 's death, in the case of a non residential building, his heirs. On the death of Naubat Singh a tenant in a shop situated in Bulandshahr, the landlord started eviction proceedings section 12 read with section 16 of the Act for the release of his shop. The appellant a nephew of the deceased tenant, resisted the eviction application on the grounds: (i) that he was entitled to get the benefit of the amended and/or unamended section 14 of the Act since he had been helping the deceased tenant in his business for the last several years and remained in continuous possession of the disputed shop after his death; and (2) that he was an heir of the deceased tenant on the basis of a will executed by the deceased tenant in his favour and therefore be was a tenant within the meaning of section 3(a) of the Act. 890 The Rent Control and Eviction officer rejected the application holding that the appellant was entitled to get the tenancy rights under the unamended section 14 of the Act. In revision the Additional District Judge held that, since even after the death of Naubat Singh on 31st August 1974, the appellants been, permitted to continue in possession of the premises, he got the benefit of amend ed section 14 of the Act and therefore dismissed the revision petition. Thereupon the landlord filed a writ petition under Article 226 in the High Court against the orders of the two authorities below. The High Court negatived all the contentions of the appellants, allowed the writ petition and quashed the orders of the authorities below and directed the Rent Control and Eviction officer to decide the release application afresh in accordance with the law. Hence this appeal by special leave. Dismissing the appeal, ^ HELD: (1) Admittedly Naubat Singh was the tenant of the shop on the date immediately preceding the commencement of the Act, that is, 15th July 1972 and he was alive and therefore no question of the appellant being regularised as a tenant arises. The appellant also could not get the benefit of amended sec. 14, since at the relevant time the application for release filed by the landlord against the appellant was pending in the court of Additional District Judge by way of revision petition wherein the landlord had contested the claim of tenancy by appellant. [893 H; 894, B C] (2) The word 'heir ' has been construed both in a wider as well as in a narrower sense. Which sense will be applicable to the facts of a particular case will depend upon the intention and scheme of a particular legislation in which the question occurs. [895 G] Smt. Rukmani vs III Addl. District Judge, Kanpur (1) and Munni Lal vs Smt. Shiva Devi 1981 ARC (S.N. 13); referred to Gulzara Singh vs Smt. Tej Kaur, AIR 1961 Punjab 288, approved. (3) It is clear from a survey of ss 3(g), 11, 12,13 and 15 of the Act that there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime. [897 G H] (4) In the instant case, the appellant was neither a tenant of the disputed shop nor he was an heir of the deceased tenant since he is not a member of the family of the deceased tenant as defined section 3(g) of the Act. Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy right. There fore, this Court sees no reason to differ from the finding of the High Court. [898 A B]

Criminal Appeal No. 53 of 1951. Appeal by special leave from the Judgment and Order dated the 8th June 1951 of the ' High Court of Judica ture at Nagpur (Hemeon and Rao JJ.) in Criminal Appeal No. 297 of 1950, arising out of the Judgment and Order dated the 11 th September 1950 of the Court of the Additional Sessions Judge of Bhandara in Sessions Trial No. 25 of 1950. Bakshi Tek Chand, (Gopal Singh, with him) for the appellant. section K. Kapoor, for the respondent. March 4. The Judgment of the Court was delivered by BOSE J. The appellant Kashmira Singh has been convicted of the murder of one Ramesh, a small boy aged five, and has been sentenced to death. He was granted special leave to appeal. Three other persons were tried along with him. They were his brother Gurudayal singh, his nephew Pritipalsingh (son of Gurudayal), a boy of eleven, and one Gurubachan singh. Gurudayal and pritipal have been acquitted. Guruba chansingh confessed and was convicted. He was also sentenced to death. He has not appealed here. The murder was a particularly cruel and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. The prosecution case is this. The deceased Ramesh was the son of P.W. 48 L.P. Tiwari who was the Food Officer at Gondia at the relevant date. The appellant Kashmira Singh was an Assistant Food Procurement Inspector there. On the 1st of July, 1949, Tiwari found the appellant and Harbilas (P.W. 31) getting rice polished at a certain rice mill. At that date the polishing of rice was prohibited by a State law. Tiwari accordingly reported the matter to the Deputy Commissioner of Bhandara. He suspended the 528 appellant and later his services were terminated by an order of the State Government with effect from the 7th of July. The orders were communicated on the 17th of November. This embittered the appellant who on at least two occasions was heard to express a determination to be revenged. In pursuance of this determination he got into touch with the confessing accused Gurubachan singh and enlisted his services for murdering the boy Ramesh. On the 26th of December, 1949, festivities and religious ceremonies were in progress all day in the Sikh Gurudwara at Gondia. The boy Ramesh was there in the morning and from there was enticed to the house of the appellant 's brother Gurudayalsingh and was done to death in a shockingly revolt ing fashion by the appellant, with the active assistance of Gurubachansingh, in the middle of the day at about 12 or 12 30. The body was then tied up in a gunny bag and rolled up in a roll of bedding and allowed to lie in Gurudayal 's house till about 7 p.m. At 7 p.m. the body wrapped as above was carried by Gurubachan on his head to a chowkidar 's hut near the Sikh Gurudwara. The appellant accompanied him. The map, Exhibit P 18A, shows that the distance along the route indicated was about half a mile to three quarters of a mile. It was left there till about midnight. Shortly before midnight the appellant and Gurubachan engaged the services of a rickshaw coolie Shambhu alias Sannatrao, P.W. 14. They took him to the chowkidar 's hut, recovered the bundle of bedding and went in the rickshaw to a well which appears from the map, Exhibit 1 ' 18A, to be about half a mile distant. There the body was thrown into the well. ]hat in brief is the prosecution ease. Gurubachan 's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co accused ? It is evident that it is not evidence in the ordinary 529 sense of the term because, as the Privy Council say in Bhuboni Sahu vs The King(1) "It does not indeed come within the definition of" 'evidence ' contained in section 3 of the Evidence Act. , It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination. " Their Lordships also point out that it is "obviously evidence of a very weak type. . It is a much weaker type of evidence than the evidence of an approv er, which is not subject to any of those infirmities. " They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feet it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence ? Can it be used to fill in miss ing gaps ? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accom plice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ? In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor vs Lalit Mohan Chuckerbutty(2) where he said that such a confession can only be used to "lend assurance to other evidence against a co accused "or, to put it in another way, as Reilly J. did in In re Periyas wami Moopan(3) "the provision goes no further than this where there is evidence against the co accused sufficient, if believed, to support his conviction, then the kind of confession de scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence." (1) [1949] 76 I.A. 147 at 155. (3) Mad. 75 at 77. (2) CAl. 559 at 588. 530 Translating these observations into concrete terms they come to. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evi dence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. Then, as regards its use in the corroboration of accom plices and approvers. A co. accused who confesses is natu rally an accomplice and the danger of using the testimony of one accomplice t0 corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborat ed testimony of an accomplice provided the judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us bad occasion to examine this recently in Rameshwar vs The State of Rajasthan(1). It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni Sahu vs The King(2): "The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have (1) ; (2) (1949) 76 I A.147 at 157. 531 noted on innumerable occasions, and it is very difficult for the court to guard against the danger. . The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused. " Turning now to the facts of the present case. The evidence on which the prosecution relies, apart from the confession, is this : (1) Previous association between Gurubachan and the appellant. The only evidence about this is P.W. 23 Upasrao, a water carrier. He speaks of three meetings and is curiously definite about days of the week and times though he did not know on what day of the week diwali fell nor could he give the names of anybody else he met on those occasions. Howev er, for what it is worth. he says he saw them talking (1) three weeks before the murder, (v) on the 24th and (3) on the 25th. They spoke in Punjabi which he does not under stand, but on the second occasion he heard them mention the name of Ramesh. Two of these meetings, namely the first and the third tally with two of the only three meetings de scribed in the confession. It is proved that the witness did not disclose these facts to the police but despite that the Sessions Judge believed him because of the confession. The High Court appear to have disbelieved him, for in paragraph 37 of the judgment the learned judges point out that he is contradicted by his own statement to the police. There his story was that the three brothers met and not Gurubachan and the appellant. This evidence can therefore be disregarded and consequently the confession cannot be used to prove previous association. It was argued however that if it is proved that the appellant helped in disposing of the body after the murder, then their previous association can be inferred because one would hardly seek the assistance of a stranger for a task like that. That has some force but the weakness of that in this case lies on the fact that, 532 according to the prosecution case, as disclosed in the confession, Gurubachan was a stranger to Gondia. i He had come there only six weeks before the murder and did not meet the appellant till three weeks later and then only casually. Their second meeting, equally casual, was on the 21st, that is, five days before the murder, and on that date the appel lant is said to have disclosed his intention to this strang er whom he had only met once before. It is true this strang er knew the appellant 's brother, but how ? The brother was a travelling ticket inspector on the railway and used to allow Gurubachan to travel without a ticket, presumably because he was also a Sikh. If probabilities are to be called in aid, the story disclosed in the confession has distinct weakness es, particularly as Gurubachan 's assistance was wholly unnecessary. If the confession is true there was a well thought out plot timed with the precision almost of a minor military operation. At a given moment the nephew Pritipal was to decoy the deceased away from his companions and isolate him. Then, after leading him several hundred yards down the road, hand him over to Gurubachan. Gurubachan was to take him down to point No. 6 on the map well over half a mile from the spot where he took over from Pritipal. In the meanwhile, the appellant was to walk another half mile at right angles to Gurubachan 's course to the point No. 15 to hire a cycle. From there he was to cycle close on a mile to point No. 6 and meet Gurubachan and the boy. As the learned High Court Judges, who made a spot inspection, point out, the route would lie through a crowded bazaar locality. From point No. 6 Gurubachan was to hand over the child to the appellant who was to cycle with him close on a mile to his brother Gurudayal 's quarters, point No. 16, through this same crowded bazaar. In the meanwhile, Gurubachan was to walk back to his house (No. 17) and pick up a chisel and a piece of wire for the purpose of the murder and rejoin the appellant at Gurudayal 's house. As will be seen, the timing would have to be within fairly close tolerances. Then, at the murder itself, what 533 assistance did Gurubachan give ? Nothing which a grown man could not easily have accomplished him self on a small helpless victim of five. The appellant could have accomplished all this as easily without the assistance of Gurubachan, and equally Gurubachan, a mere hired assassin, could have done it all himself without the appellant running the risk of drawing pointed attention to himself as having been last seen in the company of the boy. We hold that previous association of a type which would induce two persons to associate together for the purposes of a murder is not established. (2) That the deceased Ramesh was in the Gurudwara about 9 30 or 10 in the morning of the 26th. This is not disputed. (3) That Kashmira Singh who had gone to the Gurudwara in the morning was absent between 11 A.M. and 12 45 P.M. That the appellant was at the Gurudwara in the morning is not disputed, in fact his case is that he was there the entire day. The evidence to prove that he left it between these hours consists of three persons: P.W. 30 Atmaram, P.W. 35 Tilakchand and P.W. 5 Bisan. The prosecution story is that the appellant left the Gurudwara about 11 A.M. to go to the shop of P.W. 5 Bisan to hire a cycle. He was first seen by P.W. 35 Tilakehand, a wood stall keeper, at point No. 13, just near the Gurudwara. The witness places the time at about 10 30 or 11 A.M. He says he saw him coming from the direction of the railway station and going past his stall. Fifteen minutes later, he went past his stall again in the opposite direction, that is to say, towards the railway station which lies on his way to the cycle shop. Next comes P.W. 30 Atmaram He keeps a bookstall on the broad gauge platform of the Gondia Railway Station. He says he saw the appellant coming from the bridge and going to wards the Railway Police 69 534 Station of all places in the world. He came near ,enough the witness to wish him good day. He places 'the time at about 10 30 or 11. The only comment we make on this witness is that he says he used to see the appellant at the station almost every day and they used to greet each other. The possibility that the witness is mixing up this day with one of the other days cannot be excluded. It is certainly a matter for comment that a would be murderer on his way to hire a cycle for the purpose and keep an assignment with his accomplice and victim should go out of his way and either go on to or very near the railway platform to greet a person he knows there and then walk away towards the police station of all places where the danger of recognition would be strong. Next there is P.W. 5 Bisan, the man in charge of the cycle shop. He speaks from his register and says the appel lant hired a cycle from him on that day at 11 20 A.M. and returned it at 12 45 P.M. The Sessions Judge and the High Court lay great stress on this witness. But as against this is the evidence of Anupsingh Bedi, D.W. 1, a respectable disinterested witness, who is a resi dent of Nagpur. He says he saw the appellant at the Gurudwa ra at 11 and again "about 11 45 A.M." The sessions Judge thought he was interested because he admits he reported a complaint he had received from Gurudayalsingh, to the effect that the appellant was being harassed by the police and that they threatened to arrest ladies also, to the Inspector General of Police and the Home Minister. He explained that as head of the Sikh community in that State he felt bound to pass on these complaints to the highest authorities. We are unable to regard this as disclosing interest. There is no suggestion that what he did was improper and we are of opinion he did nothing more than any man of responsibility in his position would have done. The High Court has not criticised him. The learned Judges merely say that he may be mistaken as to the time; nor of course does he suggest that he is giving more than a mere estimate. All he 535 says is that, "It may have been about 11 45 A.M. by this time. " We do not think there is much in all this. Nobody, except P.W. 5 Bisan, pretends to be exact and when one is guessing at the time several days after the event there really is not much discrepancy between 11 20 and 11 45. Even if it was 11 45 there would still have been sufficient time to commit the murder. As two Courts have believed the evi dence on this point without calling in aid the confession, we are not prepared to depart from our usual rule regarding concurrent findings of fact. We will therefore accept the position that the appellant was absent from the Gurudwara long enough to enable him to commit the murder. We will also take into consideration the fact that he made a false statement on this point when he said he was not away at all. (4) Disposal of the body. The rest of the evidence relates to the disposal of the body and the only direct evidence connecting the appellant with this, apart from the confession, is that of Sannatrao P.W. 14, the rickshaw coolie. He does not bring the appellant into the picture till about midnight. Now this coolie is a very shaky witness. We cannot but note the remarkable series of coincidences which emerge from his testimony. First, he is not a rickshaw coolie at all. He merely hap pened to hire a rickshaw that night, and he told the police that this was the first time he had ever done that at night after. a day 's work. Next, he knew the appellant because he happened to be a chowkidar in the Food Office at Gondia at the same time that the appellant was there as a Food Inspec tor. But at the date of the incident neither was still in service, so by a somewhat strange coincidence the appellant happens to hire, for the first time, this old co worker in the middle of the night who, in his turn, happened to hire, also for the first time at night, a rickshaw for which he had no licence. Next comes a still stranger coincidence. He is taken to within a few paces of his own house and the body 536 is dumped, in his presence, into a welt, a stone 's throw from where he lives. Gurubachan tells us that earlier in the day, about 7 P.M., he (Gurubachan) had carried, unaided, the "bedding" on his head for a distance which we know was hail to three quarters of a mile, namely from Gurudayal 's house to the chowkidar 's hut. Despite this, the two are said to have engaged this rickshaw coolie to carry it just hall a mile (a shorter distance) to the well and there they threw it in in the man 's presence; and none of this was disclosed to the police till a month later, namely the 17th of January, though the witness was present when the body was recovered and though he was questioned on three previous occasions. We do not doubt that a rickshaw was used because rick shaw tracks were discovered by the well long before anybody had suggested that a rickshaw had been used. But we find it difficult to resist the inference that this witness was an accomplice so far as the disposal of the body was concerned. Consequently, he is in much the same category so far as credibility is concerned, That brings us at once to the rule that save in exceptional circumstances one accomplice cannot be used to corroborate another, nor can he be used to corroborate a person who though not an accomplice is no more reliable than one. We have therefore either to seek corrobo ration of a kind which will implicate the appellant apart from the confession or find strong reasons for using Guruba chan 's confession for that purpose. Of course, against Gurubachan there is no difficulty, but against the appellant the position is not as easy. We will therefore examine the reliability of Guruba chan 's confession against the appellant. Now there are some glaring irregularities regarding this confession and though it was safe for the Sessions Judge and the High Court to act on it as against Gurubachan because he adhered to it throughout the sessions trial despite his pleader 's efforts to show the contrary, a very different position emerges when we come to the appellant. 537 The first point which emerges regarding this is that the confession was not made till the 25th of February 1950, that is to say, not until two months after the murder. We do not know when Gurubachan was first interrogated but P.W. 42 Narayandas tells us that when he was taken to the police station house at Gondia for interrogation about the 1st or 3rd January he saw Gurubachan sitting in the police lock up. We do not know how long he was kept there like this but it is evident that he was not there voluntari ly, at any rate till the 1st or 3rd because the Station Officer P.W. 44 says that "until Gurubachan Singh was ar rested he used to be allowed to go home." Also he says that Gurubachan was interrogated several times and was confronted with Pritipal. However, eventually Gurubachan was allowed to go away and he went to Balaghat. Then, on the 16th of February the Station Officer P.W. 44 went to Balaghat, brought Gurubachan back with him to Gondia and handed him over to the C.I.D. Inspector Guha. Guha P.W. 50 tells us that from then till the 20th of February, when he was arrested, he was kept under observation but was allowed to go home at night. He did not confess till the 25th and the Station Officer P.W. 44 tells us that from the 20th to the 25th he was kept in one of the rooms in Guha 's quarters. Then, after the confes sion on the 25th he was taken back to Guha 's custody for a couple of days and then only was he sent to the magisterial lock up. (See Guha 's evidence). He was kept in this lock up till the conclusion of the committal proceedings, that is, till the 30th of June, instead of being sent to jail custody in Bhandara where there is a jail. The other accused includ ing Pritipal who had by then confessed were sent to Bhanda ra. Now though Gurubachan was kept in the magisterial lock up the distinction between the magisterial lock up and police custody in Gondia is only 538 theoretical. In practice, it is no better than police custody. Police constable Lalbahadur P.W. 55 tells us that "The Station House Officer Gondia deputes constables for duty in the lock up. The constables in charge take the prisoners out to the latrine and also arrange for their food. The Head Constable in fact is in charge. " Also, Guha admits that he interrogated Gurubachan in the lock up twice within the ten days which succeeded the confession. This is in disregard of the Rules and Orders (Criminal) of the Nagpur High Court which enjoin at page 25, paragraph 84, of the 1948 edition that "After a prisoner has made a confession before a a magistrate he should ordinarily be committed to jail and the magistrate should note on the warrant for the information of the Superintendent of the jail that the prisoner has made a confession." No explanation has been given why these directions, which were made for good reason, were disregarded in Guruba chan 's case. As we have said, the other prisoners were all committed to jail custody in the usual way, so there was no difficulty about observing the rule. All this makes it unsafe to disregard the rule about using accomplice testimo ny as corroboration against a non confessing accused. None of the judges who have handled this ease has given any reason why this rule could safely be departed from in this particular case. In the circumstances, we do not feel that the confession by itself can be used to corroborate the rickshaw coolie Sannatrao, P.W. 14. But there is other corroboration. It consists of the sari border and this is the next point on which the prosecution relies. There is one argument about this confession advanced on behalf of the appellant with which we shall have to deal. The prosecution were criticised for not calling the magis trate who recorded the confession as a witness. We wish to endorse the remarks of their 539 Lordships of the Privy Council in Nazir Ahrnad vs King Emperor (1) regarding the undesirability of such a practice. In our opinion, the magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise. (5) Sari borders, Articles F, G, and T. Articles F & G are two pieces of a sari border which were used for tying up the mouth of the gunny bag, in which the body was placed. The evidence about that is beyond doubt. Article T is another piece of a sari border which was found in the appellant 's house on the 30th or December, 1949. It is true the appellant was not present at the time but his mother was there and it will be seen that it was seized on the same day that the body was discovered. There is strong proof that Articles F and G are a part of the same border as Article T, and as there is a concurrent finding regarding these facts we are not prepared to to take a different view. That therefore affords corroboration of Sannatrao 's evi dence and the confession can be called in aid to lend assur ance to the inference which arises from these facts, namely that the appellant did help to dispose of the body. The High Court and the Sessions Judge were accordingly entitled to act on this evidence for establishing that particular fact and we are not prepared to disturb their concurrent conclusions. But the matter cannot be carried further because, not only are the sari borders not proved to have had any connection with the crime of murder but the confes sion shows that they did not. The only conclusion permissi ble on these facts is that the appellant, at some time which is unknown, subsequent to the murder assisted either active ly or passively in tying up the gunny bag in which the corpse was placed and that he then accompanied Gurubachan in the rickshaw from the chowkidar 's hut to the well in the middle of the night. (6) Coat, Article X, and Safa, Article Y, (1) A.I.R. 1936 P.C. 253 at 258, 540 These were seized on the 20th of January 1950 from a trunk in the house of the appellant 's brother Gurudayalsingh. The appellant 's house is not in this neighbourhood. It is some distance away in another part of the town. The coat is a uniform coat of the kind worn by a Travelling Ticket Inspector on the Railways. Gurudayal is a travelling Ticket Inspector. The appellant is not. Here again the appellant was not present when the seizures were made. This coat and safa were recovered in the fourth search. The first search was on the 30th of December 1949. The next on the 10th of January 1950. The third on the morning of the 20th and the fourth in the afternoon of the 20th. These Articles were not found in the first three searches. The Chemical Examiner reports that there is one minute blood stain on the safa and some (the number is not given), also minute, on the coat. The seizure memo, exhibit P 55, picked out only five. Those stains are not proved to be of human blood. Now there is next no evidence to connect either the coat or the safa with the appellant. The High Court has relied on the evidence of Sannatrao (P.W. 14), Gokulprasad the Station Officer (P.W. 44) and Tiwari (P.W. 48). Sannatrao does no more than say that he noticed the appellant wearing a popat coloured sara and a black coat. But he was not able to describe the clothes of the passenger he had carried immediately before the appellant, nor was he able to de scribe the appellant 's coat in detail. That therefore is no identification of this coat with the one the appellant wore or owns. The Station Officer Gokulprasad said that he had seen the appellant wear this very coat and sara and there fore he identified them as his clothes. In cross examina tion he admitted that he had only seen the appellant on three occasions but not to speak to. Consequently, that is not strong evidence of identification. But what in our opinion is almost conclusive against this identification is that Tiwari, P.W. 48, who is clearest on the point and who of course had the best opportunities for observation, 541 gives a distinctive feature of the appellant 's coat, namely that it had only one button. That is one of his reasons for knowing what the appellant used to wear. But the seizure memo, exhibit P. 55, shows that the coat, Article X, had two buttons. In the circumstances we find it difficult to see how it can be the appellant 's coat. There is another strong point in the appellant 's favour which the High Court has not noticed. P.W. 35 the wood stall keeper Tilakchand, who saw him on his way to pick up his victim, is definite that the appellant was not wear ing a coat at the time. It is difficult to see why he should have donned a coat and got it stained with blood just for murdering a child of five. In our opinion, it would be unsafe to conclude on this evidence that any connection is established between the coat and the sara and the appellant. The furthest point to which this evidence can be pushed is to indicate that the appellant possessed a coat similar to Article X but which was not Article X. We do not ordinarily interfere with a concurrent finding of fact but when the finding omits to notice these two very important points in the accused 's favour which, in our opinion, swing the balance the other way, we are unable to let the finding stand. In our opinion, the nexus between the appellant and the coat and the sara is not established. (7) Motive. This is the last piece of evidence on which the prosecution rely. Both courts hold that the motive is established and there is strong evidence to prove it. We accordingly accept the finding that the appellant had a motive for enmity against Tiwari and that he had expressed a determination to be revenged. The only comment we will make is that other persons who were also dismissed from service had similar motives. What then is the summary of the evidence ? In the appel lant 's favour there are the facts that there is no proof of his having been last seen in the company of 70 542 the deceased. The only evidence of the boy 's movements is that of Krishna (alias Billa) P.W. 9, a boy of seven years, and all he says is that Pritipal asked him to bring Ramesh with him to the Gurudwara that morning about 9 A.M. The boys played about and had some tea and then Pritipal took Ramesh away in the direction of the prostitute 's house. Pritipal later returned without Ramesh. The Sessions Judge thought this witness had been tutored on at least one point. Pritipal 's so called confession has been rejected because, in the first place, it is not a confession at all, for it is exculpatory, and, in the next, the High Court was not able to trust it. Therefore, the only evidence of the boy 's last movements is as above. The next point in the appellant 's favour is that he was seen without a coat shortly before the murder and at a time when he was not in the vicinity of his own house. According to the prosecution, the murderer wore the coat, Article X, and the sara, Article Y. The third point is that the appellant was not seen by anyone in the vicinity of the place of occurrence. The fourth point is that if the prosecution case is true, then it is remarkable that no one saw the appellant and the boy on a cycle through nearly a mile of what the High Court, which made a spot inspection, describes as a crowded locality. The points against the appellant are (1)that he had a motive and that he said he would be revenged, (2) that he was absent from the Gurudwara about the time of the murder long enough to enable him to commit it, and denied the fact, (3) that some twelve hours after the crime he assisted in removing the body from a place between half to three quar ters of a mile distant from the scene of the crime, and (4) that at some unknown point of time he assisted in tying up the mouth of the gunny bag in which the body was eventually placed. In our opinion, it would be unsafe to convict of murder on these facts. 543 A number of rulings were cited, including one of the Privy Council, and it was argued that in those cases persons were convicted of murder on similar facts. We do not intend to examine them because no decision can be a. guide on facts. Each case has its own special circumstances and must be decided on its own facts. For example, in most of the cases cited the accused was associated with the disposal of the body very soon after the occurrence and at the scene of the crime. Here, twelve hours had elapsed and the first connection proved with the disposal is at a place over half a mile distant from where the boy is said to have been murdered. Next, the points we have shown in favour of the appellant in this case were not present there. We allow the appeal on the charges of murder, conspiracy and kidnapping and reverse the findings and sentences on those charges and acquit the appellant of them. We however convict the appellant of an offence under section 201, Indian Penal Code, and sentence him to seven years ' rigorous imprisonment. The learned Sessions Judge omitted to record a convic tion under section 201 because he was convicting the appel lant of murder. He followed a Nagpur decision which holds that in such a case it would be improper to convict in the alternative. We express no opinion about that; the question does not arise as we have acquitted the appellant of the murder and the cognate charges. The case now falls in line with that of the Privy Council in Begu vs The King Emperor(1) and the conviction and sentence are confined to section 201. (1) (1925) 52 I.A. 191.

Rule 54 of the Mineral Concession Rules, 1949, provided as follows: " Review. Upon receipt of such application, the Central Government may, if it thinks fit, call for the relevant records and other information from the Provincial Government, and after considering any explanation that may be offered by the Provincial Government, cancel the order of the Provincial Government or revise it in such manner as the Central Government may deem just and proper. The appellant was granted mining leases in respect of five areas and possession was delivered to him. On an application for review made by one of the respondents under r. 52 of the Rules, the Central Government, without giving the appellant an opportunity of being heard, cancelled the leases with regard to two of the areas and directed the State Government to grant leases in respect thereof to the said respondent. The appellant applied to the High Court under article 226 of the Constitution for quashing the said order. The Single judge who heard the application as well as the Division Bench on appeal held that the order of cancellation was an administrative order and the appellant was not entitled to a hearing. It was contended on behalf of the appellant in this Court that rr. 52 55 of the Rules showed that the proceeding before the Central Government was a quasijudicial proceeding and, consequently, the rules of natural justice must apply. Held, that the contention must prevail and the order of cancellation be quashed. In exercising its power of review under r. 54 of the Mineral Concessions Rules, 1949, the Central Government acted judicially and not administratively. Assuming that the act of the State Government in granting a mining lease was an administrative act, it was not correct to say that no right of any kind passed to the lessee thereunder untill the review was decided by the Central Government where a review had been applied for. Rule 52, therefore, by giving the aggrieved party the right to a review created a lis between him and the lessee and, consequently, in the absence of anything to the contrary either in r. 54 or the statute itself, there could be no 99 776 doubt that the Central Government was acting quasi judicially under r. 54. Province of Bombay vs Kushaldas section Advani. [1950] S.C.R.621, applied. R. vs Electricity Commissioner. (1924) I. K. B. 171, referred to.

minal Appeal No. 119 of 57. Appeal by special leave from the judgment and order dated the 24th August, 1955, of the Calcutta High Court in Criminal Revision No. 596 of 1955. C. B. Agarwala and Sukumar Ghose, for the appellant. B. Sen and S.N. Mukherjee, for the respondents. March 23. The Judgment of the Court WAS delivered by SHAH, J. M/s. Lalji Raja & Sons who will hereinafter be referred to as the respondents are the owners of an oil seed pressing factory known as the Gouranga Oil Mill situated within the limits of the Bankura Municipality in the State of West Bengal. For extracting oil, the respondents import mustard seed from different areas. The respondents also hold a license for the @ale of mustard Seed. On the application of the Sanitary Inspector of the Bankura Municipality, the Sub Divisional Officer, Bankura, issued a search warrant directing seizure of 900 bags of "rotten and decomposed mustard seed", 600 bags stored in the mill godown and 300 bags stored 360 in the court yard of the rice mill at Hanseswar Maji. Pursuant to the search, a large quantity of mustard seed spread out for drying in the Gouranga Oil Mill was seized, and certain bags lying in the rice mill were also seized. On the report made by the Sanitary Inspector, the Chairman of the Municipality applied to the District Magistrate of Bankura on March 10, 1950, for action under sections 431 and 432 of the Bengal Municipal Act, No. XV of 1932, alleging that the mustard seed seized was " in a highly decomposed state and gave out an offensive stench" and that the same was unwholesome and unfit for human consumption. The proceedings started on the petition of the Chairman of the Municipality had a chequered career. it is unnecessary to sit out for the purposes of this appeal the diverse orders which were made from time to time by the District Magistrate and which were set aside by the High Court of Judicature at Calcutta. It may be sufficient to state that on May 26, 1950, the District Magistrate ordered restoration of the mustard seed bags to the respondents and that order was set aside bags Division Bench of the Calcutta High Court in revision. Another order passed by the District Magi strate in April 1951 directing that the contents of the bags be disposed of as " manure or fodder " was set aside by the Calcutta High Court and the proceedings were directed to be retried. The District Magistrate again held an enquiry and by his order dated November 10, 1954, held that the mustard seed was lawfully seized in accordance with the provisions of the Bengal Municipal Act, 1932, that it was unwholesome and unfit for human consumption on the date of seizure and directed in exercise of the powers under section 431(2) of the Act that the same be made over to the Commissioners of the Bankura Municipality for disposal either as manure. or as cattle feed. The High Court at Calcutta by order dated August 24, 1955, in exercise of its revisional jurisdiction, set aside the order of the District Magistrate holding that section 431 of the Bengal Municipal Act under which the order was made, had no application to a case of seizure of unwholesome food seized under a warrant issued under section 430. 361 Against the order of the High Court, this appeal is filed with special leave. The only question which falls to be determined in this appeal is whether articles of food seized under a warrant issued by a Magistrate in exercise of the powers under section 430 of the Bengal Municipal Act may be ordered to be destroyed under section 431(2) of the Act. In order to determine this question, it is necessary to refer to certain provisions of the Bengal Municipal Act, 1932. Section 421 prohibits, amongst other acts, selling or storing for sale of unwholesome articles to be used for human consumption. Section 427 (in so far as it is material) authorizes the Commissioners and certain other officers of a Municipality to enter upon and inspect any place in which any article of food is deposited for the purpose of sale or preparation for sale or to which any article of food intended for human consumption is brought for such purpose, and also to inspect the articles of food which may be found in the place inspected. Clause (1) of section 428 confers upon the Commissioners and the officers designated in section 427 power to seize articles of food intended for human consumption if, in the course of inspection, it appears that the same are unwholesome or unfit for human consumption. Section 429 provides that the articles of food referred to in section 428 which have been seized under that section may, with the written consent of the owner or the person in whose possession they are found, be ordered to be destroyed. If the consent of the owner or the person in possession is not obtained and the articles are of a perishable nature, the officer seizing the same may take them before a Magistrate who may, if it appears to him that the articles are unsound or unwholesome or unfit as human food, condemn the same or order them to be destroyed. Section 430 (in so far as it is material) provides that if any Magistrate is satisfied on the application of the Commissioners, Health Officer, Sanitary Inspector or any other officer authorized by the Commissioner in this behalf that there is just cause to believe that any food which is unsound, unwholesome or unfit for human food is in the possession of any person for the 362 purpose of being sold or offered or exposed for sale within the limits of the Municipality for such consumption, he may grant a warrant authorizing entry upon the premises of such person and search for and seizure of such articles of food. Section 431 by the 1st subsection (in so far as it is material) provides that where any article of food, seized under section 428 is not destroyed by consent under sub section 1 of section 429 or when an article of food so seized which is perishable is not dealt with under sub section 2 of that section, it shall be taken before a Magistrate as soon as may be after such seizure. Sub section 2 provides that if it appears to the Magistrate that any such food is unsound, unwholesome or unfit, for human food, he shall cause the same to be destroyed or to be otherwise disposed of by the Commissioners so as not to be capable of being used as human food. It is evident from this resume of the relevant legislative provisions that the municipal authorities are entitled to enter upon and inspect places where articles of food are stored or prepared for sale. If the municipal authorities find that any article of food stored or prepared for sale is unwholesome or unfit for human food, they may seize them and destroy the same with the written consent of the owner or person in possession, and if such consent is not forthcoming and the articles are perishable, destroy them under the orders of a Magistrate. But section 428 is not the only procedure under the Act authorizing seizure of articles. of food which are unwholesome or unfit for human food. The municipal authorities may move a Magistrate for the issue of a warrant for seizure of articles of food which are unsound, unwholesome or unfit for human food, and under the authority of the warrant, such articles may be seized. Articles of food seized under section 428(1) which are not disposed of under section 429 are required to be taken before a Magistrate as soon as may be after seizure and under sub section 2 of section 431, the Magistrate is authorized, if it appears to him that the articles of food are unsound or unwholesome or unfit for human food to order destruction or disposal thereof Evidently, the expression "such" used in sub s.2 of section 431 refers. to the articles of food described in sub.s. 1 of 363 that section and section 431(1) only deals with articles seized under section 428. There is no express provision made by the legislature either in section 431 or elsewhere in the Act authorizing destruction ' or disposal of articles of food which are seized under a warrant issued under section 430. Counsel for the Municipality contends that the legislature intended that all articles seized, whether on inspection under section 428 or under a warrant issued under section 430 must be dealt with under section 431 and the High Court was in error in holding that the authority of the Magistrate to order destruction or disposal of articles of food could be exercised only in respect of articles seized under section 428. But the words used in section 431(2) clearly authorize the Magistrate to order destruction or disposal of articles seized under section 428 and not dealt with under section 429, and it is difficult to uphold the plea that the legislature intended, even though it did not so expressly provide, that the articles seized under a warrant issued under section 430 may also be dealt with under sub section 2 of section 431. Counsel for the Municipality submits that it could not even have been the intention of the legislature that the Magistrate can order seizure of unwholesome food but cannot order its destruction, though he may order destruction of unwholesome articles of food seized by the officers of the Municipality. It appears, however, that a person storing unwholesome articles of food may be prosecuted for infraction of the provisions of section 421 and in the course of or on the conclusion of those proceedings, it would certainly be open to the Magistrate, having seizin of the complaint, to pass an appropriate order under the Code of Criminal Procedure for destruction of the articles seized. In view of this, we are not prepared to say that the absence of an express provision relating to the disposal of articles seized under section 430 is not deliberate; but even if we are constrained to hold that there is a lacuna in section 431, we do not think that we would be justified contrary to the plain words used by the legislature, in attempting to remedy the same by holding that a Magistrate exercising power under sub section 2 of section 431 has authority to 364 order destruction of articles seized in pursuance of a warrant issued under section 430. The argument advanced by counsel for the Municipality that the seizure was in exercise of the powers under section 428 and not under section 430 has, in our judgment, no force. The report of the Chairman of the Municipality dated March 10, 1950, makes it abundantly clear that the search warrant was issued by the Sub Divisional Officer in exercise of his authority under section 430 of the Bengal Municipal Act. 'Any admission by the respondents that the seizure was under section 428 of the Act in proceedings for resisting the order which the Municipality claimed to obtain against them can have no value. Section 428 does not contemplate a seizure of articles of food which are unwholesome, under the authority of a Magistrate, and section 430 is expressly the provision which authorises a Magistrate to issue a warrant, for such seizure. The powers under section 431(2) are expressly directed to be exercised by the Magistrate in respect of articles seized under section 428, and there is nothing in the former provision which may justify the view that those powers can also be exercised in respect of articles seized under a warrant issued under section 430. In our opinion, the High Court was right in its conclusion. The appeal therefore fails and is dismissed. Appeal dismissed.

One S lodged a first information report against K. When K found that no action was taken on the report for several months he filed a criminal complaint against S contending that the report lodged by S was false. At the instance of S the magistrate ordered K 's complaint to stand adjourned till the police made its final report on the first information report. Thereupon K moved the High Court under section 561 A of the Code of Criminal Procedure for quashing the proceedings initiated by the first information report. Pending the hearing the police submitted its report under section 173 of the Code. Subsequently the High Court dismissed the petition. K obtained special leave and appealed: Held that no case for quashing the proceedings was made out. The inherent 'Jurisdiction of the High Court could be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The following are some categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings: (i) where there was a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint did not make out the offence alleged; and (iii)where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge. In exercising its jurisdiction under section 561 A of the Code the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not . In the present case there was no legal bar to the institution of the proceedings or to their continuance; the allegations made in the first information report did constitute the offences alleged and it could not be contended that on the face of the record the charge was unsustainable. In re: Shripad G. Chandavarkar, A.I.R. 1928 Bom. 184, jagat Chandra Mozumdar vs Queen Empress, Cal. 786, Dr. Shankar Singh vs The State of Punjab, (1954) 56 Punj. L.W. 54, Nripendra Bhusan Ray vs Govind Bhandhu Majumdar, A.I.R. 1924 Cal. 1018 and Ramanathan Chettiar vs K. Sivarama Subrahmanya Ayyar, Mad. 722, referred to. S.P. Jaiswal vs The State, , distin guished, 389

Civil Appeal No. 1359 (NT) of 1974 From the Judgment and Order dated 11.1.1974 of the Orissa High Court in Special Jurisdiction Case No. 62 of 1972. Govind Das, P.N. Misra, D.C. Taneja and P.K. Juneja for the Appellant. V.S.Desai, P.K. Bhatnagar and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against the judgment of the High Court of Orissa and raises the familiar question whether a loss suffered by the assessee is a capital loss or a revenue loss. The assessee deals in automobiles and also sells spare motor parts. For the assessment year 1963 64, the relevant accounting period being the year ended March 31, 1963, the assessee claimed a loss of Rs.53,650 sustained by it on disposing of its subscription to the Orissa Government Floated Loan 1972. It claimed that the loss suffered by it was revenue loss and, therefore deductible against its profits for the year. The Income tax Officer disallowed the loss in the view that it was 210 a capital loss. The assessee 's appeal was dismissed by the Appellate Assistant Commissioner of Income tax. But on second appeal the Income tax Appellate Tribunal accepted the contention of the assessee that the subscription to the Government Loan was conducive to its business and that the loss arose in the course of the business, and that therefore, the assessee was entitled to a deduction of the loss claimed by it. The Accountant Member and the Judicial Member wrote separate but concurrent orders. At the instance of the Revenue the Appellate Tribunal referred the case to the High Court of Orissa for its opinion on the following question of law. "Whether, in the facts and circumstances of the case, the loss of Rs.53,650 sustained by the assessee on the sale of the Government Loan is a capital loss or a revenue loss. " Disagreeing with the findings of the Appellate Tribunal the High Court held that the loss was a capital loss and accordingly answered the reference in favour of the revenue and against the assessee. At the outset, we find it necessary to note that the High Court has taken the view that the factual substratum of the case has been misconceived by the Appellate Tribunal and that it is, therefore, entitled to re examine the evidence and arrive at its own findings of fact. We think the High Court fell into serious error in doing so. It is now well settled that the Appellate Tribunal is the final fact finding authority under the Income tax Act and that the Court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate order. The Court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriving at the findings of fact. But even there the Court cannot disturb the findings of fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidence to support them or they are the result of a misdirection in law. There is a long line of cases decided by this Court laying down this proposition. See India Cements Ltd. vs C.I.T., , 64; Hazarat Pirmahomed Shah Saheb Roza Committee vs C.I.T, , 495 6; C.I.T. vs Greaves Cotton & Co. Ltd., 68 ITR200; C.I.T. vs Meenakshi Mills Ltd., , 613; C.I.T. vs Madan Gopal Radhey Lal, ; , 656; Hooghly Trust Ltd. vs C.I.T., , 690; C.I.T. vs Imperial Chemical Industries (India) Ltd., and Aluminium Corpon. of India Ltd. vs C.I.T., The High Court has relied on Com 211 missioner of Income tax, Bihar and Orissa vs S.P. Jain. to justify its re examination of the evidence and to supersede the findings of fact rendered by the Appellate Tribunal by findings of fact reached by itself. In that case, however, the questions raised in the Reference before the High Court included questions specifically challenging the findings of fact reached by the Appellate Tribunal as being invalid in law. In the present case the question referred to the High Court was framed on the assumption that it had to be decided in the factual matrix delineated by the Appellate Tribunal: In the circumstances, the findings of fact set forth in the judgment of the High Court must be vacated. We would have sent the case back to the High Court requiring it to answer the question of law referred to it on the basis of the facts found by the Appellate Tribunal but we refrain from doing so and propose to dispose of the Reference ourselves on the statements of fact contained in the appellate order of the Appellate Tribunal. The case has remained pending through its successive stages for the last over 20 years, and it is appropriate that it should be disposed of now without further delay. According to the statement of the case drawn up on the basis of the appellate order of the Appellate Tribunal the assessee was told that if it subscribed for the Government Loan preferential treatment would be granted to it in the placing of orders for motor vehicles required by the various Government Departments and to the further benefit of an advance from the Government up to 50 per cent of the value of the orders placed. Pursuant to that understanding, an advance to the extent of Rs. 18,37,062 was received by the assessee and a Circular was also issued by the State Government to various Departments to make purchases of the vehicles required by them from the assessee. Because of the advance received from the Government, the assessee was able to save Rs.45,000 as bank interest during the year. It was also noticed that the sales shot up substantially. On September 4, 1961 the assessee made a deposit of Rs.5 Lakhs consequent upon a Resolution of the Board of Directors passed about 6 weeks before after a statement made by the Chairman during the Board meeting that the Government had approached him to subscribe to the Government Loan and that the Company should do so as good orders could be expected. The purchase of the loan was approved by the Board of Directors and was ratified in the Annual General Meeting of the shareholders held on December 31, 1961. The Appellate Tribunal found that having regard to the sequence of events and the close proximity of the investment with the receipt of Government orders the conclusion was ines 212 capable that the investment was made in order to further the sales of the assessee and boost its business. In the circumstances, the Appellate Tribunal held that the investment was made by way of commercial expediency for the purpose of carrying on the assessee 's business and that therefore, the loss suffered by the assessee on the sale of the investment must be regarded as a revenue loss. We are of opinion that the Appellate Tribunal is right. The High Court, as has been mentioned, re examined the facts on the record and found that the investment was not connected with the orders placed by the Government with the assessee and the advance payment made by the Government Departments to the assessee, and it was in that context that the High Court held that the investment in the Loan was a capital assest and the loss was a capital loss. The High Court took the view that the investment was of enduring benefit to the assessee and therefore it could not be allowed. We find it difficult to hold that an enduring benefit was brought about by the assessee investing in the Loan. So far as orders from the Government Departments were concerned the material on record shows that on August 30, 1961 it was decided to purchase 16 jeeps, 8 trucks and 4 one tonne pick up vans. There is nothing to show that there was any reason for the assessee to hold on to the investment in the loan indefinitely. There was no enduring advantage. Accordingly we hold that the investment did not bring in an asset of a capital nature, and that in the circumstances of the case the loss suffered by the assessee was a revenue loss and not a capital loss. It was held by the Orissa High Court in Commissioner of Income tax vs Industry and Commerce Enterprises (P) Ltd., and by the Madras High Court in Additional Commissioner of Income tax, Madras II vs B.M.S. (P) Ltd., and again in Commissioner of Income tax, Tamil Nadu V vs Dhandayuthapani Foundry (P) Ltd, , that where Government bonds or securities were purchased by the assessee with a view to increasing his business with the Government or with the object of retaining the goodwill of the authorities for the purpose of his business, the loss incurred on the sale of such bonds or securities was allowable as a business loss. We hold that the High Court has erred in the view taken by it and that the Tribunal was right in allowing the appeal. 213 In the result the appeal is allowed, the judgment of the High Court is set aside and inasmuch as the loss is a revenue loss the question referred to the High Court is answered in favour of the assessee and against the Revenue. The assessee is entitled to its costs of this appeal. S.R. Appeal allowed.

The assessee deals in automobiles and also sells spare motor parts. For the assessment year 1963 64 the assessee claimed a loss of Rs.53,650 sustained by it on disposing of its subscriptions to the Orissa Government floated Loan 1972. It claimed that the loss suffered by it was revenue loss and, therefore, deductible against the profits for future years. The Income Tax Officer and the Appellate Commissioner of Income Tax negatived the claim of the assessee. But on second appeal, the Appellate Tribunal accepted the contention that the subscription to the Government loan was conducive to its business and that the loss arose in the course of the business, and that therefore, the assessee was entitled to a deduction of the loss claimed by it. But the High Court on a reference to it at the instance of the revenue, held that the loss was a capital loss. The High Court was of the view that the factual substratum of the case had been misconceived by the Appellate Tribunal and that it was, therefore, entitled to re examine the evidence and arrive at its own findings of fact. Hence this appeal by special leave. Allowing the appeal, the Court, 208 ^ HELD: 1.1 Whether Government bonds or securities were purchased by the assessee with a view to increasing his business with the Government or with the object of retaining the goodwill of the authorities for the purpose of his business, the loss incurred on the sale of such bonds or securities was allowable as a business loss. [212F G] 1.2. Having regard to the sequence of events and the close proximity of the investment with the receipt of Government orders it is clear that the investment, in the instant case, was made in order to further the sales of the assessee and boost its business. In the circumstances, the investment was made by way of commercial expediency for the purpose of carrying on the assessee 's business and therefore the loss suffered by the assessee on the sale of the investment must be regarded as a revenue loss. [211H;212A B] 1.3 No enduring benefit was brought about by the assessee investing in the loan so far as the orders from the Government Departments were concerned. The material on record shows that on August 30, 1961 it was decided to purchase 16 jeeps, 8 trucks and 4 one tonne pick up vans. There was nothing to show that there was any reason for the assessee to hold on to the investment in the loan indefinitely. The investment did not bring in an asset of a capital nature, and that in the circumstances of the case the loss suffered by the assessee was a revenue loss and not a capital loss. [212D F] Commissioner of Income Tax vs Industry and Commerce Enterprises (P) Ltd., ; Additional Commissioner of Income tax, Madras II vs B.M.S.(P) Ltd., ; Commissioner of Income tax, Tamil Nadu V vs Dhandayuthapani Foundry (P) Ltd., approved. It is now well settled that the Appellate Tribunal is the final fact finding authority under the Income tax Act and that the Court has no jurisdiction to go behind the statements of fact made by the Tribunal in its appellate order. The Court may do so only if there is no evidence to support them or the Appellate Tribunal has misdirected itself in law in arriving at the findings of fact. But even there the Court cannot disturb the findings of fact given by the Appellate Tribunal unless a challenge is directed specifically by a question framed in a reference against the validity of the impugned findings of fact on the ground that there is no evidence to support them or they are the result of a misdirection in law. [210E G] 209 India Cements Ltd. vs C.I.T., , 64; Hazarat Pirahomed Shah Saheb Roza Committee vs CIT, , 495 6; C.I.T. vs Greaves Cotton & Co. Ltd., ; C.I.T. vs Meenakshi Mills Ltd., , 613; C.I.T. vs Madan Gopal Radhey Lal, ; , 656; Hooghly Trust Ltd. vs C.I.T., , 690; C.I.T. vs Imperial Chemical Industries (India) Ltd., ; Aluminium Corporation of India Ltd. vs C.I.T., and Commissioner of Income tax, Bihar and Orissa vs S.P. Jain, referred to. In the case of a reference under the Income Tax Act which has remained pending through its successive stages for the last several years and as a result of the Supreme Court setting aside the judgment of the High Court, the case has to go back to the concerned High Court to answer the question of law referred to it, the Supreme Court to avoid further delay can itself decide the said question of law. [211C D]

Civil Appeal Nos. 1831 1833 of 1972. Appeals by Special Leave from the Judgment and Order dated 22 9 1971 of the Allahabad High Court in I.T. References Nos. 775/70 and 342/64. section C. Manchanda and Mrs. Urmila Kapoor for the Appellant. V. section Desai and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by TULZAPURKAR, J. The assessee, Smt. Indermani Jatia, widow of Seth Ganga Sagar Jatia of Khurja, carried on money lending and other businesses and derived income from various sources such as investment in shares, properties and businesses. However, the capital, assets and income in respect of different sources of income were incorporated in one common set of books. With a view to commemorate the memory of her deceased husband, on October 21, 1955 she promised a donation of Rs. 10 lacs for setting up an Engineering College at Khurja to be named "Seth Ganga Sagar Jatia Electrical Engineering Institute Khurja". She also promised a further sum of Rs. 1.5 lacs for the construction of a Female Hospital at Khurja but this subsequent donation of Rs. 1.5 lacs was to include the total interest that was to accrue on the sum of Rs. 10 lacs earlier donated to the college. In pursuance of the promise made on October 21, 1955 she actually made over a sum of Rs. 5.5 lacs by depositing the same in a joint account opened in the names of the District Magistrate, Bulandshahr and Smt. Indermani Jatia for the college while the balance of Rs. 4.5 lacs was left with the assessee and was treated as a debt to the Institution and interest thereon at 6% per annum with effect from October 21, 1955 was to be finally deposited in the Technical Institute account. These facts become clear from a certificate dated October 17, 1958, issued by the District Magistrate, Bulandshahr which was produced before the Appellate Tribunal. The aforesaid transaction came to be recorded in the books of the assessee as follows: At the beginning of the accounting year (Samvat year 2012 13 accounting period 13 11 1955 to 1 11 1956) relevant to the assessment year 1957 58 the capital account of the assessee showed a net credit balance of Rs. 23,80,753. Initially on November 21, 1955, a sum of Rs. 10 lacs was debited to her capital account and corresponding credit was given to the account of the said Institute. At the close of the said accounting year (i.e. on 749 1 11 1956) after debiting the aforesaid sum of Rs. 10 lacs the capital account showed a net credit balance of Rs. 15,06,891. Thereafter, during the same year of account the assessee actually paid only a sum of Rs. 5.5 lacs to the institution on January 7, 1956 from the overdraft account which she had with the Central Bank of India Ltd., Aligarh. At the beginning of the accounting year the amount outstanding in the overdraft was Rs. 2,76,965; further overdrafts were raised during the accounting year with the result that at the end of the year the liability of the assessee to the bank was Rs. 9,55,660; among the further debits to this account during the year was said sum of Rs. 5.5 lacs paid to the Engineering College on January 7, 1956. The balance of the promised donation, namely, Rs. 4.5 lacs was, as stated earlier, treated as a debt due by her to the Institute and accordingly she was debited with interest thereon at 6% per annum with effect from October 21, 1955. In the assessment proceedings for the assessment years 1957 58, 1958 59 and 1959 60 the assessee claimed the deduction of three sums Rs. 20,107/ , Rs. 25,470/ and Rs. 18,445/ being the respective items of interest paid by her to the bank on Rs. 5.5 lacs during the Samvat years relevant to the said assessment years. The assessee contended that she had preferred to draw on the overdraft account of the bank for the purpose of paying the institution in order to save her income earning assets, namely, the shares, which she would have otherwise been required to dispose of and, therefore, the interest paid by her should be allowed. As regards interest on the remaining sum of Rs. 4.5 lacs (which was left as a loan with the assessee) that was debited to her account, the assessee urged that she was also entitled to claim the same as a permissible deduction; the claim in respect thereof, however, was made for the assessment years 1958 59 and 1959 60. As regards the three sums paid by way of interest on Rs. 5.5 lacs to the bank, the taxing authorities took the view that said claim for deduction was not admissible either against business income under section 10(2) or against income from investments under section 12(2) of the Indian Income Tax Act, 1922. So also the claim for deduction of interest credited to the college account on Rs. 4.5 lacs was disallowed. The assessee preferred appeals to the Appellate Tribunal. It was contended on behalf of the assessee that she had promised a donation of Rs. 10 lacs to the Engineering College on October 21, 1955, that the obligation to pay the said amount arose on November 21, 1955 when the amount was debited to her capital account and the corresponding credit was given to the account of the institution, and that out of this total donation a sum of Rs.5.5 lacs was actually deposited in the joint account of the 750 assessee and the District Magistrate, Bulandshahr on January 7, 1956 for which the overdraft with the Central Bank was operated and hence the interest was deductible as business expenditure. As regards interest on Rs. 4.5 lacs that was debited to her account and credited to the Institute 's account it was urged that this balance amount was kept in trust for the institution and hence the accruing interest thereon which was debited to her account should be allowed as a deduction. In support of these submissions a certificate issued by the District Magistrate, Bulandshahr dated October 17, 1958 was produced before the Tribunal. The Appellate Tribunal, however, confirmed the disallowance of interest claimed in respect of the sum of Rs. 5.5 lacs holding that the said sum of Rs. 5.5 lacs over drawn from the bank was not borrowed for business purposes but was borrowed for making over the donation and, therefore, the claim could not be sustained under section 10(2) of the Income Tax Act, 1922. As regards the interest accruing on the sum of Rs. 4.5 lacs in favour of the Engineering College, the Appellate Tribunal held that no donation of that sum had been made by the assessee, that it was at best a promise by the assessee to the District Magistrate to pay that amount for purpose of charity and the mere entries in the assessee 's own account book crediting the trust, which had yet to come into existence, would not amount to a gift or charity for a trust and as such the interest credited to the account of the Engineering College was also disallowed. Meanwhile, Smt. Indermani Jatia died and her legal heir Madhav Prasad Jatia was substituted in the proceedings. On the question whether the interest on Rs. 5.5 lacs was deductible for the assessment years 1957 58, 1958 59 and 1959 60, the Tribunal declined to make any reference to the High Court, whereupon the assessee applied to the High Court under section 66(2) and upon the application being allowed, the Tribunal referred the question whether interest on the overdraft of Rs. 5.5 lacs the sums of Rs. 20,107 (for the assessment year 1957 58), Rs. 25,470 (for the assessment year 1958 59) and Rs. 18,445 (for the assessment year 1959 60) paid to the Central Bank was allowable as a deduction under section 10(2)(iii) or 10(2) (xv) of the Indian Income Tax Act, 1922 (being Income Tax Reference No. 775 of 1970). As regards the deduction of interest on Rs. 4.5 lacs claimed for the assessment years 1958 59 and 1959 60, the Tribunal itself made a reference to the High Court under section 66(1) and referred for the opinion of the High Court the question whether in the facts and circumstances of the case the interest credited by the assessee to the account of Ganga Sagar Jatia Engineering College on the sum of Rs. 4.5 lacs 751 and accretion thereto was an admissible deduction for each of the said two years (being Income Tax Reference No. 342 of 1964). The High Court heard and disposed of both the references by a common judgment dated September 22, 1971. In the Reference No. 775 of 1970, the case of the assessee was that there was an obligation to pay Rs. 10 lacs to the Engineering College, that for the time being the assessee decided to pay Rs. 5.5 lacs, that it was open to the assessee to pay the amount from her business assets or to preserve the business assets for the purposes of earning income and instead borrow the amount from the bank and that she had accordingly borrowed the amount from the bank and, therefore, since the borrowing was made to preserve the business assets, the interest thereon was deductible under section 10(2) (iii) or 10(2) (xv) of the Act. The High Court observed that there was nothing to show that the assessee would necessarily have had to employ the business assets for making payment of that amount, and secondly, it was only where money is borrowed for the purposes of business that interest paid thereon becomes admissible as a deduction, and since, in the instant case, the sum of Rs. 4.4 lacs was admittedly borrowed from the Bank for making payment to the Engineering College it was not a payment directed to the business purposes. According to the High Court the mere circumstance that otherwise the assessee would have to resort to the liquidation of her income yielding assets would not stamp the interest paid on such borrowings with the character of business expenditure. After referring to the decisions one of the Bombay High Court in Bai Bhuriben Lallubhai vs Commissioner of Income Tax, Bombay North Cutch and Saurashtra and the other of the Calcutta High Court in Mannalal Ratanlal vs Commissioner of Income Tax Calcutta, the High Court rejected the contention of the assessee and held that interest paid on Rs. 5.5 lacs in any of the years was not deductible either under section 10(2) (iii) or 10(2) (xv) of the Act and answered the questions against the assessee. As regards the question referred to it in Income Tax Reference No. 342 of 1964, the High Court took the view that there was nothing on record before it to establish that the assessee had actually donated the entire amount of Rs. 10 lacs to the Engineering College, that the certificate issued by the District Magistrate, Bulandshahr on October 17, 1958 merely showed that a balance of Rs. 4.5 lacs was left as a loan with the assessee and that the interest accruing thereon from the date of the initial donation "was to be finally deposited in the account of the Technical Institute" and that though the assessee had made 752 entries in her account books crediting the trust with the interest on the amount, the trust had not yet come into existence and as such the amount credited represented her own funds and lay entirely within her power of disposition. With such material on record, the High Court confirmed the Tribunal 's view that Rs. 4.5 lacs had not been donated by the assessee on October 21, 1955 in favour of the Engineering College and, therefore, the interest credited by the assessee in favour of the Institute on the said sum and the accretion thereto continued to belong to the assessee and as such she was not entitled to the deduction claimed by her and accordingly the question was also answered against the assessee. On obtaining special leave the original assessee represented by her legal heir has preferred Civil Appeals Nos. 1831 1833 of 1972 to this Court. Mr. Manchanda appearing for the appellant has raised two or three contentions in support of the appeals. In the first place he has contended that though the deduction claimed by the assessee in this case was on the basis of business expenditure falling under either section 10(2)(iii) or 10(2)(xv), the taxing authorities, the Tribunal and the High Court have confused the issue by considering the claim for deduction under section 12(2) of the Act. According to him the scope for allowing the deduction under section 10(2)(iii) or 10(2)(xv) was much wider than under section 12(2) of the Act. He urged that by applying the ratio of the decision in Bhuriben 's case (supra), which was admittedly under section 12(2) of the Act, to the facts of the instant case the lower authorities as well as the High Court had adopted a wrong approach which led to the inference that the deduction claimed by the assessee was not admissible. Secondly, he urged that considering the case under section 10(2) (iii) or 10(2) (xv) the question was when could the obligation to pay Rs. 10 lacs to the Engineering College be said to have been incurred by the assessee and according to him such obligation arose as soon as the donation or gift was complete and in that behalf placing reliance upon the certificate dated October 17, 1958, issued by the District Magistrate, Bulandshahr, as well as the entries made by the assessee in her books, he urged that the gift was complete no sooner the capital account of the assessee was debited and the college account was credited with the said sum of Rs. 10 lacs on November 21, 1955, especially when her capital account had a credit balance of Rs. 15,06,891 after giving the debit of Rs. 10 lacs; the gift in the circumstances would, according to him, be complete then as per decided cases such as Gopal Raj Swarup vs 753 Commissioner of Wealth Tax, Lucknow Naunihal Thakar Dass vs Commissioner of Income Tax, Punjab. He further urged that though the sum of Rs. 5.5 lacs was actually paid by the assessee by borrowing the amount on January 7, 1956 from the overdraft account with the Central Bank of India Ltd. the said overdraft was a running overdraft account opened by her for business purposes and if from such overdraft account any borrowing was made interest thereon would be deductible under section 10(2)(iii) or 10(2) (xv) as being expenditure incurred for the purposes of the business. According to him, once a borrowing was made from an overdraft account meant for business purposes, the ultimate utilization of that borrowing will not affect the question of deductibility of interest paid on such borrowing under section 10(2) (iii) or 10(2) (xv) and in that behalf he placed reliance upon two decisions of the Bombay High Court, namely, Commissioner of Income Tax, Bombay City II vs Bombay Samachar Ltd., Bombay and Commissioner of Income Tax, Bombay City IV vs Kishinchand Chellaram. He, therefore, urged that the High Court had erred in sustaining the disallowance in respect of interest paid by the assessee on Rs. 5.5 lacs to the Bank in the three years in question as also the disallowance in regard to the interest credited by the assessee to the account of the Engineering College in the two years in question on the sum of Rs. 4.5 lacs and the accretion thereto. On the other hand, Mr. Desai for the Revenue, disputed that there was any confusion of the issue or that any wrong approach had been adopted by the lower authorities or by the High Court as suggested by learned counsel for the appellant. He pointed out that initially the assessee had specifically raised the plea that the borrowing of Rs. 5.5 lacs had been resorted to with a view to save income yielding investments, namely, the shares and, therefore, both the alternative cases as to whether the interest paid on Rs. 5.5 lacs was an admissible deduction either against business income under section 10(2) (iii) or income from investments under section 12(2) were considered by the taxing authorities and the taxing authorities held that such interest was not admissible under either of the provisions. He pointed out that so far as the Tribunal and the High Court were concerned the assessee 's claim for deduction under section 10(2) (iii) or 10(2) (xv) had been specifically considered and negatived. He sought to justify the view of the Tribunal and the High Court in regard to the disallowance of interest paid by 754 the assessee on the sum of Rs. 5.5 lacs to the Bank in the three concerned assessment years as also the disallowance of interest credited by the assessee to the account of the Engineering College on the sum of Rs. 4.5 lacs and the accretion thereto; as regards the sum of Rs. 5.5 lacs he contended that the real question was not as to when the obligation to pay to the college was incurred by the assessee but whether the obligation incurred by the assessee was her personal obligation or a business obligation and whether the expenditure by way of payment of interest to the Bank was incurred for the purpose of carrying on business and as regards the sum of Rs. 4.5 lacs whether the trust in favour of the college had at all come into existence on October 21, 1955 or November 21, 1955 as contended for by the assessee and on both the questions the view of the Tribunal and the High Court was right. As regards the two Bombay decisions, namely Bombay Samachar 's case (supra) and Kishinchand Chellaram 's case (supra), he urged that the ratio of the decisions was inapplicable to the instant case. At the outset we would like to say that we do not find any substance in the contention of learned counsel for the appellant that there has been any confusion of the issue or that any wrong approach has been adopted by the taxing authorities, the Tribunal or the High Court. After going through the Tribunal 's order as well as the judgment of the High Court we are clearly of the view that the case of the assessee has been considered both by the Tribunal as well as by the High Court under section 10(2) (iii) or 10(2) (xv) and not under section 12(2). In fact, in Reference No. 775 of 1970 the questions framed by the Tribunal in terms referred to section 10(2)(iii) and 10(2) (xv) and proceeded to seek the High Court 's opinion as to whether the sums representing interest paid by the assessee to the Central Bank on the overdraft of Rs. 5.5 lacs for the concerned three years were allowable as a deduction under either of the said provisions of the Act and the High Court after considering the matter and the authorities on the point has come to the conclusion that such interest was not allowable as a deduction under either of the said provisions It is true that the High Court did refer to the decision of the Bombay High Court in Bai Bhuriben 's case (supra) but that decision was referred to only for the purpose of emphasizing one aspect which was propounded by that Court, namely, that the motive with which an assessee could be said to have made the borrowing would be irrelevant and that simply because the assessee in that case had chosen to borrow money to buy jewellery it did not follow that she had established the purpose required to be proved under section 12(2) that she borrowed the money in order to maintain or preserve the fixed deposits or helped her to earn interest. This is far from say 755 ing that the ratio of that case has been applied by the High Court to the instant case. In fact, the High Court found that there was no material to show that the assessee in the instant case would necessarily have had to employ the business assets for making payment to charity. The High Court actually considered the assessee 's case under section 10(2) (iii) and 10(2) (xv) and disallowed the claim for deduction under these provisions principally on the ground that the said borrowing of Rs. 5.5 lacs was unrelated to the business of the assessee. Proceeding to consider the claim for deduction made by the assessee under section 10(2)(iii) or 10(2)(xv), we may point out that under section 10(2) (iii) three conditions are required to be satisfied in order to enable the assessee to claim a deduction in respect of interest on borrowed capital, namely, (a) that money (capital) must have been borrowed by the assessee, (b) that it must have been borrowed for the purpose of business and (c) that the assessee must have paid interest on the said amount and claimed it as a deduction. As regards the claim for deduction in respect of expenditure under section 10(2)(xv), the assessee must also satisfy three conditions, namely, (a) it (the expenditure) must not be an allowance of the nature described in clauses (i) to (xiv), (b) it must not be in the nature of capital expenditure or personal expenses of the assessee and (c) it must have been laid out or expended wholly and exclusively for the purpose of his business. It cannot be disputed that the expression "for the purpose of business" occurring in section 10(2) (iii) as also in 10(2) (xv) is wider in scope than the expression "for the purpose of earning income profits or gains" occurring in section 12(2) of the Act and, therefore, the scope for allowing a deduction under section 10(2) (iii) or 10(2) (xv) would be much wider than the one available under section 12(2) of the Act. This Court in the case of Commissioner of Income Tax, Kerala vs Malayalam Plantations Ltd has explained that the former expression occurring in section 10(2) (iii) and 10(2)(xv), its range being wide, may take in not only the day to day running of a business but also the rationalisation of its administration and modernisation of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title, it may also comprehend payment of statutory dues and taxes imposed as a pre condition to commence or for the carrying on of a business; it may comprehend many other acts incidental to the carrying on of the business but, however wide the meaning of the expression may be, its limits are implicit in it; the purpose shall be for the purposes, of business, that is to say, the expenditure incurred shall be 756 for the carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business. So far as the claim for deduction of interest paid by the assessee on the sum of Rs.5.5 lacs to the Bank in the three concerned years is concerned, the real question that arises for determination is whether the particular borrowing of Rs. 5.5 lacs was for the purposes of business of the assessee or not? The amount of Rs. 5.5 lacs having been actually parted with by the assessee on January 7, 1956, and having been accepted by the institute the same being deposited in the joint account of the assessee and the District Magistrate, Bulandshahr for the Engineering College, the gift to that extent was undoubtedly complete with effect from the said date. The said payment was made by the assessee by drawing a cheque on the overdraft account which she had with the Central Bank of Indian Ltd., Aligarh. In regard to this overdraft account the Tribunal has noted that at the beginning of the accounting year the amount outstanding in the said over draft was Rs. 2,76,965, that further overdrafts were raised during the accounting year with the result that at the end of the year the assessee 's liability to the bank in the said account rose to Rs. 9,56,660 and that among the further debits to this account during the year was said sum of Rs. 5.5 lacs paid to the college on January 7, 1956. On a consideration of the aforesaid position of the overdraft and the other material on record, the Tribunal has recorded a clear finding of fact which has been accepted by the High Court that the said borrowing of Rs. 5.5 lacs made by the assessee from the Bank on January 7, 1956 had nothing to do with the business of the assessee but the amount was directly made over to the college in part fulfilment of the promised donation of Rs. 10 lacs with a view to commemorate the memory of her deceased husband after whom the college was to be named. In other words the borrowing was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on the business nor in her capacity as a person carrying on that business. Such expenditure can by no stretch of imagination be regarded as business expenditure. It is true that initially on November 21, 1955 the capital account of the assessee was debited and the college account was credited with the sum of Rs. 10 lacs in the books of the assessee but in our view making of these entries in the assessee 's books would not alter the character of the borrowing nor would the said borrowing be impressed with the character of business expenditure, for, admittedly, the assessee maintained only one common set of books in which were incorporated entries pertaining to her capital, assets and income from all her different sources. It is, therefore, clear to us that the interest that was paid on the sum 757 of Rs. 5.5 lacs to the bank by the assessee for the three concerned years was rightly held to be not deductible either under section 10(2)(iii) or under section 10(2) (xv) of the Act. The two Bombay decisions on which reliance was placed by the counsel for the appellant, namely, Bombay Samachar 's case (supra) and Kishinchand Chellaram 's case (supra) are clearly distinguishable and do not touch the issue raised in the instant case before us. In the former case, the assessee had during the relevant assessment years paid amounts of interest on capital which was borrowed from outsiders and had claimed deduction in respect of such interest. It was not disputed that the capital borrowed by the assessee from the outsiders was admittedly used by the assessee for the purpose of its business. The taxing authorities had taken the view that if the assessee had collected outstandings which were due to it from others it would have been able to reduce its indebtedness and save a part of the interest which it had to pay on its own borrowings, that the assessee could not be justified in allowing its outstandings to remain without charging any interest thereon while it was paying interest on the amounts borrowed by it, and that to the extent to which it would have been in a position to collect interest on the outstandings due to it from others, it could not be permitted to claim as an allowance interest paid by it to outsiders. The High Court held that such a view was clearly unsustainable and observed that it is not the requirement under section 10(2) (iii) that the assessee must further show that the borrowing of the capital was necessary for the business so that if at the time of the borrowing the assessee has sufficient amount of its own the deduction could not be allowed and the High Court further took the view that in deciding whether a claim of interest on borrowing can be allowed the fact that the assessee had ample resources its disposal and need not have borrowed, was not a relevant matter for consideration. The decision in Kishinchand Chellaram 's case (supra) was rendered in the peculiar facts which obtained in that case. The Tribunal had recorded a clear finding that since the business of the assessee was that of banking there was no borrowal as such but only acceptance of deposits by the assessee from its clients which were made by the assessee in the course of and for the purposes of its business. In those circumstances the Tribunal took the view that the aspect as to how these deposits, which were admittedly received by the assessee from the depositors in the course of its banking business, were subsequently utilized would not be material for the purpose of deciding the question whether interest paid by the assessee on these deposits should be allowed under section 10(2) (xv) of the Act and the High Court refused to interfere with that view of the Tribunal and rejected the Revenue 's application for a Reference. In the instant 758 case admittedly the borrowing of Rs. 5.5 lacs had been made by the assessee to meet her personal obligation and not the obligation of her business. The borrowing was completely unrelated to the purpose of the business and was actually used for making charity. On these facts it will be clear that the interest paid on such borrowing cannot be allowed as deduction either under section 10(2) (iii) or 10(2) (xv). Turning to the question of interest credited by the assessee during the assessment years 1958 59 and 1959 60 to the account of the Engineering College on the sum of Rs. 4.5 lacs and the accretion thereto the real question is whether the gift or donation of Rs. 4.5 lacs was complete and a trust of that amount came into existence in favour of the college as has been contended for by the assessee. The only material on which reliance has been placed by the assessee in this behalf consists of the entries made in the assessee 's books of accounts and the certificate dated October 17, 1958 issued by the District Magistrate, Bulandshahr but from this material it is difficult to draw the inference suggested by the counsel for the appellant. In our view both the Tribunal as well as the High Court were right in taking the view that the certificate dated October 17, 1958 was of no avail to the assessee inasmuch as it merely stated that the assessee had promised a donation of Rs. 10 lacs on October 21, 1955, out of which Rs. 5.5 lacs were deposited in the joint account maintained in the name of the assessee and the District Magistrate, Bulandshahr for the college and the remaining sum of Rs. 4.5 lacs was left as a loan with the assessee and interest thereon at 6% per annum was to be finally deposited in the Technical Institute account. The Tribunal and the High Court were also right in taking the view that beyond making entries in the books of account of the assessee there was no material on record to show that the assessee had actually made over a sum of Rs. 4.5 lacs to the college or that the college had accepted the said donation with the result that the amount credited to the college account in her books represented her own funds and lay entirely within her power of disposition and that being so, the interest credited by the assessee on the said sum of Rs. 4.5 lacs and the accretion thereto continued to belong to the assessee, and, therefore, she was not entitled to the deduction in respect of such interests. Counsel for the assessee attempted to contend that the obligation to make over the said sum of Rs. 4.5 lacs could be said to have become enforceable on the basis of promissory estoppel but in our view, no material has been placed on record by the assessee to show that acting on the promised donation the college authorities had actually incurred any expenditure towards construction or acted to their prejudice during the accounting period relevant to the assessment years 1958 59 and 1959 60 so as 759 to support the plea of promissory estoppel. Of course, if in any subsequent years the assessee is in a position to place any material before the taxing authorities or the Tribunal or the Court which would support the plea of promissory estoppel the position in such years may be different. It is thus obvious that if no trust in favour of the college in regard to the amount of Rs. 4.5 lacs could be said to have come into existence either on October 21, 1955 or on November 21, 1955 or on any other subsequent date during the relevant years, no deduction in respect of interest credited by the assessee to the account of the college over the said sum can be allowed. In the circumstances, in our view, the High Court rightly answered the questions referred to it against the assessee in both the references. The appeals are accordingly dismissed with costs. V.D.K. Appeals dismissed.

The appellant assessee carried on money lending and other businesses and derived income from various sources such as investment in shares, properties and business. Pursuant to her promise to donate a sum of Rs. 10 lacs for setting up an Engineering College to commemorate the memory of her late husband, she actually made over a sum of Rs. 5.5 lacs by depositing the same in a joint account opened in the name of the District Magistrate, Bulandshahr and Smt. Indermani Jatia for the College. The balance of Rs. 4.5 lacs was left with the assessee and was treated as a debt to the institution and interest thereon at 6% per annum with effect from October 21, 1955 was to be finally deposited in the technical institute account. Though in the books of accounts, on November 21, 1955, a sum of Rs. 10 lacs was debited to her capital account and corresponding credit was given to the account of the institute, the assessee actually paid the sum of Rs. 5.5 lacs to the institution on January 7, 1956 from the overdraft account which she had with the Central Bank of India, Aligarh. In the assessment proceedings for the assessment years 1957 58, 1958 59, 1959 60, the assessee claimed the deduction of these sums Rs. 20,107/ Rs. 25,470/ and Rs. 18,445/ being the respective items of interest paid by her to the bank on Rs. 5.5 lacs during the samvat years. The assessee contended that she had preferred to draw on the overdraft account of the bank for the purpose of paying the institution in order to save her income earning assets, namely, the shares, which she would have otherwise been required to dispose of and therefore, the interest paid by her should be allowed. As regards interest on the remaining sum of Rs. 4.5 lacs (which was left as a loan with the assessee) that was debited to her account, the assessee claimed that it was a permissible deduction. The taxing authorities took the view that the claim for deduction was not admissible either against business income under section 10(2) or against income from investments under section 12(2) of the Income Tax Act, 1922. The appeals preferred to the Appellate Tribunal failed. The references made to the High Court went against the assessee. Dismissing the appeals by special leave, the Court ^ HELD: 1. Under section 10(2)(iii) of Income Tax Act, 1922, three conditions are required to be satisfied in order to enable the assessee to claim a deduction in respect of interest on borrowed capital, namely, (a) that money 746 (capital) must have been borrowed by the assessee, (b) that it must have been borrowed for the purpose of business and (c) that the assessee must paid interest on the said amount and claimed it as a deduction. [755B C] 2. As regards the claim for deduction in respect of expenditure under section 10(2) (xv), the assessee must also satisfy three conditions namely (a) it (the expenditure) must not be an allowance of the nature described in clauses (i) to (xiv); (b) it must not be in the nature of capital expenditure or personal expenses of the assessee and (c) it must have been laid out or expended wholly and exclusively for the purpose of his business. [755C D] 3. The expression "for the purpose of business" occurring in s.10(2)(iii) as also in 10(2)(xv) is wider in scope than the expression "for the purpose of earning income profits or gains" occurring in section 12(2) of the Act and, therefore, the scope for allowing a deduction under section 10(2)(iii) or 10(2)(xv) would be much wider than the one available under section 12(2) of the Act. [755D E] Commissioner of Income Tax vs Malayalam Plantations Ltd., ; ; applied. 4. Neither there had been any confusion of the issue nor any wrong approach had been adopted by the taxing authorities, the Tribunal or the High Court. The case of the assessee had been considered both by the Tribunal as well as by the High Court under s.10(2) (iii) or 10(2) (xv) and not under s.12(2). In fact, in Reference No. 775 of 1970 the questions framed by the Tribunal in terms referred to s.10(2)(iii) and 10(2)(xv) and proceeded to seek the High Court 's opinion as to whether the sums representing interest paid by the assessee to the Central Bank on the overdraft of Rs. 5.5 lacs for the concerned three years were allowable as deduction under either of the said provisions of the Act and the High Court after considering the matter and the authorities on the point had come to the conclusion that such interest was not allowable as a deduction under either of the said provisions. [743D G] 5. It is true that the High Court did refer to the decision of the Bombay High Court in Bhai Bhuriben 's case but that decision was referred to only for the purpose of emphasising one aspect which was propounded by that Court, namely, that the motive with which an assessee could be said to have made the borrowing would be irrelevant. In fact the High Court found that there was no material to show that the assessee, in the instant case, would necessarily have had to employ the business assets for making payment to charity. The High Court actually considered the assessee 's case under section 10(2) (iii) and 10(2) (xv) and disallowed the claim for deduction under these provisions principally on the ground that the said borrowing of Rs. 5.5 lacs was unrelated to the business of the assessee. [745G H, 755A B] Bhai Bhuriben Lallubhai vs Commissioner of Income Tax, North Cutch and Saurashtra, ; explained. (6) In the instant case: (a) The amount of Rs. 5.5 lacs having been actually parted with by the assessee on January 7, 1956, and having been accepted by the institute the same being deposited in the joint account of the assessee and the District 747 Magistrate, Bulandshahr for the Engineering College, the gift to that extent was undoubtedly complete with effect from the said date. [756A C] (b) The said payment made by the assessee by drawing a cheque on the overdraft account was a borrowing which was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on the business nor in her capacity as a person carrying on that business. Such expenditure could by no stretch of imagination be regarded as business expenditure. [756C, F] (c) It is true that initially on November 21, 1955 the capital account of the assessee was debited and the college account was credited with the sum of Rs. 10 lacs in the books of the assessee but making of these entries in the assessee 's books would not alter the character of the borrowing nor would the said borrowing be impressed with the character of business expenditure for admittedly, the assessee maintained only one common set of books in which were incorporated entries pertaining to her capital, assets and income from all her difference sources. The borrowing was completely unrelated to the purpose of the business and was actually used for making charity. It is, therefore, clear that the interest that was paid on the sum of Rs. 5.5 lacs to the bank by the assessee for the three concerned years was rightly held to be not deductible either under section 10(2) (iii) or under section 10(2) (xv) of the Act. [756F H, 757A] Commissioner of Income Tax, Bombay City II vs Bombay Samachar Ltd., Bombay, ; Commissioner of Income Tax, Bombay City IV vs Kishinchand, ; distinguished. (d) Both the Tribunal as well as the High Court were right in taking the view that the certificate dated October 17, 1958 was of no avail to the assessee inasmuch as it merely stated that the assessee had promised a donation of Rs. 10 lacs on October 21, 1955, out of which Rs. 5.5 lacs were deposited in the joint account maintained in the name of the assessee and the District Magistrate, Bulandshahr for the college and the remaining sum of Rs. 4.5 lacs was left as a loan with the assessee and interest thereon at 6% per annum was to be finally deposited in the technical institute account. The Tribunal and the High Court were also right in taking two views that beyond making entries in the books of account of the assessee there was no material on record to show that the assessee had actually made over a sum of Rs. 4.5 lacs to the college or that the college had accepted the said donation with the result that the amount credited to the college account in her books represented her own funds and lay entirely within her power of disposition and that being so, the interest credited by the assessee on the said sum of Rs. 4.5 lacs and the accretion thereto continued to belong to the assessee, and, therefore she was not entitled to the deduction in respect of such interests, and [758C G] (e) If no trust in favour of the college in regard to the amount of Rs. 4.5 lacs could be said to have come into existence either on October 21, 1955 or November 21, 1955 or on any other subsequent date during the relevant years, no deduction in respect of interest credited by the assessee to the account of the college over the said sum can be allowed. [759A B] 748

CTION: Civil Appeal No. 398890 of 1988. From Order No. 590 592/1988 dated 18.8.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos. E 375/84 D, S.A. No. 991/88 D & 992/88 D with C.O. No. 283/ 84 D. V. Lakshmikumaran, Madhava Rao and V. Balachandran for the Appellant. A.K. Ganguli and P. Parmeshwaran for the Respondent. Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal under section 35L of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ') against the judgment and order dated 18th August, 1988 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi (hereinafter re ferred to as 'the tribunal '). The appellant was at all relevant times engaged in the manufacture, inter alia, of polyester fibre (man made) failing under tariff item 18 of the erstwhile Central Excise Tariff. In the manufacture of the aforesaid, the appellant was using, amongst other inputs, ethylene glycol and DMT (Dimethyl Tetraphthalate) duty paid ethylene glycol falling under tariff item No. 68 of the erstwhile Central Excise Tariff received by the appellant and used in the manufac ture. The notification No. 201/79 dated 4.6.79, mentioned hereinafter, exempted, according to the appellant, all excisable goods on which duty of excise was leviable and in the manufacture of which any goods falling under tariff item 68 had been used, from so much of the duty of excise as was equivalent to the duty of excise paid on the inputs. The appellants claimed set off of duty on ethylene glycol used in the manufacture of polyester fibre under notification No. 201/79 dt. 23.6.1979. In response to the appellant 's seeking set off the duty paid on ethylene glycol, they received a letter from the Assistant Collector of Central Excise, Ghaziabad, dated 6th August, 1980 by which the Asstt. Col lector held that no proforma credit was allowable in respect of ethylene glycol for the following: (a) Methanol which is not excisable and is cleared without pay 266 ment of duty; (b) Glycol residual waste which was being destroyed by the appellants by throwing in the field; and (c) Polyester fibre waste which was used in the recovery of DMT and exempt from payment of duty under Central Excise Notification dt. 19th May, 1976. The appellants were further directed to furnish the exact percentage of ethylene glycol content used/consumed in the methanol, the ethylene glycol residual waste and polyes ter fibre waste; and that not to utilise the proforma credit or set off credit till the data was furnished and the same was authenticated by the Chemical Engineer. The classifica tion list submitted by the appellants was modified in terms of the said letter. Thereafter, classification list was filed claiming set off of duty on ethylene glycol falling under tariff item 68 under exemption notification No. 201/79 as amended by noti fication No. 102/81 dt. 13th May, 1981. By this amended notification, a second proviso was added which provided that the credit of the duty allowed in respect of inputs could not be denied or varied on the ground that part of thee input was contained in any waste, refuge or by product arising during the manufacture, irrespective of the fact that such waste, refuse or byproduce was exempt from the whole of duty of excise leviable thereon or was chargeable to nil rate of duty. Hence, it is the case of the appellants that from 11th April, 1981 even though some part of the input may be con tained in any waste, refuge or by product which is charge able to nil rate of duty, the credit of the duty paid on the inputs could not be denied. By this order the set off of duty in respect of duty paid ethylene glycol was allowed from 11th April, 1981 onwards except in the case of ethylene glycol used/ consumed in polyester waste used for recovery of DMT on the ground that this polyester waste was charge able to nil rate of duty. Similarly, duty paid on ethylene glycol which was used for recovery of DMT was held not to be allowable while paying duty on polyester fibre. Aggrieved thereby, an appeal against the said order to the Collector of Central Excise, Ghaziabad was filed. The main contentions of the appellants were that the ethylene glycon received in the factory after payment of duty was consumed in the manufacture of polyester fibre only. During the course of manufacture of polyester fibre, two basic raw materials DMT and Glycol interact and thereby certain waste comes into existence. This 267 waste is recycled with glycol for the recovery of DMT in DMT recovery plant, within the factory. Hence, the entire set off of duty was to be allowed since no part of DMT produced was diverted for any other use other than production of polyester fibre nor was it taken outside the factory. The appellants contended that in case of proforma credit proce dure under rule 56 A of the Central Excise Rules, clarifica tion had been issued by the Collector of Central Excise, under trade notice No. 72 CE/80 dt. 1980 to the effect that proforma credit is permissible even where at an in termediate state of manufacture, a final product which is fully exempt from duty comes into being, provided that the fully exempted product is consumed in the production or manufacture of the finished product. This trade notice categorically states that this clarification would also be applicable to exemption notification No. 201/79. By an order dated 17th November, 1981 the Asstt. Collec tor held that the appellants were entitled to credit of duty paid on the ethylene glycol only to the extent of the per centage content as determined by the Chief Chemical Engi neer, CRCL, New Delhi. The order covered the period from 17.7.1979 to 10.4. As mentioned before, the notification was amended from 11th April, 1981 whereby the credit of the duty on any inputs was not to be denied to any waste, refuse or by product arising during the manufacture of the output irre spective of whether the waste, refuse or by product was chargeable to nil rate of duty or not. By a letter dated 27th November, 1981 the appellants were informed that set off for Rs. 15,41,673.60 was inadmis sible. By a subsequent letter of the Superintendent of Central Excise, Ghaziabad, dated 17th December, 1981 it was stated to the appellant that they had received Rs. 15,42,740.16 as set off which was inadmissible. The period mentioned was 17.7.1979 to 10.4.1981. The appellants case was that this related only to ethylene glycol content in methanol. There was a second appeal preferred to the Collector of Central Excise, Delhi, against the order dated 17.11.1981 of the Asstt. Collector disallowing the set off of duty credit paid on ethylene glycol content in methanol and ethylene glycol waste and polyester fibre waste. A third appeal was filed before the Collector (Appeals) against the duty demand of Rs. 15.42,740.16. Thereafter, the appellants received a letter dated 23rd April, 268 1983 from the Superintendent of Central Excise which stated that the stand of the appellants that the ethylene glycol contribute only H positive and not OH negative, has been accepted by the Chief Chemical Engineer, CERL, New Delhi. Consequently, since the ethylene glycol content in the methanoi, wherein the ethylene glycol contribute only H positive and not OH negative ions, the amount of inadmissi ble set off would stand reduced to Rs.90,749,76. The aforesaid three appeals were decided by the 'Collec tor of Central Excise (Appeals), by passing a single order dated 15th December, 1983, wherein he observed that the procedure under notification No. 20 1/79 was materially the same as the procedure under rule 56A and in the circum stances allowed all the appeals and set aside the Asstt. Collector 's order and the demands. Aggrieved thereby, the revenue went up in appeal before the tribunal. The tribunal after examining the aforesaid contentions noted the contention of the parties. It was the case of the revenue that prior to 1 Ith April, 1981 there was no provision in notification No. 201/79 entitling the manufacturer to obtain credit of the duty of excise already paid on the inputs resulting in waste or by product or refuge which arose in the manufacture of excisable products which used the inputs. Hence, it was argued that the duty element in the quantity of glycol which was contained in the glycol residual waster, polyester fibre waste and methanoi (by product) which was non excisable, did not qualify for credit which could be subsequently used for discharging duty liability on dutiable finished product. The provision con tained in notification No. 102/81 was not available prior to 11th April, 1981 it was submitted on behalf of revenue. It was further submitted that the trade notice issued by Pune Collectorate pertained to rule 56 A only and not to the notificaion. It was further submitted that the rule and notifications are different enactments and the provisions of one cannot be read into another even after 11th April, 1981 and the exemption was only in respect of duty on inputs in the manufacture of excisable goods and their waste, by product or refuge. It was submitted that since methanol was not excisable, it was not eligible for set off of duty on the glycol content in its manufature. On behalf of the appellants, however, it was contended that glycol is used totally in the production of polyester fibre. methanol results out of the reaction of DMT and glycol; and that the Government always maintained parity between rule 56 A and notification No. 201/79, hence, the appellants were eligible to full set off. On behalf of the appellants reliance was placed on the decision of the High Court of Bombay in Indian Aluminium Co. 269 Ltd. & Anr. vs A.K. Bandyopadhyay & Ors., The question that the tribunal had to decide was whether the set off of duty paid on inputs was admissible only if the finished excisable goods manufactured therefrom, was not exempted from duty. The process of manufacture and the out come of ethynol are not in dispute. The tribunal was of the view that the judgment of the Bombay High Court had held that dross skimmings thrown off in the process of manufac ture and aluminium sheets were not end products or finished or by products merely because such refuge might fetch some price in the market. The High Court had further held that proviso to sub rule 56 A will have no application and the skimmings cannot be said to be finished excisable goods. These were not exempted from the whole of duty of excise or chargeable to nil rate of duty whereas the sub rule pre scribed that the credit is admissible if the material is used in the manufacture of finished goods which are exempt from duty or are chargeable to nil rate of duty. The Tribu nal was of the opinion that the factual background 'of the case before the Bombay High court was different and there fore, it was of the opinion that the said decision was not applicable in the instant case. The Tribunal was of the opinion that the revenue was right that rule 56A and notification No. 201/79 were differ ent enactments and the amendment to one could not be read into the other. In that view of the matter, the Tribunal was of the view that the Collector 's observation that the proce dure under notification No.201/79 was materially the same as the procedure under rule 56A and consequently the amending notification deemed to have retrospective effect was not, in the absence of any such indication, acceptable. In the premises, the Tribunal allowed the appeals and rejected the cross objection. The question involved in these appeals, is whether the Tribunal was right. On behalf of the appellants, Shri V. Lakshmikumaran contended that the Tribunal failed to appre ciate that the provisions of rule 56A and notification No. 201/79 were para materia. It appears to us that the provi sions of rule 56A and the notification No. 201/79 are iden tical. The relevant provisions of Rule 56A are as follows: "56A(1) . . 56A(2) The Collector may, on application made in this behalf and subject to the conditions mentioned in sub rule (3) and such other conditions as may, from time to time, be prescribed by the Central Government, permit a manu 270 facturer of any excisable goods specified under sub rule (1) to receive material or component parts of finished product (like Asbestos Cement), on which the duty of excise or the additional duty under section 3 of the (51 of 1975) (herein after referred to as the countervailing duty), has been paid in his factory for the manufac ture of these goods or the more convenient distribution of finished product and allow a credit of the duty already paid on such mate rial or component parts or finished product, as the case may be: Provided that no credit of duty shall be allowed in respect of any material or compo nent parts used in the manufacture of finished excisable goods (i) if such finished excisable goods produced by the manufacturer are exempt from the whole of the duty of excise leviable thereon or are chargeable to 'nil ' rate of duty, and (ii) . . Explanation. Credit of the duty allowed in respect of any material or component parts shall not be denied or varied on the ground that part of such material or component parts is contained in any waste, refuse or by product arising during the process of manufac ture of the finished excisable goods irrespec tive of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is charge able to nil rate of duty or is not notified under sub rule ( 1): Provided . . The notification No. 20 1/79 prior to 1 Ith April, 1981 in so far as relevant for the present purpose was as follows: "Set off of duty on all exciseable goods on use of duty paid goods falling under Item 68 (Tariff Items I to 68): In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Gov ernment of India in the Ministry of Finance (Department of Revenue) No. 178/77 Central Excise, dated the 18th June, 1977, the Central Government 271 hereby exempts all excisable goods (hereinaf ter referred as "the said goods"), on which the duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 of the first Schedule to the (1 of 1944) (hereinafter referred as "the inputs") have been used, from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs: Provided that the procedure set out in the Appendix to this notification is followed: Provided further that nothing contained in this notification shall apply to the said goods which were exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty." The amending notification No. 102/81 dated 11th April, 1981 is as follows: "Provided also that credit of the duty allowed in respect of the inputs shall not be denied or varied on the ground that part of such inputs is contained in any waste, refuse or by product arising during the process of manufacture of the said goods, irrespective of the fact that such waste, refuse or by product is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty or is not mentioned in the declaration referred to in the Appendix to this notifica tion." Central Board of Excise & Customs issued Circular No. 6/81CX. 6, dated 31st January, 1981, which reads as follows: "Central Excise Rule 56A Proforma Credit of duty paid on material/component parts con tained in waste, refuse or by product arising during the process of manufacture regarding. A doubt has been raised whether proforma credit of duty paid on material/component parts used in manufacture of the finished excisable goods notified under rule 56A of the Central Excise Rules, 1944, is to be denied to the extent such material or component parts are contained in any 272 waste, refuse or by product arising during the process of manufacture of the notified fin ished excisable goods on the grounds that such waste, refuse or by product is either fully exempt from duty or not notified under sub rule (1) of rule 56A. 2. Since the Government 's intention has been not to deny the benefit of proforma credit in such situation, an Explanation has been added to sub rule (2) of rule 56A, so as to remove the ambiguity in the rule. Notification No. 8/8 I CE dated 31.1. 1981 amending rule 56 A is enclosed. It may, however, be noticed that such credit cannot be utilised for payment of duty leviable on such waste, refuse or by product. " On an analysis and comparison of aforesaid, it is clear that the clarification in the form of trade notice issued by the Pune Collectorate in respect of rule 56A was as much applicable to that rule as to notification No. 20 1/79. In the premises, it is clear that the Tribunal should have held that even though a part of the ethylene glycol was contained in the by product methanoi, yet the credit of duty could not be reduced to the extent of the ethylene gIycol contained in the mathanoi as ineligible. It is true that when in a fiscal provision, if benefit of exemption is to be considered, this should be strictly considered. But the strictness of the construction of exemption notification does not mean that the full effect to the exemption notification should not be given by any circuitous process of interpretation. After all, exemption notifications are meant to be implemented and trade notices in these matters clarify the stand of the Government for the trade. It is clear, therefore, that the Tribunal failed to interpret the words of the exemption notification No. 201/79 properly and fully. The said notifi cation exempted all excisable goods on which the duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item 68 (i.e. inputs) had been used from so much of the duty of excise leviable thereon as was equivalent to the duty of excise already paid on the inputs. It is clear, however, that ethylene glycol was used in the manufacture of polyester fibre. It appears that methanoi arises as a part and parcel of the chemical reac tion during the process of manufacture when ethylene glycol interacts with DMT to produce polyester fibre. It is not possible to use a lesser quantum of the ethylene glycol to prevent methanoi from arising for producing a certain quan tity of polyester fibre. Thus, the quantity of ethylene glycol required to produce a certain quantum of polyester fibre is determined 273 by the chemical reaction. It may be mentioned herein that it is not as if the appellants have used excess ethylene glycol wantonly to produce the methanol. It is clear that the appellants are not engaged in the production of methanol but in the production of polyester fibre. That position is undisputed. Therefore, it appears that the Tribunal erred when it held that the appellants were not entitled to a part of the credit of duty since ethylene glycol when it inter acts with DMT also gives rise to methanoi. This construction would frustrate the object of exemption if something which evidently arises out of the interaction is denied Credit. Even prior to amendment to notification No. 201/79 with effect from 1 Ith April, 1987, the only situation where the credit of the duty paid on the inputs could be denied was only where the final products were wholely exempt from the duty of excise or chargeable to nil rate of duty. In the present case, the excisable goods, namely, polyester fibre were not wholely exempt from duty nor chargeable to nil rate of duty. It cannot be read in the notification that the notification would not be available in case non excisable goods arise during the course of manufacture. In fact, the Tribunal seems to have erred in not bearing in mind that exemption notification was pressed in service in respect of polyester fibre which is excisable goods and not in respect of methanoi which arises as a by product as a part and parcel of chemical reaction. It appears further on a com parison of the rule 56A and the notification No. 20 1/79 that these deal with the identical situation. In this connection, reference may be made to the deci sion of the Bombay High Court in Indian Alurninium Co. and Anr. 's case (supra). In that case, the High Court came to the conclusion that dross and skimmings were merely the refuge, scum or rubbish thrown out in the process of manu facture of aluminium sheets and could not be said to be the result of treatment, labour or manipulation whereby a new and different article emerged with a distinctive name, character or use which can ordinarily come to the market to be bought and sold. The High Court further held in that case that merely because such refuse or scum may fetch some price in the market does not justify it being called a by product, much less an end product or a finished product. In the light of that fact, the High Court was of the view that in that case the end product was aluminium sheets manufactured from aluminium ingots and dross or skimmings. Therefore, the High Court was of the view that these were neither 'goods ' nor 'end products ' nor 'finished products ' liable to duty under item 27 of Central Excise Tariff. The High Court was of the view that under proviso to section 56 A (2) proforma credit was not admissible if the material is used in the manufac ture of finished excisable goods which are exempt from duty 274 or chargeable to nil rate of duty. Since dross and skimmings are mere 'ashes ', these could not be said to be finished excisable goods, nor they were exempt from the whole of duty of excise or chargeable to 'nil ' rate of duty. Therefore, proviso to sub rule (2) of rule 56A would not have any application. The High Court was of the view that refuse or skum thrown off during the process of manufacture could not by any stretch of imagination be considered as a by product and merely because such refuse or scum may fetch some price in the market they could not be said to be 'finished excisa ble goods '. Under rule 56A, the High Court was of the view, if the material is used in the manufacture of any finished excisable goods, and during the course of manufacture any non excisable by product emerged, then it could not be said that the raw material was not used in the manufacture of the finished excisable goods. In our opinion, the same analogy and reasoning would apply when the methanoi arises as a result of chemical reaction and not as a result of any by product. In the instant case, the methanoi was nonexcisable. Just because methanoi arises as a part and parcel of the chemical reac tion during the process of manufacture, it cannot be said that methanoi was not used in the manufacture of polyester fibre. The intention of the Government is evident further more, from the trade notice of Pune Collectorate No. 31/81. The Tribunal, therefore, should have taken into considera tion the trade notice for interpretation of exemption noti fication No. 201/79, which was para materia with rule 56A. In the aforesaid view of the matter, we are of the opinion that the Tribunal was in error in coming to the conclusion it did. The appeals are, therefore, allowed and the order and the judgment of the Tribunal are set aside and the combined orders of the Collector (Appeals) Nos. 284 286/CE/MT/83 dated 15th December, 1983 are restored. In the facts and the circumstances of the case, there will be no order as to costs. R.S.S. Appeals allowed.

The appellant was engaged in the manufacture of polyes ter fibre (man made) falling under tariff item 18 of the erstwhile Central Excise Tariff. In its manufacture, the appellant was using, among other things, ethylene glycol and DMT (Dimethyle Tetraphthalate) duty paid ethylene glycol falling under tariff item No. 68. During the course of manufacture of polyester fibre, two basic raw materials DMT and Glycol interact and thereby certain waste comes into existence. This interaction also gave rise to methanol, a by product. Notification No. 201/79 dated 4.6.1979 exempted all excisable goods on which duty of excise was leviable and in the manufacture of which any goods failing under tariff item 68 had been used, from so much of the duty of excise as was equivalent to the duty of excise paid on the imputs. Exemption notification No. 201/79 was amended by notifi cation No. 102/81 with effect from 11th April, 1981. By this amended notification, a second proviso was added which provided that the credit of the duty allowed in respect of inputs could not be denied or varied on the ground that part of the inputs was contained in any waste, refuse or by product arising during the manufacture, irrespective of the fact that such waste, refuse or by product was exempt from the whole of duty of excise leviable thereon or was charge able to nil rate of duty. Earlier, in the case of proforma credit procedure under rule 56 A of the Central Excise Rules, clarification had been issued by the Collector of Central Excise, under trade notice dated 19.7.1980 to the effect that proforma credit was permissible even where at an intermediate state of manufacture, a final product which was fully exempt from duty came into being, provided that the fully exempted product was consumed in 263 the production or manufacture of the finished product. This trade notice categorically stated that the clarification would also be applicable to exemption notification No. 201/79. The appellant claimed set off of duty paid on ethylene glycol used in the manufacture of polyester fibre under notification No. 201/79. The Assistant Collector of Central Excise held on 6.8.1980 that no proforma credit was allowa ble in respect of ethylene glycol used/consumed in the methanol, the ethylene glycol residual waste and polyester fibre waste. The Collector of Central Excise (Appeals), however, allowed the appeals filed by the appellant and set aside the Assistant Collector 's order and the demands. The Collector observed that the procedure under notification No. 201/79 was materially the same as the procedure under rule 56A of the Central Excise Rule. The revenue went up in appeal before the Customs, Excise was contended on behalf of the revenue that prior to 11th April, 1981 there was no provision in notification No. 201/79 entitling the manufacturer to obtain credit of the duty of excise already paid on the inputs resulting in waste or by products or refuse which arose in the manufacture of excisable products which used the inputs; that the trade notice issued pertained to rule 56 A and not to the notifi cation; that the rule and notifications were different enactments and the provisions of one could not be read into another even after 11th April, 1981; that the exemption was only in respect of duty on inputs in the manufacture of excisable goods and their waste, by product or refuse; and that since methanol was not excisable, it was not eligible for set off of duty on the glycol content in its manufac ture. On behalf of the appellant, however, it was contended that glycol was used totally in the production of polyester fibre; that methanol resulted out of the reaction of DMT and glycol; and that the Government always maintained parity between rule 56 A and notification No. 201/79. The Tribunal was of the opinion that the Collector 's observation that the procedure under notification No. 201/79 was materially the same as the procedure under rule 56 A and consequently the amending notification deemed to have retro spective effect was not, in the absence of any such indica tion, acceptable. In the premises, the Tribunal allowed the appeals, of the Revenue. 264 Allowing the appeals, this Court, HELD: (1) On an analysis and comparison of the notifi cations No. 201/79, No. 102/81 and the circulars, it is clear that the clarification in the form of trade notice issued in respect of rule 56 A was as much applicable to that rule as to notification No. 201/79. [272D] (2) It is true that when in a fiscal provision, is benefit of exemption is to be considered, this ' should be strictly considered. But the strictness of the construction of exemption notification does not mean that the full effect to the exemption notification should not be given by any circuitous process of interpretation. After all, exemption notifications are meant to be implemented and trade notices in these matters clarify the stand of the Government for the trade. [272E F] (3) The quantity of ethylene glycol required to produce a certain quantum of polyester fibre is determined by the chemical reaction. It is not possible to use a lesser quan tum of the ethylene glycol to prevent methanol from arising for producing a certain quantity of polyester fibre. It is not as if the appellants have used excess ethylene glycol wantedly to produce the methanol. It is also clear that the appellants are not engaged in the production of methanol but in the production of polyester fibre. [272H; 273A] (4) The Tribunal, in the instant case, failed to inter pret the words of the exemption notification No. 201/79 properly and fully. The said notification exempted all excisable goods on which the duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item No. 68 (i.e. inputs) had been used from so much of the duty of excise already paid on the inputs. The excisable goods, namely, polyester fibre, were not wholly exempt from duty nor chargeable to nil rate of duty. It cannot be read in the notification that the notification would not be available in case non excisable goods arise during he course of manufacture. In fact, the Tribunal seems to have erred in not bearing in mind that exemption notification was pressed in service in respect of polyester fibre which is excisable goods and not in respect of methanol which arises as a by product as a part and parcel of chemical reaction. It ap pears further on a comparison of the rule 56 a and the notification No. 201/79 that these deal with identical situations. [272F; 273C D] Indian Aluminium Co. Ltd. & Anr. A.K. Bandyopadhyay & Ors., , referred to.

vil Appeal No. 3118 of 1982. From the Judgment and Order dated 11.8.1982 of the Delhi High Court in Civil Writ Petition No. 112 of 1981. 487 S.N. Kackar and H.K. Puri for the Appellant. Shanti Bhushan, Mr. S.S. Jauhar, C.L. Sahu and M.L. Verma for the Respondents. The Judgment of the Court was delivered by KHALID, J. The coal mines were nationalised by the , (for short 'the Act '). Under this Act, the mines vested in the Govern ment with effect from 1st May, 1972. The Act contains a schedule showing the various mines which come under the nationalisation scheme. The mines involved in this appeal are shown as serial Nos. 112 to 116 in the First Schedule to the Act. The Schedule, in addition shows, the location of the mines,name and address of the owners of the mines and the amount of compensation. The owners ' name in the fourth column of the mines involved in the appeal is shown as East India Coal Company Limited, the appellant before us and the total compensation as Rs. 93,23,500. Respondent nos. 1 and 2 were carrying on the business as raising contractors and selling agents of coking coal of working coal mines. According to them, Messrs Jardine Hand erson Limited, who were the managing agents of the appel lant company, appointed them as contractors to raise and sell coal and manufacture hard coke in respect of the un worked mines, as per an agreement. It was alleged that they were entitled under the agreement to instal plant, machinery and other equipment for efficient discharge of their func tions as raising contractors. Pursuant to this agreement, they installed valuable machinery, utensils and coke ovens at a heavy cost. After nationalisation, they felt that there would be difficulty for getting apportionment from the appellant company, of their due share in the compensation. Therefore, they filed a claim under Section 26 of the Act before the 4th respondent, the Commissioner of Payment, Coking Coal Mines, a statutory authority constituted under the Act. They also moved the High Court by way of writ petition and contended that they were also owners of the mines under the Act and were entitled to their share in the compensation and prayed for a direction that they be paid compensation at the market value for machinery, plant, equipment, building, stores etc. and in addition challenged the validity of the Act. The challenge against the validity of the Act became infructuous since the Act had been placed in the 9th Schedule. A Division Bench of the High Court accepted the plea of the writ petitioners, who are respond ents 1 and 2 here, held that these two were owners under the Act, and 488 directed the 4th respondent to proceed with the claim ac cording to law. It is against this Judgment that this appeal is filed, by special leave. The appellants before us in their challenge against the judgment of the High Court dispute the finding that respond ents 1 and 2 were also owners under the Act and deny that they owned any part of the plant and machinery or equipment which had been taken over under the Nationalisation Act The matter is now pending before the 4th respondent, a statutory authority under the Act. He has to decide about the claims and if necessary to refer the matter to a compe tent civil court, if any dispute arises as to the right of any person to receive the whole or any part of the amount. We cannot go into the apportionment part of the claim. All that we have to do in this appeal is to resolve the dispute between the appellant and respondent Nos. 1 and 2, as to who is the owner of the mines under the Act. In other words, whether the appellants are the owners of the mines to the exclusion of respondents 1 and 2 or not. Then we will have to indicate the manner in which the debts due by the owners have to be paid and which debt has priority over other debts. This we will have to do after examining the scheme of the Act with reference to some of the sections. The first question to be answered is as to who is the owner of the mine in question. The appellants contend that they have exclusive fight over the compensation amount while respondents 1 and 2 claim that they have a share in it. We will refer to the sections brought to our notice to resolve this dispute. Sections 4, 5, 3(n), 10 and 12 can be usefully looked into for this purpose. Section 4(1) declares that the right, title, interest of the owners in relation to the mines shall stand transferred to the Central Government on the appointed day, free from all encumbrances. It reads thus: "4(1) On the appointed day, the fight, title and interest of the owners in relation to the coking coal mines specified in the First Schedule shall stand transferred to, and shall vest absolutely in the Central Government, free from all encumbrances. " Similarly, Section 5 refers to the acquisition of fights of owners of coke oven plants specified in the Second Sched ule by the Central 489 Government by virtue of operation of this Section. Section 5 reads as follows: "5. On the appointed day, the rights, title and interest of the owners of each of the coke oven plants specified in the Second Schedule being the coke oven plants which are situated in or about the coking coal mines specified in the First Schedule, shall stand transferred to, and shall vest absolutely in the Central Government free from all encumbrances. " A combined reading of these two sections, therefore, makes it abundantly clear that the right, title, interest of the owners in relation to the mines and the coke oven plants prescribed in the First Schedule and the Second Schedule vest in the Central Government, free from all encumbrances on the appointed day. That takes us to the question as to who is the owner contemplated by these two sections. The term 'owner ' has been defined in Section 3(n). It reads as follows: " "3(n) 'Owner ' (i) When used in relation to a mine, has the meaning assigned to it in the , (ii) When used in relation to a coke oven plant, means any person who is the imme diate proprietor of lessee or occupier of the coke oven plant or any part thereof or is a contractor for the working of the coke oven plant of any part thereof. " For the purpose of the definition of the word 'owner ' in relation to a mine, therefore, we have to examine the defi nition in the . It reads as follows: "2(1)(1) 'Owner ' when used in relation to a mine, means any person who is the immediate proprietor of lessee or occupier of the mine or of any part thereof and in the case of a mine the business whereof is being carried on by a liquidator or receiver such liquidator or receiver and in the 490 case of a mine owned by a company, the busi ness whereof is being carried on by a managing agent, such managing agent; but does not include a person who merely received a royali ty, rent or fine from the mine, or is merely the proprietor of the mine subject to any lease, grant or licence for the working there of, or is merely the owner of the said mine and not interested in the minerals of the mine; but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability. " It is clear from the definition that it takes within its ambit 'occupier of the mine or any part thereof '. It cannot be disputed that respondents 1 and 2 here, admittedly a raising contractor, were in occupation of at least a part of the mine for their operation and thus an occupier within the definition. They do not come within the exclusion clause in the definition section. We have no hesitation, therefore, to hold that respondents 1 and 2 is a owner within the defini tion of section 3(n) of the Act. For this conclusion of ours, we are supported by a decision of this Court rendered by a bench of three Judges, to which one of us was a party, in the case of Industrial Supplies Private Limited vs Union of India, ; Construing the indentical sec tion, AP Sen, J, speaking for the bench held thus: "22. It was asserted that the petitioners were really not the managing contractors, but wrongly described as such in the agreement . . . The petitioners were conferred all the fights to work the mine for winning, getting and raising coal. The so called remuneration payable to them was virtu ally the price of coal supplied leaving to the owners a margin of profit . . The petitioners having bound them selves by the terms of the agreement, cannot be permitted to escape from the provisions of sub section (1) of Section 4, as they come within the purview of the definition of 'owner ' in section 3(n) of the Nationalisation Act. It is then argued, in the alter native, that the term 'owner ' as defined in Section 3(n) of the Nationalisation Act read with Section 2(1) of the , does not in any event include a raising contractor. It is not suggested that a raising contractor does not come within the description of a contractor in Section 2(1), but it is argued that the 491 word 'includes ' is not there. There was no need for Parliament to insert the word 'in cludes ' because of the words 'as if he were '. Although the term 'owner ' in common parlance, in its usual sense, connotes ownership of a mine, the term has to be understood in the legal sense, as defined. Parliament, with due delibera tion, in Section 3(n) adopted by incorporation the enlarged definition of owner in Section 2(1) of the , to make the Nationalisation Act all embracing and fully effective. The definition is wide enough to include three categories of persons; (i) in relation to a mine, the person who is the immediate proprietor or a lessee or occupier of mine or any part thereof, (ii) in the case of a mine the business whereof is carried on by a liquidator or a receiver, such liquidator or receiver, and (iii) in the case of a mine owned by a company, the business whereof is carried on by a managing agent, such managing agent. Each is a separate and distinct catego ry of persons and the concept of ownership does not come in. Then come the crucial last words; "but any contractor for the working of a mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but not so as to exempt the owner from any liability. " The insertion of this clause is to make both the owner as well as the contractor equally liable for the due observ ance of the Act. It is needless to stress that the , contains various provi sions for the safety of the mines and the persons employed therein. In the case of a mine, the working whereof is being carried on by a raising contractor, he is primarily responsible to comply with the provisions of the Act. Though a contractor for the working of a mine or any part thereof is not an owner, he shall be subject to the provisions of the Act, in the like manner as if he were an owner, but not so as to exempt the owner from any liability." The learned counsel for the appellants in his attempt to deny to respondents 1 and 2 any right in the compensation, sought support from the names shown in the first and second schedules which according to him clearly indicated who the owner of the coal mines was and made his submission as follows: The first schedule gives the location of the mine and the name of the owner. Section 4 refers to the owners specified in the First Schedule to be a person whose right, title and 492 interest shall vest in the Central Government on the ap pointed day. Section 4(3) which is an amended section gives the Central Government powers to correct any error, omission or misdescription in relation to the particulars of a coking coal mine included in the First Schedule or the name and address of the owner of any such coking coal mine. Section 5 also refers to the owner of each of the coke oven plants specified in the second Schedule. He wants to emphasise the fact that these sections by referring to owners mentioned in the schedule by name, seek to exclude those who are not mentioned therein. Then he relies upon Section 10 of the Act for the same purpose;, Section 10 reads as follows: "10. Payment of amount to owners of coking coal mines: The owner of every coking coal mine or group of coking coal mines specified in the second column of the first schedule, shall be given by the Central Government, in cash and in the manner specified in section 21, for vesting in it, under section 4, the right title and interest of the owner in relation to such coking coal mine or group of coking mines, an amount equal to the amount specified against it in the corresponding entry in the fifth column of the said Sched ule. " Here also, the section shows that the amount of compensation is to be paid to the owner of the coking coal mine specified in the second column of the First Schedule. Reliance was also placed on Section 12 for the same purpose. Section 12(1) and Section 12(2) also refer to the owner mentioned in the first schedule. It is better to quote Section 12(1) and 12(2): "12(1) In consideration of the retrospective operation of the provisions of section 4 and section 5, there shall be given by the Central Government in cash, to the owner of every coking coal mine specified in the First Schedule of the owner of every coke oven plant specified in the Second Schedule, an amount equal to the amount which would have been, but for the provisions of the said section 4 or section 5, as the case may be, payable to such owner under the , for the period commencing on the 1st day of May, 1972, and ending on the date of assent. 493 (2) In addition to the amount speci fied in sub section (1), there shall be given by the Central Government, in cash, to the owner of every coking coal mine specified in the First Schedule and the owner of every coke oven plant specified in the Second Schedule, simple interest at the rate of four per cent, per annum on the amount specified against such owner in the corresponding entry in the fifth column of the First Schedule or the Second Schedule, as the case may be, for the period commencing on the date of assent and ending on the date of payment of such amount to the Commissioner. " Emboldened with these submissions, specious though, and the sections he ventured to meet the difficulty pased by Section 20 of the Act which does not use the same phraseolo gy as in Sections 4, 5, 10 and 12. Chapter VI deals with Commissioner of Payments. By Section 20(1), in this chapter, the Central Government is given power to appoint the Commis sioner of Payments. It is necessary to read this Section, to see how it is worded. "20(1) For the purpose of disbursing the amounts payable to the owner of each coking coal mine or coke over plant the Central Government shall appoint such person as it may think fit to be the Commissioner of Payments. " The phraseology used in this section catches one 's eyes immediately. Here the words used are "the amounts payable to the owner of each coking coal mine or coke oven plant". The word 'owner ' is not qualified with the expression "specified in the second column of the First Schedule". Section 21 in the same chapter is also useful for this discussion. It reads: "21(1). The Central Government shall, within thirty days from the specified date, pay, in cash, to the Commissioner, or payment to the owner or a coking coal mine or coke oven plant, a sum equal to the sum specified against the coking coal mine or coke oven plant, as the case may be, in the First Sched ule or the Second Schedule together with the amount and interest, if any, referred to in section 12. (2) In addition to the sum referred to in sub section (1), the Central Government shall pay, in cash, to the Commissioner, such amount as may become due to the owner of a coking coal mine or coke oven plant in rela tion 494 to the period during which the management of the coking coal mine or coke oven plant re mained vested in the Central Government." In Section 21(1) and 21(2) the owner of a coking coal mine or coke oven plant is not qualified with the expression "as specified in the First Schedule or the Second Schedule". Section 21(3) directs the Commissioner appointed under the Act to open and operate an account in a scheduled bank in respect of each coking coal mine or coke oven plant. Section 21(4) stipulates that the Commissioner shall deposit the amount of compensation to the credit of the account of the coking coal mine or coke oven plant to which the payment relates, and section 21(5) states that interest accruing on the amount standing to the credit of the account shall ensure to the benefit of the owner of coking coal mine or coke oven plant, as the case may be. It is necessary to note that in these sub sections the owner is not specified by name as the owner specified in the second column of the First Schedule. Absence of this specification in the above sections, thus, creates difficulty for the appellants. Mr. Kacker tried to get out of this difficulty by contending that the 'expression owner specified in the First Schedule ' must be read into these sections also though they are absent there. This attempt to deny any fights to the respondents 1 and 2, on such a plea, cannot, in our view, succeed. The sections occurring in Chapter VI have deliberately avoided the ex pression "the owners in the First Schedule" so as to achieve the object of the definition 'owner ' in the , which definition has been bodily borrowed by this Act. We conclude this discussion holding, agreeing with the decision of this Court referred to above, that respondents 1 and 2 as occupiers are also owners. If the owner whose name is men tioned in column 4 is alone entitled to the compensation, then there was no need for the remaining sections in Chapter VI, for apportionment of the amount after considering the various clauses. What remains now is to lay down the guide lines to the Commissioner regarding the priorities in which the debts due by the mine owners have to be paid. Section 12 A deals with the workers ' dues. It reads: "12 A Workers dues to be paid out of the amount: (1) Out of the amount payable (a) under section 10 and section 12 to the owner of 495 every coking coal mine or group of coking coal mines; (b) under section 11 and section 12 to the owner to every coke oven plant, there shall be paid to every person employed by such owner a sum equal to the amount of arrears due, on the appointed day, to such employee, (i) in relation to a provident fund, pen sion fund; gratuity fund or any other fund established for the welfare of such employee; and (ii) as wages. (2) Every employee to whom the whole or any part of the arrears referred to in sub section (1) is due shall file the proof of his claim to the Commissioner within such time, after the commencement of the Coking and Noncoking Coal mines (Nationalisation) Amendment Act, 1973, as the Commissioner may fix. (3) The provisions of Section 23 shall, as for as may be, apply to the filing, admission or rejection of the proofs referred to in sub section (2). (4) The Commissioner shall, after the admis sion or rejection of the claims made under sub section (2), determine the total amount of the arrears referred to in sub section (1), and shall, after such determination, deduct, in the first instance, out of the amount paid to him under section 21, a sum equal to the total amount of such arrears. (5) All sums deducted by the Commissioner under subsection (4) shall, in accordance with such rules as may be made under this Act, be credited by the Commissioner to the relevant fund or be paid to the persons to whom such sums are due, and on such credit or payment, the liability of the owner of the coking coal mine or group of coking coal mines or coke even plant, as the case may be, in respect of the amounts of arrears 496 due as aforesaid, shall stand discharged. (6) The deduction made by the Commis sioner under sub section (4) shall have prior ity over all other debts, whether secured or unsecured. (7) Save as otherwise provided in the foregoing subsections, every secured debt due from the owner of a coking coal mine or group of coking coal mines or coke oven plant, as the case may be, shall have priority over all other debts and shall be paid in accordance with the rights and interests of the secured creditors. " This section makes the owner, who has employed the workers, liable for their wages and other dues. This section contains the procedure for making the claim, its proof and determina tion. The important fact to be noted regarding these dues is, as provided in sub section (6) that the payment under this section shall have priority over all other debts wheth er secured or unsecured. This is made further clear by Section 23(2) also. Secured creditors come next in priority. They will have priority regarding their dues subject to the amounts payable to the workers. Now coming to the other claims, we will briefly examine the relevant sections. The amount of compensation payable under the Act is kept at the disposal of the Commissioner of Payment by the Central Government. Section 23 provides that every person who has a claim against the owner may prefer the same before the Commissioner within the stipulated period. We have already noted that section 23(2) provides for priority of payments for debts, in the nature of wages and salary, amounts due towards contribution payable under the Provident Fund Act, amounts due under the Workmen 's Compensation Act, amounts due to the employees from pension, gratuity. This section in addition speaks of sums due to the State Government as royalty, rent or dead rent. Section 23(3) provides that the amount payable under sub section (2) mentioned above shall rank equally among themselves and be paid in full and if the assets are not sufficient, the balance amount payable shall abate. This section should be read subject to Section 12A(6) and (7). The sums due to the State Government shall be subject to amounts payable to employees and secured creditors, because Section 23(2) speaks of payment of debts mentioned therein in priority to all other unsecured debts. Section 23(4) to (9) lays down the procedure for entertaining and hearing of the claims against the 497 Owner. There is provision for giving a heating to the claim ants as well as to the owner before the Commissioner. The decision of the Commissioner is subject to appeal, the Appellate Court being the Principal Civil Court of original Civil Jurisdiction within whose local limits the relevant mine is situated. Section 24 provides that where the total amount of claim admitted by the Commissioner does not exceed the amount of money payable to the owner under the Act then the amount of admitted claim shall be paid in full and the balance remaining shall be paid to the owner. It also pro vides that when the amount payable to the owner falls short to meet the full and total demand of the admitted claim then every such claim is to abate in equal proportion and shall be paid accordingly. Section 25 makes provision for payment of amounts advanced by the Central Government for the man agement of the mine. It is stipulated therein that such amounts can be recovered either out of the income derived by the mine in the period during which the same remained under the management by the Central Government till the ownership vested in it or if the amount advanced is not so recovered then the Central Government is enabled to make a claim before the Commissioner and this claim will have priority over the claim of all other unsecured creditors of the mine. In considering this claim, the Commissioner, will have to see to which owner advances were made, and after ascertain ing this fact, make such owner liable for the advances. Section 26 deals with cases where doubt or dispute arises as to the right of the person who is entitled to receive the compensation. The section provides that the Commissioner shall refer the claim to the Court of competent jurisdiction, which in relation to a coking coal mine or coke oven plant means the Principal Civil Court of original jurisdiction within the local limits of whose jurisdiction the coking coal mine or the coke oven plant is situated, in the event of there being a doubt or dispute as to the fight of a person to receive whole or any part of the amount referred to in sections 10, 11 and 12. After reading the scheme of the Act, it is now necessary to lay down further guide lines to the Commissioner as to how the amount of compensation has to be apportioned. We have seen above that raising contractors will also come within the ambit of the expression 'owner ' in the Act. Therefore, they are also entitled to pro rata distribution of the compensation deposited. Before the High Court, re spondents 1 and 2 pleaded that out of the amount which is payable, all the claims admitted by the Commissioner under Section 23 cannot be deducted from the share of the compen sation amount. In other words, the con 498 tention was that debts due by the company should not be taken into account when the amount due to the raising con tractors is ascertained. That is, the share of the raising contractors in the amount of compensation should not be burdened with the debts of the original owner. It is submit ted that there are huge claims against the company. If those debts were to be deducted from the gross amount specified in column 5 of the First Schedule, it would work serious hard ship to the raising contractors and would be doing violence to the scheme of the section and at the same time doing injustice to those who are not liable for the said debts. The definition of the word 'owner ' clearly indicates that there may be more than one owner within the meaning of the section 2(n) in relation to a mine. Each of them would be entitled to a portion of the amount shown in column 5 of the First Schedule. Claims admitted can be deducted only from the amount payable to that owner against whom the admitted claim relates. To read sections 23 and 24 to mean that all the owners must bear burden of the admitted claim irrespec tive of the fact as to who is liable under these claims, would be to do injustice to the section and doing violence to the language of the section. The proper manner in which these sections have to be understood is that the admitted claims can be deducted from the amount payable only when such claim relates to the owner concerned. In other words, it is only the owner who has incurred the said debt that would be liable to pay the same. Care should be taken to see that the amounts of debts of one owner is not deducted from the compensation amount payable to the other owner who does not owe that money. The apprehension expressed by the learned counsel for respondents 1 and 2 that his clients should not be visited by adverse consequences by burdening their share of compen sation with the company 's debts is well founded. The section cannot be read to create such an undesirable situation. Care should be taken in ascertaining the debts of each owner not to identify the debts, the burden of which will fall on which owner. Then comes section 25 A which enables the Commissioner to make payment to the owners. It reads: "25 A Notice to owners of coking coal mines of coke oven plants and managing contractors, etc. (1) After meeting the liabilities of persons whose claims have been admitted under this Act, the Commissioner shall notify in such manner as he may think fit, the 499 amount of money available with him and specify in such notification a date within which the owners of the coking coal mines or coke oven plants, the managing contractors and the owners of any machinery, equipment or other property which was vested in the Central Government company under this Act and which does not belong to the owners of the coking coal mines or coke oven plants may apply to him for payment. (2) Where any application is made under sub section (1), the Commissioner shall, after satisfying himself as to the right of the applicant to receive the whole or any part of the amount, pay the amount to the person concerned and in the event of there being a doubt or dispute as to the right of the person to receive the whole or any part of the amount, the Commissioner shall deal with the application in the manner specified in sub section (1) of Section 26. " This section deals with the distribution of the balance amount after meeting the liabilities. This has to be dis tributed according to the fight of each owner determined by the Commissioner and in case of dispute refer the dispute to a competent court. In this case, there are five mines. The appellants claim to be the exclusive owner of all the five mines. We have held that respondents 1 and 2 are also owners. But they do not claim right in all the mines. Under Section 26(3), newly inserted by the Coal Mines Nationalisation Laws (Amendment) Act, 1986, No. 57 of 1986, it is for the Commissioner to apportion the amount as indicated therein. The amended clause (3) reads as under: "(3) Where the amount specified in the fifth column of the First Schedule is relata ble to a group of coking coal mines, the Commissioner shall have power to apportion such amount among the owner of such group, and in making such apportionment, the Commissioner shall have regard to the highest annual pro duction in the coking coal mine during the three years immediately preceding the appoint ed day. " The Commissioner will have to determine the share of the compensa 500 tion of the mine claimed by respondents 1 and 2 in accord ance with this section. We have indicated above, the guidelines to be adopted in apportioning the compensation. We find that the High Court was correct in its conclusions. The appeal has therefore to fail and accordingly is dismissed with costs of Respondents 1 & 2. M.L.A. Appeal dis missed.

The appellant, who was holding a permanent post in a Central Government department, was selected for the post of Lecturer in a private aided college in Meghalya. The order of appointment stated that it was subject to the approval of the first respondent. On his seeking clarification from the Principal he was assured that the approval was a mere for mality. Acting on the said assurance the appellant resigned his permanent post in the Government department and joined the college. However, he found his services terminated just within five months for want of prior approval of the first respondent. A suit filed by the appellant challenging the order of termination and for a declaration and permanent injunction was dismissed by the trial court. The first Appellate Court found that the Assam Aided Colleges Management Rules, 1965 had not been adopted by the State Government at the time of the appellant 's appointment and that the Director of Public Instruction had acted wrongly in refusing to give approval to the appellant 's appointment, and as such the order of termination of service of the appellant was manifestly wrong. It, therefore, declared appellant 's continuance in service. The High Court while concurring with the view of the first Appellate Court that the termination of services of the appellant was unlawful, awarded one year 's salary and allowances as damages since the 573 appellant did not belong to the category of either Govern ment servants, industrial workmen or employees of statutory bodies, for which alone reinstatement could be ordered. In this appeal by special leave it was contended for the appellant that the Appellate Court and the High Court having found the termination of service to be wrong and illegal, he should have been granted the relief sought for in the suit, that is, a declaration of continuance in service and rein statement with full back wages and allowances. It was fur ther submitted that since the college was a private institu tion provided and by the Government and Government had full supervisory control over it, it was for all practical pur poses a Government institution. As such, he was entitled to parity of treatment with a Government servant wrongly re moved from service. For the respondent it was contended that the only remedy for the appellant was to file a suit for damages and not to seek a declaration of continuance in service, because it would amount to seeking specific per formance of a contract of service. Allowing the Appeal in part, the Court, HELD: The appellant was not entitled to a declaration that he continued to be in the service of the college and that he was entitled to all the benefits flowing from the declaration. [581G] Even though the College in question may be governed by the statutes of the University and the Education Code framed by the Government of Meghalaya and even though the college may be receiving financial aid from the Government, it would not be a statutory body because it haS not been created by any statute and its existence is not dependent upon any statutory provision. [580F G] Vaish College vs Lakshmi Narain, ; and J. Tewari vs Jwala Devi Vidya Mandir & Others, , referred to. There was no violation of the provisions of any Act or any Regulations made thereunder in the instant case. The first respondent in declining to approve the appointment of the appellant had proceeded on the erroneous assumption that the Assam Aided College Employees Rules, 1960 and the Assam Aided College Management Rules, 1965 had been adopted by the State of Meghalya. No doubt such action has been held to be wrongful but even so it was not in contravention of any 574 statutory provisions or regulations or procedural rules. [581E G] I.P. Gupta vs Inter College, Thora, ; , distinguished. The misfortune that has overtaken the appellant was partly due to his own hasty action in resigning his perma nent post and partly on account of the first respondent disapproving the appellant 's appointment on the basis of rules which had not been formulated and communicated to the aided colleges. In spite of the sad plight of the appellant, therefore, it will not be possible to grant the relief of declaration as sought for by him.[578C D] [In the facts and circumstances of the case and in exercise of its powers under Article 136 of the Constitu tion, the Court enlarged the relief grunted to the appellant by the High Court by directing the State of Meghalaya to grant three years salary and allowances to the appellant at the rates prevalent when his services were terminated. It further directed that in the event of there being a vacancy in the College in question for the post of Lecturer in English, and in the event of the Management willing to appoint him as Lecturer once again, the Management should be permitted to do so by granting relaxation of rules and regulations. ]

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

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

Civil Appeal No. 360 of 1971. From the Judgment and order dated the 27/29 1 1965 of the Bombay High Court in Income Tax Reference No. 75 of 1961. section C. Manchanda, K. J. John and J. B. Dadachanji for the Appellant. section T. Desai, Girish Chandra and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by GUPTA, J. The appellant is a private limited company. The assessment year is 1955 56 for which the relevant previous year ended on June 30, 1954. The shareholders of the appellant company arc Mulraj Kersondas, members of his family, allied concerns and nominees only. In 1944 the appellant purchased the managing agency of the Elphinston Spinning and Weaving Mills Ltd. for Rupees six lakhs and thereafter entered into a separate managing agency agreement with the managed company for a period of seventeen years. The appellant 's only source of income was this managing agency in the relevant year. Mulraj and his group also held among themselves 25,000 ordinary and 10,000 preference shares of the Elphinston Spinning and Weaving Mills Ltd. Mulraj entered into an agreement for sale of these shares with K. D. Jalan of Calcutta for a consideration of Rupees forty five lakhs; one of the terms of the agreement was that Mulraj would have the managing agency of the appellant company terminated. In implementation of this agreement Mulraj wrote to the appellant company on October 21, 1953 asking the company to give up the managing agency on receipt of a sum of Rupees ten lakhs as compensation which he promised to pay. On the same day the appellant company passed a resolution accepting Mulraj 's offer and 775 wrote to the managed company, Elphinston Spinning and Weaving Mills Ltd., tendering resignation of its office as managing agents. The resignation was in due course accepted. The assessee received from Mulraj a sum of Rs. 9,95,000/ as compensation for premature termination of the managing agency, Rs. 5,000/ having been paid by Mulraj as brokerage to one Dhirajlal Maganlal. The amount received was credited to the Capital Reserve Account in the appellant 's books for the year ending on June 30, 1954 described as "compensation for loss of office". In the assessment year 1955 56 for which the appellant 's previous year ended on June 30, 1954, the Income tax officer assessed the entire amount of Rupees ten lakhs in the hands of the appellant company under section 10(5A) of the Income Tax Act, 1922. Section 10(1) of the Income Tax Act, 1922 states that the "tax shall be C payable by an assessee under the head "Profits and gains of business, profession or vocation in respect of the profit or gains of any business, profession or vocation carried on by him." Sub section (5A) was inserted in section 10 by the Finance Act, 1955 with effect from April 1, 1955, the relevant part of which is in these terms: "(5A) Any compensation or other payment due to or received by, (a) a managing agent of an Indian company at or in connection with the termination or modification of his managing agency agreement with the company; (b) a manager of an Indian company at or in connection with the termination of his office or modification of the terms and conditions relating thereto; (c) any person, by whatever name called, managing the whole or substantially the whole affairs of any other company in the taxable territories, at or in connection with the termination of his office or the modification of the terms and conditions relating thereto; (d) any person, by whatever name called, holding an agency in the taxable territories for any part of the activities relating to the business of any other person, at or in connection with the termination of his agency or the modification of the terms and conditions relating thereto; shall be deemed to be profits and gains of a business carried on by the managing agent, manager or other person, as the case may be, and shall be liable to tax accordingly;" The company preferred an appeal to the Appellate Assistant Commissioner against the order of the Income tax officer. The Appellate Assistant Commissioner allowed the appeal holding that section 10(5A) created a new source of income for which the previous year was not the previous year for the managing agency business which ended on June 30, 1954, that the compensation of Rupees 776 ten lakhs which the appellant received in October, 1953 fell in the financial year 1953 54 which would be the previous year for this income for which the assessment year was 1954 55 which was before sub section (5A) of section 10 was enacted, and the fact that the appellant had entered the amount in its books for the year that ended on June 30, 1954 could not be taken as an exercise of option by the assessee accepting the said year as the previous year in respect of the receipt. The Appellate Assistant Commissioner further held that if at all the amount was taxable in the assessment year 1955 56, the assessee was entitled to a deduction of Rupees six lakhs paid for acquiring the managing agency. The Department took an appeal to the Tribunal against the order of the Appellate Assistant Commissioner. The Tribunal was of opinion that section 10(5A) only regards the compensation received by the managing agent as profits and gains of a business and does not create a fresh source therefore, and as the amount in question in this case was received in the accounting year relevant to the assessment year 1955 56 it was taxable in the assessment year 1955 56. The Tribunal however agreed with the Appellate Assistant Commissioner that the assessee was entitled to a deduction of Rupees six lakhs which the assessee had paid for acquiring the managing agency, and allowed the appeal partly holding that the assessee was liable to pay tax on the sum of Rs. 3,95,000/ . At the instance of the parties the Tribunal referred the following two questions to the High Court under section 66(1): "(i) Whether the sum of Rs. 10 lakhs is income assess able in the year 1955 56 by virtue of Section 10 (5A) ? (ii) If the answer is in the affirmative, whether the initial cost of acquisition of the Managing Agency of Rs. 6 lakhs and Rs. 5000/ paid as brokerage on sale are deductible ?" The first question was referred at the instance of the assessee and the second at the instance of the Department. The High Court overruled the contention of the assessee that the amount in question was income from a new source for which the previous year was 1953 54, and answered the first question in the affirmative and in favour on the revenue. As regards the second question, the High Court answered it in favour of the assessee and upheld the order of the Tribunal. In the present appeal brought on a certificate under section 66A(2), the assessee challenges the correctness of the answer given by the High Court to the first question. "Previous year" is defined in section 2(11) of the Income Tax Act, 1922 and the relevant part of the definition is as follows: "(11) 'Previous year ' means in respect of any separate source of income, profits and gains (a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made, or, if the accounts of the assessee have 777 been made up to a date within the said twelve months in respect of a year ending on any date other than the said 31st day of March, then at the option of the assessee the year ending on the day to which his accounts have so been made up ;" As stated already, sub section (5A) of section 10 came into force on April 1, 1955. Therefore, the amount in question, if received by the assessee during the previous year for the assessment year 1955 56, would be taxable under that sub section. By a legal fiction introduced by sub section (5A) any amount received by a managing agent as compensation for the termination of his managing agency agreement which would otherwise have been a capital receipt is to be deemed as profits and gains of a business carried on by the managing agent. The appellant contends that sub section (SA) indicates that this deemed income is to be treated as receipt from a New source and, that being, so, the relevant previous year for this income would not necessarily be the year ending on June 30, 1954 which was the previous year for the managing agency business, and the assessee should have been given an opportunity to choose the previous year in respect for the receipt in question; if the financial year 1953 54 is taken as the previous year for this income from a new source, the argument proceeds, then the amount would not be taxable in the assessment year 1955 56. It is further argued that the amount received as compensation could not be profits and gains of the managing agency business because the business itself was being terminated. The words of the sub section, according to learned counsel for the appellant, indicate that the receipt is to be treated as income from a new and independent source. Sub section (5A) states, inter alia, that any compensation or other payment received by a managing agent in connection with the termination of his managing agency agreement shall be deemed to be profits and gains of "a business" carried on by the managing agent. The use of the indefinite article before the word 'business ', it is submitted, makes it plain that the income is not relatable to the managing agency business but to a new and separate source. We are unable to accept the contention. The fiction introduced by sub section (5A) regards the capital receipt as income and does not extend to treating the termination of managing agency itself as a business. The amount received by the appellant was a payment for the termination of the managing agency business and, as such, the receipt is obviously related to that business. It is of course true that the amount was not earned in carrying on the business of managing agency, hut it is clear that the source of the receipt was the managing agency business itself. It cannot therefore be said that the receipt was income from a new and independent source. In our opinion the High Court was right in holding that in enacting sub section (5A) the legislature was concerned only with providing a head under which the receipt which has been deemed to be income could be brought to tax and was not concerned with creating a new source for that deemed income. Two decisions cited on behalf of the respondent, one of the Bombay High Court, Commissioner of Income tax, Bombay vs Sir 778 Chunilal vs Mehta & Sons Private Ltd and the other of the Madras High Court, R. V. Lakshmiah Naidu and Co. vs Commissioner of Income Tax, Kerala and Coimbatore, have both held that the compensation paid for the termination of a managing agency business is a payment in relation to the said business, and, therefore, the previous year relevant to that receipt would be the same as the previous year for the managing agency business itself. In our view these two decisions state the law on the point correctly. The appeal fails and is dismissed with costs. S.R. Appeal dismissed.

During the year 1948, the respondent, workmen working with both the appellants went on illegal strike on account of Trade Union rivalry. The workmen were not paid wages for the strike period and the appellants lost their profit during the period. The employers and the workmen entered into an agreement during the pendency of the conciliation proceedings and referred the claims of workmen for salaries during the strike period and the claims of the employers for compensation for loss due to the strike to the joint arbitration of two retired High Court Judges and one retired Member of a Labour Appellate Tribunal under section 10 A of the . The arbitrator delivered their award and held that the workmen participating in the strike were not entitled to wages for the strike period. The arbitrators however, awarded huge compensation to the employers against the workmen for the losses incurred by the employers during the strike period. The workmen challenged the award as illegal and void by filing two writ petitions in the High Court. The High Court upheld that part of the award which directed that the workmen participating in tho strike were not entitled to wages. The High Court however, quashed the part of the award which directed payment of compensation by the workers to the management. In appeal by Special Leave under Article 136, the appellants contended: 1. The award under section 10 A of the Act savours of a private arbitration and is not amenable to correction under Article 226 of the Constitution. The award of compensation by the arbitrators suffers from no vice which can be regarded as recognised grounds for the High Court interference. ^ HELD: (1) The expansive and extraordinary powers of the High Court under Article 226, as wide as the amplitude of the language used, indicates and so can affect "any person", even a private individual and be available for "any other purpose", even one for which another remedy may exist. The insertion of Article 226(1A) reiterates that writ power can be exercised against any person by reference to the residence of such person. It is one thing to affirm the jurisdiction and another to authorise free exercise. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. [17C E] 2. An arbitrator exercising powers under section 10A can bind even those who are not parties to the reference or agreement and the whole exercise under section 10A as well as the source of the force of the award on publication derive from the statute. It is legitimate to regard such an arbitrator now as part of the methodology of the sovereign 's dispensation of justice, thus falling within the rainbow of statutory tribunals amenable to judicial review. The award in the present case is not beyond the legal reach of Article 226. [18B C] 13 3. The answer to the question whether the High Court should have exercised its powers under Article 226 in the present case will depend upon whether the arbitrator has tied himself down to obviously unsound legal proposition in reaching his verdict appearing from the face of the award. The arbitrator may not state the law such, even then such cute silence confers no greater or subtler: immunity on the award than plain speech. The need for speaking order, where considerable numbers are affected in their substantial rights, may well be a facet of natural justice or fair procedure although in this case we do not have to go so far. The law sets no premium on juggling with drafting the award or hiding the legal error by balancing out. The inscrutable face of the sphinx has no better title to invulnerability than a speaking face which is a candid index of the mind. [19D. 20F H] 4. According to the arbitrators, the strike was illegal being in violation of section 24 of the Act. the illegal strike was animated by inter union power struggle and that it inflicted loss on the management by forced closure and that the loss flowing from the strike was liable to be recompensed by award of damages. In this chain of reasoning the question of law whether an illegal strike causing loss of profit justifies award of damages is necessarily involved. The arbitrator held in the affirmative and according to us it is an unhappy error of law. In the present case the arbitrators have made a sufficiently speaking award both on facts and on law. After coming to the conclusion that the strike was illegal they held that compensation necessarily follows based on the rule of English common law. The English cases laying down the rule of common law were a response to the requirement of Industrial civilization of the 19th Century England. Trade and industry on the laissez faire doctrine flourished and the law of torts was shaped to serve the economic interests of the trading and industrial community. Whatever the merits of the norms, violation of which constituted 'conspiracy ' in English Law, it is a problem for creative Indian Jurisprudence to consider how far a mere combination of men working for furthering certain objective can be prohibited as a tort according to the Indian value system. Our constitution guarantees the right to form associations, not for gregarious pleasure, but to fight effectively for the redressal of grievances. Our constitution is sensitive to workers rights. English history, political theory and life style being different from Indian conditions where the Father of the Nation organised boycotts and mass satyagrahas we cannot incorporate English conditions without any adaptation into Indian Law. [21B C, 22A, B C, D] 5. Even in England, till recently it could not be said with any certainty that there was any such tort as conspiracy. The tort is unusual because it emphasizes the purpose of the defendants rather than the result of their conduct. Even when, there are mixed motives liability will depend on ascertaining which is the predominant object of the true motive or the real purpose of the defendant. The motive of an illegal strike may be to advance the workers ' interest or steal a march over a rival union but never or rarely to destroy or damage the industry. However if some individuals destroy the plant and machinery willfully to cause loss to the employer such individuals will be liable for the injury so caused. Sabotage is no weapon in workers ' legal armoury. It is absolutely plain that the tort of conspiracy necessarily involves advertence to the object of the combination being the infliction of damage on The plaintiff. The strike may be illegal but if the object is to bring the employer to terms with the employees or to bully the rival trade union into submission there cannot be an actionable combination in tort. In the present case, the arbitrators did not investigate the object of the strike. The arbitrators assumed that if the strike is illegal the tort of conspiracy is made out. The counsel for the appellants fairly conceded that the object of the strike was inter union rivalry. There is thus a clear lapse in the law on the part of the arbitrators manifest on the face of the award. [22F, 231B C, E, H. & 24A B] 6. It is common case that the demand for the wages during the strike period constitutes an industrial Dispute within section 2(k) of the Act. It is agreed by both the sides that section 23 read with section 24 makes the strike in question illegal. An illegal strike is the creation of the statute and the remedy for the illegal strike and its fall, out has to be sought within the statute and not de hors 14 it. No other relief outside the Act can be claimed on general principles of jurisprudence. The case of Premier Automobiles followed. [25 B C] 7. The enforcement of a right or obligation under the Act must be by a remedy provided in the Statute. The right of the management to claim compensation is not provided by the Act, and, therefore, the arbitrators Committed an ex facie legal error. The consent of the parties cannot create arbitral jurisdiction under the . The claim for compensation cannot be a lawful subject for arbitration because it is not covered within the definition of Industrial Disputes in section 2(k). We are unable to imagine a tort of liability or compensation based on loss of business being regarded as an industrial dispute as defined in the Act. Section 33 provides for speedy recovery of money due to a workman from an employer under a settlement or award. It does not provide for recovery of money by the employer from the workman. Obviously because the workman belongs to the weaker section. Claims by employers against the workmen on grounds of tortious liability have not found a place in the pharmacopeia of Indian Industrial Law. [26 D, 27A, C, D E]

iminal Appeal No. 16 of 1958. Appeal by special leave from the Judgment and order dated January 14, 1958, of the Bombay High Court in Criminal Application No. 60 of 1958 arising out of the judgment and order dated January 9, 1958, of the Court of Chief Presidency Magistrate at Bombay in an application for cancellation of bail in Case No. 608/W of 1957. 1227 Purshottam Tricumdas, Rajni Patel and I. N. Shroff, for the appellant. K. J. Khandalwala and R. H. Dhebar, for respondent No. 1. 1958. February 7. The Judgment of the Court was delivered by GAJENDRAGADKAR J. The appellant, along with( others, has been charged under section 120B of the Indian Penal Code and section 167(81) of the Sea Customs Act (8 of 1878). There is no doubt that the offences charged against the appellant are bailable offences. Under section 496 of the Code of Criminal Procedure the appellant was released on bail of Rs. 75,000 with one surety for like amount on December 9, 1957, by the learned Chief Presidency Magistrate at Bombay. On January 4, 1958, an application was made by the complainant before the learned Magistrate for cancellation of the bail; the learned Magistrate, however, dismissed the application on the ground that under section 496 be had no jurisdiction to cancel the bail. Against this order, the complainant preferred a revisional application before the High Court of Bombay. Another application was preferred by the complainant before the same Court invoking its inherent power under section 561 A of the Code of Criminal Procedure. Chagla C. J. and Datar J. who heard these applications took the view that, under section 561A of the Code of Criminal Procedure the High Court had inherent power to cancel the bail granted to a person accused of a bailable offence and that, in a proper case, such power can and must be exercised in the interests of justice. The learned Judges then considered the material produced before the Court and came to the conclusion that, in the present case, it would not be safe to permit the appellant to be at large. That is why the application made by the complainant invoking the High Court 's inherent power under section 561 A of the Code of Criminal Procedure was allowed, the bail bond executed by the appellant was cancelled and an order was passed directing that the appellant be arrested forthwith and committed to 156 1228 custody. It is against this order that the appellant has come to this Court in appeal by special leave. Special leave granted to the appellant has, however, been limited to the question of the construction of section 496 read with section 561A of the Code of Criminal Procedure. Thus the point of law which falls to be considered in the present appeal is whether, in the case of a person accused of a bailable offence where bail has been granted to him under section 496 of the Code of Criminal Procedure, it can be cancelled in a proper case by the High Court in exercise of its inherent power under section 561A of the Code of Criminal Procedure? This question is no doubt of considerable importance and its decision would depend upon the construction of the relevant sections of the Code. The material provisions on the subject of bail are contained in sections 496 to 498 of the Code of Criminal Procedure. Section 496 deals with persons accused of bailable offences. It provides that " when a person charged with the commission of a bailable offence is arrested or detained without warrant by an officer in charge of a police station or is brought before a court and is prepared at any time, while in the custody of such officer or at any stage of the proceedings before such court, to give bail, such person shall be released on bail. " The section further leaves it to the discretion of the police officer or the court if he or it thinks fit to discharge the accused person on his executing a bond without sureties for his appearance and not to take bail from him. Section 497 deals with the question of granting bail in the case of non bailable offences. A person accused of a non bailable offence may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. This is the effect of section 497(1). Sub section (2) deals with cases where it appears to the officer or the court that there are not reasonable grounds for believing that the accused has committed a non bailable offence but there are sufficient grounds for further enquiry into his guilt and it lays down that in such cases the accused shall, pending such 1229 enquiry, be released, on bail or at the discretion of the officer or court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. Sub section (3) requires that, when jurisdiction under sub section (2) is exercised in favour of an accused person, reasons for exercising such jurisdiction shall be recorded in writing. Sub section (3A) which has been added in 1955 deals with cases where the ' trial of a person accused of any non bailable offence is not concluded within a period of sixty days from the first day fixed for taking evidence in the case and it provides that such person shall, if he is in custody during the whole of the aid period, be released on bail unless for reasons to be recorded in writing the magistrate otherwise directs. The last sub section confers oil the High Court and the Court of Session, and on any other court in the case of a person released by itself, power to direct that a person who hap, been released on bail under any of the provisions of this section should be arrested and committed to custody. Section 498(1) confers on the High Court or the Court of Session power to direct admission to bail or reduction of bail in all cases where bail is admissible under sections 496 and 497 whether in such cases there be an appeal against conviction or not. Sub section (2) of section 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under sub section (1) to be arrested and committed to custody. There is one more section to which reference must be made in this connection and that is section 426 of the Code. This section incidentally deals with the power to grant bail to persons who have been convicted of non bailable offences when such convicted persons satisfy the court that they intend to present appeals against their orders of conviction. That is the effect of section 426(2A) which has been added in 1955. A similar power has been conferred on the High Court under sub section (2B) of section 426 where the High Court is satisfied that the convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained. Sub section (3) provides that, if the appellant 1230 who is released on bail under said sub section (2) or (2B) is ultimately sentenced to imprisonment, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. That briefly is the scheme of the Code on the subject of bail. There is no doubt that under section 496 a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court, before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on executing his bond as provided in the section instead of taking bail from him. The position of persons accused of non bailable offences is entirely different. Though the recent amendments made in the provisions of section 497 have made definite improvement in favour of persons accused of non bailable offences, it would nevertheless be correct to say that the grant of bail in such cases is generally a matter in the discretion of the authorities in question. The classification of offences into the two categories of bailable and non bailable offences may perhaps be explained on the basis that bailable offences are generally regarded as less grave and serious than non bailable offences. On this basis it may not be easy to explain why, for instance offences under sections 477, 477A, 475 and 506 of the Indian Penal Code should be regarded as bailable whereas offences under section 379 should be non bailable. ever, it cannot be disputed that section 496 recognizes that a person accused of a bailable offence has a right to be enlarged on bail and that is a consideration on which Shri Purushottam, for the appellant, has very strongly relied. Shri Purushottam has also emphasized the fact that, whereas legislature has specifically conferred power on the specified courts to cancel the bail granted to a person accused of a non bailable offence by the provisions of section 497 (5), no such power has been conferred on any court in regard to persons accused 1231 of bailable offences. If legislature had intended to confer such a power it would have been very easy for it to add an appropriate sub section under section 496. The omission to make such a provision is, according to Shri Parushottam, not the result of inadvertence but, is deliberate; and if that is so, it would not be legitimate or reasonable to clothe the High Courts with the power to cancel bails in such cases under section 561 A. It is this aspect of the matter which needs careful examination in the present case. Section 561A was added to the Code in 1923 and it purports to save the inherent power of the High Courts. It provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It appears that doubts were expressed in some judicial decisions about the existence of such inherent power in the High Courts prior to 1923. That is why legislature enacted this section to clarify the position that the provisions of the Code were not intended to limit or affect the inherent power of the High Courts as mentioned in section 561A. It is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that section 561A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. In prescribing rules of procedure legislature undoubtedly attempts to provide for all cases that are likely to arise; but it is not possible that any legislative enactment dealing with procedure, however carefully it may be drafted, would succeed in providing for all cases that may possibly 1232 arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent power in courts. It would be noticed that it is only the High Courts whose inherent power is recognized by section 561A; and even in regard to the High Courts ' inherent power definite salutary safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would riot be secured that the High Court can and must exercise its inherent power under section 561A. There can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise. Now it is obvious that the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused ; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption ; but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent 1233 power of the High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked. In regard to non bailable offences there is no need to invoke such power because section 497 (5) specifically deals with such cases. The question which we have to decide in this case is whether exercise of inherent power under section 561A against persons accused of bailable offences, who have been released on bail, is contrary to or inconsistent with the provisions of section 496 of the Code of Criminal Procedure. Shri Purushottam contends that the provisions of section 496 are plainly inconsistent with the exercise of inherent power under section 561A against the appellant in the present case and; he argues that, despite the order which has been passed by the High (Court, he would be entitled to move the trial court for bail again and the trial court would be bound to release him on bail because the right to be released on bail recognized by section 496 is an absolute and an indefeasible right; and despite the order of the High Court, that right would still be available to the appellant. If that be the true position, the order passed under 1234 section 561A would be rendered ineffective and that itself would show that there is a conflict between the exercise of the said power and the provisions of section 496. Thus presented, the argument no doubt is prima facie attractive; but a close examination of the provisions of section 496 would show that there is no conflict between its provisions and the exercise of the jurisdiction under section 561A. In dealing with this argument it is necessary to remember that, if the power under section 561 A is exercised by the High Court, the bail offered by the accused and accepted by the trial court would be cancelled and the accused would be ordered to be arrested forthwith and committed to custody. In other words, the effect of the order passed under section 561A, just like the effect of an order passed under section 497 (5) and section 498 (2), would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody. The order committing the accused to custody is a judicial order passed by a criminal court of competent jurisdiction. His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all; his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that, pending the trial, he cannot be allowed to be at large. Now, where a person is committed to custody under such an order, it would not be open to him to fall back upon his rights under section 496, for section 496 would in such circumstances be inapplicable to his case. It may be that there is no specific provision for the cancellation of the bond and the re arrest of a person accused of a bailable offence; but that does not mean that section 496 entitles such an accused person to be released on bail, even though it may be shown that he is guilty of conduct entirely subversive of a fair trial in the court. We do not read section 496 as conferring on a person accused of a bailable offence such an unqualified, absolute and an indefeasible right to be released on bail, 1235 In this connection, it would be relevant to consider the effect of the provisions of section 498. Under section 498(1), the High Court or the Court of Sessions may, even in the case of persons accused of bailable offences, admit such accused persons to bail or reduce the amount of A bail demanded by the prescribed authorities under section 496. Shri Purushottam no doubt ' attempted to, argue that the operative part of the provisions of section 498(1) does not apply to persons accused of bailable offences; but in our opinion, there can be no doubt that this sub section deals with cases of persons accused of bailable as well as non bailable offences. We have no doubt that, even in regard to persons accused of bailable offences, if the amount of bail fixed under section 496 is unreasonably high the accused person can move the High Court or the Court of Sessions for reduction of that amount. Similarly, a person accused of a bailable offence may move the High Court or the Court of Sessions to be released on bail and the High Court or the Court of Sessions may direct either that the amount should be reduced or that the person may be admitted to bail. If a person accused of a bailable offence is admitted to bail by an order passed by the High Court or the Court of Sessions, the provisions of sub section (2) become applicable to his case; and under these provisions the High Court or the Court of Sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and commit him to custody. This sub section, as we have already pointed out, has been added in 1955 and now there is no doubt that legislature has conferred upon the High Court or the Court of Sessions power to cancel bail in regard to cases of persons accused of bailable offences where such persons have been admitted to bail by the High Court or the Court of Sessions under section 498(1). The result is that with regard to a class of cases of bailable offences failing under section 498(1), even after the accused persons are admitted to bail, express power has been conferred on the High Court or the Court of Sessions to arrest them and commit them to custody. Clearly then it cannot be said that the right of a 157 1236 person accused of a bailable offence to be released on bail cannot be forfeited even if his conduct subsequent to the grant of bail is found to be prejudicial to a fair trial. It would also be interesting to notice that, even before section 498(2) was enacted, there was consensus of judicial opinion in favour of the view that, if accused persons were released on bail under section 498(1), their bail bond could be cancelled and they could be ordered to be arrested and committed to custody under the provisions of section 561 A of the Code [Mirza Mohammad Ibrahim vs Emperor (1), Seoti vs Rex (2 ), Bachchu Lal vs State (3), Muunshi Singh vs State (4) and The Crown Prosecutor, Madras vs Krishnan (5) ]. These decisions would show that the exercise of inherent power to cancel bail under section 561A was not regarded as inconsistent with the provisions of section 498(1) of the Code. It is true that all these decisions referred to cases of persons charged with non bailable offences; but it is significant that the provisions of section 497(5) did not apply to these cases and the appropriate orders were passed under the purported exercise of inherent power under section 561A. On principle then these decisions proceed on the assumption, and we think rightly, that the exercise of inherent power in that behalf was not inconsistent with the provisions of section 498 as it then stood. It would now be relevant to enquire whether, on principle, a distinction can be made between bailable and non bailable offences in regard to the effect of the prejudicial conduct of accused persons subsequent to their release on bail. As we have already observed, if a fair trial is the main objective of the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured; and this can be done, if necessary, by the exercise of inherent power. The classification of offences into bailable and non bailable on which are based the different provisions as to the grant of bail would not, in our opinion, have any (1) A.I.R. 1932All.534. (2) A.I. R. 1948 All. (3) A.I.R. 1951 All. (4) A.I.R. 1952 All. 39. (5)I.L.R. 1237 material bearing in dealing with the effect of the sub sequent conduct of accused persons on the continuance of a fair trial itself. If an accused person, by his conduct, puts the fair trial into jeopardy, it would be the primary and paramount duty of criminal courts to ensure that the risk to the fair trial is removed and criminal courts are allowed to proceed with the trial, smoothly and without any interruption or obstruction ; and this would be equally true in cases of both bailable as well as non bailable offences. We, therefore, feel no difficulty in holding that, if, by his subsequent conduct, a person accused of a bailable offence forfeits his right to be released on bail, that forfeiture must be made effective by invoking the inherent power of the High Court under section 561A. Omission of legislature to make a specific provision in that behalf is clearly due to oversight or inadvertence and cannot be regarded as deliberate. If the appellant 's contention is sound, it would lead to fantastic results. The argument is that a person accused of a bailable offence has such an unqualified right to be released on bail that even if he does his worst to obstruct or to defeat a fair trial, his bail bond cannot be cancelled and a threat to a fair trial cannot be arrested or prevented. Indeed Shree Purushottam went the length of suggesting that in such a case the impugned subsequent conduct of the accused may give rise to some other charges under the Indian Penal Code, but it cannot justify his re arrest. Fortunately that does not appear to be the true legal position if the relevant provisions of the Code in regard to the grant of bail are considered as a whole along with the provisions of section 561A of the Code. It now remains to consider the decision of the Privy Council in Lala Jairam Das & Others vs King Emperor (1), because Shri Purushottam ' has very strongly relied on some of the observations made in that case. According to that decision, the provisions of the Code of Criminal Procedure confer no power on High Courts to grant bail to a person who has been convicted and sentenced to imprisonment and to whom His Majesty (1) (1945) L.R. 72 I.A. 120,132. 1238 in Council has given special leave to appeal against his sentence and conviction. Divergent views had been expressed by the High Courts in this country on the question as to the High Courts ' power to grant bail to convicted persons who had been given special leave to appeal to the Privy Council; these views and the scheme of the Code in regard to the grant of bail were examined by Lord Russel of Killowen who delivered the judgment of the Board in Lala Jairam Das 's case (1). The decision has thus no application to the facts before us; but Shri Purushottam relies on certain observations made in the judgment. It has been observed in that judgment that " their Lordships take the view that Ch. XXXIX of the Code together with section 426 is, and was intend to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail ". The judgment further shows their Lordships ' opinion, like the High Court of Justice in England, High Courts in India would not have inherent power to grant bail to a convicted person. It would be clear from the judgment that their Lordships were not called upon to consider the question about the inherent power of the High Courts to cancel bail under section 561A. That point did not obviously arise in the case before them. Even so, in dealing with the question as to whether inherent power could be exercised for granting bail to a convicted person, their Lordships did refer to section 561A of the Code and they pointed out that such a power ,,cannot be properly Attributed to the High Courts because it would, if exercised, interrupt the serving of the sentence; and, besides it would, in the event of the appeal being unsuccessful, result in defeating the ends of justice. It was also pointed out that if the bail was allowed in such a case, the exercise of the inherent power would result in an alteration by the High Court of its judgment which is prohibited by section 369 of the Code. In other words, their Lordships examined the provisions of section 561A and came to the (1) (1945) L.R. 72 I.A. 120, 132, 1239 conclusion that the power to grant bail to a convicted person would not fit in :with the scheme of Chapter XXXIX of the Code read with section 561A. In our opinion, neither this decision nor even the observations on which Shri Purushottam relied can afford any assistance in deciding the point which this appeal has raised before us. Incidentally we may add that it was as a result of the observations made by the Privy Council in that case that section 426 of the Code was amended in 1945 and power has been conferred on appropriate courts either to suspend the sentence or to grant bail as mentioned in the several subsections of section 426. That is how section 426(2A) and (2B) now deal with the subject of bail even though the main section is a part of Chapter XXXI which deals with appeals, references and revisions. We must accordingly hold that the view taken by the Bombay High Court about its inherent power to act in this case under section 561 A is right and must be confirmed. It is hardly necessary to add that the inherent power conferred on High Courts under section 561A has to be exercised sparingly., carefully and with caution and only where such exercise is justified "by the tests specifically laid down in the section itself. After all, procedure, whether criminal or civil, must serve the higher purpose of justice; and it is only when the ends of justice are put in jeopardy by the conduct of the accused that the inherent power can and should be exercised in cases like the present. The result is that the appeal fails and must be dismissed. Appeal dismissed.

% The State Government by Circular dated July 23,1957 directed revision of the existing pay scales of various categories of subordinate staff including Teachers in the Education Department. Paragraph 3 of the said circular provided for revision of pay scales of Teachers and placed them into two distinct categories, Category A and Category B and laid down the requirements of academic qualification with respect to each of them. Category B was further sub divided into two groups viz: Group I Matric with Basic training (including Junior Teachers). Group II Junior School Teachers (including Assistant Mistresses with BA/Inter/Matric plus JAV training). On more occasions than one, this Court intervened on behalf of those Teachers who had improved or acquired higher academic qualifications and were denied higher scales of pay, and issued directions for extending the benefit of para 3 of the aforesaid Circular. In compliance with the directions of this Court in Avtar Singh vs Manmohan Singh & Anr., the Director of Public Instructions (Schools) 1088 by Order dated June 30, 1986 accorded sanction to payment of arrears of pay to Teachers belonging to Category B Group I, to 3600 JBT Teachers belonging to Category B Group II who had improved their educational qualifications and acquired degrees in B.A., B.T./B.A., B.Sc., B.Ed. Similar relief was however denied to 6,000 other Teachers falling in Category B Group II on the ground that they did not have requisite professional training of JST/JAV, and were therefore not entitled to the higher grade. In the Writ Petitions to this Court, by the Matriculate Junior Basic Trained Teachers in Government Schools placed in Category B, Group II of the Circular dated July 23, 1957 it was contended that the State Government was bound to grant the benefit of higher grade of pay to all the Teachers belonging to Category B Group II on their improving or acquiring higher educational qualifications as and from the respective dates of their passing the examination, and that it was not open to the Government on the pretext of verification of claims to confine the relief to some of the teachers and deny the same to the others who were all similarly situated and recruited in the same manner and appointed as Matriculate JBT Teachers and had improved their qualifications by acquiring degrees in B.A., B.T. etc., and that the so called professional training i.e. JST/JAV could not be made a condition pre requisite to the grant of higher pay. These petitions were contested by the State Government by contending that the petitioners were not entitled to higher pay merely on their acquiring higher educational qualifications as they did not stand the eligibility test on verification of their claims, and that according to paragraph 3 of the Circular, all Teachers according to their qualifications were placed into two broad categories for purposes of revision of pay,Category A consisting of B.A./B.Sc./B.Com./B.Sc. (Agriculture) and BT, and Category B of whom Group I was 'Matric with basic training (including JBT) '. On the question: whether JBT Teachers falling under Category B Group II were not entitled to the higher pay merely on their acquiring higher Educational Qualifications of B.A., B.T./B.A., B.Ed. but that gaining professional experience of JST/JAV training was essential. Allowing the Writ Petitions, ^ HELD: 1. Graduate Teachers form a class by themselves and cannot be subjected to the further requirement of having JST/JAV 1089 training. The words 'plus JAV training ' clearly qualify the work 'Matric ' and relate only two Matriculate JBT Teachers. Such a classification for revision of pay satisfies the touchstone of Article 14, and would render the action of the State Government in seeking to discriminate between Graduate Teachers with JST/JAV training and Graduate Teachers with or without such training, impermissible as the attempt is to create a class within a class without any rational basis. [1095D F] 2. It is regrettable that despite clear pronouncements made by this Court as well as the High Court in a long line of decisions there is no redressal of the wrong done to JBT Teachers belonging to Category B Group II although they had acquired B.A., B.T./B.A., B.Ed. qualifications. [1095F G] 3. The petitioners who are Teachers placed in Category B Group II, are entitled to higher pay on acquiring or improving their academic qualifications. The respondents are directed to give them the higher scale of pay as admissible to Teachers in Category B Group I with effect from the respective dates of their acquiring the qualification. [1097B C] State of Punjab & Anr. vs Kirpal Singh Bhatia & Ors. ,[1976] 1 SCR 529; State of Punjab & Ors. vs Labh Singh Garcha & Ors., (C.A. Nos. 926 27/77 decided on August 7, 1979); and Avtar Singh vs Manmohan Singh & Anr., (C.A. No. 3790/83 decided on September 14, 1984, referred to.

Appeal No. 1452 of 1987. From the Judgment and Order dated 10.7.1986 of the Kamataka High Court in I.T.R.C. No. 198 of 1987. WITH C.A. Nos. 4462/89, 1822, 1902, 1465/87, 675, 658, 4461/89, 6093/90, 6204/ 90, 6092. and 6092 A of 1990. H. Salve, P.H. Parekh, Ms. Meenakshi Grover, R. Nariman, Ms. R. Gill and Ms. Simi Kr. for the Appellants. B.B. Ahuja, Ranbir Chandra and Ms. A. Subhasini for the Respondent. The Judgment of the Court was delivered by B.P. JEEVAN REDDY J. These appeals are preferred against the judgment of the Karnataka High Court answering the question referred to it, at the instance of the revenue, in favour of the revenue and against the assessee. The question referred under section 256 of the Income Tax Act, 196 1, read as follows: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 1, 79, 742 could not be disallowed under section 40 (c) of the Income Tax Act, 1961." (The above question related to Assessment Year 1974 75. The question referred for A.Y. 1975 76 was identical except in the matter of amount). Since the facts in all the appeals are identical it would be sufficient to notice the facts in C.A. Nos. 6092 and 6092A/90 (Prakash Beedies (P) Lid. vs Commr. of Income Tax. Karnataka, Bangalore). Prior to 15.7.1992, a partnership firm called K.M. Anand Prabhu & Sons, Mangalore, consisting of three partners K.M. Vishnudas Prabhu, K.M. Ramdas Prabhu and K.M. Shankar Prabhu was engaged inter alia in the business of manufacturing and sale of beedies under the brand name 'Mangalore Prakash Beedies '. On May 20, 1972 a Private limited company called Prakash Beedies 609 Limited (the assessee appellant herein), was incorporated with its registered off ice at Manoalore. One of its objects was to take over business of the aforesaid firm. Under an agreement dated July 15, 1972 between the firm and the company, the firm sold its rights and assets to the company on the terms and conditions set out therein. Clause 4(a) of the agreement, which alone is material for the purposes of these appeals reads: "(a) For the use of the trade name the Company shall pay royalty to the Vendor at the rate of 10ps. for every thousand beedies sold by the Company by using the trade name of the Vendor. The royalty shall be worked out at the end of each quarter ending on March, June, September and December, on the sales made during each quarter. The royalty fixed hereby shall not be varied for a period of one year and may be reviewed and/or revised thereafter wards from time to time". The assessee was making payments to the firm every year on account of royalty in terms of said clause. The three partners aforesaid of the firm were also the directors of the assessee company. For the assessment years 1974 75 and 1975 76, the assessee claimed deduction of the amount paid by it to the firm on account of royalty in terms of clause 4(a) of the agreement. The amounts paid during the accounting years relevant to the said assessment years were Rs. 3, 16, 526 and Rs. 3, 95, 742 respectively. The I.T.O. allowed the deductions as claimed. In exercise of the powers conferred on him by Section 263, the Commissioner of Income Tax initiated (suo moto) proceedings for revising the said assessments in so far as the aforesaid deductions were concerned. After hearing the assessee, he passed orders on September 16, 1976 whereunder he disallowed payments to the firm over and above the ceiling prescribed in Section 40(c). The assessee preferred appeals to the Tribunal against the orders of the I.T.O, The appeals were allowed and the orders of the I.T.O. restored. On reference, the High Court answered to question in the negative i.e., in favour of the revenue and against the assessee, on the following reasoning : the three directors of the assessee company were also the partners in the firm to which royalty payments were made. In law, a firm has no separate legal existence; it is not a juristic person or a distinct legal entity. It is merely a collection or association of the individuals for carrying 610 on a business. Merely because the firm is an assessable entity under the Income Tax Act it does not follow that it is a juristic or legal entity. It must, therefore, be held that the payments made to the firm are in reality payments made to the directors. Such payments clearly attract and fall within the mischief of Section 40(c). The Commissioner was right in saying so and the opinion of the Tribunal to the contrary is unsustainable in law. In these appeals, S/Shri Harish N.Salve and Rohinton Nariman assailed the correctness of the view taken by the High Court. They submitted firstly that the payments were made not to the directors of the assessee but to a firm which was a separate entity. A payment to a firm is not ipso facto a payment to the partners, directly or indirectly. In a firm there may be other partners besides the directors of the assessee company. It may also happen that the firm has no income to distribute because of the losses incurred by it which are set off against the income so received. The High Court was in error in holding that payment to a firm is a payment to the partners. Assuming that a partnership firm is not a separate juristic entity distinct from its partners, even so the payments were made to the said three persons not in their capacity as directors (qua directors) but in consideration of a valuable right parted by them in favour of the assessee company. Such payments do not and cannot fall within the mischief of Section4O(c). Section 40(c) was never intended to take in such payments. A company may take on lease the house of its directors for its legitimate business purposes and pay rent which is reasonable having regard to the market conditions, or it may pay even less than the market rate of rent. Whether the rent paid by the company to its director in such a case falls within Section 40(c), ask the counsel. Another illustration given by the counsel is where a director supplies raw material to the assessee company for a price which is the appropriate market price. Would such payment also fall under section 40(c), they ask. The Budget speech of the Finance Minister in the Parliament, while introducing the said provision, is relied upon in support of their contention. It is also argued that the words "remuneration, benefit or amenity" occurring in Section 40(c) must be read having regard to the context in which they occur applying the principle NOSCITORA SPCOOS (recognition of associated words). If so read, the payments in question can never fall within the ambit of the said words. Shri Ahuja, the learned counsel for the Revenue justified the reasoning and approach of the High Court having regard to the clear language employed in clause (c). The genuineness or validity of the agreement between the assessee company and the firm is not disputed. The factum of payments made on account of royalty in terms of clause 4(a) of the said agreement is also not disputed. It is also 611 not disputed that in the beedi trade, brand name carries significant business value. It is necessary to keep this factual context in mind while examining the question at issue. Section 40(c) read as follows during the relevant assessment years "40. Notwithstanding anything to the contrary in sections 30 to 39, the following amounts shall not be deducted in computing the income charge able under the head" profits and gains of business or profession", (a). . (b). . (c) in the case of any company (i) any expenditure which results directly or indirectly in the provision of any remuneration of benefit or amenity to director or to a person who has a substantial interest in the company or to a relative of the director or of such person, as the case may be, (ii) any expenditure or allowance in respect of any assets of the company used by any person referred to in sub clause (i) either wholly or partly for his own purposes of benefit, if in the opinion of the Income tax Officer any such expenditure or allowance as is mentioned in sub clause (i) and (ii) is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by or accruing to it therefrom, so, however, that the deduction in respect of the aggregate of such expenditure and allowance in respect of any one person referred to in sub clause (i) shall, in no case, exceed (A) where such expenditure or allowance relates to a period exceeding eleven months comprised in the previous year, the amount of seventy two thousand rupees; (B) where such expenditure of allowance relates to a period not exceeding eleven months comprised in the previous year, an amount calculated at the rate of six thousand rupees for each month or part thereof comprised in that period: 612 Provided that in case where such person is also and employee of the company for any period comprised in the previous year, expenditure of the nature referred to in clauses (i), (ii), (iii) and (iv) of the second proviso to clause (a) of sub section (5) of section 40A shall not be taken into account for the purposes of sub clause (A) or subclause (B), as the case may be; (iii) * * * * Explanation. The provisions of this clause shall apply notwithstanding that any amount not to be allowed under this clause is included in the total income of any person referred to in sub clause (i);" The Budget speech of the Finance Minister, in so far as it mentions the reasons for introduction of clause (c) of Section 40, reads as follows: "I am firmly of the view that the fiscal instrument must be deployed to discourage payment of high salaries and remunerations which go ill with the norms of egalitarian society. I accordingly propose to impose a calling on the remuneration of company employees which would be deductible in the computation of taxable profits. The ceiling is being set at Rs. 5,000 per month. Together with the existing ceiling of Rs. 1,000 per month in the case of perquisites, the allowable overall ceiling on remuneration and perquisites, for purposes of taxation, will be at Rs. 6,000 per month. . . " The object behind the provision undoubtedly was to discourage and disallow "payment of high salaries and remunerations which go ill with the norms of egalitarian society". The provision was, of course, not confined to the directors. ' It took in relatives of directors, persons having substantial interest in the company and their relatives. The clause vested in the I.T.O. the power to determine whether any such expenditure or allowances as is mentioned in the said clause was excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by or accruing to it therefrom. In addition to it, a ceiling was also prescribed beyond which such expenditure or allowance could not go in any event. At this juncture, it would be appropriate to notice the provision contained in sub section (2) of Sec 40A. Clause, A provides that where the assessee incurs any expenditure in respect of which payment has been made or is to be made to any 613 person referred to in clause (b) of the sub section, and the Income tax Officer is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods, services or facilities for which the payment is made or the legitimate needs of the business or profession of the assessee or the benefit derived by or accruing to him therefrom, so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction. Clause (b) mentions the categories of persons to whom the provision in clause (a) applies. It includes directors of the company and their relatives among others. Clause b) also takes in any payment to any company, firm, association of persons or Hindu undivided family of which a director, partner or member, as the case may be, has substantial, interest in the business or profession of the assessee. In short, the net is cast very wide to ensure that excessive or unreasonable payments are not made to the persons in control of the affairs of the assessee in the name of paying for the goods, services and facilities rendered, supplied or extended by them, as the case may be. That the payments made by the assessee company to the firm on account of royalty in terms of clause (4) (a) of the agreement fall within the meaning of the expression 'expenditure ' in sub clause (i) of clause (c) is not disputed. The observations in CIT, Bombay. vs M/s. Indian Engineering and Commercial Corporation Private Uinited (Civil Appeal Nos. 1583 and 1584 (NT) of 1977 decided on 13.4.1993 by us reported in ; do not say otherwise. That case arose under Section 40(A) (5). The payments in question were made to the directors by way of commission on sales. The question was whether the said payments fell within sub clause (ii) of clause (a) of sub section (5) of section 40(A). It was held that they did not. While holding so it was observed that it is difficult to say that payment of certain cash amount by way of commission on sales, directly to an employee, can be said to fall within the words 'where the assessee incurs any expenditure which results directly or indirectly '. " The said observations were made in response to the Revenue 's argument that the said payment constituted 'perquisites ' within the meaning of sub clause (ii) of clause (a) of Section 40(A) (5). The observations are clearly confined to the said sub clause and have no relevance to any other provision in the Act. The observations cannot be read dissociated from their context. Coming back to the provisions of Section 4O(c) and the facts of the case before us the only question is whether the royalty payments to the firm fell within clause (c). We assume for the purpose of this argument that in this case, payments to firm were payments to partners. Even so, we think that the said payments did not fall within clause (C). The payments were made in consideration of a valuable right parted by the partners/ directors of the assessee company in favour of the assessee. SO long a,, the agreement whereunder the said payments were made is not held to be a mere 614 device or a mere screen, the said payments cannot be treated as payments made to the directors as directors (qua directors). The payments were made by way of consideration for allowing the assessee to use a valuable right belonging to them viz., the brand name. Such a payment may be liable to be scrutinised under subsection (2) of Section 40(A), but it certainly did not fall within the four corners of Section 40(c). In T. T Ltd. vs LTO., Bangalore 1, a Bench of Karnataka High Court comprising D.M. Chandrashekhar, CJ. and E.S. Venkataramiah,J. has taken a view which accords with the one taken by us. Speaking for the Bench, E.S. Venkataramiah, J. (as he then was) observed: "A close reading of the above provision shows that section 40(c) refers to an expenditure in curred by making periodical payments to person mentioned in that clause apparently for any personal service that may be rendered by him. It cannot have any reference to payments made by the assessee for all kinds of "services or facilities" referred to in section 4OA(2) (a). It is argued that the proviso thereto suggests that any expenditure incurred for any kind of service which is referred to in the main part of section 40A (2) (a) and the expenditure referred to in section 40(c) belong to the same category. This contention is not correct. The expression "services" in section 40A (2) (a) is an expression of wider import. . . If the remuneration, benefit or amenity referred to in section 40(c) is treated as the same as what is paid in return for "the goods, services or facilities" then irrespective of the fair market value of the goods, services and facilities provided by a person who may be a director or a person who has a substantial interest in the company or a relative of the director or of such person, as the case may be, only a maximum of Rs. 72,000 can be allowed to be deducted in computing the income of the company in any one year. We do not think that Parliament ever intended that such a result should follow. The goods, services and facilities referred to in section 40A (2) (a) are those which have a market value and which are commercial in character. Many of the services and facilities referred to above are those which are nowadays provided by independent organisations. ' The said decision has been followed by the Punjab and Haryana High Court in Commissioner of Income Tax, Patiala vs Avon Cycles (P) Ltd. , The Calcutta High Court has also taken a similar view in India Jute Co. Ltd vs 615 Commr of Income Tax Mr. Ahuja, learned counsel for the Revenue submitted that the argument of the assessee that only the payments made to directors as directors fall within clause (c) and not the other payments, becomes inapt when the payments are made to the relative,,, of the directors or to persons holding substantial interest in the assessee company or their relatives. The ceilinG prescribed in clause (c) cannot also be applied to such persons says the counsel. The answer perhaps lies in the clause itself in the power vested in the I.T.O. to determine whether any expenditure or allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by the assessee or accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause (c) will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Since such a situation does not arise herein, we need not pursue the argument further. For the above reasons, we are of the opinion that the judgment under appeal cannot be sustained. It must he held that the payments in question did not fall within section 40(c). Accordingly, the appeals are allowed, the judgment of the High Court is set aside and the question referred to the High Court is answered in the affirmative, i.e., in favour of the assessee and against the revenue. No costs. U.J. R. Appeal allowed.

A partnership firm consisting of three partners was engaged inter alia in the business of manufacturing and sale of beedies under the brand name "Mangalore Prakash Beedies". On May 20,1972 a private limited company called prakash beedies Ltd. the assessee appellant was incorporated. One of its objects was to take over the business of the aforesaid firms which it did under an agreement dated 15 July 1972 whereby the firms sold its rights and assets to the company. For the use of the trade name, a royalty at 10p. for every 1000 beedies was to be paid by the company to the firm. This payment was made ever year by the assesse on account of royalty. The three partners of the firms were also directors of the company. The relevant assessment years were 1974 75 and 1975 76. The facts in the other appeals are similar. The assessee claimed deduction of the amount paid by it as royalty. The ITO allowed the deductions as claimed. The CIT in stio motu proceedings disallow the aforesaid deductions. On appeal, the tribunal restored the order of the ITO. On reference, the High Court answered in fan,our of the revenue as the three directors of the assessee company were also partners in the firm. It held that in law, a firm is merely a collection or association of individuals for carrying on a business. Merely because the firm is an assessable entity, under the Income Tax Act, it does not follow that it is a juristic or legal entity. It must therefore be held that the payments to the firm were in reality made to the 607 directors, thus attracting section 40 (c). Before this Court, it was contended for the assessee that payment to a firm is not ipso fact payment to the partners, directly or indirectly. In any event, the payments were made to the three persons not in their capacity of directors (qua directors). but in consideration of a valuable right parted by them in favour of the assessee company. section 40(c) was never intended to take in such payments. They relied on the budget speech of the Finance Minister and argued that the principle of interpretation noscitor a sociis must be applied to the words "remuneration, benefit or amenity". The genuineness or validity of the agreement, the factum of payments as royalty, and that the brand name carries significant business value was not disputed. The question before this Court was whether the royalty payments fail within section 40(c). Allowing the appeal, this Court, HELD : 1. Even assuming that the payments to firm were payments to partners, the said payments did not fall within section 40(c). The payment, . were made In consideration of a valuable right parted by the firm/partners/ directors of the assessee company in favour of the assessee. So long as the agreement whereunder the said payments were made is not held to be a mere device or a mere screen, the said payments cannot be treated as payments made to the directors (qua directors). (613 H, 614 A) The payments were made by way of consideration for allowing the to use a valuable right belonging to them viz. the brand name. Such a payment may be liable to be scrutinised under sub section. (2) of section 40 (A), but it certainly did not fall within the four corners of section 40(c). (614 A) T.T. (Pvt.) Ltd. vs ITO Bangalore , approved. CIT Patiale vs Avon Cycles (p) Ltd. and India Jute Co. Ltd. vs CIT , referred to. 2. The power vested in the ITO is to determine whether any expenditure of allowance is excessive or unreasonable having regard to the legitimate business needs of the company and the benefit derived by the assessee or 608 accruing therefrom. Any payment to a relative of a director or other persons mentioned in clause (c) will necessarily be examined applying the above test and if it is found that they are unwarranted, unreasonable or excessive, they will be disallowed. Such a situation does not arise herein. (615 C) CIT, Bombay vs M/s. Indian Engineering and Commercial Corporation (p) Ltd. [1983] distinguished. JT 683.

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. K. section Krishnaswamy Iyengar (section Ramachandra with him) for the appellants. K. Rajah Iyer (R. Ganapathy Iyer, with him) for the respondent. April 14. The Judgment of the Court was delivered by MAHAJAN J. One Lakshminarayana Iyer, a Hindu Brahmin, who owned considerable 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 850 executed a will on 16th November, 1924, the construction of which is in controversy 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 not 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 husband 's estate, In 851 spite of this injunction, on the 27th September, 1945, she executed two deeds of settlement in favour of the other defendants comprising 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 no title 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 not less than a widow 's estate, that the estate given to Ramalakshmi under the will was but a contingent one and she having predeceased the widow, no interest 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 widow 's estate and whether the daughter 's interest therein was in the nature of a contingent 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 not an absolute estate or even a widow 's 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 not 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 construction of the will. Leave to appeal to the Supreme Court was 852 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 woman 's estate under Hindu law or merely a limited life estate in the English sense of that expression. It was not contested 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 testator 's 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 widow 's estate could be created by will, it being an estate created by law, but it is now settled that a Hindu can confer 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 not as an heir. The court 's 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 notions 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 come 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 853 his bounty. In express terms he conferred on his daughter powers of alienation byway of gift, exchange, sale, but in sharp contrast to this, on his widow he conferred no such 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 no restraint in express terms was put on her powers of alienation in case of necessity, even that limited power was not given to her in express terms. If the testator had before his mind 's eye his daughter and her heirs as the ultimate beneficiaries of his bounty, that intention could only be achieved by giving to the widow a limited estate, because by conferring a full Hindu widow 's estate on her the daughter will, only have a mere spes successions under the Hindu law which may or may not mature and under the will her interest would Only be a contingent one in what was left indisposed of by the widow. It is significant that the testator did not 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 concerned, 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 could not enjoy the same properties in the manner directed if the widow had a full Hindu widow 's 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 widow 's 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 not conferred on her. It was argued 854 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 could 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 considerable 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 not 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 not 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 could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. In this situation the inference that the testator must have of necessity intended to confer 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 could 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 855 other authorized purposes. It cannot be said that a Hindu widow can only alienate her husband 's 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 considerations. We therefore hold that the estate conferred on Ranganayaki Ammal was more like the limited estate in the English sense of the term than like a full Hindu widow 's estate in spite of the directions above mentioned. She had complete control over the income of the property during her lifetime but she had no power to deal with the corpus of the estate and it had to be kept intact for the enjoyment of the daughter. Though the daughter was not 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 testator 's 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 testator 's properties on his death. It was strenuously argued by Mr. K. section 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 woman 's estate than a life estate a, , understood in English law wherein the estate is measured by use and not by duration, and that if this will was construed in the light of the notions of Lakshminarayana Iyer it should be held that the widow got under it a Hindu widow 's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow, 856 The learned counsel in support of his contention drew our attention to a number of decisions of different High Courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. This rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. [Vide Sasiman vs Shib Narain (1)]. However, out of respect for learned counsel 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 contention from the decision in Ram Bahadur vs 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 no son or daughter, his niece section 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 brother 's 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 none shall have the lest right of alienation. They will of course be entitled to enjoy the balance left after payment of rent". This will was construed as conveying 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 section (the niece) was an estate such as a woman ordinarily acquires by inheritance under the Hindu law which she holds in a completely representative character but is unable to (1) 491. A. 2 5. (2) 857 alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a Hindu has in regard to devolution of his property. The provisions contained in this will bear no analogy to those we have to construe. The restraint against alienation was repugnant to both a life estate and a widow ', , estate and was not, therefore, taken into account. But there were other indications in that will showing that a widow 's estate had been given. The fact that the gift over was a contin gent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow 's estate. There is no such indication in the will before us. Reliance was next placed on the decision in Pavani Subbamma vs 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 son 's daughter and the daughter 's son respectively. A suit was instituted by the son 's daughter for the recovery of possession of her share in one item of property forming, part of the estate which had been sold by section The question for decision in that case was whether section 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 not 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 contention of the learned counsel 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 vs sundaram Iyer (2), it may be possible to create an interest analogous to a woman 's estate in Hindu law notwithstanding the addition of a gift over and that the estate taken by section need not necessarily be only a life estate in the English law (1) (2) Mad. 1. 111 858 sense of the term. " We do not understand how such passing observations can be helpful in deciding the present case. Assuming that it is possible to create a Hindu woman 's estate not 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 consideration. The following remarks in the Privy Council decision in Nathu, Ram Mahajan vs 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 contemplated 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 couched in entirely different terms cannot afford much assistance in the decision of the case. In Vasantharao Ammannamma vs 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 section 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 construed 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 widow 's estate. At page 193 of the report it was observed as follows : "The question therefore arises, did he intend to confer only a life estate or a daughter 's estate ? It seems (1) (2) , 859 to us that he meant to give a daughter 's 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 course 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 conferred on the daughter was not a life estate because there is no direct 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 convey 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 course of devolution. If it was the daughter 's estate that was intended to be conferred, there can be no question that the estate taken by the grandsons is not a vested interest". This line of reasoning which appealed to the learned judges is not 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. section K. Iyengar because in the will in this case the widow 's estate is delimited by the words " till your lifetime. " Reliance was next placed on Maharaja of Kolhapur vs 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 widow 's estate except the liability to be divested, but nevertheless a life estate rather than an estate of inheritance." These remarks do not throw much light on the point before us. The last decision referred to was the decision of the Privy Council in Mahomed Shumsool vs Shewukram(2) There a Hindu inhabitant of Bihar by a document of (1) Mad. 1. (2) (1874 75) 2 I.A. 7. 860 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 contended that these latter expressions qualify the generality of the former expressions, and that the will, taken as a whole, must be construed as intimating the intention of the testator that Mst. Rani Dhun Kaur should not 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 construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions 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 not 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 confer 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 not confer upon her by will a Hindu widow 's estate which she would otherwise get by inheritance. Generally speaking, there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise 861 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 widow 's estate and no more. What is given must be gathered from the language of the will in the light of the surrounding circumstances. The learned counsel 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 construction of this will in his favour. In the first instance, he placed reliance on a decision of the Madras High Court in Ratna Chetty vs 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 could not 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 construction of the will that the nephew, who lived amicably with the widow till his death, had a vested interest at testator 's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. This decision only decides that case and is not very relevant in this enquiry. Reference was also made to the decision of their Lordships of the Privy Council in Mst. Bhagwati Devi vs 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) (2) (1874 75) 2 I.A 256. 862 "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 not 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 not feel justified, upon mere conjecture 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 consequence, no doubt, 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 husband 's 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 not be possessed in any sense of a vested remainder, but merely of a contingent one. It would also follow that she would completely represent the estate, and under certain circumstances the statute 863 of limitations might run against the heirs to the estate, whoever they might be. Their Lordships see no sufficient reason for importing into this document words which would carry with them all these consequences, and they agree with the subordinate judge in construing 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 couched 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 vs 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 wife 's 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 not contingent on her surviving Suraj, but that she took a vested remainder which upon her death passed to her heirs. After considering the rival contentions of the parties, we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. Both the learned counsel eventually conceded that the language used in the will was consistent with the testator 's intention of conferring a life estate in the English sense as well as with the intention of conferring a Hindu widow 's estate. It was, however, urged by Mr. Rajah Iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow, that circumstance (1) Bom. 409. 864 negatived the view that the testator intended to confer upon his widow a Hindu widow 's estate as she would get in case of intestacy. He also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow 's estate " till your lifetime " and of the omission from therein of words such as nialik etc., while describing the widow 's estate. Mr. Krisbnaswami lyengar, on the other hand, contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them, suggested a contrary intention and that the daughter 's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow, and this connoted according to the notions of Hindus a full Hindu widow 's estate. In our judgment, there is force in the contention of Mr. Rajah Iyer for reasons already stated and in the result, therefore, we dismiss this appeal with costs. Appeal dismissed. Agent for the respondent Ganpat Rai.

A Hindu Brahmin governed by the Mitakshara law made a will in which he gave the following directions: " After my life time, you, the aforesaid Ranganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties . After your lifetime, Ramalakshmi Ammal, our daughter 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 C, wife of my late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed." After the death of the testator his wife entered into possession of his properties but before the death of his wife, his daughter and all her children died: Held, (i) that on a proper construction of the will in the light of surrounding circumstances, the testator bad conferred on his 849 wife only an ordinary life estate, and alienations made by her would not endure beyond her lifetime ; (ii) that the testator 's daughter obtained under the will a vested interest in the properties after the lifetime of the widow, to which her husband succeeded on her death. The rule of construction by analogy is a dangerous one to follow in construing wills differently worded, and executed in different surroundings. Ram Bahadur vs Joger Nath Prasad , Pavani Subbamma vs Arumala Rama Naidu ([1937] , Nathu Rain Mahajan vs Ganga Bai ([1938] , Vasanta Rao Ammennamma vs Venkata Kodanda Rao ([1940] , Maharaja of Kolhapur vs Sundaram Iyer (I.L.R. 48 Mad. 1), Mahoned Shumsool vs Shewakram (2 I.A. 7), Ratna Chetty vs Narayana swami Chetty , Mst. Bhagwati Devi vs Choudry Bholonath Thakur (2 I.A. 256) and Lallu vs Jagmohan (I.L.R. referred to. Judgment of the Madras High Court affirmed.

Civil Appeal No. 252 of 1969. Appeal by Special Leave from the Judgment and Order dated 19 8 68 of the Allahabad High Court in Civil Appeal No. 254/65. G. N. Dikshit and M. V. Goswami for the Appellant. section C. Manchanda, section C. Patel and Trilok Singh Arora for the Respondent. The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave is directed against the judgment and order of the Allahabad High Court dated August 19, 1968 dismissing a second appeal arising out of a suit for declaration. The respondent was appointed as a Sub Inspector of Police in a temporary post in 1955. He was discharged from service on July 13, 1957. A writ petition filed by him in the Allahabad High Court was allowed on August 4, 1959, and accordingly on December 15, 1959 he was reinstated in service. Thereafter, on January 21, 1960 his services were terminated by the Deputy Inspector General of Police, Agra Range, Agra. On March 13, 1963 the respondent instituted a suit for a declaration that the order dated January 21, 1960 was illegal and void and that he continued as Sub Inspector of Police in the Uttar Pradesh Police Service. It was alleged that on a false complaint made against him in respect of the custody and detention of one Smt. Phoolmati, an enquiry had been made in consequence of which the appellant had been arbitrarily and illegally discharged from service on July 13, 1957. It was pleaded that although he was reinstated on the success of his writ petition in the High Court, his services were terminated a mere five weeks later although no ground had arisen since for doing so. It was asserted that the order of January 21, 1960 was passed as a simple order of termination in order to avoid a departmental enquiry under section 7 of the Police Act, which enquiry if held would have enabled him to expose the falsity of the allegations levelled against him. The suit was contested by the appellant, who maintained that the termination of the respondent 's services was not by way of punishment hor motivated by malice, and that it was a simple termination of the services of a temporary government servant on the ground that they were no longer required by the State. The suit was decreed by the learned Munsif, Etah and the decree was affirmed in appeal and second appeal. The High Court, in second appeal, took the view that where an enquiry was instituted by a superior authority into a misconduct alleged against a government 1128 servant, the resulting termination of service was by way of punishment because it attached a stigma or amounted to a reflection on the competence of the government servant and affected his future career. The High Court held that the findings recorded during the enquiry on the original complaint against the respondent were responsible for the order terminating the respondent 's services, and it affirmed that the order was vitiated by mala fides. Attacking the findings of the High Court, learned counsel for the appellant contends that in the first place the order terminating the respondent 's services had not been made by way of punishment, but was an order of termination simpliciter passed in accordance with the rules applicable to temporary government servants. In the second place, it is said, if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt. Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service. Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his services and, he urges, after the order of the High Court quashing his discharge on the ground of violation of Article 311(2) of the Constitution it was obligatory on the superior authority, in case it proposed to terminate the respondent 's services, to institute a proper and complete departmental enquiry, providing an opportunity to the respondent to lead evidence and be heard in his defence, and only thereafter could it make an order against the respondent. We are of the opinion that the appellant is right on both counts. Considered as an order made without reference to the earlier proceeding against the respondent, the impugned order cannot be regarded as one of punishment. After the original order of discharge was quashed by the High Court, the respondent was reinstated in service. He was even allowed an increment to his salary. The Deputy Inspector General of Police made the impugned order subsequently terminating his services on the ground that they were no longer required. The services were terminated on payment of one month 's salary in lieu of notice under the "general rules for termination of service of temporary government servants". The Deputy Inspector General of Police was examined as a witness in the suit, and throughout he maintained that he terminated the respondent 's services because they were not required any more and that in making the order he did not intend to punish the respondent. The evidence also discloses that no personal motive had influenced the order. It was open to the superior authority to terminate the respondent 's services on the ground on which it did so. 1129 Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt. Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondent 's services could be terminated. It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondent 's conduct concerning the woman. No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was never adopted. The Deputy Inspector General of Police passed the original order dated July 13, 1957 discharging the respondent from the police force on the ground that he had behaved in a reprehensible manner, was not likely to make a useful police officer and was unfit for further retention in a disciplined force. The original order plainly attached a stigma to the respondent 's record of service, and it is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the benefit of Article 311 (2) of the Constitution, and quashed the order. Now the order having been quashed, the position reverts to what it was when the Deputy Inspector General of Police received the report of the Superintendent of Police on the Preliminary enquiry made by him. There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service. The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. vs Ram Chandra Trivedi(1) and reference has been made in this behalf to Champaklal Chimanlal Shah vs The Union of India(2), Jagdish Mitter vs Union of India(3) and State of Punjab & Anr. vs Shri Sukh Raj Bahadur(4). It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order. In this connection what has been stated by this Court in Union of India & Ors. vs R. section Dhaba.(5) State of Bihar & Ors. vs Shive Bhikshuk Mishra(6) and R. section Sial vs The State of U.P. & Ors.(7) appers relevant. That it was not intended 1130 to take punitive action against the respondent for his misbehaviour with Smt. Phoolmati is evident from the circumstance that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes. The High Court, it seems to us, did not have regard to all the facts and circumstances of the case, and appears to have assumed that the respondent 's services were terminated as a measure of punishment. The High Court relied on The State of Bihar vs Gopi Kishore Prasad(1) and Madan Gopal vs The State of Punjab(2). Both cases are distinguishable. In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer. In the latter, the government servant had been served with a charge sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action. We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us. Accordingly, the appeal is allowed, the judgment and decree of the High Court dated August 19, 1968 are set aside and the respondent 's suit is dismissed, but in the circumstances without any order as to costs. S.R. Appeal allowed.

A criminal case, arising out of F.I.R. 72 of 1967 against one Sri Bali Ram Sharma and two others for the offence of the theft of two sandstone pillars of great antiquity, beauty and value from the Suraj Kund Temple, in village Amin, Dist. Karnal, ended in the acquittal of the accused. During the pendency of this case, on an application made by him one Narinder Nath Malik (N. N. Malik) an alleged research scholar and a friend of H. L. Mehta, the then Chief Judicial Magistrate was given the custody of these two sandstone pillars which had been recovered from the accused. The pillars remained in the custody of N. N. Malik from 1 3 1968 to 27 5 1968 and on the acquittal of the accused on 16 7 1968, they were handed over to the Lambardar of Village Amin. Later, it came to light that the pillars returned by Malik were not the original pillars but fakes. Thereupon, F.I.R. RC 2 71 CIA/SPE/CBI was registered at Delhi against Malik and H. L. Mehta under Section 120 B read with Sections 406 and 420 I.P.C. After completing the investigation a charge sheet No. RC 2 of 1971 was filed on 30 12 1972, in the Court of Special Magistrate, Ambala against Malik and H. L. Mehra for the aforesaid offences noted in the F.I.R. Though an order was passed on 17 5 1976 directing the framing of charges, no charges were actually framed. However, on 16 5 77, on an application dated 17 4 77 filed by the Public Prosecutor under Section 494 of the Criminal Procedure Code, 1973, the Special Magistrate permitted the withdrawal of the case and discharged the accused. During the pendency of the case, the two genuine pillars were traced and found in London in the ware house of Spink & Co. It was suspected that Manohar Lal Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London. This resulted in the registering of F.I.R. RC 4/76 CIU(A)/SPE by the Superintendent of Police, CIV (Antiquities SPE/CBI, New Delhi) against Manohar Lal Narang and others for alleged offences under Section 120B, read with Section 411 I.P.C. and Section 25 (1) of the . An application under section 306 Cr. P.C. filed by N. N. Malik on 26 6 1976 before the Chief Metropolitan Magistrate, New Delhi with reference to this F.I.R. RC 4/76, was accepted on 3 7 1976 and Malik was granted pardon, after confessional statement was recorded. On 19 7 1976 a charge sheet was filed (RC 4 of 1976) before the same Court for offences under Sections 120B, I.P.C. read with Section 420, 411 and 406 I.P.C. and Section 25 of the . The case was transferred to the Court of Additional Chief Metropolitan Magistrate. On 20 7 1976 the Magistrate issued process for the appearance of the accused including the three Narang brothers out of whom the appellant in Crl. Appeal 373 of 1978 was already under detention under MISA and COFEPOSA. The other two who were in London were extradited and brought 924 to India on 27 7 1977. An application filed by Ramlal Narang in March 1977 immediately after his release from detention, to drop the proceedings against him, to cancel the extradition warrants against his two brothers and to discharge all the accused on the ground of illegality of the Delhi case in view of the fact that a case on the same facts was already pending in the Ambala Court failed. Thereafter two applications filed by the three Narang brothers on 21 6 1977 in the Delhi High Court under Section 482 Crl. P.C. once again challenging the legality of the proceedings arising out of charge sheet RC4 of 1974 were admitted on 22 6 1977, but dismissed on 10 1 1978. During the pendency of these two appeals Malik died sometime during May 1977 and Mehra was made a co accused in the Delhi case on 1 8 1977 in view of the withdrawal of the Ambala case on 16 5 1977. Dismissing the appeals by special leave, the Court, ^ HELD: 1. The police have the statutory right and duty to 'register ' every information relating to the commission of a cognizable offence. The police also have the statutory right and duty to investigate the facts and circmstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the police to investigate into a cognizable offence. [937 F H] (a) The scheme of the 1898 Code of Criminal Procedure was that the First Information Report was followed by investigation, the investigation led to the submission of a report to the Magistrate, the Magistrate took cognizance of the offence on receipt of the police report and finally, the Magistrate taking cognizance issued process to the accused. As such ordinarily the right and duty of the police would end with the submission of a report under Section 173(1) Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence. [937 E F, 938 F] (b) There was no provision in the 1898 Code prescribing the procedure to be followed by the police, where after the submission of a report under Section 173(1) Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation. Similarly, there was no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173(1) or after the Magistrate had taken cognizance of the offence. Therefore further investigation was permissible and was not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial could also be cured by a further investigation, if circumstances permitted it. [938 F H, 941 C D] King Emperor vs Khwaja Wazir Ahmed, 71 Indian Appeals, PC 203: followed. Diwakar Singh vs A. Ramamurthy Naidu, AIR 1919 Madras 751. In re. Palaniswami Goundan, AIR 1946 Madras 502; Mohd. Niwaj vs The Crown, Lahore; Prosecuting Inspector vs Minaketan 925 Monato, AIR 1952 Orissa 350; Ramashankar vs State of U.P., AIR 1956 All. 525; In re. State of Kerala vs State Prosecutor, p. 1288 (Kerala) D.B.; approved. H. N. Rishbud vs State of Delhi, ; ; Tara Singh vs State ; referred to. (a) Neither Section 173 nor section 190 lead to the conclusion that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations and discovery of fresh facts. Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation. [943 G H, 944 A] (b) When it comes to the notice of the investigating agency that a person already an accused of an offence has a good alibi or where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the innocence or involvement of the persons concerned. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. A further investigation by the police cannot be considered as trenching upon the proceedings before the Court because whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. [942 F H, 943 A D] Ram Gopal Neotia vs State of West Bengal, AIR 1969 Cal. 316 Hanuman and Anr. vs Raj. AIR ; State vs Mehr Singh and Ors., ILR 2 Cal. LJ 970; over ruled. (c) Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrate themselves may take action suo motu. [944 B] 926 In the instant case; the prosecution did not act with any oblique motive or out of any malice by submitting a charge sheet to the Delhi Court and by withdrawing the case in the Ambala Court. In the charge sheet filed in the Delhi Court, it was expressly mentioned that a case had been filed in the Delhi Court against Mehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court. The Court granted its permission for the withdrawal of the case. [944 C E] 3. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimentions. [936 B C] In the present case, (a) the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject matter of the first case, may perhaps be said to have turned out to be part of the conspiracy which is the subject matter of the second case. When investigation commenced in First Information Report No. RC4 of 1976, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known. [936 C D] (b) A comparison of the two First Information Report coupled with the several facts and circumstances show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case. The conspirators were different. Malik and Mehra alone were stated to be the conspirators in the first case, while the three Narang brothers were alleged to be the principal conspirators in the second case. The objects of the two conspiracies were different. The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them. The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London. The offences alleged in the first case were Section 120B read with Section 420 and 406 Indian Penal Code while the offences alleged in the second case were section 120B read with section 411 IPC and Section 25 of the . [935 D F] (c) No fault could be found with the police for registering a first information Report against the Narang brothers for the offence of conspiracy to commit an offence under section 411 Indian Penal Code. In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by cheating Facts came to light which indicated that the conspiracy which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy. The fresh facts which came to light resulted in the filing of the second charge sheet. [935 C D] (d) Neither at the time when the First Information Report pertaining to the Ambala Case was registered nor at the time when the Charge sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture. The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted and returned fake pillars to the Court. The First Information Report and the charge sheet were concerned primarily with the 927 offences of conspiracy to cheat and to misappropriate committed by Malik and Mehra. At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country. It was not known that Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court. It was much later, that the pillars surfaced in London were discovered to be in the constructive possession of Narang brothers. Even then, the precise connection between Malik and Mehra on the one side and Narang brothers on the other was not known. All that was known was that the pillars which were stolen property within the definition of the expression in Section 410 Indian Penal Code were found to be in the possession of Narang brothers in London. On the discovery of the genuine pillars in the possession of Narang brothers, without anything further to connect Narang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers. That was what was done. [934 F H, 935 A B] Observation: In the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light. [943 E]

Civil Appeal No. 2844 of 1979. Appeal by Special Leave from the Judgment and Order dated 17 8 1979 of the Allahabad High Court in Civil Revision No. 1273 of 1976. Pramod Swarup for the Appellant. N. K. Agarwal for the Respondent (Amicus Curiae). The Judgment of the Court was delivered by PATHAK, J. This appeal by special leave and the four associated special leave petitions question the dismissal by the High Court of Allahabad of five revision petitions filed under Section 115, Code of Civil Procedure, on the ground that they are not maintainable. Although the five cases before us must be considered in the context of their individual facts, it is desirable to appreciate the relevant jurisdictional structure of revisional power enjoyed by the High Court from time to time. In 1970, the provisions of section 115, Code of Civil Procedure, read : "115. Revision : The High Court may call for the record of any case which has been decided by any court subordinate to such High Court, and in which no appeal lies thereto, and if such court subordinate appears : (a) to have exercised a jurisdiction not vested in it by law, or (b) to have exercised a jurisdiction so vested, or 35 (c) to have acted in the exercise of its jurisdiction illegally with material irregularity, the High Court may make such order in the case as it deems fit. " A schematic analysis of the judicial hierarchy within a State indicates that the High Court, as the apex court in the hierarchy, has been entrusted, not only with the supreme appellate power exercised within the State but also, by virtue of section 115, the power to remove, in order to prevent a miscarriage of justice, any jurisdictional error committed by a subordinate court in those cases where the error cannot be corrected by resort to its appellate jurisdiction. The two salient features of revisional jurisdiction under section 115 are, on the one hand, the closely limited grounds on which the court is permitted to interfere and on the other, the wide expanse of discretion available to the court, when it decides to interfere, in making an appropriate order. The intent is that so serious an error as one of jurisdiction, if committed by a subordinate court, should not remain uncorrected, and should be removed and the record healed of the infirmity by an order shaped to re instate the proceeding within the proper jurisdictional confines of the subordinate court. It is a power of superintendence, and fittingly it has been conferred in terms enabling the High Court to exercise it, not only when moved by an aggrieved person, but also suo motu. While considering the nature and scope of the revisional jurisdiction, it is necessary however, to advert to prime circumstance that in civil cases the jurisdiction has been entrusted to the highest court of the State, demonstrating that broadly the order under section 115 is to be regarded, in the absence of anything else, as a final order within the State judiciary. From its inception there was increasing resort to the revisional jurisdiction of the High Court under section 115. Over the years the volume of litigation reached an insupportable point in the pending docket of the Court. To alleviate the burden, a pattern of decentralisation of revisional power was adopted and section 115 was amended by successive State amendments, each attempting to close the gap left by its predecessor. In its meandering course from stage to stage, this is how section 115 read : 1. From 7th April, 1970 : By virtue of section 3, U.P. Civil Laws (Amendment) Act, 1970, section 115 was amended and the result was that : (i) The High Court had exclusive jurisdiction under section 115 in a case arising out of an original suit of the value of Rs. 20,000 and above; and 36 (ii) The High Court and the District Court had jurisdiction under section 115 concurrently in other cases. From 20th September, 1972: section 6, U.P. Civil Laws (Amendment) Act, 1972 amended section 115 further with effect from 20th September, 1972. Later, section 115 was amended by section 2, U.P. Civil Laws (Amendment) Act, 1973 in its application to Uttar Pradesh, retrospectively with effect from 20th September, 1972. In consequence: (i) The High Court possessed exclusive jurisdiction under section 115 in cases arising out of original suits of the value of Rs. 20,000 and above, including such suits instituted before 20th September, 1972: (ii) The District Court possessed exclusive jurisdiction under section 115 in any other case, including a case arising out of an original suit instituted before 20th September, 1972. Provided that in respect of cases decided before 20th September, 1972 and also all cases arising out of original suits of any valuation, decided by the District Court, the High Court alone was competent to exercise revisional power under section 115. section 2(e), U.P. President 's Acts (Re enactment with Modifications) Act, 1974 repealed the U.P. Civil Laws (Amendment) Act, 1973, and re enacted it with certain modifications which, however, for the purposes of the present case are immaterial. From 1st February, 1977: section 43, Code of Civil Procedure (Amendment) Act, 1976 was enacted by Parliament and amended section 115 with effect from 1st February, 1977 making substantial changes therein. Section 97(1) of the Amendment Act provided that any amendment made, or provision inserted, in the Code of Civil Procedure by a State Legislature before the 1st February, 1978 would stand repealed except insofar as such amendment or provision was consistent with the Code as amended by the said Amendment Act. As the Code now amended provided for revisional jurisdiction in the High Court alone, the scheme embodied in section 115 by the successive U.P. Amendment Acts was plainly inconsistent with the Code as now amended, and therefore stood repealed, the position reverting to what it was under the original section 115 before its amendment by the U.P. Civil Laws (Amendment) Act, 1970. But section 97(2) provided that section 115 as now amended by the Amendment Act, 1976 would not apply to nor affect any proceeding for revision which had been admitted, after 37 preliminary hearing, before 1st February, 1977 and every such proceeding for revision would be disposed of as if section 43 had not come into force. The proviso was without prejudice to the generality of the provisions of section 6, . In the result : (i) The High Court had exclusive jurisdiction under section 115 in a revision petition filed on and after that date, irrespective of the valuation of the suit out of which the case arose : (ii) A revision petition under section 115 which had been admitted, after preliminary hearing, before 1st February, 1977 would continue to be governed by section 115 as it stood before that date. From 1st August, 1978: Finally section 3, Code of Civil Procedure (Uttar Pradesh Amendment), Act, 1978, which was deemed to have come into force on 1st August, 1978, amended section 115 again and restored the bifurcation of revisional jurisdiction between the High Court and the District Court. Accordingly now: (i) The High Court alone had jurisdiction under section 115 in cases arising out of original suits or other proceedings of the value of Rs. 20,000 and above, including such suits or other proceedings instituted before 1st August, 1978; (ii) The District Court alone has jurisdiction under section 115 in any other case, including a case arising out of an original suit or other proceedings instituted before 1st August, 1978; (iii) The High Court has jurisdiction under section 115 in respect of cases, arising out of original suits or other proceedings of any valuation, decided by the District Court. (iv) A revision proceeding pending immediately before 1st August, 1978 of the nature in which a District Court would exercise revisional power under section 115 as amended by the Amendment, Act, 1978 if pending : (a) in the District Court, would be decided by that court as if the Amendment Act of 1978 were in force at all material times ; (b) in the High Court, would be decided by the High Court as if the Amendment Act of 1978 had not come into force. The submissions made by learned counsel before us cover a wide field, but in the main, two questions arise : (1) Whether the High Court possesses revisional jurisdiction under section 115, Code of Civil Procedure in respect of an order of the District Court under section 115 disposing of a revision petition ? 38 (2) Whether the High Court possesses revisional jurisdiction under section 115 against an order of the District Court under section 25, Provincial Small Cause Courts Act disposing of a revision petition ? As regards the first question, it will be noticed that a revisional power was formerly entrusted exclusively to the highest court in the state, the High Court. The State amendments now divided it between the High Court and the District Court. The amendment effect by the U.P. Civil Laws (Amendment) Act, 1970 conferred exclusive jurisdiction under section 115 in the High Court in cases arising out of original suits of the value of Rs. 20,000/ and above, and in other cases the revisional jurisdiction was concurrently shared between the High Court and the District Court. It was apparently supposed that the average litigant would prefer the less expensive and more convenient forum of the District Court. The measure, it seems, did not bring the relief expected, and the State Legislature found it necessary, by enacting the U.P. Civil Laws (Amendment) Act, 1972 to make a clear cut division of jurisdiction between the High Court and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out of original suits of the value of Rs. 20,000/ and above, and exclusive jurisdiction under section 115 to the District Court in other cases. There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court now enjoyed mutually exclusive revisional powers. A controversy arose whether a revisional order under section 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section. The point was considered by a full Bench of the High Court in Har Parasad Singh and others vs Ram Swarup and others and it was held that no such revision petition was maintainable before the High Court. Further State amendments were made to section 115 without materially disturbing the division of power. But a proviso added to section 115 by the U.P. Civil Laws (Amendment) Act, 1973, followed by the U.P. President 's Acts (Re enactment with Modifications) Act, 1974 stated : "Provided that in respect of cases decided before the 20th day of September, 1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section. " The proviso reopened the controversy whether a revision petition lay to the High Court against a revisional order passed by the Dis 39 trict Court, and on a difference of opinion between two learned judges a third learned judge of the Allahabad High Court now held in Phool Wati and others vs Gur Sahai that a revision petition would lie. The Code of Civil Procedure (Amendment) Act, 1976, however, superseded the scheme of bifurcation of revisional jurisdiction with effect from 1st February, 1977 and, with certain modification the position reverted to what it was under the original section 115. In other words, the entire sphere of revisional jurisdiction was restored to the High Court, no such power being now vested in the District Court. An exception was made where a revision petition under section 115 had been admitted, after preliminary hearing, before Ist February, 1977; it would continue to be governed by section 115 as it stood before that date. The situation lasted only briefly, for on 1st August, 1978 the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978 substantially restored the status quo ante. The controversy whether it is open to the High Court to exercise revisional power in respect of a revisional order under section 115 of the District Court presents little difficulty. The basis for determining that question flows from the principle incorporated in the bifurcation of the revisional jurisdiction. And legislative history comes to our aid. The consistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise that jurisdiction. That purpose was sought to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose. In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. It seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme. The intent behind the bifurcation of jurisdiction to reduce the number of revision petitions filed in the High Court would be frustrated. The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Court against the revisional order of the District Court arising out of a suit of a value less than Rs. 20,000/ , a fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for 40 the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20,000/ . That was never intended at all. In Phoolwati (supra), considerable importance was attached to the proviso introduced in section 115 by the U.P. Civil Laws Amendment Act, 1973. The proviso declared that "in respect of. all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section". What it said was that no matter what the valuation of the original suit, be it Rs. 20,000/ and above or below Rs. 20,000/ , if a case arising out of such suit was decided by the District Court, the case would be amenable to the revisional power of the High Court. We are already familiar with the category of cases where the High Court wields revisional jurisdiction over cases arising out of original suits of a value of Rs. 20,000/ or more. That is the category already covered by the substantive provision in section 115. The other category covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court. What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant. But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of section 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Fund (Pvt.) Ltd. vs Dwarka Diesh Dayal and others and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in section 115 does not cover orders passed in revision. We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under section 115, Code of Civil Procedure over a revisional order made by the District Court under that section. 41 We shall now advert to the second question, whether a revisional order of the District Court under section 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Court under section 115, Code of Civil Procedure. Section 25 originally provided: "25. The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. " Section 25 was amended in its application to the State of Uttar Pradesh from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes the power of revision under section 25 would vest in the High Court. The question before us arises in those cases only where the District Judge has exercised revisional power under section 25. Is an order so made open to revision by the High Court under section 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self sufficient code so far as the present enquiry is concerned. For the purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under section 24 and section 25 respectively. Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned. A complete set of superior remedies has been incorporated in the Act. Moreover, section 27 of the Act provides: "27. Finality of decrees and orders. Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final. " The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject only to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had section 25, in its application to the State of Uttar Pradesh continued in its original form the High Court would have exercised the revisional power under section 25, and no question could have arisen of invoking the revisional power of the High Court under section 115 of the Code. All the indications point to the conclusion that a case falling within the 42 Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure. By way of abundant caution section 7 of the Code made express provision barring the application of sections 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act. Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under section 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in section 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute. These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli vs M/s. Bandu Motor Finance (P) Ltd. that a revisional order of the District Judge under section 25, Provincial Small Cause Courts Act could be revised by the High Court under section 115, Code of Civil Procedure. In our opinion, the view taken by the High Court is not correct. Accordingly, we hold that an order passed under section 25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Court under section 115, Code of Civil Procedure. In Civil Appeal No. 2844 of 1979, S.L.P. No. 9104 of 1979, S.L.P. No. 9142 of 1979 and S.L.P. No. 9752 of 1979, the High Court has rejected revision petitions filed under section 115, Code of Civil Procedure, against the revisional orders of the District Court under section 25, Provincial Small Cause Courts Act. On the opinion reached by us that a revision petition under section 115 is not maintainable against a revisional order under section 25, the appeal and the associated special leave petitions must be dismissed. 43 S.L.P. No. 9031 of 1979 arises out of an application for an ad interim injunction made in a pending suit. Since then the suit has been dismissed, and an appeal against the decree is pending. As the suit itself has been disposed of, all proceedings for grant of interim relief must be regarded as having lapsed. The Special Leave Petition has become infructuous and must be dismissed accordingly. It has been urged by the appellant in Vishesh Kumar vs Shanti Prasad (Civil Appeal No. 2844 of 1979) that in case this Court is of the opinion that a revision petition under section 115, Code of Civil Procedure, is not maintainable, the case should be remitted to the High Court for consideration as a petition under Article 227 of the Constitution. We are unable to accept that prayer. A revision petition under section 115 is a separate and distinct proceeding from a petition under Article 227 of the Constitution, and one cannot be identified with the other. In the result, the appeal and the special leave petitions are dismissed. There will be no order as to cost. P.B.R. Appeal and Petitions dismissed.

The prosecution alleged that a girl below 16 years of age was sleeping outside her house with her family and that the petitioner in the company of another (acquitted accused) carried her away under intimidation to a neighbouring godown belonging to another acquitted accused and in that secluded venue committed rape on the young woman and afterwards put her back on her cot. The trial court convicted the petitioner but on grounds of benefit of doubt acquitted the other accused. The High Court affirmed this order. In the special leave petition to this Court, it was contended on behalf of the petitioner that the evidence of the prosecutrix without substantial corroboration, was inadequate to rest a conviction under section 376 IPC. Dismissing the special leave petition, ^ HELD 1. To forsake vital consideration and go by obsolete demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'judicial ' probability. [308A] 2. Human psychology and behavioural probability must be borne in mind when assessing the testimonial potency of the victim 's version. What girl would foster rape charges on a stranger unless a remarkable set of facts or cleanest motives are made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim has corroborative value. [307G] 3. The court loses its credibility if it rebels against realism. The law court is not an unnatural world. [308 B] 4. Merely because the trial court has ultra cautiously acquitted someone, the higher court must, for that reason, cannot acquit everyone. [308C] 5. A socially sensitized judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it. [308C] 6. Observation on probative force of circumstances are not universal laws of nature but guidelines and good counsel. [307 F] Gurcharan Singh vs State of Haryana ; referred to. 306

ivil Appeal No. 3927 of 1986. From the Judgment and Order dated 18.6. 1986 of the Bombay High Court in Writ Petition No. 10 of 1980. S.K. Dholakia, A.M. Khanwilkar and Mrs. V.D. Khanna for the Appellant. V.M. Tarkunde, Karanjawala, Mrs. Karanjawala and H.S. Anand for the Respondent. The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J. This appeal by leave is from a decision of the Bombay High Court which allowed the respond ent 's petition for a writ of certiorari. In so doing the court quashed departmental proceedings initiated against the respondent and the resultant order terminating his services. The facts are substantially undisputed and may briefly be stated as follows: Respondent Seshrao Balwant Rao Chavan was at the rele vant time the Deputy Registrar of the Marathwada University. One Mr. Yelikar was working then as Controller of Examina tions. In or about April 1976, Mr. Yelikar proceeded on leave and the present respondent was directed to discharge the duties of the Controller of Examinations. Accordingly, he joined his new assignment and continued to hold 458 that post when the controversy which culminated in his dismissal took place. It is said that one Mr. Swaminathan from Madras was entrusted with the printing works needed to conduct annual examinations of the University for the years 1974 and 1975. Mr. Swaminathan submitted his bills amounting about Rs.6,00,000 for the work performed by him. The bills were not cleared immediately, and Mr. Swaminathan complained to the University authorities. He also submitted a petition to the Prime Minister of India which was forwarded to the University for immediate action. This led to an enquiry to find out whether the bills were deliberately kept pending with any ulterior motive. The Executive Council of the University appointed a four member committee including the Vice Chancellor to enquire into the matter. The committee after investigation submitted a report in November 1977 making some prima facie observations against the respondent. Thereupon, the Executive Council desired to have the matter thoroughly examined by another committee. It appointed Mr. N.B. Chavan for the purpose. Mr. Chavan made a detailed enquiry but found nothing against the respondent. On Decem ber 23, 1978, he submitted a report stating inter alia that there was no delay in clearing the said bills and if there was any delay, it was justified in the circumstances. He has stated that the University utilised the time for internal audit in which it was found that the claim of Mr. Swamina than was excessive to the extent of Rs.48,000 and odd. The report of Mr. Chavan thus gave a clean chit to the respond ent as to his conduct in discharging the duties as Control ler of Examinations. If the Executive Council had accepted the report and closed the matter that would have been better. But unfortu nately, it was not done and another chapter was opened. On March 22, 1979, the report of Mr. Chavan was placed before the Executive Council which without taking any decision entrusted the question to the Vice Chancellor. The Vice Chancellor was present in that meeting and agreed to take a decision in about a month. But what he did was entirely different. Purporting to act under the powers given to him by the Executive Council, he directed departmental enquiry against the respondent. He appointed Mr. Motale, Advocate as an Inquiry Officer who flamed three charges: First charge impeached the respondent of intentionally delaying the clearance of the bills of Mr. Swaminathan and thus tarnish ing the image of the University. Second charge alleged that the respondent did not place before the Executive Council, the letters , addressed by the Chancellor of the University on July 23, 1976 and 459 August 19, 1976. Third charge accused the respondent for not producing all the available papers for scrutiny by the one man committee headed by Mr. Chavan. On October 25, 1979, Mr. Motale submitted his ' enquiry report to the Vice Chancellor holding the respondent guilty of the charges. After a usual procedure of giving show cause notice and considering the reply thereto, the Vice Chancel lor decided to dismiss the respondent. On January2, 1980, he accordingly made an order. The matter did not rest there. The respondent moved the High Court under article 226 of the Constitution challenging his dismissal. When the writ petition first came up for hearing in November 1985, the High Court took a very curious stand. It observed that the entire matter be placed before the Executive Council for taking an appropriate decision. As per this observation, the matter came up before the Executive Council in the meeting held on December 26/27, 1985. The Executive Council passed a resolution inter alia, ratifying the action taken by the Vice Chancellor and confirming the dismissal of the respondent. This has added a new dimension to the case. At the final disposal of the writ petition, the High Court, however, examined the merits of the matter. The High Court held that the action taken by the Vice Chancellor was without authority of law. As to the ratification made by the Executive Council, the High Court held: "That the acts done by the Vice Chancellor remain the acts without any authority or powers and that defects cannot be cured by the subsequent resolution." With these conclusions, the High Court quashed the departmental proceedings taken against the respondent and also the order of termination of his services. Being aggrieved by the judgment, the Marathwada Univer sity by obtaining special leave has appealed to this Court. Learned counsel for the appellant put his contention in two ways: First, he said that on the true construction of the relevant provisions of the Marathwada University Act, 1974, the termination of services of the respondent cannot be assailed for want of power or jurisdiction on the part of the Vice Chancellor. Counsel next said that if the order was defective or without authority, the ratification by the Executive Council has rendered it immune from any challenge. In order to appreciate these submissions, we must outline the 460 statutory provisions of the Marathwada University Act, 1974 (called shortly "the Act"). Section 8 specifies the officers of the University. The Vice Chancellor is one of the offi cers. Section 10 provides for appointment of the Vice Chan cellor. He shall be appointed by the Chancellor and shall ordinarily hold office for a term. of three years. Section 11 reads, so far as material, as follows: "11(1): The Vice Chancellor shall be the principal executive and academic officer of the University, and shah in the absence of the Chancellor, preside at the meetings of the Senate and at any Convocation of the Universi ty . " "11(3): It shah be the duty of the Vice Chancellor to ensure that the provisions of this Act, the Statutes, Ordinances and Regulations are faithfully observed. The Chancellor shall, for this purpose, have the power to issue directions to the Vice Chancel lor who shall give effect to any such direc tions. " 11(4): If there are reasonable grounds for the Vice Chancellor to believe that there is an emergency which requires immediate action to be taken, he shall take such action as he thinks necessary and shall, at the earliest opportunity, report in writing the grounds for his belief that there was an emergency, and the action taken by him, to such authority or body as would in the ordi nary course, have dealt with the matter . ." 11(6)(a): It shall be lawful for the Vice Chancellor, as the principal executive and academic officer, to regulate the work and conduct of the officers, and of the teaching, academic and other employees of the Universi ty, in accordance with the provisions of this Act, the Statutes, Ordinances and Regulations." "11(7): The Vice Chancellor shah exercise such other powers and perform such other duties as are prescribed by the Stat utes, Ordinances and Regulations. " Section 19 enumerates the authorities of the University. The Executive Council is one of the authorities specified thereunder. Section 23 to the extent necessary is in the following terms: 461 "23(1): The Executive Council shall be the principal executive authority of the University, and shall consist of the following members, namely,: (i) the Vice Chancellorex officio Chairman. " Section 24 deals with the powers and duties of the Executive Council. These powers and duties are wide and varied and it is sufficient if we read sub sections (1), (xxix) and (xii) of sec. They are as follows: "24(1): Subject to such conditions as are prescribed by or under this Act, the Executive Council shall exercise the following powers and perform the following duties, namely . . " "24(1)(xxix): appoint officers and other employees of the University, prescribe their qualifications, fix their emoluments, define the terms and conditions of their service and discipline and where necessary, their duties." "24(1)(x1i): delegate, subject to the approval of the Chancellor, any of its powers (except the power to make Ordinances), to the Vice Chancellor, the Registrar or the Finance Officer, or such other officers or authority of the University or a committee appointed by it, thinks fit." Two other provisions are material, namely, secs. 37 and 84. Section 37, omitting the unnecessary, is in these terms: Sec. 37 Subject to the conditions prescribed by or under this Act, the Senate may make the Statutes to provide for all or any of the following matters namely: (xvi): The term of office, duties and condi tions of service of officers, teachers and other employees of the University, the provi sions of pension, insurance and provident fund and the manner of termination of their service and other disciplinary action and their quali fications, except those of teachers. " Section 34 is as follows: "Delegation of powers: Subject to the provi sions of 462 this Act and Statutes any officer or authority of the University may, by order, delegate his or its powers, except.the power to make Stat utes, Ordinances and Regulations, to any other officer or authority under his or its control, and subject to the conditions that the ulti mate responsibility for the exercise of the powers so delegated shall continue to vest in the officer or authority delegating them. " With these provisions, we turn to consider the first question urged for the appellant. The question is whether the Vice Chancellor was competent to direct disciplinary action against the respondent. In this context, we may make a few general observations about the position and powers of the Vice Chancellor. The University Education Commission in its report (Vol. I December 1948 to August 1949) has summarised the powers and duties as fol lows (at 421): "Duties of Vice Chancellor A Vice Chancellor is the chief academic and executive officer of his university. He presides over the Court (Senate) in the absence of the Chancellor, Syndicate (Executive Council), Academic Council, and numerous committees including the selection committees for ap pointment of staff. It is his duty to know the senior members of the staff intimately and to be known to all members of the staff and students. He must command their confidence both by adequate academic reputation and by strength of personality. He must know his university well enough to be able to foster its points of strength and to foresee possible points of weakness before they become acute. ' He must be the 'keeper of the university 's conscience ', both setting the highest standard by example and dealing promptly and firmly with indiscipline and malpractice of any kind. All this he must do and it can be done as constitutional ruler; he has not, and should not have autocratic power. Besides, this he must be the chief liaison between his univer sity and the public, he must keep the univer sity alive to the duties it owes to the public which it serves, and he must win support for the university and understanding of its needs not merely from potential benefactors but from the general public and its elected representa tives. Last, he must have the strength of character to resist unflinchingly the many forms of pressure to relax standards of all sorts, which are being applied to universities today. " 463 This has been approved by the Education Commission, 1964 66. In the report of the Education Commission, 1971 (pages 610 11 para 13.32) it was stated: "The person who is expected, above all, to embody the spirit of academic freedom and the principles of good management in a university is the Vice Chancellor. He stands for the commitment of the university to schol arship and pursuit of truth and can ensure that the executive wing of the university is used to assist the academic community in all its activities. His selection should, there fore, be governed by this overall considera tion. " Dr. A.H. Homadi in his wise, little study about the role of the Vice Chancellor in the university administration in developing coun tries has this to state (at 49): The President or the Vice Chancellor: "The President must be willing to accept a definition of educational leadership that brings about change to the academic life of the institution. He must be fired by a deep concern for education. He should instil a spirit and keeness about growth and develop ment in such a way that the professiriate feels that their goals are interlinked with those of the University, that their success depends upon the success of the University. The professors should be given detailed infor mation about the jobs that they have to per form and their good performance should be given due recognition by administration lead ership. Even such small encouragement will boost theft morale to greater heights. The President should have faith in his own abili ties as well as on the abilities of other professors and administrators and should provide guidelines about the kind of efforts he would like his professors and administra tors to make, setting an example by his own actions and exercises. The negative force of fear, when used and no one denies that an element of hard headedness is some times required as a persuasive inducement to profes sors and administrators of university should be employed judiciously. Under no circum stances should the apathy and belligerence of the professors and administrators be aroused. These call for strong but sympathetic leader ship in the President. " 464 The Vice Chancellor in every university is thus the conscious keeper of the University and constitutional ruler. He is the principal executive and academic officer of the University. He is entrusted with the responsibility of overall administration of academic as well as nonacademic affairs. For these purposes, the Act confers both express and implied powers on the Vice Chancellor. The express powers include among others, the duty to ensure that the provisions of the Act, Statutes, Ordinances and Regulations are observed by all concerned. (Section 11(3)). The Vice Chancellor has a right to regulate the work and conduct of officers and teaching and other employees of the University (Section 11(6)(a)). He has also emergency powers to deal with any untoward situation (Section 11(4)). The power conferred under sec. 11(4) is indeed significant. If the Vice Chancellor believes that a situation calls for immedi ate action, he can take such action as he thinks necessary though in the normal course he is not competent to take that action. He must, however, report to the concerned authority or body who would, in the ordinary course, have dealt with the matter. That is not all. His pivotal position as the principal executive officer also carries with him the im plied power. It is the magisterial power which is, in our view, plainly to be inferred. This power is essential for him to maintain domestic discipline in the academic and non academic affairs. In a wide variety of situations in the relationship of tutor and pupil, he has to act firmly and promptly to put down indiscipline and malpractice. It may not be illegitimate if he could call to aid his implied powers and also emergency powers to deal with all such situations. Counsel for the appellant argued that the express power of the Vice Chancellor to regulate the work and conduct of officers of the University implies as well, the power to take disciplinary action against officers. We are unable to agree with this contention. Firstly, the power to regulate the work and conduct of officers cannot include the power to take disciplinary action for their removal. Secondly, the Act confers power to appoint officers on the Executive Council and it generally includes the power to remove. This power is located under sec. 24(1)(xxix) of the Act. It is, therefore, futile to contend that the Vice Chancellor can exercise that power which is conferred on the Executive Council. It is a settled principle that when the Act pre scribes a particular body to exercise a power, it must be exercised only by that body. It cannot be exercised by others unless it is delegated. The law must also provide for such delegation. Halsbury 's Laws of England (Vol.14th Ed. para 32) summarises these principles as follows: 465 "32. Sub delegation of powers. In accordance with the maxim delegatius non potest delegare, a statutory power must be exercised only by the body or officer in whom it has been confided, unless sub delegation of the power is authorised by express words or necessary implication. There is a strong presumption against construing a grant of legislative, judicial or disciplinary power as impliedly authorising sub delegation; and the same may be said of any power to the exercise of which the designated body should address its own mind. " The counsel for the appellant next submit ted that the Executive Council in the instant case had delegated its disciplinary power to the Vice Chancellor and the Act provides for such delegation. In support of the contention he relied upon the following resolution of the Executive Council: "Full power be given to the Vice Chancellor to take a decision on this question and the Vice Chancellor informed the Executive Council that he will take decision in about a month On this decision, Shri Gangadhar Pa thrikar gave his opinion that the Executive Council should take a decision on the note dated 16.1. 1979 submitted by him and other two members and since it was not accepted, he does not agree with the above decision." This resolution, in our opinion, is basically faulty at least for two reasons. It may be recalled that the Executive Council without considering the report of Mr. Chavan, wanted the Vice Chancellor to take a decision thereon. It may also be noted that the Vice Chancellor was present at the meeting of the Executive Council when the resolution was passed. He was given "full power to take a decision" which in the context, was obviously on the report of Mr. Chavan, and not on any other matter or question. He said that he would take a decision in about a month. In our opinion, by the power delegated under the resolution, the Vice Chancellor could either accept or reject the report with intimation to the Executive Council. He could not have taken any other action and indeed, he was not authorised to take any other action. The other infirmity in the said resolution goes deeper than what it appears. The resolution was not in harmony with the statutory requirement. Section 84 of the Act provides for delegation of powers and 466 it states that any officer or authority of the University may by order, delegate his or its power (except power to make Ordinance and Regulations) to any other officer or authority subject to provisions of the Act and Statutes. Section 24(1)(xii) provides for delegation of power by the Executive Council. It states that the Executive Council may delegate any of its power (except power to make Ordinances) to the Vice Chancellor or to any other officer subject to the approval of the Chancellor. (underlying is ours). The approval of the Chancellor is mandatory. Without such ap proval the power cannot be delegated to the Vice Chancellor. The record does not reveal that the approval of the Chancel lor was ever obtained. Therefore, the resolution which was not in conformity with the statutory requirement could not confer power on the Vice Chancellor to take action against the respondent. This takes us to the second contention urged for the appellants. The contention relates to the legal effect of ratification done by the Executive Council in its meeting held on December 26/27, 1985. The decision taken by the Executive Council is in the form of a resolution and it reads as follows: "Considering the issues, the Execu tive Council resolved as follows: 1. The Executive Council at its meeting held on March 22, 1979, had by a resolution given full authority to the Vice Chancellor for taking further proceedings and decision in both the cases of the defaulting officers. In exercise of above authority, the Vice Chancellor appointed an Inquiry Officer and as suggested by the Inquiry Offi cer issued Show Cause notices, obtained re plies from the Officers and lastly issued orders for terminating their services; XXX XXX XXX XXX XXX It was further resolved that (i) There has been no inadequacy in the pro ceedings against both the officers; (ii) The punishment ordered against both the officers is commensurate with the defaults and allegations proved 467 against both the officers; and (iii) The Executive Council, therefore, whol ly, endorses the actions taken by the then Vice Chancellor against both the officers. " By this resolution, we are told that the Executive Council has ratified the action taken by the Vice Chancellor. Ratification is generally an act of principal with regard to a contract or an act done by his agent. In Friedman 's Law of Agency (Fifth Edition) chapter 5 at p. 73, the/principle of ratifica tion has been explained: "What the 'agent ' does on behalf of the 'principal ' is done at a time when the relation of principal and agent does not exist: (hence the use in this sentence, but not in subsequent ones, of inverted commas). The agent, in fact, has no authority to do what he does at the time he does it. Subse quently, however, the principal, on whose behalf, though without whose authority, the agent has acted, accepts the agent 's act, and adopts it, just as if there had been a prior authorisation by the principal to do exactly what the agent has done. The interesting point, which has given rise to considerable difficulty and dispute, is that ratification by the principal does not merely give validity to the agent 's unauthorised act as from the date of the ratification: it is antedated so as to take effect from the time of the agent 's act. Hence the agent is treated as having been authorised from the outset to act as he did. Ratification is 'equivalent to an antecedent authority ' . " In Bowstead on Agency (14th Ed.) at p. 39) it is stated: "Every act whether lawful or unlaw ful, which is capable of being done by means of an agent (except an act which is in its inception void) is capable of ratification by the person in whose name or on whose behalf it is done . . The words "lawful or unlawful", however, are included primarily to indicate that the doctrine can apply to torts. From them it would follow that a principal by ratification may retrospectively turn what was previously an act wrongful against the princi ple, e.g. an unauthorised sale, or against a third party, e.g. a wrongful distress, into a legitimate one; or become liable for the tort of another by ratifying. " 468 These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. The counsel for the appellant, however, invited our attention to the case of Parmeshwari Prasad Gupta vs The Union of India, ; It was a case of termina tion of services of the Secretary of a Company. The Board of Directors decided to terminate the services of the Secre tary. The Chairman of the Board of Directors in fact termi nated his services. Subsequently, in the meeting of the Board of Directors the action taken by the Chairman was confirmed. In the suit instituted by the Secretary challeng ing the termination of his services, the Court upheld on the principle that the action of the Chairman even though it was invalid initially, could be validated by ratification in a regularly convened meeting of the Board of Directors. Ma thew, J. while considering this aspect of the matter, ob served [at pp. 307 and 308] "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Direc tors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the BOard of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Direction to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953. The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim. " These principles of ratification governing transactions of a company where the general body is the repository of all powers not be 469 extended to the present case. We were also referred to the decision of the Court of Appeal in Barnard vs National Dock Labour Board, [1953] 1 All Eng. Law Reports 1113 and in particular the observation of Denning L.J., (at 1118 and 1119): "While an administrative function can often be delegated, a judicial function rarely can be. No judicial tribunal can dele gate its functions unless it is enabled to do so expressly or by necessary implication. In Local Government Board vs Arlidge (2) the power to delegate was given by necessary implication, but there is nothing in this scheme authorising the board to delegate this function and it cannot be implied. It was suggested that it would be impracticable for the board to sit as a board to decide all these cases, but I see nothing impracticable in that. They have only to fix their quorum at two members and arrange for two members, one from each side, employers and workers, to be responsible for one week at a time. "Next, it was suggested that, even if the board could not delegate their functions, at any rate they could ratify the actions of the port manager, but, if the board have no power to delegate their functions to the port manager, they can have no power to ratify what he has already done. The effect of ratifica tion is to make it equal to a prior command, but as a prior command, in the shape of dele gation, would be useless, so also is a ratifi cation. " These observations again are of little assistance to us since we have already held that there was no prior delega tion of power to the Vice Chancellor to take disciplinary action against the respondent. There was no subsequent delegation either. Therefore, neither the action taken by the Vice Chancellor, nor the ratification by the Executive Council could be sustained. In the result, the appeal fails and is dismissed with costs. N.V.K. Appeal dis missed.

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

ns Nos. 13, 14, 70, 83, 437, 438, 439, 440, 441, 442, 443 and 444 of 1971. Under Article 32 of the Constitution of India for the enforce, ment of the Fundamental Rights. R. Gopalakrishnan, for the petitioners (in W.Ps. Nos. 13 and 14 of 1971). K. Parasaran and K. Jayaram, for the petitioners (in W.P. No. 70.of 1971). M. Natesan and K. Jayaram, for the petitioners in (W.P. No. 83 of 1971). K. Parasaran and M. Narasimhan, for the petitioners (in W.P. No. 437 of 1971). V. G. Ramchandran and M. section Narasimhan, for the petitioners (in W.P. Nos. 438 and 444 of 1971). M. Natesan and M. section Narasimhan, for the petitioners (in W.Ps. Nos. 439 and 443 of 1971). section Annadurai Ayyangar and M. section Narasimhan, for the petitioners (in W.P. No. 441 of 1971). N. A. Palkhiwala, A. J. Rana and M. section Narasimhan, for the petitioners (in W.P. No. 442 of 1971). M. section Narasimhan, for the petitioner (in W.P. No. 440 of 1971). 818 S Govind Swaminadhan, Advocate, General for the State of Tamil Nadu, section Mohan, N. section Sivan and A. V. Rangam, for the respondent (in all the petitions). The Judgment of the Court was delivered by Palekar, J. In these 12 petitions under Article 32 of the Constitution filed by the hereditary Archakas and Mathadhipatis of some ancient Hindu Public temples in Tamil Nadu the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Amendment) Act, 1970 (hereinafter referred to as the Amendment Act, 1970) is called in question, principally, on the ground that it violates their freedom of religion secured to them under Articles 25 and 26 of the Constitution. The validity of the Amendment Act had been also impugned on the ground that it interfered with certain other fundamental rights of the petitioners but that ease was not pressed at the time of the hearing. The temples with which we are concerned are Saivite and Vaishnavite temples in Tamil Nadu. Writ Petitions 70, s3, 437, 438, 439, 440 441, 442, 445 and 444/71 are filed by the Archakas, and I Writ Petitions 13 and 14/1971 are filed by the Mathadhipatis to whose Math some temples are attached. As, common questions were involved in all these petitions, arguments were addressed principally in Writ Petitions 13/1971 and 442/ 1971, and we are, assured by counsel for both sides that they cover the points involved In all the other petitions. The State Legislature of Tamil Nadu enacted The Tamil Nadu Hindu religious and Charitable Endowments Act, 1959 being (Tamil Nadu Act xxii of 1959) hereinafter referred to as the principle Act. It came into force on December 2, 1959. It was an Act to amend and consolidate the law relating, to the administration and governance of Hindu Religious an Charitable Institutions and Endowments in the State of Tamil Nadu. it applied to all Hindu religious public institutions and endowments in the we of Tamil Nadu and repeated several Acts which had previously governed the administration of Hindu Public Religious Institutions. It is sufficient to say here that the provisions of the Principal Act applied to the temples in the present Petitions and the petitioners have no complaint against any of its provisions. Section 55 of that Act provided for the appointment of office holders and servants in such temples, and section 56 provided for ;he, punishment of office holders kind servants. Section 55, broadly speaking, gave the trustee of the temple the power to appoint the office holders or servants of the temple and ;also provided that where the office or service is hereditary the person next in the line of succession shall be entitled to succeed. In only 819 exceptional cases the trustee was entitled to depart from the, principles of next in the line of succession, but even so, the, trustee was under an obligation to appoint a fit person to perform the functions of the office or perform the service after having due, regard to the claims of the members of the family, Power to make rules was given to Government by section 116 (2) (xxiii) and it was open to the Government to make rules providing for the qualifications to be possessed by the Officers and servants for appointment to non hereditary offices in religious institutions, the qualifications to be possessed by hereditary 'servants for succession to office and the conditions of service of all such officers and servants. Under this rule making power the State Government made the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. Under these rules an Archak or Pujari of the deity came under the definition of 'Ulthurai servant '. 'Ulthurai servant ' is define as, a servant whose duties relate mainly to the performance of rendering assis tance in the performance, of pujas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, the varams and similar invocations and the performance of duties connected with such performance of recitation. Rule 12 provided that every 'ulthurai servant ', whether hereditary or nonhereditary whose duty it is to perform pujas and recite mantras, vedas, prabandams, thevarams and other invocations shall, before succeeding, or appoint to an office, obtain a certificate of fitness for performing his office, from the head of an institution imparting instructions in Agamas and ritualistic matters and recognised by the Commissioner, by general or special order or from the head of, a math recognised by the Commissioner, by general or special order, or such other person as may be designated by the Commissioner, from time to time, for the purpose. By this rule the proper worship in the temple, was secured whether the Archaka or Pujari was a hereditary Archaka or Pujari or not. Section 107 of the Act emphasized that nothing contained in the Act shall, save as otherwise provided in section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution. Section 106 deals with the removal of discrimina tion in the matter of distribution of prasadam or theertham to the Hindu worshippers. That was a reform in the right direction and there is no challenge to it. The Act as a whole, it is conceded, did not interfere with the religious usages and practices of the temples. The Principal Act of 1959 was amended in certain respects by the Amendment Act of 1970 which came into, force on January 820 8, 1971. Amendments were made to sections 55, 56 and 116 of the Principal Act and some consequential provisions were made in view of those amendments. The Amendment Act was enacted as a step towards social reform on the recommendation of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes. The Statement of Objects and Reasons which are reiterated in the counter affidavit filed on behalf of the State of Tamil Nadu is as follows : "In the year 1969 the committee on untouchability, Economic and Educational Development of the Scheduled Castes has suggested in its report that the hereditary priesthood in the Hindu Society should be abolished, that the system can be replaced by an ecclesiastical Organisation of men possessing the requisite educational qualifications who may be trained in recognised institutions in priesthood and that the line should be open to all candidates irrespective of caste, creed or race. In Tamil Nadu Archakas, Gurukkals and Poojaries are all Ulthurai servants in Hindu temples. The duties of Ulthurai servants relate mainly to the performance of poojas, rituals and other services to the deity, the recitation of mantras, vedas, prabandas, the varams and similar invocations and the performance of duties connected with such performance and recitations. Sections 55 and 56 of the Tamil Nadu Hindu Religious and Charitable, Endowments Act, 1959 (Tamil Nadu Act 22 of 1959) provide for appointment of office holders and servants in the religious institutions by the trustees by applying the rule of hereditary succes sion also. As a step towards social reform Hindu temples have already been thrown open to all Hindus irrespective of caste. . In the light of the recommendations of the Committee and in view of the decision of this Court in Gazula Dasaratha Rama Rao vs State of Andhra Pradesh & Ors.(1) and also as a further step towards social reform the Government considered that the here ditary principle of appointment of all office holders in the Hindu temples should be abolished and accordingly it proposed to amend sections 55, 56 and 116 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act XXII of 1959). It is the complaint of the petitioners that by purporting to introduce social reform in the matter of appointment of Archakas and Pujaris, the State has really interfered with the religious (1) ; 821 practices of Saivite and Vaishnavite temples, and instead of introducing social reform, taken measures which would inevitably lead to defilement and desecration of the temples. To appreciate the effect of the Amendment Act, it would be more convenient to set out the original sections 55, 56 and 116 of the Principal Act and the same sections as they stand after the amendment. Unamended Section Sec. 55 Appointment of office holders and servants in religious institutions. (1) Vacancies, whether permanent or temporary, among the office holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not here ditary. (2)In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed. (3) Where, however, there is a dispute respecting the right of succession, or where such vacancy cannot be filled up immediately or where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or where the hereditary officeholder or servant is on account of incapacity illness or otherwise unable to perform the functions of the office or perform the service, or is suspended from his office under sub section (1) of section 56, the trustee may appoint a fit person to perform the functions of the office or perform the service, until the disability of the office holder or servant ceases or another person succeeds to the office or service, as the case may be. Amended Section Sec. 55 Appointment of office holders and servants in religious institutions. (1) Vacancies, whether permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustee in all cases. Explanation: The expression 'Office holders or servants shall include archakas and poojaris. ' (2) No person shall be entitled to appointment to any vacancy referred to in sub section (1) merely on the ground that he is next in the line of succession to the last holder of office. (3) Omitted. 822 Explanation : In making any appointment under this subsection, the trustee shall have due regard to the claims of members of the family, if any, entitled to the succession. (4) Any person aggrieved by an order of the trustee under sub section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Com missioner. 56 Punishment of office holders and servants in religious institutions. (1) All Office holders and servants attached to a religious institution or in receipt of any emolument or prequisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee; and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for the breach of trust incapacity, disobedience of orders: neglect of duty, misconduct or other sufficient cause. (2) Any office holder or servant punished by a trustee under sub section(1) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Commissioner. (3) A hereditary officeholder or servant may, within one month from the date of the receipt by him of the order of the Deputy Commissioner under sub section (2), prefer an appeal to the Commissioner against such order. 116 (xxiii) (1) The Government may, by notification, make rules to carry out the purposes of this act. (2) Without prejudice to the generality of the foregoing power, such rules may provide for (Xxiii) The qualifications to be possessed by the officers and servants ' for appointment to nonhereditary offices in religious in stitutions, the qualifications to be possessed by hereditary servants for succession to office and the conditions of service of all such officers and servants. (4) Any person aggrieved by an order of trustee under section (1) may within one month from the date of receipt of the order by him appeal against the order of the, Deputy Commissioner. 56 Punishment of office holders and servants in religious institutions (1) All office holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall be controlled by the Trustee and the trustee may after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause. (2) Any office holder or servant Punished by a trustee under sub section (1) may within one month from the date of receipt of order by him appeal against the order to the Deputy Commissioner. (3) Omitted. II 6 (xxiii) (xxiii) The qualifications to be possessed by the officers and servants for appointment to offices in religious institution and the conditions of service of all such officers and servants. 823 It is clear from a perusal of the above provisions that the Amendment Apt does away with the hereditary right of succession to the Office of Archaka even if the, Archaka was qualified under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. It is claimed on behalf of the petitioners that as a result of the Amendment Act, their fundamental rights under Article 25(1) and Article 26(b) are violated since the effect of the amendment is as follows : (a) The freedom of hereditary succession to the office of Archaka is abolished although succession to it is an essential and integral part of the faith of the Saivite and Vaishnavite worshippers. (b) It is left to the Government in power to prescribe or not to prescribe such qualifications as they may choose to adopt for applicants to this religious office while the Act itself gives no indication whatever of the principles on which the, qualifications should be based. The statement of Objects and Reasons which is adopted in the counter affidavit on behalf of the State makes it Clear that not only the scope but the object of the Amendment Act is to over ride the exclusive right of the denomination to manage their own affairs in the matter of religion by appointing Archakas belonging to a specific denomination for the purpose of worship (c) The Amendment Act gives the right of appoint ment for the first time to the trustee who is under the control of the Government under the provisions of the Principal Act and this is the very negation of freedom of religion and the principle of non interferance by the State as regards the practice of religion and the right of a denomination to manage its own affairs in the matter of religion. Before we turn to these questions, it will be necessary to refer to certain concepts of Hindu religious faith and practices to understand and appreciate, the position in law. The temples with which we are concerned are public religious institutions established in olden times. Some of them are Saivite temples and the others are Vaishnavite temples, which means, that in these temples God Shiva and Vishnu in their several manifestations are Worshipped. The image of Shiva is worshipped by his worshippers who are called Saivites and the image of Vishnu is worshipped by his worshippers who are known as Vaishnavites. The institu 824 tion of temple worship has an ancient history and, according to Dr. Kane, temples of deities had existed even in the 4th or 5th century B.C. (See : History of Dharmasastra Vol. II Part II page 710. ) With the construction of temples the institution of Archakas also came into existence, the Archakas being professional men who made their livelihood by attending on the images. Just when the cult of worship of Siva and Vishnu started and developed into two distinct cults is very difficult to say, but theme can be no doubt that in the times of the Mahabharata these cults were separately developed and there was keen rivalary between them to such an extent that the Mahabharata and some of the Puranas endeavoured to inculcate a spirit of synthesis by impressing that there was no difference between the two deities. (See page 725 supra.) With the establishment of temples and the institution of Archakas, treatises on rituals were compiled and they are known as 'Agamas '. The authority of these Agamas is recognised in several decided cases and by this Court in Sri Venkataramana Devaru vs The State of Mysore(1). Agamas are described in the last case as treatises of ceremonial law dealing with such matters as the construction of temples, installation of idols therein and conduct of the worship of the deity. There are 28 Aganias relating to the Saiva temples, the important of them being the Kamikagama, the Karanagama and the Suprabedagama. The Vaishnavas also had their own Agamas. Their principal Agamas were the Vikhanasa and the Pancharatra. The Agamas contain ela borate rules as to how the temple is to be constructed, where the principal deity is to be consecrated, and where the other Devatas are to be installed and where the several classes of worshippers are to stand and worship. Where the temple was constructed as per directions of the Agamas the idol had to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. On the consecration of the image in the temple the Hindu worshippers believe that the Divine Spirit has descended into the image and from then on the image of deity is fit to be worshipped. Rules with regard to daily and periodical worship have been laid down for securing the continuance of the Divine Spirit. The rituals have a two fold object. One is to attract the lay worshipper to participate in the worship carried on by the priest or Archaka. It is believed that when a congregation of worshippers participates in the worship a particular attitude of aspiration and devotion is developed and confers great spiritual benefit. The second object is to preserve the image from pollution, defilement or desecration. It is part of the religious belief of a Hindu worshipper that when the image is polluted or defiled the Divine Spirit in the image diminishes or even vanishes. That is a situation (1) ; 825 which every devotee or worshipper looks upon with horror. Pollution or defilement may take place in variety of ways. According to the Agarnas, an image becomes defiled if there is any departure or violation of any of the rules relating to worship. In fact, purificatory ceremonies have to be performed for restoring the sanctity of the shrine ; (910)]. Worshippers lay great, store by the rituals and whatever other people,. not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious. An illustration of the importance attached to minor details of ritual is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu vs Prathivathi Bhayankaram Venkatachrlu and others(1) which went up to the Privy Council. The contest was between two denominations of Vaishnava worshippers of South India, the Vadagalais and Tengalais. The temple was a Vaishnava temple and the controversy between them involved the question as to how the invocation was to begin at the time of worship and which should be the concluding benedictary verses. This gives the measure of the importance attached by the worshippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs. That is also the rationale for preserving the sanctity of the Garbhangriha or the sanctum sanctorum. In all these temples in which the images are consecrated, the Agamas insist that only the qualified Archaka or Pujari step inside the sanctum sanctorum and that too after observing the daily disciplines which are imposed upon him by the Agamas. As an Archaka he has to touch the image in the course of the worship and it is his sole right and duty to touch it. The touch of any body else would defile it. Thus under the ceremonial law pertaining to temples even the question as to who is to enter the Garbhagriha or the sanctum sanctorum and who is not entitled to enter it and who can worship and from which Place in the temple are all matters of religion as shown in the above decision of this Court. The Agamas have also rules with regard to the Archakas. In Saivite temples only a devotee of Siva, and there too, one belonging to a particular denomination or group or sub group is entitled to be the Archaka. If he is a Saivite, he cannot possibly be an Archaka in a Vaishnavite Agama temple to whatever caste he may belong and however learned he may be. Similarly, a Vaishnavite Archaka has no place as an Archaka in a Saivite temple. Indeed there is no bar to a Saivite worshipping in a Vaishnavite temple as a lay worshipper or vice versa. What the Agamas pro (1) 73 Indian Appeals 156. 826 hibit is his appointment as an Archaka in a temple, of a different denomination ' DR. Kane has quoted the Brahmapurana on the topic of Punah pratistha (Re consecration of images in temples) at page 904 of his History of Dharmasastra referred to above. The Brahmapurana says that "when an image is broken into two or is reduced to particles, is burnt, is removed from its pedestal, is insulted, has ceased to be worshipped, is touched by beasts like donkeys or falls on impure ground or is worshipped with mantras of other detities or is rendered impure by the touch of outcastes and the like in these ten contingencies, God ceases to indwell therein. " The Agamas appear to be more severe in this respect. Shri R. Parthasarthy Bhattacharya, whose authority on Agama literature is unquestioned, has filed his affidavit in Writ Petition No. 442 of 1971 and stated in his affidavit, with special reference to the Vaikhanasa Sutra to which he belongs, that according to the texts of the Vaikhansa Shastra (Agama), persons who are the followers of the four Rishi traditions of Bhrigu, Atri, Marichi and Kasyapa and born of Vaikhanasa parents are alone competent to do puja in Vaikhanasa temples of Vishnavites. They only can touch the idols and perform the ceremonies and rituals. None others, however, high placed in society as pontiffs or Acharyas, or even other Brahmins could touch the idol, do puja or even enter the Garbha Griha. Not even a person belonging to another Agama is competent to do puja in Vaikhanasa temples. That is the general rule with regard to all these sectarian denominational temples. It is, therefore, manifest that the Archaka of such a temple besides being proficient in the rituals appropriate to the worship of the particular deity, must also belong, according to the Agamas, to a particular denomination. An Archaka of a different denomination is supposed to defile the image by his touch and since it is of the essence of the religious faith of all worshippers that there should be no pollution or defilement of the image under any circumstances, the Archaka undoubtedly occupies in important place in the matter of temple worship. Any State action which permits the defilement or pollution of the image by the touch of an Archaka not authorised by the Agamas would violently interfere with the religious faith and practices of the Hindu worshipper in a vital respect, and would, therefore, be prima facie invalid under Article 25(1) of the Constitution. This Court in Sardar Syadna Taher Saifuddin Saheb vs The State of Bombay(1) has summrised the position in law as follows (pages 531 and 532). "The content of articles 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras (1) ; 827 vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt(1); Mahant Jagannath Ramanuj Das vs The State of Orissa(2); Sri Venkatmona Devaru vs The State of Mysore(3); Durgah Committee, Ajmer vs Syed Hussain Ali(4) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion. " Bearing these principles in mind, we have to approach the controversy in the present case. Section 55 of the Principal Act as it originally stood and Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 ensured, so far as temples with hereditary Archakas were concerned, that there would be no defilement of the image. By providing in sub section (2) of section 55 that "in cases, where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed", it ensured the personal qualification of the Archaka that he should belong to a particular sect or denomination as laid down in the Agamas. By Rule 12 it also ensured that the Archaka would be proficient in the mantras, vedas, prabandams, thevarams etc. and thus be fit for the preformance of the puja, in other words, that he would be a person sufficiently qualified for performing the rituals and ceremonies. As already shown an image becomes defiled if there is any departure or violation of any of the rules relating to worship, and this risk is avoided by insisting that the Archaka should be an expert in the rituals and the ceremonies. By the Amendment Act the principle of next in the line of succession is abolished. Indeed it was the claim made in the statement of Objects and Reasons that the hereditary principle of appointment of office holders in the temples should be abolished and that the office of an Archaka should be thrown open to all candidates trained in recognised institutions in priesthood irrespective of caste. creed or race. The trustee, so far as the amended section 55 went, was authorized to appoint any body as an Archaka in (1) ; (2) ; , (3) ; (4) [1962] 1 S.C.R,. 828 any temple whether Saivite or Vaishnavite as long. as he possessed a fitness certificate from one of the institutions referred to in rule 12. Rule 12 was a rule made by the Government under the Principal Act. That rule is always capable of being varied or changed. It was also open to the Government to make no rule at all or to prescribe a fitness certificate issued by an institution which did not teach the Agamas or traditional rituals. The result would, therefore, be that any person, whether he is a Saivite or Vaishnavite or not, or whether he is proficient in the rituals appropriate to the temple or not, would be eligible for appointment as an Archaka and the trustee 's discretion in appointing the Archaka without reference to personal and other qualifications of the Archaka would be unbridled. The trustee is to function under the control of the State, because under section 87 of the Principal Act the trustee was bound to obey all lawful orders issued under the provisions of the Act by the Government, the Commissioner, the Deputy Commissioner or the Assistant Commissioner. It was submitted that the innocent looking amendment brought the State right into the sanctum sanctorum through the agency of the trustee and the Archaka. It has been recognised for a long time that where the ritual in a temple cannot be performed except by a person belonging to a denomination, the purpose of worship will 'be defeated : See Mohan Lalji vs Gordhan Lalji Maharaj(1). In that case the claimants to the temple and its worship were Brahmins and the daughter 's sons of the founder and his nearest heirs under the Hindu law. But their claim was rejected on the, ground that the temple was dedicated to the sect following the principles of Vallabh Acharya in whose temples only the Gossains, of that sect could perform the rituals and ceremonies and, therefore, the claimants had no right either to the temple or to perform the worship. In view of the Amendment Act and its avowed object there was nothing, in the petitioners submissions to prevent the Government from prescribing a standardized ritual in all temples ignoring the Agamic requirements, and Archakas being forced on temples from denominations unauthorised by the Agamas. Since such a departure, as already shown, would inevitably lead to the defilement of the image, the powers thus taken by the Government under the Amendment Act would lead to interference with religious freedom guaranteed under Articles 25 and 26 of the Constitution. The force of the above submissions made on behalf of the petitioners was not lost on the learned Advocate General of Tamil Nadu who appeared on behalf of the State. He, however, side tracked the issue by submitting that if we, were to consider in (1) 35 Allahabad (p.c) 283 at page 289. 829 isolation only the changes introduced in section, 55 by the Amendment Act the situation as described on behalf of the, petitioners could conceivably arise. He did not also admit that be was bound by either the statement of Objects and Reasons or the reiteration of the same in the counter affidavit filed on behalf of the State. His submission was that we have to take the Principal Act as it now stands after the amendment and see what is the true effect of the same. He contended that the power given to, the trustee under the amended section 55 was not an unqualified power because, in his submission, that power had to be read in the context of section 28 which controlled it. Section 28(1) provides as follows : "Subject to the provisions of the Tamil Nadu Temple Entry Authorization Act 1947, the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own. " The learned Advocate General argued that the, trustee was bound under this provision to administer the affairs of the temple in accordance with the terms of the trust and the usage of the institution. If the usage of the institution is that the Archaka or Pujari of the temple must be of a particular denomination then the usage would be binding upon him and he would be bound to make the appointment under section 55 in accordance with the usage of appointing one from the particular denomination. There was nothing in section 55, in his submission, which released him from his liability to make the appointment in accordance with the said usage. It was true that the principle of the next in line of succession was not binding on him when making the appointment of a new Archaka, but in his submission, that principle is no part of the usage, the real usage being to appoint one from the deno mination. Moreover the amended section, according to him, does not require the trustee to exclude in every case the hereditary principle if a qualified successor is available and there was no reason why the trustee should not make the appointment of the next heir, if found competent. He, however, agreed, that there was no such legal obligation on the trustee under that section. He further contended that if the next in line of succession principle is regarded as a usage of any particular temple it would be merely a secular usage on which legislation was, competent under Article 25 (2) (a) of the Constitution. Going further, he contended that if the hereditary principle was regarded as a religious 7 L1061Sup CT/72 830 practice that would be also amenable to legislation under Article 25 (2) (b) which permits legislation for the purpose of social welfare and reform. He invited attention to the report of the Hindu Religious Endowments Commission ( 1 960 1962) headed by Dr. C. P.Ramaswami Aiyar and submitted that there was a crying need for reform in this direction since the hereditary principle of appointment of Archakas had led to grave malpractices Practically destroying the sanctity of worship in various religious institutions. We have found no difficulty in agreeing with the learned Advocate General that section 28( 1 ) of. the Principal Act which directs the trustee to administer the affairs of the temple in accordance with terms of the trust or the usage of the institution, would control the appointment of the Archaka to be made by him under the amended section 55 of the Act. In a Saivite or a Vaishnavite temple the appointment of the Archaka will have to be made from a specified, denomination, sect or group in accordance with the directions of the Agamas governing those temples. Failure to do ski would not only be contrary to section 28 (1) but would also interfere with a religious practice the inevitable result of which would be to defile the image. The question, however, remains whether the trustee, while making appointment from the specified denomination, sect or group in accordance with the Agamas, will be bound to follow the hereditary principle as a usage peculiar to the temple. The learned Advocate General contends that there is no such invariable usage. It may be that, as a matter of convenience, an Archaka 's son being readily available to perform the worship may have been selected for appointment as an Archaka from times immemorial. But that, in his submission, was not a usage. The principle of next in line of succession has failed when the successor was a female or had refused to accept the appointment or was under some disability. In all such cases the Archaka was appointed from the particular denomination, sect or group and the worship was carried on with the help of such a substitute. It, however, appears to us that it is now too late in the day to contend that the hereditary principle in appointment was not a usage. For whatever reasons, whether of convenience or otherwise, this hereditary principle might have been adopted, there can be no doubt that the principle had been accepted from antiquity and had also been fully recognised in the unamended section 55 of the Principal Act. Sub section (2) of section 55 provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed and only a limited right was given under sub section (3) to the trustee to appoint a substitute. Even in such cases the. explanation to sub section (3) provided that in making the appointment of the substitute the trustee should have, due regard to the claims.of the members of the family, if any. entitled to the succession. Therefore, it cannot be denied as a 831 fact that there are several temples in Tamil Nadu where the appointment of an Archaka is governed by the. usage of hereditary succession. The real question, therefore, is whether such a usage should be regarded either as a secular usage or a religious usage. If it is a secular usage, it is obvious,legislation would be permissible under Article 25(1) (a) and if it is a religious usage it would be, permissible if it falls squarely under sub section 25 (1) (b). Palkhivala on behalf of the petitioners insisted that the appointment of a person to a religious office in accordance with the hereditary principle is itself a, religious usage and amounted to a vital religious practice, and, hence falls within Articles 2 5 . and 26. In his submission, priests, who are to perform religious ceremonies may be chosen by a temple on such basis as the temple chooses to adopt. It may be election, selection, competition. nomination or hereditary succession. He, therefore, contended that any law which interferes with the aforesaid basis of appointment would violate religious freedom guaranteed by Articles 25 and 26 of the Constitution. In his submission the right to select a priest has an immediate, bearing on religious practice and the eight of a denomination to manage its own affairs in matters of religion. The priest is more important than the ritual and nothing could be more vital than chosing the priest. Under the pretext of social reform. he contended, the State cannot reform a religion out of existence and if any denomination has accepted the hereditary principle.for chosing its priest that would be a religious practice vital to the religious faith and cannot be changed on the ground ,that it leads to social reform. Mere substitution of one method of appointment of the, priest by another was, in his submission no social reform. It is true that a priest or an Archaka when appointed has to perform some religious functions but the question is whether the appointment of a priest is by, itself a secular function or a religious practice. Mr. Palkhivala gave the illustration of the spiritual head of a math belonging to a denomination of a Hindu sect like the Shankaracharaya and expressed horror at the idea that such a spiritual head could be, chosen by a method recommended by the State though in conflict with,the usage and the traditions of the particular institution. Where, for example, a successor of a Mathadhipati is, chosen by the Mathadhipati by giving hit" mantra deeksha or where the Mathadhipati is chosen by his immediate disciples, it would be, he contended, extra ordinary for the State to interfere and direct that some other mode of appointment should be followed on the ground of social reform. Indeed this may strike one as an instrusion in the matter of religion. But, we are affraid such an illustration is inapt when we. are considering the appointment of an Archaka of a temple. The Archaka has 832 never been regarded as a spiritual head of any institution. He may be, an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharam karta or the Shebair makes the appointment and the Archaka is a servant of the temple. It has been held in K., Seshadri Aiyangar v, Ranga Bhattar(1) that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by the unamended section 56 of the Principal Act which provides "all office holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be. controlled by the trustee, and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause. " That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. He owes his appointment to a secular authority. Any lay founder of a temple may appoint the Archaka. The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing, the Archaka. That the son of an Archaka or the son 's son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to the office. See : Kali Krishna Ray vs Makhan Lal Mookerjee(2); Nanabhai Narotamdas vs Trimbak Balwant Bhandare(3) and Maharanee Indurjeet Keoer vs Chundemun Misser(4). Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir Of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious Practice or a matter of religion. In view of sub section (2) of section 55, as it now stands amended, the choice of the trustee in the matter of appointment of (1) I.L.R. 35 Madras 631. (2) I.L.R. (3) 87 80) Vol. 4 Unreported Printed Judgments of the Bombay High Court page 169. (4) XVI Weekly Reporter, 99. 833 an Archaka is no longer limited by the operation of the rule of next in line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make, the appointment on the sole ground that the candidate is the next in line of succession to the last holder of Office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by section 28 of the Principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appoint ments. The legislation in this respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid. We shall now take separately the several amendments which were challenged as invalid. Section 2 of the Amendment Act amended section 55 of the Principal Act and the important change which was impugned on behalf of the petitioners related to the abolition of the hereditary principle in the appointment of the Archaka. We have shown for reasons already mentioned that the change effected by the Amendment is not invalid. The other changes effected in the other provisions of the Principal Act appear to us to be merely consequential. Since the hereditary principle was done away with the words "whether the office or service is hereditary or not" found in section 56 of the Principal Act have been omitted by section 3 of the Amendment Act. By section 4 of the latter Act clause (xxiii) of subsection (2) in section 116 is suitably amended with a view to deleting the reference to 'the qualifications of hereditary and non hereditary offices which was there in clause (xxiii) of the Principal Act. The change is only consequential on the amendment of section 55 of the Principal Act. Sections 5 and 6 of the Amendment Act are also consequential on the amendment of sections 55 and 56. These are all the sections in the Amendment Act and in our view the Amendment Act as a whole must be regarded as valid. It was, however. submitted before us that the State had taken power under section 116(2) clause (xxiii) to prescribe qualifica tions to be possessed by the Archakas and, in view of the avowed object of the State Government to create a class of Archakas irrespective of caste, creed or race, it would be open to the Government to prescribe qualifications for the office of an Archaka which were in conflict with Agamas. Under Rule 12 of the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 proper provision has been made for qualifications of the Archakas and the petitioners have no objection to that rule. The rule still continues to be in force. But the petitioners. apprehend that it is open to the Government to substitute any other rule for rule 12 and prescribe qualifications which were in conflict with 834 Agamic injunction. For example at present the Ulthurai servant whose duty it, is to, perform, pujas and recite vedic mantras etc. has to obtain the fitness certificate for his Office from the head of, institutions which impart instructions in Agamas and ritualistic mattors. The; Government,, however, it is submitted, may hereafter change its mind, and prescribe qualifications which take no note "of Agamas and Agamic rituals and direct that the Archaka candidate? should produce a fitness certificate from an institution which, does not specialize in teaching Agamas and rituals. It is submitted, that the Act does, not provide guidelines to the Government in; the matter of prescribing qualifications. with regard to the fitness of an Archaka for performing the rituals and ceremonies in these temples and it will be open to the Government to prescribe a simple standardized curriculum for pujas in the several temples ignoring the tradition pujas and rituals followed in those temples. In our opinion the, apprehensions ;of the petitioners are unfounded;, Rule 12 referred to above still holds the field and there is no good reason to think that the State Government wants to revolutinise temple worship by introducing methods of worship not current in the several temples. The rule making power con ferred on the . Government by section 116, is only intended with a view to carry out the purposes of the Act which are essentially secular. The Act no where gives the indication that one of the purposes of the Art is to effect change in the rituals and cere monies: followed in the terms. On the other hand, section 107 of the Principal Act emphasizes that nothing contained in the Act would be deemed to confer any power or impose any duty in con travention of 4th rights conferred on any religious denomination or any section there of by Article 26 of the Constitution. Simi larly section 105 provides that nothing contained in the Act shall (a) save as otherwise expressly provided in the Act or the , rules made thereunder, affect any honour emolument or perquisite to which any person is entitled by custom or otherwise in any religious institution, or its established usage in regard to any other matter. Moreover, if any rule is framed by the Government which purports to interfere with the rituals and ceremonies of the temples the same will be liable to be challenged by those who are interested in the temple worship. In out opinion, therefore, the apprehensions now expressed by the petitioners are groundless and premature. In the result these Petitions fail but in the circumstances of the case there shall be no order as to costs. V.I.P.S. Petitions dismissel.

Section 55 of the Tamil Nadu Hindu Religious. and Charitable En dowments Act, 1959, gave the trustee of a temple the power to appoint the officer holders or servants of the temple and also provided that where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed. In only exceptional cases the trustee was entitled to depart from the principle of next in the line of succesion, but even so, the trustee was under an obligation to appoint a fit person to perform the service after having due regard to the claims of the members of the family. Section II 6 (2) (xxiii) of the Act gave power to the Government to make rules providing for the qualifications to be possessed by the officers and servants and their conditions of service. The State Government framed the Madras Hindu Religious Institutions (Officers and Servants) Service Rules, 1964. Rule 12 provided that an Archaka, whether hereditary or nonhereditary whose duty it is to perform Pujas, shall, before succeeding to the office or appointment to the Office, obtain a certificate of fitness for performing the duties of his office from the head of an institution imparting, instructions in Agamas or from the ' head of a math recognised by the 'Commissioner or front such other person as may be designated by the Commissioner. The Act was amended by the Amending Act of 1970. The Amending Act did away with the hereditary right of succession to the office of Archaka. The petitioners who were Archakas of saivite and Vaishnavite temples and Mathadhipatis to whose Maths temples are attached firm writ petitions in this Court contending that the amendments violated articles 25 and 26 of the Constitution. Dismissing the petition HELD : (1) The protection of Arts, 25 and 26 of the Constitution is not limited to matters of, doctrine or believe, they extend also to ' 'acts done in pursuance of religion and therefore contain a guarantee for rituals and observances etc. which are the integral parts of religion. What constitutes aft essential part of a religion or religious practice has to be decided by the Courts with reference to the doctrine of at particular teli including practices which are regarded by the community as a part of its religion. [8271] Sardar Syedna Taher Saifuddin Saheb vs The State of Bombay, [1962] *pp. 2 S.C.P. 490, referred to. (2) With the establishment of temples and the, institution of Archakas in the temples, treatises on rituals were compiled known as Agamas . The rituals have a two fold aspect, to attract the lay worshippers and to 816 preserve the image of the Deity from pollution, defilement or desecration. Pollution or desecration may take place in a variety of ways and according to the Agamas, an image becomes defiled if there is any departure or violation of the rules relating to worship. Further, in all the temples in which images are consecrated the Agamas insisted that only the qualified Archaka shall step inside the sanctum sanctorum after observing certain disciplines imposed by the Agamas. Hence the Archaka of such a temple, besides being proficient in the rituals appropriate to the worship of the particular Deity, must also belong to a particular denomination; because, an Archaka of a different denomination would defile the image by his touch. [825 F H; 826 E G] Sri Venkataramana Devaru vs The State of Mysore, [1958] S.C.R. 895, His Holiness Peria Kovil Kelvi Appean Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu vs Prathivathi Bhayankaram Venkatacharlu, 73 I.A. 156 and Mohan Lalji vs Gordhan Lalji Maharaj, 35 Allahabad P.C. 283, referred to. (3) The hereditary principle in the appointment of an Archaka had been adopted and accepted from antiquity and had also been fully recognised in the unamended section 55. But the change effected by the amendment to section 55, namely, the, abolition of the principle of next in the line of succession is however, not invalid, because, the usage is a secular and not a religious usage. [833 A C] (a) An archaka has never been regarded as a spiritual head however accomplished and well versed in the agamas and rituals he may be. He is a servant of the temple subject to the discipline and control of the trustee as recognised by the unamended section '56 of the Act. That being his position the act of his appointment by the trustee is essentially secular, 'though after appointment he performs some religious functions. That after his appointment he performs worship is no ground for holding that his appointment is either a religious Practice or a matter of religion. He owes his appointment to a secular authority. Any lay founder of a temple may appoint him and the She baits and Managers of temples .exercise an essentially secular function in choosing and appointing the Archaka. The fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. [832 A G] K. Syedna Taher Saifuddin Saheb vs Ranga Bhattar, I.L.R. , Kali Krishna Ray vs Makhan Lal Mookerjee, I.L.R. , Nanabhai Narotamdas vs Trimbak Balwant Bhandare, (1878 80) Vol. 4 (Unreported printed judgments of the Bombay High Court p. 169) and Maharanee Indurjeet Koer vs Chundemun Misser, XVI Weekly Reporter, :89, referred to. (b) The power given to the trustee under the amended section to appoint any body as an Archaka so long as he possessed a fitness certificate under r. 12 was not an unqualified power, because the power had to be read with section 28 of the Act which controlled it. Section 28 directs the trustee to administer the affairs of the temple, in accordance with the terms of the trust or usage of the institution. Therefore, the appointment of the Archaka ' will have to be made from the specified denomination, sect or group in accordance with the directions of the Agamas governing the temple. In view of. the amended section 55(2). , the choice of the trustee in .the matter of appointment of an archaka is no longer limited by the Operation of next in line of succession in temples where the usage was 817 to appoint the Archaka on the hereditary principle. To that extent the trustee is released from the obligation imposed on him by section 28 to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. But the legislation in this fact does not interfere with any religious practice. [832 H 833 C] (4) The other changes effected in the other provisions of the Act are merely consequential, and therefore, the Amendment Act as a whole must be regarded as valid. [833 F] (5) The rule making power is conferred by section 116 on the Govern ment with a view to carry out the purposes of the Act which are essentially secular. The Act nowhere gives the indication that one of its purposes is to effect a change in the rituals and ceremonies followed in the temples. Section 105 and 107, on the contrary, emphasize that there shall not be any contravention of the rights conferred on any religious denominations of any section thereof, by article 26 of the Constitution. Rule 12 still holds the field and there is no reason to think that the State Government would frame rules to revolutionise temple worship by introducing methods of worship not current in the several temples. If any such rule is framed by Government which purports to interfere with the rituals and ceremonies of the temples, it will be liable to be challenged by those who are interested in the temple worship. [834 C G]

Civil Appeal No. 254 of 1954. Appeal by special leave from the judgment and order dated February 19, 1952, of the Patna High Court in Misc. Case No. 244 of 1949. B. Sen, section K. Majumdar and I. N. Shrojj, for the appellant. M. C. Setalvad, Attorney General for India, B. K. Saran and R. C. Prasad, for the respondent. May 15. The Judgment of the Court was delivered by HIDAYATULLAH J. This appeal, with the special leave of this Court, has been filed by Maharajadhiraja 334 Sir Kameshwar Singh of Darbhanga (hereinafter referred to as the assessee) against the judgment of the High Court of Patna dated February 19, 1952, by which the High Court answered in the affirmative the following: two questions referred to it under section 25(1) of the Bihar Agricultural : (1) " Whether in view of the circumstances of the case, and particularly the manner in which, after due consideration, the learned Agricultural Incometax Officer in his first judgment dated the 5th January, 1946, had held that the assessee was not liable to be assessed for the receipt on account of the zarpeshgi lease, the learned Agricultural Incometax Officer has jurisdiction to revise his own order under section 26 of the Act; and (2) Whether if he had the jurisdiction to revise his own order, under section 26 of the Act, the income from the zarpeshgi lease of the assessee was taxable under the Act. " The facts of the case lie within a very narrow com. For the assessment year 1944 45 which corresponded to the year of account 1351 Fasli, the assessee returned Rs. 37,43,520 as his agricultural income. He claimed a deduction of Rs. 9,42,137 3 10 1/2 on account of land revenue, rent etc., including a sum of Rs. 2,82,192 shown to have been paid to the Tekari Raj from which two leasehold properties were taken on zarpeshgi lease by indentures dated August 15, 1931, and January 31, 1936, respectively. The amount was sought to be deducted as a capital receipt. The Agricultural Income tax Officer of Darbhanga by his order dated December 28, 1945 accepted this contention, and exempted the amount from payment of agricultural income tax. He observed: " Out of Rs. 9,42,137 3 10 1/2 claimed on account of Land Revenue and rent, Rs. 2,82,192 is shown as payment to Tekari Raj and then taken towards the realisation of Zarpeshgi Loan to self. I have gone through the bond of Gaya Zarpeshgi Lease. This payment is allowed to the assessee, as it is a capital income according to the terms of the bond. At the 335 same time, I think, this amount of Rs. 2,82,192 should be treated as income to Tekari Raj and assessed in Gaya Circle along with other income of Tekari Raj as it is credited to that Raj by the assessee and then set off against the Zarpeshgi loan advanced to Tekari Raj. " The assessment was approved by the Assistant Commissioner of Agricultural Income tax on January 4, 1946, and on the day following, the Income tax Officer passed his formal order and issued a demand notice. The assessee paid two instalments out of three, when on March 22, 1946, the Agricultural Income tax Officer recorded the following order : " It appears that some agricultural income from Gaya Zarpeshgi lease which should have been taxed for the year 1944 45 (1351 Fasli) has escaped assessment. Issue notice under section 26 fixing the 20th May 1947. " After the assessee appeared, a supplementary assessment order was passed and Rs. 39,512 6 0 were assessed as tax on Rs. 2,52,879. In deciding the matter, the Agricultural Income tax Officer gave the following reasons: According to the terms of the lease the assessee is to remain in possession and enjoy the usufruct of the lands given in lease for a fixed number of years on payment of an annual thica rent of Rs. 1,000 to the lessor and thus satisfy himself for the entire amount of consideration money of the zarpeshgi lease in question. In fact, by this zarpeshgi lease the assessee has been given the grant of lands for a fixed term on a fixed rent. Whatever income is derived from these lands during the tenure of this lease, is the income of the assessee and as such it should be taxed in the hands of the assessee and not in the hands of the lessor." The Agricultural Income tax Officer purported to act under section 26 of the Bihar Agricultural (hereinafter referred to as the Act). The assessee appealed. The Commissioner of Agricultural Income tax reversed the decision. He pointed 336 out that the agricultural income from Tekari Raj property was returned by the assessee but was held to be exempt and thus could not be said ' to have escaped assessment so as to bring the case within section 26 of the Act. The Province of Bihar (as it was then called) ,moved the Board of Revenue, Bihar which by a resolution dated February 7, 1948, referred the two questions to the High Court of Patna. The Board did not express any opinion on the two questions. In the High Court, both the questions were answered in favour of the State of Bihar. Leave having been refused by the High Court, the assessee applied for, and obtained special leave from this Court. Section 26 of the Act, under which the Agricultural Income tax Officer purported to act is substantially the same as section 34 of the Indian , prior to its amendment. Necessarily, therefore, the rulings on the interpretation of the latter section were freely cited by the contending parties. Section 26 of the Act reads as follows: " If for any reason any agricultural income chargeable to agricultural income tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within one year of the end of that financial year, serve on the person liable to pay agricultural income tax on such agricultural income or, in the case of a company, on the principal officer thereof, " a notice containing all or any of the requirements which may be included in a notice under subsection (2) of section 17, and may proceed to assess or re assess such income, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that subsection: Provided that the tax shall be charged at the rate at which it would have been charged if such income had not escaped assessment or full assessment, as the case may be. " For facility of reference, the previous section 34 before the amendment in 1948 of the Indian may likewise be quoted here. It read: 337 If in consequence of definite information which has come into his possession the Income tax Officer discovers that income, profits or gains chargeable to income tax have escaped assessment in any year, or have been under assessed, or have been assessed at too low a rate, or have been the subject of excessive relief under this Act the Income tax Officer may, in any case in which he has reason to believe that the assessee has concealed the particulars of his income or deliberately furnished inaccurate particulars thereof, at any time within eight years, and in any other case at any time within four years of the end of that year, serve on the person liable to pay tax on such income, profits or gains, or in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22, and may proceed to assess or re assess such income, profits or gains, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section: Provided that the tax shall be charged at the rate at which it would have been charged had the income, profits or gains not escaped assessment, or full assessment, as the case may be:. . The short question is whether income which was returned but was held to be exempt from tax could be said to have " escaped assessment " so that the Agricultural Income tax Officer could exercise his powers under section 26 of the Act to tax it. This question arising under section 34 of the Indian has been considered on many an occasion by the High Courts and also by the Privy Council and this Court. The Patna High Court has correctly pointed out that the preponderance of opinion is in favour of holding that such income can be said to have escaped assessment. The High Court in deciding that the Agricultural Income tax Officer had jurisdiction to revise his earlier assessment referred to the opening words of section 26, namely, " for any reason " and observed that it was 43 338 not necessary to give a restricted meaning to the word "escaped ", and that if an item of income was not charged to tax due to a mistake or oversight on the part of the taxing authorities, that item could well come within the term " escaped ". According to the High Court, the phrase " escaped assessment " was not confined to cases where there had been an inadvertent omission, but in view of the later part of the section "where income . has been assessed at too low a rate", included a case where there was a deliberate action. Learned counsel for the assessee contends that the generality of the words " any reasonhas no bearing upon the construction of the wordsescaped assessment ", that the word " assessment "does not connote the final determination to tax income but the entire process by which the result is reached, and that inasmuch as the income was actually returned and held to be exempt, there was no question of an "escaped assessment " because it passed through the processing of income. He also contends that the later part of the section which deals with assessment at too low a rate cannot be called in aid to decide when income can be said to have escaped assessment. He submits that the section has no application to cases where income is returned but is held to be not liable to tax and relied upon the following cases; Maharaja Bikram Kishore vs Province of Assam (1), Commissioner of Income tax vs Day Brothers (2), Madan Mohan Lal vs Commissioner of Income tax (3) (per Dalip Singh, J.) and Chimanram Motilal (Gold and Silver), Bombay vs Commissioner Of Income tax (Central), Bombay (4) (per Kania, J., as he then was). The learned Attorney General drew the attention of the Court to other cases in which the view has been taken that even if income is returned and deliberately not charged to tax, the condition required for the application of the section is fulfilled. He cited the following cases in support of his contention: AngloPersian Oil Co. (India) Ltd. vs Commissioner of IncometaX (5), P. C. Mullick and D. 0. Aich, In re( '), The (1)[1949] (2)[1936] (3)[19351 (4) BOM. (5) [1933] [ I.T.R. 129. (6) 339 Commissioner of Income tax vs Raja of Parlakimedi (1) Chimanram Moti Lal (Gold and Silver), Bombay vs Commissioner of Income tax (Central), Bombay (2) and Madan Mohan Lal vs Commissioner of Income tax (3). The learned Attorney General also relied strongly upon a recent decision of this Court in Kamal Singh vs Commissioner of Income tax, Bihar and Orissa (4), where Gajendragadkar, J., after a review of all the authorities, held that section 34 of the Indian Income tax Act was applicable to a case where an item of income was returned but deliberately and after consideration, was held to be not liable to tax. Learned counsel for the assessee contends that the point was left open in that case, and refers to Messrs. Chatturam Horilram Ltd. vs Commissioner of Income ' tax, Bihar and Orissa(5) as having held the contrary. Before referring to the other authorities of the High Courts, it will be proper to see if the two cases of the Supreme Court are in point or not, and if so, which of them. In Kamal Singh 's case (4), the point arose under the following circumstances. The father of the appellant in that case was assessed to income tax for the year 1945 46. The total income assessed to incometax was Rs. 1,00,000 which included a sum of RE;. 93,604 received by him on account of interest on arrears of rent due to him after deduction of collection charges. It was urged before the Income tax Officer that this interest was not assessable to income tax being agricultural "income, in view of the decision of the Patna High Court in Kamakshya Narain Singh vs Commissioner of Income tax(6). The Income tax Officer did not accept this contention on the ground that an appeal was pending against the Patna High Court 's decision, before the Privy Council. On appeal, the Appellate Assistant Commissioner held that the Income tax Officer was bound to follow the decision of the High Court, and he set aside the order and directed the Income tax Officer to make a fresh assessment. The Income tax Officer thereupon deducted the amount (1) Mad. (2) Bom. (3) (4) ; (5) [1955] 2 S C.R. 290. (6) [I946] 340 and brought only the remaining income (after some minor adjustments) to tax. His order was passed on August 20, 1946. In the year 1948, the Privy Council reversed the Patna High Court 's decision. The judgment of the Privy Council is reported in Commissioner of Income tax vs Kamakshya Narain Singh( '). The Income tax Officer then issued a notice under section 34 of the Indian , and after hearing the party assessed the sum of Rs. 93,604. After sundry procedure which it is not necessary to detail, the matter reached this Court, and the question which was before it was " whether in the circumstances of the case, the assessment order under section 34 of the Act of the interest on arrears of rent is legal. " Two questions were involved. The first was whether the word " information " was wide enough to include knowledge about the state of the law or about a decision on a point of law. With that point we are. , not concerned in this case. The second was, when income could be said to have escaped assessment. Emphasis was laid on the word " assessment " in the arguments, and it was contended that it denoted not merely the order of assessment, but included " all steps taken for the purpose of levying of tax and during the process of taxation. " It was also contended that " escaped " meant that the income must have eluded observation, search etc., or, in other words, eluded the notice of the Income tax Officer. Gajendragadkar, J., however, did not confine the phrase to such a narrow meaning. He observed; " Even if the assesse has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment. In the present case, the rents received by the assessee from his agricultural lands were brought to the notice of the Income tax Officer; the question as to whether the said amount can be assessed in law was considered and it was ultimately held that the relevant decision of the Patna High Court 'Which was binding on (1)[1948) 341 the department justified the assessee 's claim that the said income was not liable to be assessed to tax. There is no doubt that a part of the assessee 's income had not been assessed and, in that sense, it has clearly escaped assessment. Can it be said that, because the matter was considered and decided on ' the merits in the light of the binding authority of the decision of the Patna High Court, no income has escaped assessment when the said Patna High Court decision has been subsequently reversed by the Privy Council? We see no justification for holding that cases of income escaping assessment must always be cases where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted. In our opinion, even in a case where a return has been ,submitted, if the Income tax Officer erroneously fails to tax a part of assessable income, it is a case where the said part of the income has escaped assessment. The appellant 's attempt to put a very narrow and artificial limitation on the meaning of the word "escape ' in section 34(1)(b) cannot therefore succeed. " The assessee seeks to distinguish that case on the ground that this Court,laid down the law in the special circumstances where ' a new interpretation to the law was given, and that it was not a case of the Incometax Officer changing his mind. He contends that there was at least some information which had come to the Income tax Officer, on which his subsequent action could be rested. The learned counsel argued that Gajendragadkar, J., had expressly left the question open, where there was no information but the Incometax Officer merely changed his mind without any information from an external source. Reference in this connection is made to the following observations in the judgment: " It appears that, in construing the scope and effect of the provisions of section 34, the High Courts have had occasion to decide whether it would be open to the Income tax Officer to take action under a. 34 on the ground that he thinks that his original decision in making the order of assessment was 342 wrong without any fresh information from an external source or whether the successor of the Income tax Officer can act under section 34 on the ground that the order of assessment passed by his predecessor was erroneous, and divergent views have been expressed on this point. Mr. Rajagopala Sastri, for the respondent, suggested that under the provisions of section 34 as amended in 1948, it would be open to the Income tax Officer to act under the said section even if he merely changed his mind without any information from an external source and came to the conclusion that, in a particular case, he had erroneously allowed an assessee 's income to escape assessment. We do not propose to express any opinion on this point in the present appeal. " We may say at once that the words of section 26 of the Act do not involve possessing of or coming by some fresh information. The section says: " If for any reason any agricultural income chargeable to agricultural income tax has escaped assessment for any financial year the Agricultural Income tax Officer may proceed to assess such income The use of the words "any reason" which are of wide import dispenses with those conditions by which section 34 of the Indian is circumscribed. The point which was thus left over by Gajendragadkar, J., cannot arise in the context of the Act we are dealing with. In view of this clear opinion, it is hardly necessary for us to consider again the cases which Preceded the decision of this Court. The most important of them are considered in the judgment of Gajendragadkar, J. Most of the cases are also considered in the judgment of Harries, C. J., and Mukherjea, J. (as he then was) in Maharaja Bikram Kishore vs Province of Assam (1). In all the cases where a contrary view was taken, reliance was placed upon the decision of the Privy Council in Rajendra Nath Mukerjee vs Income tax Commissioner( ') particularly a passage wherein it was observed: (1) , (2) (1933) L.R. 61 I.A. 10, 16. 343 "The fact that section 34 requires a notice to be served calling for a return of income which had escaped assessment strongly suggests that income which has already been duly returned for assessment cannot be said to have 'escaped ' assessment within the statutory meaning. " The facts of the case were entirely different. The income was returned, and was not yet processed when the notice under section 34 was issued. The key to the case is furnished by the approval by their Lordships of the observations of Rankin, C.J., in In re: Lachhiram Basantlal (1) that: " Income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessees ' income which have not yet terminated in a final assessment thereof. " Their Lordships held that the expression "has escaped assessment" should not be read as equivalent to "has not been assessed" because so to do "gives too arrow a meaning to the word 'assessment ' and too wide a meaning to the word escaped '." That those observations were related to the facts then before their Lordships is clear from the following passage: " To say that the income of Burn & Co., which in January, 1928, was returned for assessment and which was accepted as correctly returned, though it was erroneously included in the assessment of Martin & Co. ', has escaped ' assessment in 1927 28 seems to their Lordships an inadmissible reading. . Their Lordships find it sufficient for the disposal of the appeal to hold, as they do that the income of Burn & Co., did not 'escape assessment ' in the year 1927 28 within the meaning of section 34. " It was in the context of the pendency of assessment proceedings that the remarks were made, and the matter is decisively cleared of any doubt by the following passage: " It may be that if no notice calling for a return under section 22 is issued within the tax year then section Cal. 909, 912. 344 provides the only means available to the Crown of remedying the omission, but that is a different matter. " In our opinion, the error in the cases relied upon by the assessee arises in using the dicta in the above case, shorn of the context in which they were made and applying them to facts, where they cannot. The judgment of Gajendragadkar, J., has dealt with the matter, if we may say so respectfully, very adequately and we do not consider it necessary to cover the same ground again. The preponderance of opinion in the High Courts is also to accept the contrary view, and we think rightly. The learned counsel for the assessee argued that the decision of this Court in Messrs. Chatturam Horilram Ltd. vs Commissioner of Income tax, Bihar& Orissa (1) discloses a different view, and that we should follow it in preference to the later view of Gajendragadkar, J. We do not think that in the case last cited the point was the same. The same case was relied upon before the Bench of Venkatarama Aiyar, Gajendragadkar and Sarkar, JJ., and Gajondragadkar, J., distinguished it This is what he observed: Mr. Sastri has also relied on the decision of this Court in Messrs. Chatturam Horilram Ltd. vs Commissioner of Income tax, Bihar & Orissa (1) in support of his construction of section 34. In Chatturam 's case (1) the assessee had been assessed to income tax which was reduced on appeal and was set aside by the Income Tax Appellate Tribunal on the ground that the Indian Finance Act of 1939, was not in force during the assessment year in Chota Nagpur. On a reference the decision of the tribunal was upheld by the High Court. Subsequently the Governor of Bihar promulgated the Bihar Regulation IV of 1942 and thereby brought into force the Indian Finance Act of 1939, in Chota Nagpur retrospectively as from March 30, 1939. This ordinance was assented to by the Governor General. On February 8, 1944, the Income Tax Officer passed an order in pursuance of which proceedings were taken against (1)[1955] 2 S.C.R. 290. 345 the assessee under the provisions of section 34 and they resulted in the assessment of the assessee to incometax. The contention which was raised by the assessee in his appeal to this Court was that the notice issued against him under section 34 was invalid. This Court held that the income, profits or gains sought to be assessed were chargeable to income tax and that it was a case of chargeable income escaping assessment within the meaning of section 34 and was not a case of mere non assessment of income tax. So far as the decision is concerned, it is in substance inconsistent with the argument raised by Mr. Sastri. He, however, relies on the observations made by Jagannadhadas, J., that 'the contention of the learned counsel for the appellant that the escapement from assessment is not to be equated to non assessment simpliciter is not without force ' and he points out that the reason given by the learned Judge in support of the final decisions was that though earlier assessment proceedings had been taken they had failed to result in a valid assessment owing to some lacuna other than that attributable to the assessing authorities notwithstanding the chargeability of income to the tax. Mr. Sastri says that it is only in cases where income can be shown to have escaped assessment owing to some lacuna other than that attributable to the assessing authorities that section 34 can be invoked. We do not think that a fair reading of the judgment can lead to this conclusion. The observations on which reliance is placed by Mr. Sastri have naturally been made in reference to the facts with which the Court was dealing and they must obviously be read in the context of those facts. It would be unreasonable to suggest that these observations were intended to confine the application of section 34 only to cases where income escapes assessment owing to reasons other than those attributable to the assessing authorities. Indeed Jagannadbadas J., has taken the precaution of adding that it was unnecessary to lay down what exactly constitutes escapment from assessment and that it would be sufficient to place their decision on 44 346 the narrow ground to which we have just referred. We are satisfied that this decision is of no assistance to the appellant 's case. " For the reasons we have given, we are of opinion that the Agricultural Income tax Officer was competent under section 26 of the Act to assess an item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income tax Officer then thought that it was exempt. The answer given by the High Court was therefore correct. This brings us to the second question. The income was received from the leasehold properties, and was agricultural income. The contention of the assessee is that it may be agricultural income in the hands of the Tekari Raj but in his hands it was capital receipt and in repayment of the loan of about Rs. 17,00,000 paid to Ram Bhuwaneshwari Kuer. The State of Bihar, however, denies that there was a loan or a mortgage at all. The assessee, it is contended, was placed in possession for a number of years on a rent of Rs. 1,000 per year and the amount paid was premium and not a loan. The documents in question are two. They are plainly indentures of lease between the Rani and the. assessee. From these documents it is clear that in consideration of a payment of Rs. 17,16,000 the lessee was placed in possession of the leasehold property for 28 years. There is no express term which makes the sum a loan returnable either by repayment or by the enjoyment of the usufruct. There is no interest fixed or right of redemption granted. There is no provision for any Personal liability in case any amount remained outstanding at the end of the term of 28 years. These are the tests to apply to find out whether the transaction was one of zarpeshgi lease or a lease with a mortgage. See Mulla 's ' Transfer of Property Act, 4th Edition, page 352. The learned counsel for the assessee in his careful argument took us through the two documents and endeavoured to prove that the relation of debtor and creditor subsisted between the parties. He referred 347 us to cl. 4, which embodies a provision entitling the lessee to deduct 12 1/2 per cent. of the gross aggregate amount payable by the mokarraridars as expenses of collection and other charges incidental thereto after payment of rent reserved to the I lessor ' and to appropriate to himself the remainder. He submitted that the payment to the lessor was not a premium but a loan and the intention was that the lessee or creditor would be thus repaid. The clause by itself may admit of diverse constructions, and possibly one such construction may be the one suggested, but that is not the true purport of the clause read in the context of the rest of the instrument. To interpret this clause the instrument must be read as a whole, and when so viewed, it is found that it provides for an exemption of the lessor from the liability for collection charges. It places beyond doubt that the collection charges were not to be debited to the lessor but were to be borne by the lessee. Unless such a provision was included in the instrument, it might have been a matter of some dispute as to who was to be responsible for this expenditure. The learned counsel for the assessee next drew our attention to the last clause of the instrument of January 31, 1936. That, however, was a special covenant, and the provision therein was in relation to matters not covered by the instrument. That the income from this leasehold property which was land, would fall within the definition of " agricultural income " was not seriously contested before us. The case of the assessee rests upon the claim that this was a money lending transaction and the receipts represented a capital return. If, however, the payment to the lessor was premium and not a loan, the income, being agricultural, from these leasehold properties was assessable under the Act. We are of opinion that it was so, and that the Agricultural Income tax Officer was right when he assessed it to agricultural income tax. The income was not the income of money lending, and this does not depend upon the character of the recipient. The Thika 348 profits were clearly agricultural income being actually derived from land. The answer to the question by the High Court was thus correct. The result is that the appeal must fail, and it is accordingly dismissed with costs. Appeal dismissed.

The employees of the appellant Bank commenced pen down strikes, which were followed by a general strike, pending arbitration of an industrial dispute between them. The Government of India intervened and as the result of an agreement that followed the Bank reinstated all the employees except 150, against whom it had positive objections, and the Government referred their cases under section 10 of the Industrial Disputes Act, 1047, to the Industrial Tribunal for adjudication. The two issues before the Industrial Tribunal were whether the 150 employees had been wrongly dismissed and what wages and allowances would the 807 employees be entitled to on reinstatement. The case of the employees was that the Bank wanted to penalise the active trade union workers by the said dismissals while the Bank maintained that the employees were guilty of participation in illegal strikes intended to paralyse its business and scare away its customers. The Industrial Tribunal did not hear evidence and, by its final award, held that, the strikes being illegal, the Bank was, on that ground alone, justified in dismissing the employees. Even so, it directed the Bank to make certain payments to the employees on compassionate grounds. The Bank as well as the employees appealed. The Labour Appellate Tribunal held that even though the strikes were illegal under section 23(b) read with section 24(1) of the , the Bank had, by entering into the agreement with the Government of India, waived its right to take penal action against the employees for joining the illegal strikes and that, therefore, an enquiry should be held on additional evidence to decide the disputes on merits. Against this interlocutory order the Bank appealed to this Court and it was held by this Court that while the strikes were no doubt illegal under section 23(b) of the Act, the orders of dismissal passed by the Bank were no less so under section 33 of the Act, and it dismissed the appeal. The Appellate Tribunal, thereafter, heard the cases on merits, directed the reinstatement of 136 of the said employees, but refused to reinstate the rest whom it found guilty of issuing posters and circulars subversive of the credit of the Bank. Both the parties appealed to this Court. Preliminary objections were raised on behalf of the said employees that, (1) in view of the decision of this Court dismissing the Bank 's appeal against the said interlocutory order the subsequent inquiry by the Tribunal and the orders of dismissal must be held to be void and, (2) no charges having been admittedly framed nor any proper enquiry held by the Bank against the employees, the orders of dismissal were wholly invalid. It was urged, inter alia, on behalf of the Bank in the appeals that participation in a pen down strike by itself amounted to misconduct sufficient to disentitle an employee to reinstatement and that the entire body of strikers, being collectively responsible for the publication of the subversive documents in question, the dismissed employees could by no means escape liability. Held (per curiam), that the preliminary objections must be negatived and the decision of the Appellate Tribunal affirmed with this modification that, in view of its inconsistent findings, the appeal of one of the employees must be allowed. Per Sinha and Gajendragadkar, JJ. The purpose the Legislature had in view in enacting section 33 of the , was to maintain the status quo by placing a ban on any action by the employer pending adjudication. But the jurisdiction conferred on the Industrial Tribunal by section 33 of the Act was a limited one. Where a proper enquiry had been held and no victimisation or unfair labour practice had been 808 resorted to, the Tribunal in granting permission had only to satisfy itself that there was a Prima facie case against the employee and not to consider the propriety or adequacy of the ,proposed action. But to such permission, when granted, the Tribunal could attach no conditions; it can either grant or refuse it. The effect of such permission was only to remove the ban imposed by section 33 of the Act. It could neither validate a dismissal nor prevent it from being challenged in an industrial dispute; but in such a dispute, when raised, the employer could justify its action only on such grounds as were specified in the original charge sheet and no others. There was substantial difference between non compliance with section 33 of the Act and that with article 311(2) of the Constitu tion. Compliance with section 33 only avoided the penalty under section 31(1) of the Act, while compliance with article 311(2) of the Constitution made the order of dismissal final. Atherton West & Co. Ltd. V. Suti Mills Mazdoor Union, ; , The Automobile Products of India Ltd. vs Rukmaji Bala; , , Lakshmi Devi Sugar Mills Ltd. vs Pt. Ram Sarup, ; , Indian lron and Steel Co. Ltd. vs Their Workmen, ; and McKenzie & Co. Ltd. vs Its Workmen, referred to. It was not, therefore, correct to contend that non compliance with section 33 of the Act could render the orders of dismissal wholly void or take away the jurisdiction of the Tribunal to hold the enquiry. Nor could the failure to hold a proper enquiry have that effect. Under section 33A of the Act, as construed by this Court, the jurisdiction of the Tribunal was not limited to an enquiry as to the contravention of section 33 of the Act. Even if such contravention was proved, the employer could still justify the impugned dismissal on merits and there was no difference in this regard between a reference under section 10 of the Act and a dispute raised under section 33A of the Act. The Automobile Products of India Ltd. vs Rukmaji Bala, ; and Equitable Coal Co.Ltd. vs Algu Singh, A.I.R. 1958 S C. 761, referred to. Although there can be no doubt that in proper cases the Industrial Tribunal has the power to direct reinstatement in disputes arising out of dismissal of employees, it is not possible to Jay down any hard and fast rule to be applied to such cases. In coming to its decision, the Industrial Tribunal has to reconcile the conflicting claims of the employer and the employee, the latter 's right to protection against wrongful dismissal, and in such a case the normal rule is reinstatement, and the interest and safety of the industry itself. Its approach to such a problem cannot, therefore, be legalistic or doctrinaire or as is permissible 809 in a civil court deciding the validity of dismissals under section 240 of the Government of India Act, 1935, or article 311(2) of the Constitution. Western India Automobile Association vs Industrial Tribunal, Bombay, and Buckingham & Carnatic Mills Ltd. vs Their Workmen, , referred to. If no enquiry is held by the employer before it passes an order of dismissal, the propriety of such dismissal can be adjudged by the Tribunal on evidence and no employer can be allowed to object to it on the ground that it interferes with the exercise of its managerial function. The Madras Electric Tramways, (1904) Ltd. Madras vs Their Workers, , distinguished and held inapplicable. The propriety of reinstatement in a case of wrongful or illegal dismissal is normally a question of fact and where the Industrial Tribunal on a proper consideration of the relevant factors refuses to pass such an order this Court would be reluctant, in absence of any general or substantial question of law, to interfere under article 136 of the Constitution. A pen down strike falls within the definition of a strike contained in section 2(q) of the Industrial Disputes Art, 1947, and is not Per se illegal. Even if it might involve an element of civil trespass as in the present case, that cannot disentitle an employee to reinstatement. M/s. Burn & Co. Ltd. vs Their Workmen, A.I.R. 1959 S.C. 529, referred to. It is not safe to extend principles of American decisions to such a strike without a careful scrutiny of the relevant provisions of the American Statute and the facts on which the said decisions are based. National Labour Relations Board vs Fansteel Metallurgical Corporation, 306 U.S. 238, considered and held inapplicable. William Truax vs Michael Corrigan, , referred to. Since in the instant case, the peaceful and non violent conduct of the strikers, as found by the Appellate Tribunal, could not amount to criminal trespass within, the meaning of section 441 of the Indian Penal Code, mere participation in the pen down strike did not disentitle them to reinstatement. T. H. Bird vs King emperor, (1934) L.R. XIII Pat. 268, held inapplicable. The mere fact that the employer had engaged new hands during the strike, was not sufficient to defeat the claim to reinstatement of such employees as were subsequently found to have been wrongfully dismissed. National Transport and General Co. Ltd. vs The Workmen, C.A. NO. 312 of 1956, decided on January 22, 1957, referred to. 810 But where, as in the instant case, the Appellate Tribunal took a common sense view of the matter of evidence and held certain office bearers and leaders of the union liable for subversive acts and refused to extend such liability to the entire body of strikers on theoretical and academic grounds, no principles of natural justice could be said to have been contravened by it.

y of the view that the almost unanimous opinion of experts is that after the age of 15, bulls. bullocks and buffaloes are no longer useful for breeding, draught and other purposes and whatever little use they may have then is greatly offset by the economic disadvantages of feeding and maintaining unserviceable cattle disadvantages to which we had referred in much greater detail in Md. Hanif Quareshi 's case (1). Section 3 of the Bihar Act in so far as it has increased the age limit to 25 in respect of bulls, bullocks and she buffaloes, imposes an unreasonable restriction on the fundamental right of the petitioners, a restriction moreover which cannot be said to be in (1) ; 623 the interests of the general public, and to that extent it is void. We may here repeat what we said in Chintaman Rao vs The State of Madhya Pradesh (1): "The phrase 'reasonable restriction ' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word 'reasonable ' implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality. " As to r. 3 the grievances of the petitioners are these. Under the rule the prescribed authority for the purpose of section 3 of the Act consists of the Veterinary Officer and the Chairman or Chief Officer of a District Board, Municipality etc. Unless both of them concur, no certificate for slaughter can be granted. It is pointed out that the Chairman or Chief Officer would be a layman not in a position to judge the age or usefulness of cattle. The result would be that the animal in respect of which a certificate is required may have to be shown to the Veterinary Officer as also the Chairman or Chief Officer, who may not be staying at the same place as the Veterinary Officer. If the two differ, the matter has to be referred to the Sub divisional Animal Husbandry Officer. This procedure, it is contended, will involve the expenditure of so much money and time that it will not be worthwhile for the petitioners to ask for a certificate, or having got a certificate, to slaughter the animal. An animal which is above 15 or which has become useless generally costs much less than a young, serviceable animal. If the petitioners have to incur all the expenditure which the procedure laid down by r. 3 must necessarily cost them, then they must close down their trade. As to the right of appeal from an order refusing to grant a (1) ; ,763. 624 certificate, it is contended that that right is also illusory for all practical purposes. To take the animal to the Deputy Director of Animal Husbandry or the District Animal Husbandry Officer or the Sub divi sional Animal Husbandry Officer, as the case may be, and to keep and feed the animal for the period of the appeal and its hearing will cost more than the price of the animal itself. We consider that these grievances of the petitioners have substance, and judged from the practical point of view, the provisions of r. 3 impose disproportionate restrictions on their right. It is difficult to understand why the Veterinary Officer, who has the necessary technical knowledge, cannot be trusted to give the certificate and why it should be necessary to resort to a complicated procedure to resolve a possible difference of opinion between two officers, later followed by a still more expensive appeal. We, therefore, hold r. 3 also to be bad in so far as it imposes disproportionate restrictions indicated above, on the right of the petitioners. (2) We now proceed to consider the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Act, 1958. After the decision of this Court in Md. Hanif Quareshi vs The State of Bihar (1) an Ordinance was passed called the Uttar Pradesh Prevention of Cow Slaughter (Amendment) Ordinance, 1958. This Ordinance was later repealed and replaced by the Act. The petitioners say that in the Bill as originally drafted the age limit below which slaughter was not permissible was put at 15 years; but the Select Committee increased it to 20 years. It will probably be best, for clearness sake, to set forth not the whole provisions of the Act, for that would be too lengthy, but those which form most directly the subject matter on which the controversy turns. Section 3 of the Act reads (omitting portions not relevant for our purpose) "section 3(1) Except as hereinafter provided, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter (a). . . . . . . (1) ; 625 (b) a bull or bullock, unless he has obtained in respect thereof a certificate in writing, from the competent authority of the area in which the bull or bullock is to be slaughtered, certifying that it is fit for slaughter. (2) No bull or bullock, in respect of which a certificate has been issued under sub section (1)(b) shall be ' slaughtered at any place other than the place indicated in the certificate or within twenty days of the date of issue of the certificate. (3) A certificate under sub section (1)(b) shall be issued by the competent authority, only after it has, for reasons to be recorded in writing, certified that(a) the bull or bullock is over the age of twenty years; and (b) in the case of a bull, it has become permanently unfit and unserviceable for the purpose of breeding and, in the case of a bullock, it has become permanently unfit and unserviceable for the purposes of draught and any kind of agricultural operation: Provided that the permanent unfitness or unserviceability has not been caused deliberately. (4) The competent authority shall, before issuing the certificate under sub section (3) or refusing to issue the same, record its order in writing. Any person aggrieved by the order of the competent authority, under this section, may, within twenty days of the date of the order, appeal against it to the State Government, which may pass such orders thereon as it may deem fit. (5) The State Government may, at any time, for the purposes of satisfying itself as to the legality or propriety of the action taken under this section, call for and examine the record of any case and may pass such orders thereon as it may deem fit. (6) Subject to the provisions herein contained any action taken under this section, shall be final and conclusive and shall not be called in question. " On behalf of the petitioners it has been argued that section 3 imposes a number of unreasonable restrictions. Firstly, it is urged that the age limit with regard to bulls or bullocks is put too high, viz. at 20 years. This is an 626 aspect which we have already considered in relation to the Bihar Act. What we have said about the age s limit in that connexion applies equally to the Uttar Pradesh Act. The 8th Live stock Census, 1956 shows that in Uttar Pradesh bulls and bullocks over 3 years of age, not in use for breeding or work, numbered as many as 126,201 in 1956 as compared to 162,746 in 1951. The Municipal Manual, Uttar Pradesh, Vol. 1, contains a direction that for slaughter of animals, bullocks and male buffaloes in good state of health below ten years of age should be included. Secondly, it is pointed out that not being content with fixing an unreasonably high age limit, the impugned provision imposes a double restriction. It says that the animal must be over twenty years in age and must also be permanently unfit and unserviceable; and in the case of a bullock, the unfitness must be for "any kind of agricultural operation" and not merely for draught purposes. The result of this double restriction, it is stated, is that even if the animal is permanently unserviceable and unfit at an earlier age, it cannot be slaughtered unless it is over twenty years in age. Before a certificate can be given, the animal must fulfil two conditions as to (1) age and (2) permanent unfitness. We consider this to be a demonstrably unreasonable restriction. In Md. Hanif Quareshi 's case (1) this Court had said that a total ban on the slaughter of bulls and bullocks after they had ceased to be capable of breeding or working as draught animals was not in the interests of the general public. Yet this is exactly what the impugned provision does by imposing a double restriction. It lays down that even if the animal is permanently unserviceable, no certificate can be given unless it is more than 20 years in age. The restriction will in effect put an end to the trade of the petitioners. Thirdly, the impugned provision provides (1) that the animal shall not be slaughtered within 20 days of the date of the issue of the certificate and (2) that any person aggrieved by the order of the competent authority may appeal to the State Government within 20 days. It is to be noted that the right of appeal is not (1) 627 confined to a refusal to grant a certificate as in the Bihar Act, but the right is given to any person aggrieved by the order of the competent authority. In other words, even when a certificate is given, any person, even a member of the public, who feels aggrieved by it may prefer an appeal and hold up the slaughter of the animal for a long time. From the practical point of view these restrictions really put a total ban on the slaughter of bulls and bullocks even after they have ceased to be useful, and we must hold, following our decision in Md. Hanif Quareshi 's case (1) that section 3 of the Uttar Pradesh Act in so far as it imposes unreasonable restrictions on the right of the petitioners as to slaughter of bulls and bullocks infringes the fundamental right of the petitioners and is to that extent void. (3) Now, we come to the Madhya Pradesh Act. Several provisions of this Act have been challenged before us as imposing unreasonable restrictions on the fundamental right of the petitioners. Section 4 deals with prohibition of slaughter of agricultural cattle. The expression 'agricultural cattle ' means an animal specified in the schedule: it means cows of all ages; calves of cows and of she buffaloes; bulls; bullocks; and male and female buffaloes. As we have stated earlier, we are concerned in these cases with the validity of the restrictions placed on the slaughter of bulls, bullocks and buffaloes. Now, section 4 is in these terms: "section 4(1) Notwithstanding anything contained in any other law for the time being in force or in any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered, for slaughter (a) cows, calves of cows, or calves of she buffaloes, or (b) any other agricultural cattle unless he has obtained in respect of such cattle a certificate in writing issued by the Competent Authority for the area in which the cattle is to be slaughtered that the cattle is fit for slaughter. (1) [1959] S.C.R.29. 628 (2) No certificate under clause (b) of sub section (1) shall be issued by the Competent Authority .unless the Veterinary Officer after examining the cattle certifies that (a) the cattle is over twenty years of age and is unfit for work or breeding or has become permanently incapacitated from work or breeding due to age, injury, deformity or an incurable disease; and (b) the cattle is not suffering from any disease which makes its meat unwholesome for human consumption. (3) The Competent Authority shall, before issuing or refusing to issue a certificate under this section, record its order in writing. Any person aggrieved by the order of the Competent Authority under this section, may, within ten days of the date of the order, prefer an appeal against such order to the Collector of the district or such other officer as may, by notification, be authorised in this behalf by the State Government, and the Collector or such other officer may pass such orders thereon as he thinks fit. (4) Subject to the orders passed in appeal, if any, under sub section (3), the order of the Competent Authority shall be final and shall not be called in question in any Court. " Section 5 places a restriction as to the place and time for slaughter and the objection taken before us relates to the time rather than to the place of slaughter. It says in effect that no cattle in respect of which a certificate has been issued under section 4 shall be slaughtered within ten days of the date of issue of the certificate and where an appeal is preferred against the grant of such certificate, till the time such appeal is disposed of. The provision of appeal is contained in sub section (3) of section 4 of the Act which we have quoted earlier. That sub section lays down that any person aggrieved by the order of the Competent Authority, may, within ten days of the date of the order, prefer an appeal against the order to the Collector of the district or such other officer as may, by notification, be authorised in this behalf by the State Government. 629 Section 6 imposes a restriction on the transport of agricultural cattle for slaughter and reads: "section 6. No person shall transport or offer for transport or cause to be transported any agricultural cattle from any place within the State to any place outside the State, for the purpose of its slaughter in contravention of the provisions of this Act or with the knowledge that it will be or is likely to be, so slaughtered. " Section 7 prohibits the sale, purchase or disposal otherwise of certain kinds of animals. It reads . "section 7. No person shall purchase, sell or otherwise dispose of or offer to purchase, sell or otherwise dispose of or cause to be purchased, sold or otherwise disposed of cows, calves of cows or calves of shebuffaloes for slaughter or knowing or having reason to believe that such cattle shall be slaughtered. " Section 8 relates to possession of flesh of agricultural cattle and is in these terms: "section 8. Notwithstanding anything contained in any other law for the time being in force, no person shall have in his possession flesh of any agricultural cattle slaughtered in contravention of the provisions of this Act. " Section 10 imposes a penalty for a contravention of section 4(1)(a) and section 11 imposes penalty for a contravention of any of the other provisions of the Act. On behalf of the petitioners it has been pointed out, and rightly in our opinion, that cl. (a) of sub section (2) of section 4 of the Act imposes an unreasonable restriction on the right of the petitioners. That clause in its first part lays down that the cattle (other than cows and calves) must be over 20 years of age and must also be unfit for work or breeding; and in the second part it says, "or has become permanently incapacitated from work or breeding due to age, injury, deformity or an incurable disease. " It is a little difficult to understand why the two parts are juxtaposed in the section. In any view the restriction that the animal must be over 20 years of age and also unfit for work or breeding is an excessive or unreasonable restriction as we have 80 630 pointed out with regard to a similar provision in the Uttar Pradesh Act. The second part of the clause would not be open to any objection, if it stood by itself. If, however, it has to be combined with the agelimit mentioned in the first part of the clause, it will again be open to the same objection; if the animal is to be over 20 years of age and also permanently incapacitated from work or breeding etc. ,then the agelimit is really meaningless. Then, the expression 'due to age ' in the second part of the clause also loses its meaning. It seems to us that cl. (a) of sub section (2) of section 4 of the Act as drafted is bad because it imposes a disproportionate restriction on the slaughter of bulls, bullocks and buffaloes it is a restriction excessive in nature and not in the interests of the general public. The test laid down is not merely permanent incapacity or unfitness for work or breeding but the test is something more than that, a combination of age and unfitness ' Learned Counsel for the petitioners has placed before us an observation contained in a reply made by the Deputy Minister in the course of the debate on the Bill in the Madhya Pradesh Assembly (see Madhya Pradesh Assembly Proceedings, Vol. 5 Serial No. 34 dated April 14, 1959, page 3201). He said that the age fixed was very much higher than the one to which any animal survived. This observation has been placed before us not with a view to an interpretation of the section, but to show what opinion was held by the Deputy Minister as to the proper agelimit. On behalf of the respondent State our attention has been drawn to a book called The Miracle of Life (Home Library Club) in which there is a statement that oxen, given good conditions, live about 40 years. Our attention has also been drawn to certain extracts from a Hindi book called Godhan by Girish Chandra Chakravarti in which there are statements to the effect that cows and bullocks may live up to 20 or 25 years. This is an aspect of the case with which we have already dealt. The question before us is not the maximum age upto which bulls, bullocks and buffaloes may live in rare cases. The question before us is what is their average longevity and at what age 631 they become useless. On this question we think that the opinion is almost unanimous, and the opinion which the Deputy Minister expressed was not wrong. Section 5 in so far as it imposes a restriction as to the time for slaughter is again open to the same objection as has been discussed by us with regard to a similar provision in the Uttar Pradesh Act. A right of appeal is given to any person aggrieved by the order. In other words, a member of the public, if he feels aggrieved by the order granting a certificate for slaughter, may prefer an appeal and hold up for a long time the slaughter of the animal. We have pointed out that for all practical purposes such a restriction will really put an end to the trade of the petitioners and we are unable to accept a restriction of this kind as a reasonable restriction within the meaning of cl. (6) of article 19 of the Constitution. Section 6 standing by itself, we think, is not open to any serious objection. It is ancillary in nature and tries to give effect to the provision of the Act prohibiting slaughter of cattle in contravention of the Act. Section 7 relates to the prohibition of sale, purchase etc., of cows and calves and inasmuch as a total ban on the slaughter of cows and calves is valid, no objection can be taken to section 7 of the Act. It merely seeks to effectuate the total ban on the slaughter of cows and calves (both of cows and she buffaloes). Section 8 is also ancillary in character and if the other provisions are valid no objection can be taken to the provisions of section 8. Sections 10 and 11 impose penalties and their validity cannot be seriously disputed. However, we must say a few words about section 12 of the Act which has also been challenged before us. Section 12 is in these terms: "section 12. In any trial for an offence punishable under section 11 for contravention of the provision of sections 5, 6 or 7 of this Act the burden of proving that the slaughter, transport or sale of agricultural cattle was not in contravention of the provisions of this Act shall be on the accused. " The argument is that section 12 infringes the fundamental 632 right of the petitioners inasmuch as it puts the burden of proof on an accused person not only for his own knowledge or intention but for the knowledge or intention of other persons. We do not think that this contention is correct. The accused person, so far as sections 5 and 7 are concerned, must be the person who has slaughtered the animal or who has purchased, sold or otherwise disposed of the animal etc. Therefore, the only question will be his knowledge and the legislature was competent to place the burden of proof on him. So far as section 6 is concerned, it specifically refers to the knowledge of the person who has transported or offered for transport or caused to be transported any agricultural cattles from any place within the State to any place outside the State. Therefore, when the section talks of knowledge, it talks of the knowledge of that person who has transported or offered for transport etc. The knowledge of no other person comes into the purview of section 6. We are, therefore, ' of the view that section 12 is not invalid on the ground sug gested by the petitioners. Therefore, the result of our examination of the various provisions of the Act is that the impugned provisions in cl. (a) of sub section (2) of section 4, in sub section (3) of section 4 relating to the right of appeal by any person aggrieved by the order, and in section 5 relating to the time of slaughter, impose unreasonable and disproportionate restrictions which must be held to be unconstitutional. As to the Madhya Pradesh Agricultural Cattle Preservation Rules, r. 3 says "that an application for a certificate under section 4 shall be made to the competent authority," and r. 4 says that on receipt of the application, the competent authority shall by an order direct the person keeping the animal to submit it for examination by the Veterinary Officer Rule 5 reproduces the provisions of cls. (a) and (b) of sub section (2) of section 4 and in so far as we have held that the provision in el. (a) of sub section (2) of section 4 is unconstitutional, the rule must also fall with it. There is one other aspect of these cases which has been emphasized before us, to which a reference must 633 now be made. It is open to the legislature to enact ancillary provisions to give effect to the main object of the Act, namely, the prevention of slaughter of animals like bulls, bullocks or buffaloes which are still useful for the purposes for which they are generally used. It is pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure efficient enforcement of valid provisions. For example, it is open to the legislature, if it feels it necessary, in order to reduce the possibilities of evasion to a minimum, to enact provisions which would give effect to the main object of the legislation. We have not ignored this aspect and have kept in mind the undisputed right of the legislature to decide what provisions are necessary to give effect to the main object of the legislation. In these cases the petitioners have complained that the main object of the impugned provisions is not the prohibition of slaughter of animals which are still useful; the impugned provisions as they are worded really put a total ban on the slaughter of bulls, bullocks and buffaloes and for all practical purposes they put a stop to the profession and trade of the petitioners. We have held that this complaint is justified in respect of the main provisions in the three Acts. We, therefore, allow the three writ petitions and direct, as we directed in Md. Hanif Quareshi 's case (1) the respondent States not to enforce the Acts or the rules made thereunder in so far as they have been declared void by us. The petitioners will be entitled to their costs of the hearing in this Court. Petitions allowed.

The dispute between the appellant a cooperative bank and A who had taken loan and his surety was referred to arbitration under section 54 of the Bombay Go operative Societies Act. The Board of Arbitrators consisted of three members; after the Board has recorded some evidence, the nominee of the borrower retired. Thereafter, the Board was reconstituted. This Board also recorded some evidence ; but after some time, the newly appointed nominee of the borrower retired. There was a fresh constitution of the Board with the other two members as before and a new member as the nominee of the borrower. Further evidence was recorded by the Board thus constituted and finally the Board gave its award in the matter. Dissatisfied with this award A filed revision applications before the Bombay Co operative Tribunal. Apart from certain objections on merit a preliminary. objection was taken as regards the legality of the award on the ground that the Board as last constituted had acted on evidence not recorded before it. The Tribunal accepted this preliminary objection and set aside the award and remanded the cases to the Assistant Registrar. Shortly after this A died but his heirs and legal representatives moved the Bombay High Court under article 227 of the Constitution against the Tribunal 's decision. It set aside the orders passed by the Tribunal and restored the award made by the Board of Arbitrators. The Bank came up in appeal by special leave to the Supreme. Held, that when the parties expressly or impliedly agree that some evidence not taken before the Tribunal should be treated as evidence and taken into consideration, it will not be wrong or illegal for the Tribunal to act on such evidence not taken before it, the question of mode of proof is a question of procedure and is capable of being waived and therefore evidence taken in a previous judicial proceeding of a civil nature can heir made permissible in a subsequent proceeding by consent of parties, 349 While what is not relevant under the Evidence Act cannot in proceedings to which Evidence Act applies, be made relevant by consent of parties, relevant evidence can be brought on the record for consideration of the Court or the Tribunal without following the regular mode, if parties agree. When a party does not only raise no objection before a Court or Tribunal to proceed on the evidence already recorded before the previous Court or Tribunal and impliedly invites the Court or Tribunal to act on such evidence previously recorded, he cannot be allowed later on to object to the Court or Tribunal having considered such evidence. The High Court having come to the conclusion that the Tribunal was wrong in allowing the preliminary objection raised before it, the High Court was not entitled to ignore the fact that before the Tribunal other questions had been raised which had not been considered by it. The proper order to pass in such a case ordinarily would be to set aside the order of the Tribunal and direct it to decide the applications for revision on their merits.

Appeal No. 289 of 1961. Appeal by special leave from the judgment and order dated February 6, 1959, of the Bombay High Court in Special Civil Appeal No. 2647 of 1958. M. C. Setalvad, C. K. Daphtary Solicitor General of India, section B. Jathar and R. H. Dhebar, for the appellants. section G. Patwardhan and A. C. Ratnaparkhi, for respondent No. 1. 50 1963. February 13. The judgment of the Court was delivered by SHAH J. With special leave, the Collector of South Satara has appeared against the order of the High Court of judicature at Bombay directing him to assess compensation payable to the respondent under section 9 (1) of the Bombay Pargana and kulkarni Watans (Abolition) Act, 1950. Laxman Mahadev Deshpande hereinafter called 'the respondent ' was the holder of Paragana Watan land bearing Survey Nos. 503/2. and 504/1 in Mouza Aitwade, Taluka Valve, District South Satara. Performance of service in respect of the Watan had been commuted under an arrangement made in or about 1864 under a commutation settlement popularly known as "Gordon Settlement" whereby the holder was, on agreeing to pay a fixed sum, relieved of the obligation to perform service as a Village Officer. The Legislature of the State of Bombay enacted an Act called the Bombay Paragana and Kulkarni Watans (Abolition) Act LX of 1950, which abolished all Paragana and Kulkarni Watans. The respondent applied to the Collector of South Satara for an order under section 9 of the Act awarding Rs. 10,479 2 8 as compensation for extinction of his right in the watan land, and of his "right to enjoy part of the land revenue. " By his order dated April 29, 1957, the Collector rejected the application, and the order of the Collector was affirmed by the Bombay Revenue Tribunal in appeal under section 9 (4) of the Act. But in petition under article 227 of the Constitution the High Court of Bombay set aside the order of the Collector and directed that officer to assess and pay compensation to the respondent under section 9 (1) of the Abolition Act. The land was granted to an ancestor of the respondent as remuneration for performance of Paragana service some time in the sixteenth century 51 by the Ruler of Satara, and that grant was confirmed by the British Government. The original grant and the confirmation sanad have not been produced, but it is common ground between the parties that the grant was of the soil and not merely of the royal share of revenue. In adjudging the claim made by the respondent for compensation under section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act it is necessary in the first instance to ascertain the true character of the rights of a watandar in the land granted as remuneration for performance of service and the effect of the commutation settlement, in the light of the material provisions of the Bombay Hereditary ices Act, III of 1874, commonly known as the Watan Act. By section 4 of the Watan Act `Watan property ' is defined as meaning " 'moveable or immovable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary ice x X" 'Hereditary ice ' is defined as meaning "every ice held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. The expression includes such ice even where the services originally appertaining to it have ceased to be demanded. The watan property, if any, and the hereditary ice and the rights and privileges attached to them together constitute the watan" and the expression `watandar ' means a person having an hereditary interest in a watan : it includes a person holding watan property acquired by him before the introduction of the British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance. Section 15 of the Act provides for commutation of service. By sub section (1) it is provided : "The Collector may, with the consent of the 52 holder of a watan, given in writing, relieve him and his heirs, and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." By sub section (2) which was repealed by Act XVI of 1895, it was provided : " 'Any settlement made for this purpose before the date of this Act coming into force by any Collector or other officer acting on behalf of Government with the holder of any watan shall have the same force as if made under this Act. " Clause (3) provides : "Every settlement made or confirmed under this section shall be binding upon both the State Government and the holder of the watan and his heirs and successors. " It is clear that the watan property, if any, the hereditary ice, and the rights and privileges attached thereto, together constitute a watan and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded. Commutation of service does not therefore, in the absence of an express agreement to that effect alter the tenure of the land held as watan. By agreement, the State, for consideration, may agree to relieve the holder of the ice and his successors of the duty to perform the service for performance of which the grant was made, but the ice and the grant continue, subject to the terms of the settlement under section 15 of the Bombay Hereditary ices Act, 1874. In Appaji Bapuji vs Keshav Shamrav (1), the nature of the tenure of land held originally as (1) Bow. 53 watan.land, after commutation of service, fell to be determined before the Bombay High Court, Sargent C. J., observed at p. 23 : "What is termed a Gordon Settlement was an arrangement entered into in 1864 by a Committee, of which Mr. Gordon, as Collector, was chairman, acting on behalf of Government with the vatandars in the Southern Maratha Country, by which the Government relieved certain vatandars in perpetuity from liability to perform the services attached to their ices in consideration of a 'judi ' or quit rent charged upon the vatan lands. x x x x x x the reports of Mr. Gordon 's Committee on the Satara and Poona Districts and their correspondence with Government can, we think, leave no doubt that the settlements made by that committee, unless it was otherwise specially provided by any particular settlement, were not intended by either party to these settlements, to convert the vatan lands into the private property of the vatandars with the necessary incident of alienability, but to leave them attached to the hereditary ices, which although freed from the performance of service remained intact, as shown by the definition of hereditary ice in the declaratory Act III of 1874. " But the Commutation settlement does not confer an indefeasible title to the grantee, for the right affirmed by the settlement under section 15 (3) of the Watan Act is liable to be determined by lapse, confiscation or resumption (section 22 of the Watan Act). The State having created the watan, is entitled to put an end to the watan i. e. to cancel the watan and to resume the grant : Bachharam Datta Patil vs Vishwanath Pundalik Patil (1). Therefore if there be mere commutation of service, the watan ice ordinarily (1) ; 54 survives without liability to perform service, and on that account the character of watan property still remains attached to the grant. But the State Government may abolish the ice and release the property from its character as watan property. It is in the light of these features of the watan and the property granted for remuneration of the Watandar that the relevant provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act, have to be considered in adjudging the right to receive compensation claimed by the respondent on abolition of his watan. By section 3 of the Abolition Act, it is provided that : "With effect from and on the appointed day, notwithstanding anything contained in any law, usage, settlement, grant, sanad or order (1) all Paragana and Kulkarni watans shall be deemed to have been abolished ; (2) all rights to hold ice and any liability to render service appertaining to the said watans are hereby extinguished; (3) subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land : Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of 55 section 5 of the Watan Act or the rights of an alience thereof or any person claiming under or through him; (4) all incidents appertaining to the said watans are hereby extinguished. " The material part of section 4 provides that : "A watan land resumed under the provisions of this Act shall x x x x be regranted to the holder of the watan to which it appertained, on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land x x x x x x and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land x x x; all the provisions of the Code and rules "relating to unalienated land shall, subject to the provisions of this Act, apply to the said land:" By section 6 right to compensation in lieu of cash allowance or land revenue is granted. It provides : "6. Notwithstanding anything contained in any law, usage, settlement, grant, sanad or order, (1) a sum equal to seven times the amount of the cash allowance due to a holder on the appointed day of a watan in respect of which a commutation settlement has been effected, shall be paid to such holder; (2) in the case of any land or village, in respect of which the watan property consists of the whole or a part of the land revenue of such land or village, a sum equal to ten times the 56 amount of such land revenue shall be paid to the holder x x x x x X." Section 9 provides for assessment and payment of compensation for the abolition, extinction or modification by virtue of section 3 of rights in property not provided for in the Act. Sub section (1) provides : "If any person is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to or interest in property and if compensation for such abolition, extinguishment or modification has not been pro vided for in the provisions of this Act such person may apply to the Collector for compensation. " Sub section (2) prescribes the procedure of an application for compensation and sub section (3) precludes the grant of compensation to any person on the ground that any watan land which was wholly or partially exempt from the payment of land revenue has been under the provisions of the Act subjected to the payment of full assessment. It appears clear from the scheme of section 6 that if the remuneration of the Watandar is merely cash allowance, or part or whole of the land revenue of the land, compensation at the rate prescribed is payable to the holder on abolition of the watan. If the remuneration consists not of cash allowance or remission of land revenue, but of the land itself by the combined operation of sections 3(3) and 4 the holder of the watan land is entitled to be regranted occupancy rights as in unalienated land. Section 9 deals with the rights of persons to receive compensation for abolition, extinguishment or modification of the right or interest in watan property by virtue of the provisions of the Act, in cases where no other provision is made in that behalf in the Act. There is 57 no serious dispute raised about this being the true position in law. But two questions remain in controversy between the parties : (1) Whether the right to or interest in property of a watandar is abolished, extinguished or modified by the provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act; and (2) Whether provision for compensation for the abolition, extinguishment or modification or the right or interest in the watan land of the holder is made by any provision in the Act, so as to exclude the operation of section 9(1) of the Act. The first question presents little difficulty in its solution. Section 3 in terms provides for abolition of the watan, extinction of the ice and modification of the right in which the land is held. The abolition, extinction and modification arise by the operation of section 3 of the Act, ' and not from the exercise of the executive power of confiscation or resumption, by the State. Undoubtedly the power of resumption of a watan may be exercised under section 22 of the watan Act and such a resumption may destroy the right of the holder both to the ice and the watan land, and in the absence of any provision in that behalf no right to compensation may arise. But where the abolition of the watan is not by executive action, but by legislative decree, its consequences must be sought in the statute which effectuates that abolition. On the second question the respondent affirms the contention which appealed to the High Court that where the grant to a watandar is of the soil and 58 not merely of cash allowance or of remission of land revenue as remuneration for performance of the duties of his ice, compensation has to be awarded under section 9, for Act LX of 1950 makes no provision for payment of compensation to the watandar for abolition of his ice and rights in the land held by him. The correctness of this view is challenged by the appellant. It must be remembered that the power which the State Government always possessed by the clearest implication of section 22 of the Bombay Hereditary ices Act, 1874, of resumption is statutorily enforced by section 3 in respect of the Paragana and Kulkarni Watans. The State Government having the power to abolish a watan ice, and to resume land granted as remuneration for performance of the duties attached to the ice was not obliged to compensate the wandar for extinction of his rights. But the Legislature has, as a matter of grace, presumably because of settlements between the holders and the Government under the Gordon Settlement, provided by section 6 that cash compensation be awarded for loss of the right to cash allowance or remission of land revenue and has by section 4 Conferred upon the holder of the watan land, for loss of his right, a right to regrant of the land as occupant and free from the obligation imposed by its original tenure as watan land. Provision is also made by section 9 for awarding compensation to persons whose right or interest in property is abolished, extinguished or modified by virtue of the section, and no other provision for compensation for such extinction, abolition or modification is made by the Act. The right to cash compensation under section 9 depends upon the existence of two conditions : the abolition, extinction or modification of rights in property by virtue of the provisions of the Act; and the absence of any other provision in the Act for compensation in that behalf. If, therefore, section 4 which provides for conferment of occupancy rights in land, be regarded as a provision for compensation for abolition, extinction or modification of the 59 right to hold it as watan land, the residuary enactment in section 9 will not on the plain terms be attracted. By the operation of section 3 all Paraganas and Kulkarni watans falling within the Act are abolished, the right to hold ice is extinguished, and the land granted as remuneration for performance of service is resumed. The holder of the land is thereafter liable to pay land revenue, and is entitled, on payment of the occupancy price at the prescribed rate, to be regranted occupancy rights as if it is unalienated land. The right so conferred is, though not a right to cash compensation, a valuable right of occupancy in the land. By the resumption of watan land and regrant thereof in occupancy right, all the restrictions placed upon the holder of watan land are by the provisions of the Watan Act, and the terms of the grant, statutorily abolished. But the right of occupancy granted by section 4 adequately compensates the holder for loss of the precarious interest of a watandar, because the land regranted after abolition of the watan, is held subject only to the restrictions imposed by sub section (2) of section 4, and is freed from the incidents of watan tenure, such as restriction on alienation beyond the life time of the holder, devolution according to the special rule of succession, and the liability to confiscation or resumption. In our judgment, compensation contemplated to be awarded, not as a matter of right but as of grace, is not merely money compensation; it includes grant of occupancy rights which compensates for the loss of ice and the interest of a watandar in the land. By section 4 the Legislature has granted for the loss suffered by the watandar on abolition of the watan and the rights in watan land, a right of occupancy in the land which may properly be regarded as compensating him for the abolition of his rights. Provision for levy of what is substantially a nominal occupancy price will not detract from that character. After the commutation settlement, the holder being relieved of the obligation to perform service, the ice of wandar survives in name only, but the land 60 granted as walan remains subject to the restrictions imposed by the Watan Act. by the regrant of the land in occupancy right, on abolition or extinction of the watan, the holder is not in truth prejudicially affected. Loss of watan rights in land, and the watan ice is compensated by the regrant of occupancy rights in the land. It would, therefore, be reasonable to infer that the Legislature contemplated the grant of compensation under sub section (2) of section 9 for abolition, extinction or modification of rights other than the rights of the watandar to land or to cash allowance or remission of land revenue. The appeal is therefore allowed and the order passed by the High Court set aside. We are informed at the Bar that the respondent has not claimed right of occupancy in the land which was previously held by him as watan land be granted to him. Whether he will be entitled thereto in view of his failure to make a claim to a regrant is a matter on which we express no opinion. Having regard to the circumstances, we direct that there will be no order as to costs throughout. Appeal allowed.

The accused lodged information at a police station that X had beaten and throttled his mother to death and when the funeral pyre was in flames he entered the cremation ground with the police. The dead body was examined and the complaint was found to be false. On the complaint of X, the accused was charged with offences under section 297, Indian Penal Code (trespass to wound religious feelings) and section 500 Indian Penal Code (defamation). It was contended that, as the complaint disclosed offences under sections 182 and 211, Indian Penal Code, the Court could not take cognizance of the case except on a complaint by the proper authority under section 195, Criminal Procedure Code: Held, (i) that the facts which constituted the offence tinder section 297 were distinct from those which constituted an offence under section 182, as the act of trespass was alleged to have been committed after the making of the false report, so section 195 was no bar to the trial of the charge under section 297. (ii)As regards the charge under section 500, where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of section 195, Criminal Procedure Code, from seeking redress for the offence committed against him. Satish Chandra Chakravarti vs Ram Dayal De ; Hori Ram Singh vs The Crown [1939] F.C.R. 139 referred to. Section 195 cannot however be evaded by the device of charg ing a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code.

No. 55 of 1954. Under article 32 of the Constitution for the enforcement of fundamental rights. N. C. Chatterjee, (J. B. Dadachanji and Rajinder Narain, with him) for the petitioners. K. V. Tambe and I. N. Shroff for the respondent. April 5. The Judgment of the Court was delivered by JAGANNADHADAS J. This is a petition under article 32 of the Constitution and is presented to this Court under the following circumstances. Petitioner No. I before us was an Agricultural Demonstrator of the Government of Madras and was employed as an Assistant Marketing Officer in Central Provinces and Berar for the purchase and movement of blackgram and other grains on behalf of the Madras Government. He, as well as the second petitioner and 44 others, are under prosecution before Shri K. E. Pandey, a Special Magistrate of Nagpur, Madhya Pradesh, in Case No. I of 1949 pending before him on charges of cheating, attempt to commit cheating, criminal breach of trust 22 170 and criminal conspiracy, (i.e., for offences punishable under section 420 read with section 120 B or 109 of the Indian Penal Code, section 409 and section 409 read with section 120 B of the Indian Penal Code) and the allegation is that by reason of the acts committed by the accused, the Government of Madras had to incur an expenditure of Rs. 3,57,147 10 0 in excess of the amount due. The Special Magistrate before whom the case is now pending was appointed by the Madhya Pradesh Government under section 14 of the Criminal Procedure Code, and as the first petitioner was a servant of the Government of Madras, the prosecution against him has been initiated by sanction given by the Government of Madras under section 197(1) of the Criminal Procedure Code. The validity of the prosecution is challenged on various grounds, and the present petition is for quashing the proceedings on the ground of their invalidity. The three main points taken before us are: (1) Section 14 of the Criminal Procedure Code, in so far as it authorises the Provincial Government to confer upon any person all or any of the powers conferred or conferrable by or under the Code on a Magistrate of the first, second or third class in respect of particular cases and thereby to constitute a Special Magistrate for the trial of an individual case, violates the guarantee under article 14 of the Constitution; (2) The sanction given under section 197(1) of the Criminal Procedure Code for the prosecution as against the first petitioner is invalid, inasmuch as the order of the Madras Government granting the sanction does not disclose that all the facts constituting the offences to be charged were placed before the sanctioning authority ; nor does the sanction state the time or place of the occurrence or the transactions involved in it, or the persons with whom the offences were committed. This contention is raised relying on the Privy Council case in Gokulchand Dwarkadas Morarka vs The King(1); (3) Even if the sanction under section 197 (1) of the Criminal Procedure Code is valid, it is for the very Government which accords the sanction to specify also the Court before (1) A.I.R. 1948 P.C. 82. 171 which the trial is to be held under section 197(2) and in the absence of any such specification by the said Government, the power under section 14 of the Criminal Procedure Code of appointing a Special Magistrate for the trial of the case cannot be exercised by the Madhya Pradesh Government. These points may now be dealt with seriatim. In support of the objection raised under article 14 of the Constitution, reliance is placed on the decision of this Court in Anwar Ali Sarkar 's case (1). That decision, however, applies only to a case where on the allotment of an. individual case to a special Court authorised to conduct the trial by a procedure substantially different from the normal procedure, discrimination arises as between persons who have committed similar offences, by one or more out of them being subjected to a procedure, which is materially different from the normal procedure and prejudicing them thereby. In the pre sent case, the Special Magistrate under section 14 of the Criminal Procedure Code has to try the case entirely under the normal procedure, and no discrimination of the kind contemplated by the decision in Anwar Ali Sarkar 's case (1) 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 not hit by article 14 of the Constitution. There is, therefore, no substance in this contention. As regards the second ground which is put forward on the authority of the Privy Council case of Gokulchand Dwarkadas Morarka vs The King(2), it is admitted that the trial has not yet commenced. The Privy Council itself in the case mentioned above has recognised that the lacunas, if any, in the sanction of the kind contemplated by that decision can be remedied in the course of the trial by the specific evidence in that behalf. Learned counsel for the State, without conceding the objection raised, has mentioned to us that evidence in that behalf will be given at the trial. It is, therefore, unnecessary to decide the point whether or not the sanction, as it is, and without such evidence is invalid. (1) ; (2) A.I.R. 1948 P.C. 82. 172 It is the third point that has been somewhat seriously pressed before us. The contention of learned counsel for the petitioners is based on sub section (2) of section 197 of the Criminal Procedure Code, which runs as follows : " The Governor General or Governor, as the case may be, exercising his individual judgment may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate, or public servant is to be conducted, and may specify the Court before which the trial is to be held. " The argument is that it is for the very Government which sanctioned the prosecution under section 197(1) to specify the Court before which the trial is to be held and no other, and that consequently, in a case to which section 197(1) applies, the exercise of any power under section 14 is excluded. It is said that though the exercise of the power under section 197(2) in so far as it relates to specification of the Court is concerned is discretionary and optional, but if in an individual case, that power is not exercised, it must be taken that the appropriate Government did not feel called upon to allot the case 'to any special Court, and that, therefore, such allotment by another Government under section 14 would affect or nullify the power of the appropriate Government under section 197(2). It is also suggested that such dual exercise of the power by two Governments would be contrary to the policy underlying section 197 which is for the protection of the public ser vant concerned, by interposing the sanction of the Government between, the accuser and its servants of the categories specified therein. This argument is farfetched. In the first instance, there is no reason to think that section 197(2) is inspired by any policy of protection of the concerned public servant, as section 197(1) is. There can be no question of protection involved by an accused being tried by one Court rather than by another at the choice of the Government. The power under section 197(2) appears to be vested in the appropriate Government for being exercised, on grounds of convenience, or the complexity or gravity of the case or other relevant considerations. The argument as to 173 the implication of non exercise of the power by the appropriate Government under section 197(2) is also untenable. The power to specify a Court for trial in such cases is a permissive power, and there can be no such implication, as is contended for, arising from the non exercise of the power. This entire argument, however, is based on a misconception of the respective scopes of the powers under, section 197(2) and section 14. The one relates to the "Court" and the other to the "Person". Under sub section (2) of section 197, the sanctioning Government may specify a. Court for the trial of the ' case but is not bound to do so. When it does not choose to specify the Court, the trial is subject to the operation of the other provisions of the Code. But even when it chooses to exercise the power of specifying the Court before which the trial is to be held, such specification of the Court does not touch the question as to who is the person to function in such Court before which the trial is to take place. That is a matter still left to be exercised by the Provincial Government of the area where the trial is to take place. 'The argument of learned counsel proceeds on treating the word "Court" in sub section (2) of section 197 as being the same as a "person" in sub section (1) of section 14, for which there is no warrant. There is accordingly no substance in this contention. In addition to the above three points, learned counsel for the petitioners has also raised a further point that in the present case Shri K. L. Pandey who was first appointed as a Special Magistrate for the trial of the case, and to whose file on such appointment this case was transferred, was later on appointed as acting Sessions Judge for some time and ceased to have this case before him. He reverted back from his position as acting Sessions Judge to his original post. The point taken is that without a fresh notification appointing him as Special Magistrate and transferring the case to him as such, he cannot be said to be seized of this case as Special Magistrate. Here again, learned counsel for the State informs us, without conceding the point so taken, that he is prepared to advise the Government 174 to issue the necessary notification and have the case transferred. In view of that statement, it is unnecessary to pronounce on the objection so raised. In the result, all the points raised on behalf of the petitioners fail, and this petition must be dismissed. It is desirable to observe that the questions above dealt with appear to have been raised before the High Court at previous stages by means of applications under article 226 and decided against. No appeals to this Court have been taken against the orders therein. Nothing that we have said is intended to be a pronouncement as to the correctness or otherwise of those orders, nor to encourage the practice of direct approach to this Court (except for good reasons) in matters which have been taken to the High Court and found against, without obtaining leave to appeal therefrom. Petition dismissed.

D, a Sidhu Jat of Muktsar Tahsil, Ferozepore District, Punjab was tile last male holder of certain land in that area. He was succeeded by his widow after whose death, the land was mutated in favour of D 's collaterals in the 5th degree. D 's daughter filed a suit for a declaration that she was the legal heir of .he land and was entitled to inherit to the exclusion of the collaterals. The trial court held that the land was not ancestral but the defendants were preferential heirs under the custom of the district. The decree was affirmed by the first appellate court. In second appeal, however, the High Court decided in favour of the plaintiff holding that the general custom recorded in Rattigan 's Digest had not been shown to be displaced by any special custom in the Riwaj i am, The defendants appealed. HELD : The entries in the Riwaj i am on which the appellants relied, did not refer at all to non ancestral property and were therefore not relevant evidence to establish a special custom among the Sidhu jats of Muktsar Tahsil of Ferozepore District entitling collaterals for succession to non ancestral property in preference to daughters. The appellants had not discharged the onus which lay upon them of proving that the general custom had been varied by a special custom enabling the collaterals to exclude the daughters. It was manifest therefore that the customary law among the Sidhu Jats of Muktsar Tahsil of Ferozepore district Is regards non ancestral property was the same as recorded generally for the State of Punjab in Paragraph 23 of Rattigan 's Digest i.e. a daughter is preferred to collaterals. [657 G H] Mst. Rai Kaur vs Talok Singh, A.I.R. 1916 Lab. 343, Budhi Prakash vs Chandra Bhan, A.I.R. 1918 Lab. 225, Narain vs Mst. Gaindo, A.I.R. 1918 Lab. 304, Fatima Bibi vs Shah Nawaz. A.I.R. 1921 Lab. 180, Abdul Rahiman vs Mst. Natho, I.L.R. [1932] 13 Lab. 458, Mst. Hurmate vs Hoshiaru, I.L.R. 25 Lab. 228 and Mst. Subhani vs Nawab and Ors. , 68 I.A. 1, referred to. (ii) Even on the assumption that the Riwaj i am entries referred to the non ancestral property of the last male holder the appellants could not succeed. For though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness, the quantum of evidence necessary to rebut this presumption would vary with the facts and circumstances of each particular case. Where, for instance, the Riwaj i am laid down a custom in consonance with the general agricultural custom of the State, very strong proof would be required to displace this presumption, but where, on the & her hand, this was not the case, and the custom as recorded in the Riwaj i am was opposed to the rules generally 652 prevalent the presumption would be considerably weakened. Likewise, when the Riwaj i am affected adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weaker still, and very little evidence would suffice to rebut it. [658 B D] Har Narain vs Mst. Deoki, (1893) 24. P.R. 124. Sayad Rahim Shah vs Sayad Hussain Shah, (1901) 102 P. R. 353, Bholi vs Man Singh, ( 1908) 86 P. R. 402 and Mahant Salig Ram vs Mst. Maya Devi , referred to. (iii)In. the present case the High Court bid mentioned three instances in its judgment which showed that the presumption attaching to Riwaj i am had been rebutted in this case. The appellant 's defendants had not relied upon any instances in support of their case. The High Court therefore rightly decided in favour of the plaintiffs. [660 C D] Mst. Rai Kaur vs Talok Singh, A.I.R. 1916 Lah. 343, Ratta vs Mst Jai Kaur, and R.F.A. No. 220 of 1954 decided by the Punjab High Court on April 11 1961, referred to.

etition No. 254 of 1974. Petition under Article 32 of the Constitution of India. section K. Gambhir, for the petitioner. P. K. Chatterjee and G. section Chatterjee, for the respondent. , The particulars of the ground of detention refer to a single incident described thus: "That on 24 5 72 at about 10 35 hrs. you along with your associates broke BEX Wagon No. WR 75961 loaded with food grains at Mathurapur Goods sidings and decamped with 10/12 bags of wheat and rice. Your action caused disruption of supply and services". After the rule issued in this habeas coprus petition was served on the respondent, the State of West Bengal, the District Magistrate filed a counter affidavit in answer to the petition. Paragraph 5 of the aforesaid affidavit says that the order of detention was passed after the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community; that the District Magistrate was satisfied that if the petitioner was not detained he was likely to act in a manner described above; and that : "The nature of act, the manner in which the same was committed, the effect and result of said activity upon the community and the question of supply of food grains were taken by me into consideration before making the order of detention". Learned counsel appearing on behalf of the petitioner argues that the petitioner was ordered to be detained on the basis of a single, isolated incident and that no reasonable person could possibly come to the conclusion that it was necessary to detain the petitioner in order to prevent him from acting prejudicially to the maintenance of supplies and services essential to the community. This submission, in our opi nion, is well founded and must be accepted. in Debu Mahato vs State of West Bengal(1), the Distt. Magistrate had passed an order directing that the petitioner therein be detained with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. Only one ground of detention was set out, namely, that the petitioner and his associates were found removing three bales of empty jute bags after breaking open a. railway wagon and that when challenged by the Railway Protection Force they fled away leaving the booty behind. A Bench consisting of three learned Judges held that though it could not be laid down as &a invariable rule that in no case can a single, solitary act form the basis for reaching the satisfaction that the detenu might repeat such acts in future, in the circumstances of the particular case one solitary isolated act of wagon breaking committed by the petitioner could not possibly persuade any reasonable person to reach the satis faction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking. This conclusion was not reached by the Court on the basis that what was stolen was empty jute bags. The conclusion is based on the circumstance that (1) 451 what was alleged against the petitioner was his involvement in a solitary, isolated act of wagon breaking and secondly, nothing was said by the District Magistrate in his counter affidavit suggesting that wagon breaking had become so rampant that in the context of the peculiar situation, the District Magistrate arrived at the requisite satisfaction in spite of the fact that the act on which the satisfaction was founded was just one single, solitary act of wagon breaking. No two cases can have precisely indentical facts but we are unable to see any material distinction in the facts of the case before us and the facts in Debu Mahato 's case. A single act has been attributed to the petitioner and it consists of a theft of 10 or 12 bags of wheat and rice after breaking open a wagon. The act was not accompanied by violence or by show of force and the District Magistrate has not stated in his affidavit that by reason of the peculiarity or enormity of the situation, he formed the requisite satisfaction as regards the necessity to detain the petitioner, even though the satisfaction was founded on an isolated incident. Mr. Chattarjee who appears on behalf of the State of West Bengal, argues that the judgment of this Court in Debu Mahato 's case was predominantly influenced by the consideration that the District Magistrate in his counter affidavit had stated that the petitioner was "one of the notorious wagon breakers" and was engaged in systematic breaking of railway wagons. We are unable to agree. Two ground s were urged in Debu Mahato 's case for invalidating the detention order. The first 'ground was that the District Magistrate could not have possibly reached the satisfaction on the basis of a single incident that unless the petitioner was detained, he would indulge in further acts of wagon breaking. While considering this argument, no reference at all was made by the Court to the fact that in the counter affidavit, the District Magistrate had referred to circumstances which were not disclosed to the detenu. Having held that the order was liable to be set aside on the ground that the satisfaction of the District Magistrate was truly no satisfaction at all, the Court proceeded to consider the second ground of attack , namely, that the order of detention was based on facts not disclosed to the petitioner. That is why the judgment on the second ground of attack begins by saying : "There was also another angle from which the validity of the order of detention was challenged on behalf of the petitioner". It is manifest from the judgment that the order of detention was held to be bad on two separate and distinct grounds and the reasons which weighed with the Court on the second aspect of the matter did not influence its decision on the first ground of attack. Counsel for the State then urged that the sufficiency of grounds of detention is not a justiciable issue and all that the Courts can consider is whether the grounds of detention are germane to the purpose for which the detention has been ordered. Learned counsel argues that if wagon breaking for the purpose of committing theft of foodstuffs bears nexus with the maintenance of supplies and services essential to the community, the detention must be upheld at all events and the Courts have no jurisdiction to enter into the question whether any 255SuP.Cl/75 452 other conclusion was possible on the basis of facts placed before the detaining authority. It is true that Courts cannot sit in appeal over the propriety of detention orders. But the argument of the State overlooks the distinction between the Court 's jurisdiction in regard to the sufficiency of grounds necessitating the detention and its jurisdiction to examine whether a reasonable person could at all reach the conclusion that unless the person w is detained he would in all probability indulge in a similar course of conduct. We are not concerned to consider whether the District Magistrate was justified in passing the order of detention on the strength of the material available to him. So long as the grounds of detention are germane to the purpose of detention, Courts do not weigh the evidentiary value of the data placed before the detaining authority in order to determine the sufficiency of that data as justifying the order of detention. The point of the matter is that considering the nature of the act attributed to the petitioner and its context, and not merely the fact that the ground of detention refers to a single incident, the satisfaction reached by the District Magistrate that the petitioner, unless detained, was likely to commit similar acts in the future is such as no reasonable person could possibly reach. The conclusion that the past conduct of the detenu raises an apprehension regarding his future behaviour must at least be rational. Accordingly, we set aside the order of detention, make the rule in this petition absolute and direct that the petitioner shall be released forthwith. P.H.P. Petition allowed.

The petitioner was detained under the Maintenance of Internal Security Act on the ground that on a particular day he along with his associates broke open a railway wagon loaded with foodgrains. The petitioner in Writ Petition filed in this Court under article 32 contended that he was detained on the basis of a single isolated incident and that no reasonable person could possibly come to the conclusion that it is necessary to detain the petitioner in order to prevent him from acting prejudicially to the Maintenance of Supplies and Services essential to the community. It was contended by the respondent that the sufficiency of grounds of detention is not a justiciable issue and all that the courts can consider is whether the grounds of detention are germane to the grounds on which the detention has been ordered. If wagon breaking for the purpose of committing theft of foodstuffs bears nexus with the maintenance of supplies and services essential to the community, the detention must be upheld at all events and the courts have no jurisdiction to enter into the question whether any other conclusion was possible on the basis of facts placed before the detaining authority. Setting aside the detention, HELD : Following the decision of this Court in Debu Mahato vs State of West Bengal, , it is true that the courts cannot sit in appeal over the propriety of a detention order. But there is a distinction between the Court 's jurisdiction in regard to the sufficiency of grounds necessitating the detention and its jurisdiction to examine whether a reasonable person could at all reach the conclusion that unless a person was detained he would in all probability indulge in a similar course of conduct. So long as the grounds of detention are germane to the purpose of detention courts do not weigh the evidentiary value of the data placed before the detaining authority. In the present case, no reasonable person can come to the conclusion on the basis of a solitary act of wagon breaking that it is necessary to detain the petitioner. Considering the nature of the act attributed to the petitioner and its context and not merely the fact that the ground of detention refers to a single incident the satisfaction reached by the District Magistrate that the petitioner, unless detained, was likely to commit similar acts in the future, is such as no reasonable person could possibly reach. The conclusion that the past conduct of the detenu raises apprehension regarding his future behaviour must at least be rational. [452A BD]

l Appeals Nos. 1567 of 1968, 585 to 1026 and 1027 to 1082 of 1969. Appeals by special leave from the orders dated March 28, 1968 and July 20, 1968 of the Labour Court (11), U.P., Lucknow in Misc. Cases Nos. 102 of 1965 etc. M. C. Chagla, Harish Chandra, H. K. Purl and Bishambar Lal for the appellant (in all the appeals). J. P. Goyal and V. C. Prashar, for respondent No. 1 (in all the appeals). section P. Nayar, for the Attorney General (in C.As. 585 to 1026 and 1027 to 1082 of 1969). The Judgment of the, Court was delivered by Shah, J. These three groups of appeals arise out of orders made by the Presiding Officer, Labour Court (11), U.P., Lucknow awarding retrenchment compensation to certain employees of the U.P. Electric Supply Company Ltd. (in liquidation). In the last group of appeals orders of the Labour Court awarding in addition thereto compensation for earned leave not enjoyed by the employees are also challenged. The U.P. Electric Supply Company Ltd. hereinafter called the Company ' held two licences issued in 1914 by the Government of U.P. for generating and distributing electricity within thetowns of Allahabad and Lucknow. The periods of the licenses expired in 1964. Pursuant to the provisions of paragraph 12(1) in each of the said licenses and in exercise of the power under section 6 of the , the State Electricity Board, U.P. hereinafter referred to as "the Board took over the undertaking of the Company at Allahabad and Lucknow from the mid night of September 16, 1964. The Company accordingly 510 ceased to carry on the business of generation and distribution of electricity in the areas covered by the original licences. All the workmen of the undertakings at Allahabad and Lucknow were taken over in the employment of the Board with effect from September 17, 1964, without any break in the continuity of employment. On December 22, 1964, 443 workmen employed in the Allahabad undertaking filed before the Labour Court, applications under section 6 H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice. The work men submitted that fresh letters of appointment were issued by the Board on September 16, 1964, taking them in the employment of the Board with effect from September 17, 1964 "in the posts and positions which they previously held", but without giving credit for their past services with the Company. The workmen contended that they were entitled to retrenchment compensation and salary in lieu of notice, and prayed for computation of those benefits in terms of money and for directions to the Company to pay them the amount so computed. A group of 56 workmen employed at the Company 's undertaking at Lucknow also submitted applications under section 6H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice and also for compensation for accumulated earned leave not enjoyed by them till September 16, 1964. In the applications filed by the workmen of the Allahabad undertaking, the Labour Court awarded to each workman retrenchment compensation at the rates specified in the order and also one month 's salary and costs. To each workman of the Lucknow undertaking the Labour Court awarded retrenchment compensation at the rate specified, salary in lieu of one month 's notice, and also, wages for 30 days for earned leave not enjoyed by the workman before the closure of the undertaking, and costs. The Company has appealed to this Court against the orders with special leave. The orders for payment of retrenchment compensation are resisted by the Company on two grounds (i) that the Labour Court was incompetent to entertain and decide the applications for awarding retrenchment compensation; and (ii) that the workmen were not in fact retrenched, and in any event since the workmen were admitted to the service of the Board without break in continuity, and on terms not less favourable than the terms enjoyed by them with the Com 511 pany, the Company was under no liability to pay retrenchment compensation. Some argument was advanced before us that in determining matters relating to the award of retrenchment compensation, the provisions of the , and not the U.P. , apply. The question is academic, because on the points in controversy between the parties, the statutory provisions of the , and the U.P. , are substantially the same. We may, however, briefly refer to this argument since, relying upon a judgment of this Court to be presently noticed, counsel for the workmen insisted that section 33 C(2) of the alone may apply. After the enactment of the , by the Dominion Parliament, the U.P. , was enacted by the Provincial Legislature. The scheme of them two Acts is substantially the same. Chapter V A relating to layoff and retrenchment was added in the by Act 43 of 1953 with effect from October 24, 1953. From time to time amendments were made in the provisions of the Act. By section 25 J (2) it was provided "For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be deter mined in accordance with the provisions of this Chapter. " After this sub section was incorporated in the , a group of sections including section 6 R were incorporated in the U.P. by U.P. Act 1 of 1957. Section 6 R(2) provided : "For the removal of doubts, it is hereby declared that nothing contained in Sections 6 H to 6 R shall 'be deemed to affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Sections 6 H to 6 Q." By virtue of section 6 R(2) the provisions of the U.P. , prima facie, apply in the matters of lay off and retrenchment, because under the Seventh Schedule to the Constitution 512 legislation in respect of "Trade Unions, Industrial and Labour Disputes" falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation. Whereas by adding section 25 J(2) it was enacted that under the , the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Ch. V A of that Act, by the U.P. Act as amended by Act 1 of 1957, section 6 R(2) enacts that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of sections 6 J to 6 Q. Competence of the State Legislature to enact section 6 R(2) is not denied. Act 1 of 1957 received the assent of the President and by virtue of article 254(2) of the Constitution section 6 R(2) of the U.P. Act prevails, notwithstanding any prior law made by the Parliament. The provisions of the U.P. Act including section 6 R(2) therefore apply in determining the rights and obligations of the parties in respect of retrenchment compensation. The observation to the contrary made by this Court in Rohtak & Hissar Districts Electric Supply Company vs State of U.P. (1) which primarily raised a dispute relating to the validity of certain model standing orders proceeded upon a concession made at the Bar, and cannot be regarded as decisive. Since the relevant provisions of the two Acts on the matter in controversy in these groups of appeals are not materially different, we do not think it necessary in this case to refer the question to a larger Bench. We, accordingly, propose to refer only to, the provisions of the U.P. Section 4 A of the U.P. Act authorises the State Government to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the First Schedule and for performing such other functions as may be assigned to them under the Act. The items specified in the First Schedule are 1. The propriety or legality of an order passed by an employer under the Standing Orders; 2 . The application and interpretation of Standing Orders 3 . Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed; 4. Withdrawal of any customary concession or privilege; (1) 513 5. Illegality or otherwise of a strike or lock out; and 6. All matters other than those, specified in the Second Schedule. " Section 4 B authorises the State Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the First Schedule or the Second Schedule. Item 10 of the Second Schedule relates to "Retrenchment of workmen and closure of establishment". Prima facie, disputes relating to retrenchment of workmen and closure of establishment fall within the exclusive competence of the Industrial Tribunal, and not within the competence of the Labour Court constituted under section 4 A. The Company had expressly raised a contention that they had not retrenched the workmen and that the workmen had voluntarily abandoned the Company 's service by seeking employment with the Board ' even before the Company closed its undertaking. The workmen contended by their petitions filed before the Labour Courts that they were retrenched, the Company contended that the workmen had voluntarily abandoned the employment under the Company because they found it more profitable to take up employment under the Board without any break in the same post and on the same terms and conditions on which they were employed by the Company. This clearly raises the question whether there was retrenchment of workmen, which gave rise to liability to pay retrenchment compensation. A dispute relating to retrenchment is exclusively within the competence of the Industrial Tribunal by virtue of item 10 of the Second Schedule to the U.P. , and is not within the competence of the Labour Court. Section 6 H of the U.P. Act provides : (1) Where any money is due to a workman from an employer under the provisions of Sections 6 J to 6 R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the com mencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue. (2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such 514 benefit should be computed may, subject to any rules that may be made under this Act be determined by such Labour Court as may be specified in this behalf by the State Government, and the amount so determined may be recovered as provided for in sub section (1). (3) Under section 6 H(2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money and the denial of liability by the Company did not affect the jurisdiction of the Labour Court. In several decisions of this Court the inter relation between sub sections (1) & (2) of section 33 C (which are substantially in the same terms as sub sections (1) & (2) of section 6 H of the U.P. ) was examined. It was held by this Court in The Central Bank of India Ltd. vs P. section Rajagopalan etc.(1) that the scope of section 33 C(2) is wider than that of section 33 C(1). Claims made under section 33 C(1) can only be those which are referrable to settlement, award or the relevant provisions of Ch. V A, but those limitations are not to be found in section 33 C(2). The three categories of claims mentioned in section 33 C(1) fall under section 33 C(2) and in that sense section 33 C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Ch. V A may also be competent under section 33 C(2). Elaborating this thesis Gajendragadkar, J., who delivered the judgment of the Court observed (pp. 155 156) "There is no doubt that the three, categories of claims mentioned in section 33C(1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V A, may also be competent under section 33C(2) and that may illustrate its wider scope. We would, however, like to indicate some of the claims which would not fall under section 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present. If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under section 33C(2). His demotion or dismissal may give rise to an industrial dispute which may (1) 515 be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre existing contract, cannot be made under section 33C(2). " The same view was reiterated in Bombay Gas Co. Ltd. vs Gopal Bhiva and Others(1). Mr. Goyal on behalf of the workmen, however, contended that in a recent judgment of this Court a different view has been expressed. He invited our attention to The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammad Khan, etc.(2). In that case the Electricity undertaking was taken over by the Government of Madras in exercise of the powers conferred by the Madras Electricity Supply Undertakings (Acquisition) Act, 1954, and the employees of the undertaking were taken over by the new employer. The employees claimed retrenchment compensation from the old employer under section 25FF, of the . It was urged before this Court that the Labour Court was incompetent to decide the claim for retrenchment compensation. This Court observed that section 25FF(b) applied as the terms of service under the new employer were less favourable than those under the old employer, and under the terms of sections 15 (1 ) & (2) of the Acquisition Act and sections 9A and 10 of the , liability to pay retrenchment compensation rested upon the previous employer and on that account the Labour Court was competent to entertain the petitions under section 33C(2). The language of section 25FF in the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company. Referring to the contention that the Labour Court was not competent to determine the liability to Day retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others(3); State Bank of Bikaner (4) ; and Jaipur vs R. L. Khandelwal Punjab National Bank Ltd. vs K. L. Kharbanda(5); Central Bank of India vs P. section Rajagopalan and Others(6); and Bombay Gas Company Ltd. vs Gopal Bhiva and Others(1), and proceeded to observe that the right (1) [1964] (2) (3) [1968] 1 S.C.R. 140. (4) (5) [1962] Supp. 2 S.C.R. 977. (6) ; 516 which has been claimed by the various workmen in their applications under section 33C(2) of the Act was a right which accrued to them under section 25FF of the Act and was an existing right at the time when those applications were made, and the Labour Court had jurisdiction to decide, in dealing with the applications under that provision, whether such a right did or did not exist. The mere denial of that right by the Company, it was said, could not take away its jurisdiction and that the order of the Labour Court was competently made. The decision in the Central Bank of India vs P. section Rajago palan and Others(1), to which we have already referred, makes it clear that all disputes relating to claims which may be computed in terms of money are not necessarily within the terms of section 33C(2). Again in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others (2 ) Shelat, J., observed : ". . that the right to the benefit which is sought to be computed under section 33C(2) must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer. Since the scope of sub section (2) is wider than that of sub section (1) and the sub section is not confined to cases arising under an award, settlement or under the provisions of Ch. V A, there is no reason to hold that a benefit provided for under a statute or a scheme made thereunder, without there being anything contrary under such statute or section 33C(2), cannot fall within sub section Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provi dent Fund and Bonus Schemes Act, 1948, which remains to be computed must fall under sub section (2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer. " That judgment clearly indicates that in order that a claim may be adjudicated upon under section 3 3C (2), there must be an existing right and the right must arise under an award, settlement or under the provisions of Ch. V A, or it must be a benefit provided by a statute or a scheme made thereunder and there must be nothing .contrary under such statute or section 3 3C (2). But the possibility of a mere claim arising under Ch. V A is not envisaged by the Court in that case as conferring jurisdiction upon the Labour Court to decide matters which are essentially within the jurisdiction of the Industrial Tribunal. (1) ; (2) [1968] 1 S.C.R. 140. 517 The legislative intention disclosed by sections 33 C ( 1 ) and 3 3 C (2) is fairly clear. Under section 33 C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch. V A, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate Government to recover of the money due to him. Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may under section 33 C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed. Section 33 C(2) is wider than section 33C(1). Matters which do not fall within the terms of section 33C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of section 33C(2). If the liability arises from an award, settlement or under the provisions of Ch. V A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33 C(2) before the Labour Court. Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon a reference, it would be straining the language of section 33C(2) to hold that the question whether there has been retrenchment may be decided by the, Labour Court. The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen. Where retrenchment is conceded, and the only matter in dispute is that by virtue of section 25FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question. In such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability. Where, however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested. In the unreported judgment of this Court in The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammed Khan, etc.(1) apparently the only argument advanced before this Court was that section 25FF applied to that case having regard to the fact that the terms of employment under the new employer were not less favourable than those immediately applicable to them before the transfer, and the Court proceeded to hold that the Labour Court was competent to determine the compensation. (1) 518 The finding that the Labour Court was incompetent to decide .the applications of the workmen would be sufficient to dispose of the appeals before us. But other arguments were advanced before us, and which have an important bearing on the claims made : we propose briefly to deal with these arguments. Assuming that the Labour Court had jurisdiction to determine the liability of the Company to pay retrenchment compensation no order awarding retrenchment compensation could still be made without recording a finding that there was retrenchment of the workmen and compensation was payable for retrenchment. Section 6 0 of the U.P. (which in its phraseology is somewhat different from section 25FF of the Industrial Disputes Act) provides : "Notwithstanding anything contained in Section 6 N no workman shall be entitled to compensation 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 employer to another Provided that (a) the service of the workman has not been interrupted by reason of the transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable 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, compensation on the basis that his service has been continuous and has not been interrupted by the transfer." In the present groups of appeals it is common ground that there was no interruption resulting from the undertaking being taken over by the Board. The agreements between the Board and the workmen to admit the workmen into employment of the Board were reached before the undertakings of the Company were taken over. The Company contended that the terms and conditions of service applicable to workmen after the transfer were not in any way less favourable to the workmen than those applicable to them immediately before the undertakings were taken ,over, and that the employer to whom the ownership or manage 519 ment of the undertakings were so transferred was, under the terms of the transfer or otherwise, legally liable to pay to the workmen, in the event of their retrenchment, compensation on the basis that their services had been continuous and had not been interrupted by the taking over. The workmen denied that claim. The Labour Court could award compensation only if it determined the matter in controversy in favour of the workmen it could not assume that the conditions of the proviso to section 6 0 were fulfilled. Section 6 0 is in terms negative. It deprives the workmen of the right to retrenchment compensation in the conditions mentioned therein. The Company asserted that the conditions precedent to the exercise of jurisdiction did not exist. The workmen asserted the existence of the conditions. Without deciding the issue, the Labour Court could not compute the amount of compensation payable to the workmen. On the assumption that the workmen had been retrenched and their claim fell within the proviso to section 6 0. It was urged by Mr. Goyal on behalf of the workmen that this plea was not raised or argued before the Labour Court, and it cannot be permitted to be raised in this Court. But this contention was raised in the reply filed by the Company, and the judgment of the Labour Court does indicate that its authority to decide that question was disputed. We are unable to hold that the objection though raised was not urged before the Labour Court, and on that account to confirm the decision of the Labour Court which until the matter in controversy was decided could not be rendered. Even if, therefore, the Labour Court was competent to entertain the dispute relating to award of retrenchment com pensation, the order made by the Labour Court must be set aside. One more contention raised at the Bar by Mr. Chagla for the Company may be considered. It was urged that the obligation to pay retrenchment compensation in the event of liability arising must in law be deemed to be taken over by the Board. In The Board of Directors of the South Arcot Electricity Distribution Company Ltd. vs N. K. Mohammad Khan, etc.(1), to which we have already made a reference, it was contended on behalf of the Electricity Company that the liability to pay retrenchment cornpensation did not fall on the licensee, but on the Madras Government. This Court held, having regard to the scheme of the Act that if retrenchment compensation is payable, it is the original undertaking which remains liable, and not the undertaking which takes over the business. Counsel however relied upon sections 6 and 7 of the , in support of his plea that the liability to pay retrenchment compensation rests upon the (1) 14Sup. Cl/69 4 520 undertaking which takes over the undertaking. Section 6 of the , provides : "(1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall (a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and (b) have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the 'Undertaking to it at the expiry of the relevant period referred to in this sub section. ln the present case notice was given of termination of the license after the expiry of the period of the original license and the Board took over the undertaking of the Company. Section 7 of the provides : "Where an undertaking is sold under section . 6 then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under sub section (6) of section 6 (i) the undertaking shall vest in the purchaser . . free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking : Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking; (ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee : Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation. " 521 It is clear that when the undertaking vests in the purchaser, any debt mortgage or similar obligation attaches to the purchase money in substitution of the undertaking. The liability to pay retrenchment compensation is a debt : if it arises on transfer it will attach to the purchase money payable to the Company in substitution for the undertaking. Sections 6 and 7 of the do not support the case of the Company that the liability is enforceable against the Board after it takes over the undertakings. The provisions of sections 57 and 57A of the Indian , also do not assist the case of the, Company. Sections 57 & 57A of the , deal with the licensee 's charges to consumers and the Rating Committees. By the Sixth Schedule dealing with financial principles and their application, it is provided by cl. TV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account. By cl. V of the Sixth Schedule it is provided : "(1) The Contingencies Reserve shall not be drawn upon during the currency of the licence except to meet such charges as the State Government may approve as being (a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented; (b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal; (c) compensation payable under any law for the time being in force and for which no other provision is made. (2) On the purchase of the undertaking, the Contingencies Reserve, after deduction of the amounts drawn under sub paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve : Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be." 522 Clause V only provides for the appropriation of the Contingencies Reserve : it requires an undertaking to hand over the Contingencies Reserve to the purchaser. If any amount of compensation is payable to the employees of the outgoing licensee under any law for the time being in force, it is chargeable to the Contingencies Reserve. If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of cl. V sub cl. (2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser. It was urged that the Contingencies Reserve has been paid over to the purchaser. There is, however, no finding by the Labour Court in that behalf. If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount. On that matter we need express no opinion at this stage. Finally it was contended and that contention relates only to the cases of 56 workmen in the Lucknow undertaking that the workmen who had not availed themselves of earned leave were ,entitled to compensation equal to thirty days wages. But we do not think that any such compensation is statutorily payable. So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen. But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave. In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure, or transfer of an undertaking, we do not think that any such compensation is payable. On the view taken by us that the Labour Court was incom petent to determine the question as to liability to pay retrenchment compensation, these appeals must be allowed and the petitions under section 6 H(2) filed by the respondents must be dismissed. There will be no order as to costs throughout. G.C. Appeals allowed.

Three shoprooms were requisitioned on April 15, 1943, under the Defence of India Rules and the requisition order inter alia stated that is the said requisitioned property shall be continued in requisition during the period of present war and six months thereafter or for such shorter period as may be specified by the Food Controller, Bombay. . Held, that on a plain and grammatical construction of cls. 2(3) and 3 of Ordinance XIX of 1946, the immoveable property which when the Defence of India Act expired on the 30th September, 1946, was subject to any requisition order effected under the Act and the rules thereunder, continued to be subject to requisition until the expiry of Ordinance, no matter whether the requisition order to which the immoveable property was subject was of a limited duration or an indefinite period. The ordinary rule is that there should be a close approxima tion between the non obstante clause and the operative portion of the section but the non obstante clause need not necessarily and always be co extensive with the operative part if it has the effect of cutting down the clear terms of an enactment.

ition No. 8353 of 1981. Under Article 32 of the Constitution of India P.P. Rao and Parijat Sinha for the Petitioners. M.M. Abdul Khader, Girish Chandra and Miss A. Subhashini for the Respondents. Medical Service in the Indian Railways is structured in ascending levels. At the base, for the purpose of this case, is the cadre of Assistant Divisional Medical Officers Class I (who before January 1, 1973 were described as Assistant Medical Officers Class II). Above them is the cadre of Divisional Medical Officers. The next above is the cadre of Medical Superintendents. Still higher rank Chief Medical Officers, and the apex of the hierarchy is held by the Director General of Medical Services. There are eight petitioners. They were Assistant Medical Officers Class II and had been confirmed in that grade, one petitioner in 19 62 and the others in 1963. During the years 1970 to 1972, the petitioners were selected by Departmental Promotion Committees for officiating appointments to the Class I posts of Divisional Medical Officers, when the Indian Railway Medical Service (District Medical Officers) Recruitment Rules, 1965 were in force. Those rules were repealed and replaced by the Indian Railways Medical Service (District Medical Officers) Recruitment Rules, 1973. Under the Rules of 1965 and the Rules of 1973, the posts of District Medical Officers were treated as selection posts. To give effect to the recommendations of the Third Pay Commission, the scales of pay of existing categories of officers were revised. The existing pay scale of Rs. 350 900 attached to the posts of Assistant Medical Officer was revised and split into two pay scales, a higher Class I scale of Rs. 700 1600 and a lower Class II scale of Rs. 650 1200. The posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the higher pay scale. A very large number of posts of Assistant Medical Officer were upgraded to the higher pay scale of Rs. 700 1600, and were designated as "Assistant Divisional Medical Officer". The petitioners were placed in the higher pay scale of Rs. 700 1600 and were designated as Assistant Divisional Medical Officers with effect from 827 January 1. 1973. The screening of over 2000 Assistant Medical Officers for the purpose of upgrading them to the higher scale kept the Screening Committee busy from 1974 to 1976 or so, and practically no recruitment was made during those year either by permanent promotion or direct recruitment to the posts of Divisional Medical Officer. The rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules, 1975. These, in their turn, yielded place to the Indian Railway Medical Service (Chief Medical Officers, Additional Chief Medical Officers, Medical Superintendents and Divisional Senior Medical Officers Recruitment Rules, 1978. Under the Rules of 1978, promotion is effected on the principle of "non selection", an expression in the Rules which is construed by the Railway administration as "seniority cum suitability". By a letter No. E (O) 1 78/SR 6/14 dated October 30, 1979 the Railway Board published a combined seniority list of Divisional Medical Officers recruited directly or by promotion. The respondents Nos. 4 to 64 were shown in that list. They include promotees as well as direct recruits. The petitioners did not find place in the seniority list. Subsequently, on the basis of their position in that seniority list, some of the respondent Divisional Medical Officers were appointed to officiate as Medical Superintendents by a Railway Board letter No. E(O)III 81 PN 6/199 dated August 31, 1981. The petitioners challenge the combined seniority list of Divisional Medical Officers and the officiating promotions to the posts of Medical Superintendents. The petitioners contend that the seniority assigned to the respondents Nos. 4 to 64 and the consequent promotions made thereafter violate Articles 14 and 16(1) of the Constitution. The grievance operates in two dimensions, against the promotee respondents and against the direct recruit respondents. We propose to consider first the grievance of the petitioners in respect of the seniority accorded to the promotee respondents as Divisional Medical Officers and their promotion to officiate as Medical Superintendents. The case of the petitioners is that the petitioners were promoted as Divisional Medical Officers much before the promotee respondents, that their promotion was made 828 by selection on the basis of merit adjudged by Departmental Promotion Committees under the Rules of 1965, that they had continued in service as Divisional Medical Officers against vacancies in permanent posts without interruption for periods ranging respectively between 8 years to 12 years, and yet the promotee respondents, who had held such posts for shorter periods, had been confirmed before the petitioners and shown senior in the seniority list and preferred for promotion as Medical Superintendents. It is contended that the petitioners should have been confirmed in the normal course, the order of their promotion against permanent vacancies. The petitioners submit that the promotee respondents have been confirmed zone wise, and such confirmation cannot serve as a proper reference for determining seniority, because when confirmation is granted zone wise, it depends on the fortuitous accrual of vacancies arise arbitrarily at different times and in different numbers in different individual zone. The petitioners contend that if the date of confirmation is adopted as the criterion, confirmation should not be reckoned on a zonal basis, but as if the vacancies arose in a single all India structure for, the petitioners say, a seniority list prepared for the purpose of Promotion to the post of Medical Superintendents, which is an all India cadre, should properly be drawn on an all India basis. The petitioners urge that if confirmation has to be considered zone wise, then for the purpose of promotion to the all India cadre of Medical Superintendents the only logical and uniform criterion should be the total length of continuous service as Divisional Medical Officers reckoned from the date of promotion. It is a criterion which makes the arbitrary chance of confirmation against fortuitous vacancies in individual zones irrelevant. Finally, the petitioners urge that for the purpose of fixing seniority in the grade of Divisional Medical Officers the seniority ruling in the grade of Assistant Medical Officers or Assistant Divisional Medical Officers is of no material significance because under the Rules in force when the Promotions in instant case were made promotions were governed by the principle of selection on the basis of merit. The respondents, on the other hand, maintain that the seniority list has been correctly prepared, that it contains the names of only those officers who were either directly recruited as Divisional Medical Officers or had been approved for permanent promotion against the quota of posts reserved for them in vacancies allotted among the individual Railways on the basis of the cadre position of each Rail 829 way, and that none of the petitioners qualified for inclusion in the seniority list as they had been promoted in an officiating capacity to temporary vacancies in the posts of Divisional Medical Officers. The respondents contend that the petitioners have no right to be treated at par with those officers who were holding permanent posts on a confirmed basis, as confirmation was made on the basis of their selection for permanent promotion as Divisional Medical Officers. It is stated that seniority was also fixed on that basis. The respondents rely on a practice, followed by the Railway Administration for several years, under which three Select Lists were prepared. List A set out the names of officers selected for substantive promotion against permanent vacancies. List B included the names of officers selected for officiating promotion against temporary vacancies. These officers were also considered subsequently by Departmental Promotion Committees for permanent promotion along with other eligible officers in the field. The petitioners were placed in list B. The third list C, bore the names of officers included in List by earlier Departmental Promotion Committees but not considered as "suitable yet" for substantive promotion by subsequent Departmental Promotion Committees. It is stated that in the Railway Administration, Class II officers were considered for substantive appointment to permanent vacancies in Class I posts for officiating appointment against temporary vacancies in Class I posts. In each case, there was a separate selection by a Departmental Promotion Committee, and the selection was made zone wise. The Departmental Promotion Committees, after considering the officers at five to six times the number of vacancies, made a selection on an assessment of their Confidential Records. It is stated that officers selected for officiating appointment, and subsequently coming within the field of consideration for permanent appointment against permanent vacancies, were also considered for selection by subsequent Departmental Promotion Committees. In this manner, it is said, all eligible Class II officers were considered for permanent appointment against permanent vacancies, and the most meritorious were selected. It is pointed out that this practice was terminated in the Medical Department of the Railways after 1972, because with effect from January 1, 1973, the Class II posts of Assistant Medical Officer were upgraded as Class I posts of Assistant Divisional Medical Officers. According to the respondents, at no time during the period ending with the year 1972, whenever Departmental Promotion Committees met for selecting officers against permanent vacancies 830 did any of the petitioners fall within the field of consideration for permanent appointment in view of their place of seniority in the class II posts. It is also submitted that the promotion of the petitioners, then Assistant Medical Officers, to the post of Divisional Medical Officers in an officiating capacity against temporary vacancies cannot be traced to the Rules of 1965 or the Rules of 1973 because those rules dealt with promotion to permanent vacancies only. Nor could the petitioners, when they became Assistant Divisional Medical Officers with effect from January 1, 1973, claim the benefit of the said Rules because those rules provided for selection of class II officers to class I posts. The respondents urge that the principle which truly governs the petitioners in the matter of promotion from the posts of Assistant Divisional Medical Officers is the principle of seniority cum suitability in the former grade embodied in the Rules of 1978. It is denied that this construction would amount to giving retrospective operation to the Rules of 1978. It is explained that when the question of preparing the seniority list arose, the Rules of 1978 were in operation, and they provided for permanent promotion on the basis of seniority cum suitability, and the rule of selection on merit operating under the earlier Rules no longer prevailed, and, in any event, could not apply when an Assistant Divisional Medical Officer, which was a Class I post, was considered for promotion to the Class I post of Divisional Medical Officer Apparently, the promotee respondents were senior to the petitioners as Assistant Medical Officers or Assistant Divisional Medical Officers, and that seniority was made the basis of permanent promotion to the grade of Divisional Medical Officers. The respondents dispute the proposition that promotion to the grade of Divisional Medical Officers must be made on the basis of the total length of service rendered as Assistant Medical Officers and Assistant Divisional Medical Officers considered on an all India basis as, they assert, promotion to vacancies has to be considered zone wise. A perusal of the Rules of 1965 shows that there were 101 posts in the grade of Divisional Medical Officers. The Rules of 1973 mention 109 posts. The posts are not divided between permanent posts and temporary posts, and we must assume that the Rules refer to permanent posts only. It appears that proceedings were taken by the Railway Administration from time to time for the promotion of Assistant Medical Officers, to the Class I posts of Divisional Medical Officers. The Railway Ministry indicated the number of existing vacancies for the purpose of permanent promotion and the number of 831 anticipated vacancies for the purpose of officiating appointment, the number under each category being specified zone wise. The selection for both categories was made on the basis of merit. It may be noted that both under the Rules of 1965 and the Rules of 1973, the posts of Divisional Medical Officers were regarded as selection posts. A Class I Departmental promotion Committee met on February 20, 1970 and considered the case of candidates who had completed five years and above of service as Assistant Medical Officers for such recruitment. Both for substantive promotion and for officiating promotion the field of choice was extended to six times the number of vacancies. Another Class I Departmental Promotion Committee met on October 22, 1971 and January 3, 1972. A third Class I Departmental Promotion Committee held its meetings on September 29 and 30, 1972, and October 3, 1972. The Minutes of the several meetings indicate that the petitioners Nos. 1 to 8 were selected for officiating a appointments, some of them being classified as "very goods" and others as "goods". They were accordingly appointed to officiate as Divisional Medical Officers on different dates in 1971 and 1972 and the petitioner No. 7, the last to be promoted, was appointed in 1974. The record shows that these were all regarded as officiating appointments to vacancies in the Class I posts of Divisional Medical Officers. There is nothing before us to indicate why the Railway Ministry sought to fill some of the vacancies in the permanent posts on a substantive basis and the others on an officiating basis. The respondents say that substantive appointments were made to permanent vacancies and officiating appointments were made to temporary vacancies. We have carefully perused the copies of the official documents placed on the record before us. They do not speak of temporary vacancies at all. Nor is there any material suggesting the need for treating some of the vacancies as temporary. There is nothing to show that the vacancies would have ceased to exist within the foreseeable future or upon the happening of some anticipated contingency. On the contrary, the petitioners have continued to fill the vacancies for several years. In the circumstances we are of opinion that the vacancies to which the petitioners were appointed should be regarded as permanents vacancies. As regards the need for making officiating appointments, it was explained during oral argument that officiating appointments were made when some of the candidates considered for substantive appointment were found to be of inferior calibre for such appointment, and, therefore, some of the vacancies were left to be filled on 832 an officiating basis. We are not impressed by the submission. The communication of the Railway Ministry to the Departmental promotion Committee specifying the number and nature of the appointments to be made was issued long before the cases of individual officers were examined for promotion. It was only after the Departmental Promotion Committee had been informed of the Railway Ministry s requirement that it commenced its task of selecting candidates for substantive appointment and for officiating appointment. The field of choice for each category, substantive appointment or officiating appointment, was demarcated by the rule that the officers to be considered would be six times the number of vacancies. According to the material placed before us by the respondents, the petitioners did not at any time fall within the field of choice for making substantive appointments. That was because their seniority in the grade of Assistant Medical Officers did not at the relevant time bring them within the field of choice for substantive appointment. They were considered for officiating appointment only, and not for substantive appointment. It was the mere statistical fact of their seniority as Assistant Medical Officers, and not there merit, that precluded their consideration for substantive appointment as Divisional Medical Officers at the relevant time. Now the petitioners had been selected for promotion by the same or similar Class I Departmental Promotion Committees as those selecting the substantively appointed Divisional Medical Officers, and in no sense were their functions and responsibilities any different from those of the substantively appointed Divisional Medical Officers. It seems to us that if from the outset the temporary vacancies had been regarded as permanent vacancies, and substantive appointments had been made instead of officiating appointments, the petitioners would have been appointed substantively to those permanent vacancies. In the entire field of choice in which they fall, they were found to be the most meritorious. Ever since their respective appointments in 1971, 1972 and 1974 the petitioners have continued to serve without interruption as Divisional Medical Officers and were doing so when this writ petition was filed in 1981. They have continued to serve in the posts for a significant number of years, and there is no indication that their appointments will come to an end merely because the vacancies have been described as temporary. There is no material to show that their confidential Records contained any adverse entries or that otherwise they were not fit on there merit for substantive appointment to permanent vacancies. Indeed, we are told that the petitioners have now been appointed 833 Divisional Medical Officers on a substantive basis. It appears that the only reason why they were not originally appointed substantively to permanent vacancies as Divisional Medical Officers is that only a limited number of substantive appointments was desired by the Railway Ministry and the petitioners were not considered for these substantive appointments because they did not fall within the field of choice, having regard to their place of seniority in the lower grade of Assistant Medical Officers. While there is no doubt that technically. according to the terms of appointment, the petitioners were appointed on an officiating basis, we are reminded of the observations of this Court in Baleshwar Prasad vs State of U.P "We must emphasis that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointments are functionally identified. If in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything, unfair of capricious in clothing him with no rights. Not so, if the post is, for certain depart mental or like purposes, declared temporary, but it is within the ken of both government, and the appointee that the temporary posts are virtually long lived. It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of the post. We must also express emphatically that the principle which has received the sanction of this Court 's pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis. " These are apposite observations bearing directly on the point before us. We may point out that they were found relevant by this Court 834 in deciding O.P. Singla vs Union of India. To our mind the petitioners are entitled to say that they should be considered at par for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity. Nothing has been placed before us to indicate why they should not be entitled to the benefits which the substantive holders of permanent posts enjoy. It seems to us that for the purpose of determining seniority among promotees the t petitioners should be treated as having been appointed to permanent vacancies from the respective date of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts. As regards the practice on which the respondents have relied, of maintaining the three lists A, and that the petitioners were shown in List as being fit only for officiating promotion against a temporary vacancy, it seems to us that the circumstance makes no difference to the view taken by us. We are of opinion that on the facts of this case, when the petitioners are continuing to hold the posts of Divisional Medical Officers for several years, the continued inclusion of their names in List is wholly meaningless. If it is true that the length of continuous service reckoned from the date of promotion furnishes the criterion for determining seniority between the petitioners and the substantively appointed Divisional Medical Officers, that principle should apply with equal vigour as between the petitioners and those promotee respondents who also began to serve, like the petitioners, in officiating appointments as Divisional Medical Officers. There is no reason why such promotee respondents, although appointed subsequently to the petitioners, should be treated as senior to them. But it is said, the date of confirmation is the material date for determining relative seniority, and the promotee respondents were confirmed before the petitioners. It appears that the Railway administration in according confirmation has been influenced by two principal factors. One is that confirmation has been considered on zone wise. Confirmation has been made as vacancies have arisen within a particular zone. The vacancies differ from zone to zone. 835 They do not arise equally in different zones, but turn on factors peculiar to each zone, such as the strength of the cadre within the zone, and the differing number of vacancies arising in different zones at different times. In other words, confirmation based on the placement of an officer within a particular zone must necessarily be determined by factors confined to that zone and unrelated to an all India standard. It is apparent that confirmations limited by such a local perspective cannot serve as a legitimate base for drawing up a seniority list intended for effecting promotions to the all India cadre of Medical Superintendents. To adopt the date of confirmation as the governing point in such circumstances is to inject an element of inequality into the very foundation of the promotion process. I is conceivable that the Railway Administration has adopted the rule of according confirmations zone wise for certain practical considerations and, therefore, we do not propose to adjudicate on the validity of that practice. But we do lay down that such confirmations cannot legitimately constitute the basic norm for drawing up a seniority list of Divisional Medical Officers for the purpose of promotion to the grade of Medical Superintendents. In the circumstances, the true principle, in our opinion, must be that seniority should be related to the length of continuous service as Divisional Medical Officers reckoned from the date of promotion to the post. This is subject of course to the exception that such service should not include any period served in a fortuitous, stop gap or ad hoc appointment. Having said this, we may advert now to the other factor which appears to have influenced the Railway administration in assigning seniority. The impugned seniority list was prepared in 1979. It was drawn up when the Rules of 1978 had come into force. It was drawn up at a time when the new rule of "non selection" embodied in the Rules of 1978. Or "seniority cum suitability" as the respondents understand it, had begun to govern promotion to the grade of Divisional Medical Officers. The Railway administration, following those rules, ignored the fact that the petitioners had been selected on their merit to those posts long before, and had occupied them all the years since. The consequence of applying the rule of seniority cum suitability in the lower grade was to wipe out all the advantage claimed by the petitioners by virtue of the several years of continuous service, and to give an ascendancy to those Assistant Medical Officers who although promoted subsequently were confirmed earlier only by 836 reason of their seniority in the lower grade. The question is whether the rule of seniority cum suitability can prevail. The point would have been capable of easy resolution but for the complexity introduced in implementing the recommendations of the Third Pay Commission. The Third Pay Commission recommended an upward revision of the scale of pay attached to different grades of posts in the Railways. In the course of implementing the recommendation in relation to the Medical Department of the Railways, the Railway Ministry issued a letter No. PC III/74/PS 1/2 dated December 31, 1974 publishing a schedule showing the revised scales of pay. The schedule contained a special provision in regard to the posts of Assistant Medical Officer. The entry read: Designation Authorised Existing rates Revised Revised rates of post Scale of of non Scale of non Pay Practising of Pay Practising allowance allowance (Rs.) (Rs.) (Rs.) Assistant 350 25 33 1/3% of 700 40 1 5 stages Medical 500 30 pay subject 900 EB Rs. 150/ Officer 590 EB to a minimum 40 1100 6 10 stages: 30 800 of Rs. 150/ 50 1250 Rs. 200/ EB 35 900 per month EB 50 (Class II) 1600 (Class I) 11 15 stages: Rs. 250/ 16th stage onwards: Rs. 300/ 650 30 1 8 stages: 740 35 Rs. 150/ 810 EB 35 880 40 1000 EB 9 13 stages: 40 1200 Rs. 200/ 14 16 stages: Rs. 250/p.m. Remarks: AMOs in the existing Class II scale of Rs. 350 900 will be screened to determine their fitness for the revised Class I scale of Rs. 700 1600 and only those found fit will be entitled to this revised Class I scale. Those not found fit will be entitled only to revised standard Class II scale of Rs. 650 1200 until they are found fit for Class I by the Screening Committee. Posts operated in the revised Class 837 I scale will be designated as "Assistant Divl. Medical Officer". Separate orders will be issued regarding the number of posts to be placed in each of the two scales from time to time. It is apparent that the post of Assistant Medical Officer originally carried the Class II scale of Rs. 350 900. That scale of pay was now substituted by two distinct scales of pay, a higher scale of Rs. 700 1300 (Class I) and a revised lower scale of Rs. 650 1200 (Class II). Both scales of pay were shown against the posts of Assistant Medical Officer. The Class I scale of Rs. 700 1600 was intended for Assistant Medical Officer who were found fit by a Screening Committee for that scale, and posts operating in that scale were designated as "Assistant Divisional Medical Officer". The Assistant Medical Officers not found fit by the Screening Committee were entitled only to the lower Class II scale of Rs. 650 1200 until they were subsequently found fit for the Class I scale by the Screening Committee. It is clear from the entry in the schedule that both groups of officers, those drawing the Class I higher scale as well as those drawing the Class II lower scale, were included under the single category "Assistant Medical Officer". All Assistant Medical Officers were screened in order to determine who among them were superior to the others for the purpose of meriting the higher of the two revised scales of pay. It was merely as a matter of convenience that Assistant Medical Officers who were allotted the higher revised scale were said to hold the posts designated as "Assistant Divisional Medical Officer Assistant", In short, all the officers comprising the two groups were Assistant Medical Officers, and an Assistant Divisional Medical Officer was nothing but an Assistant Medical Officer who drew the higher revised scale of pay. That being so, the conclusion is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by the Rules of 1965 and the Rules of 1973. Those Rules mention Assistant Medical Officers as a source of recruitment, without referring to any limiting qualification that they should be officers drawing a Class II scale of pay. The expression "Assistant Medical Officer" in those Rules is comprehensive enough to include all Assistant Medical Officers, whether drawing the Class II revised scale of pay or entitled to the Class I revised scale of pay. And all such Officers were, under those Rules, governed by the principle of selection on merit for promotion as Divisional 838 Medical Officers. It must be remembered that Assistant Medical Officers were designated as Assistant Divisional Medical Officers with effect from January 1, 1973, when the Rules of 1965 were still in force. The Rules of 1973 came into force in August, 1973. It is true that when Assistant Medical Officers were designated as Assistant Divisional Medical Officers in the revised Class I scale of Rs. 700 1600 by a notification such as Notification No. E (GP) 74/1/153 dated July 24, 1976, the notification spoke of the "appointment" of Class II Assistant Medical Officers as Assistant Divisional Medical Officers, but having regard to the terms of the schedule to the Railway University 's letter dated December 31, 1974 referred to earlier, such notification must be understood to mean that the Assistant Medical Officers had been assigned the Class I scale of Rs. 700 1600 and merely described as Assistant Divisional Medical Officers. As explained earlier, they continued to belong to the broad category "Assistant Medical Officers". In this connection, it is significant that upon Assistant Medical Officers being designated as Assistant Divisional Medical Officers under the new scheme, there was no corresponding amendment in the Rules of 1965 or the Rules of 1973. It is for the first time, under the Rules of 1978, that we find that the post of Divisional Medical Officer is described as a "non selection" post to be filled by promotion from the ranks of Assistant Divisional Medical Officers and by direct recruitment. In other words, the only Assistant Medical Officers now entitled to promotion as Divisional Medical Officers were those drawing the Class I scale of Rs. 700 1600 and designated as "Assistant Divisional Medical Officers". What is important to remember is that the new sub division of Assistant Medical Officers described as Assistant Divisional Medical Officers was deemed to have taken birth on January 1, 1973. five and a half years before the Rules of 1978 were brought into force. It could never have been intended that this class of officers should exist in a vacuum where no rules operated. There was no vacuum because they were comprehended within the expression "Assistant Medical Officer" in the Rules of 1965 and the Rules of 1973, and therefore no amendment was considered necessary in those Rules to take cognizance of this class or sub division. We hold that the principle of selection by merit, enunciated in the Rules of 1965 and the Rules of 1973 governed the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical Officer before the Rules of 1978 came into force. Both before and after January 1, 1973, 839 during the period before the Rules of 1978 came into force, the principle of "non selection", that is seniority cum suitability in the lower grade, which was provided in the Rules of 1978 did not apply to the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical officers. It is also beyond dispute that having regard to the provisions of the Rules of 1978, those Rules can apply only to promotions and appointments to the posts of Divisional Medical Officers made under them, that is from and after August 12, 1978. They cannot affect promotions and appointments already made before that date. And as the act of confirmation does not amount to a fresh appointment but merely to setting the seal of approval on an appointment already made, it must follow that the Rules of 1978 cannot be applied for the purpose of confirming promotions and appointments made under the earlier Rules. Consequently, upon all the considerations set forth earlier, the confirmation of the petitioners and all other officers appointed to the posts of Divisional Medical Officer before the Rules of 1978 came into force must be governed by the Rules of 1965 and the Rules of 1973. It may be noted that promotions and appointments made under the Rules of 1965, on the repeal of those rules by the Rules of 1973, fall to be governed by the Rules of 1973, for while repealing tho Rules of 1965 Rule 9 of the Rules of 1973 provides: "Provided that anything done or any action under the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules. " Significantly, such a saving provision is absent in the Rules of 1978. this is as clear an indication as any that the scheme under the Rules of 1978 marked a complete departure from that embodied in the earlier Rules. We hold that the confirmation of the petitioners and other officers appointed as Divisional Medical Officers fall to be considered under the Rules of 1965 or the Rules of 1973 and not under the Rules of 1978. Accordingly, the rule of seniority cum suitability cannot be applied to the petitioners and the promotee 840 respondents, and all promotee respondents who were promoted to the posts of Divisional Medical Officer subsequent to the petitioners must be regarded as junior to them, notwithstanding that they may have ranked senior to the petitioners in the grade of Assistant Medical Officers (including Assistant Divisional Medical Officers). This principle will rule even where confirmation is made zone wise, for in the absence of anything adverse in the officer 's conduct, quality of work or other relevant factor, confirmation should follow the order in which the original appointments have been made. The respondents point out that the impugned Seniority List was prepared in 1979, when the Rules of 1978 were in force, and therefore the principle of seniority cum merit was made the basis of the Seniority List. It is immaterial, in our opinion, that the Seniority List was prepared in 1979. The inter se seniority between the members of a service will ordinarily depend on the date of entry into the grade. That is an event governed by the rales of recruitment, whether it be direct recruitment or promotion on the basis of selection on merit or on the basis of seniority in the lower grade or some other factor. Where seniority is fixed in a grade according to the length of service in that grade, that implies a reference back to the date of entry. It is wholly immaterial when the Seniority List is prepared. We approach the second part of this case now. The petitioners challenge the seniority assigned to the direct recruit respondents in the impugned Seniority List. They contend that the quota prescribed for direct recruitment and for promotion under the Rules has been wrongly applied at the stage of confirmation when it should have been applied at the stage of appointment. They also contend that there is no provision for applying the principle of rotation of vacancies between direct recruits and promotees for the purpose of determining relative seniority between them. And even if it can be said that the directive issued in 1976 constitutes a valid rule of rotation, it is open to prospective operation only and cannot be applied retrospectively. Finally, the petitioners urge that the promotees should be held entitled to a weightage of five years on the basis of their service in the Class II posts of Assistant Medical Officers when considering their seniority in relation to direct recruits. 841 The case of the respondents that the inter se seniority between the direct recruit and the promotee Divisional Medical Officers has been carefully fixed with reference to the direct recruitment and promotional quotas in force from time to time, without affecting the date of confirmation of the Divisional Medical Officers. It is explained that where the promotees have been promoted in excess of their quota in a particular year, they have to be pushed down to a later year for absorption when due within their quota, and seniority has been fixed accordingly. It is pointed out that for some years direct recruitment could not be resorted to on the required scale as the restructuring of the Medical Department was under consideration with a view to improving the avenues of promotion. In consequence direct recruits appointed in later years were brought up higher in the Seniority List in order to provide them their due position according to the quota of vacancies laid down for direct recruitment. The respondents also point out that Divisional Medical Officers were allowed to count seniority only from the date of permanent absorption if such absorption was within their quota. It is stated that from 1973 onwards representations were made by and on behalf of promotees Divisional Medical Officers to give them weightage in respect of their officiating service for the purpose of seniority in the cadre of Divisional Medical Officers vis a vis the direct recruits, and after giving due consideration to those representations and taking into regard the judgment of this Court in A. K. Subraman & Ors. etc. vs Union of India & Ors., it was decided that inter se seniority between direct recruit Divisional Medical Officers and promotee Divisional Medical Officers promoted permanently should be fixed on a rotational basis with reference to the direct recruitment and promotional quotas in force from time to time. It is maintained that the impugned Seniority List was prepared on the basis of those principles. The petitioners, it is urged, cannot claim inclusion in that list as none of them had been promoted as Divisional Medical Officers on a permanent basis against the quota of seats reserved for such promotions under the relevant Rules. The claim of the petitioners to a weightage of five years of substantive service rendered in the lower grade is disputed by the respondents on the ground that the principle providing such weightage for seniority has not been applied to the Medical Department of the Railways in view of the structural pattern of the Department. 842 The objection of the Respondents that the petitioners were not appointed to the posts of Divisional Medical Officers on a permanent basis and therefore they were not entitled to inclusion in the Seniority List can be disposed of shortly. We have already held while examining the case of the petitioners vis a vis the promotee respondents that the petitioners were entitled to be treated at par with substantively appointed Divisional Medical Officers for the purpose of fixing seniority, and the circumstance that they were appointed in an officiating capacity was of no significance in this regard. We have pointed out that for determining seniority among promotees the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointments and the entire period of their officiating service should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts. We have held further that the promotee respondents appointed subsequently to the petitioners must be regarded as junior to them even though senior in the lower grade. We have detailed the reasons for taking this view. Applying the same criteria for determining the seniority between the petitioners and the direct recruits, we are of opinion that the petitioners must be held senior to the direct recruits appointed subsequently to them. In this connection, it would be permissible to quote from the judgment of this Court in O. P. Singla (Supra), where the question was of fixing seniority between temporary promotees and direct recruits: "Promotees, who were appointed under Rule 16 have been officiating continuously, without a break, as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not wake up to the necessity of converting the temporary posts into permanent ones even after some of the promotees had worked in those posts from five to twelve years. The fact that temporary posts created in the Service under Rule 16(1) had to be continued for years on end shows that the work assigned to the holders of those posts was, at least at some later stage, no longer of a temporary nature. And yet instead of converting the temporary posts into permanent ones, the authorities slurred over the matter and imperilled, though unwittingly 843 the reasonable expectations of the promotees . . It is not fair to tell the promotees that they will rank as juniors to direct recruits who were appointed five to ten years after they have officiated continuously in the posts created in the Service and held by them, though such posts may be temporary." And further: "The best solution to the situation which confronts us is to apply the rule which was adopted in S.B. Patwardhan vs State of Maharashtra ; It was held by this Court in that case that all other factors being equal, continuous officiation in a non fortuitous vacancy ought to receive due recognition in fixing seniority between persons who are recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear the same responsibilities. Since the rule of 'quota and rota ' ceases to apply when appointments are made under Rule 16 and 17, the seniority of direct recruits and promotees appointed under those Rules must be determined according to the dates on which direct recruit were appointed to their respective posts and the dates from which the promotees have been officiating continuously either in temporary posts created in the Service or in substantive vacancies to which they were appointed in a temporary capacity. " Considerable emphasis has been laid by the respondents on the fact that in the present case the pertinent Rules laid down the respective direct recruitment and promotional quotas from time to time, and it was necessary to adjust the seniority between the direct recruit Divisional Medical Officers and the promotee Divisional Medical Officers in such a way that the quotas were maintained from year to year. This implied, it is urged, the rotation of vacancies between the two classes reserving them for one or the other in an order which would ensure compliance with the quotas. The Rules themselves do not lay down any principle of rotation. They specify the quotas only. It was for the first time on May 26/27, 1976 that the Railway Ministry by its letter No. E(O)I 74/SR 6/10 directed that "the seniority of Class II officers of the Medical Department, 844 promoted to Class I Senior Scale against the quota earmarked for a particular year vis a vis the officers recruited against the direct recruitment quota for that year will be fixed on a rotational basis with reference to the direct recruitment and promotional quotas in force from time to time. " This directive, however, can be of no assistance to the respondents. It may be open to an administration to work the quota rule through a principle of rotation, but that implies that a quota rule is being actively operated and effect is being given to it. In the present case, it must be borne in mind that the quotas laid down by the Rules were not observed at all by the Railway administration, and no direct recruitment was made during the years 1973 to 1976. Indeed, the process of direct recruitment was employed on a substantial basis only from 1978 onwards. Only one officer appears to have inducted by direct recruitment into the grade in 1977 and apparently none before. The grade of Divisional Medical Officers was manned by promotees selected on their merit under the Rules of 1965 and the Rules of 1973 There was power under Rule 7 of the Rules of 1973 to relax the provisions of those Rules, which would include the provision requiring the observance of specified quotas for recruitment from promotional and from direct recruitment source It seems to us that the present case falls within the dicta of this Court in A. Janardhana vs Union of India and Others where the Court said: "We do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely, that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service." and concluded with the observations: "Even where the recruitment to a service is from more than one source and a quota is fixed for each service 845 yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long, prolix and time consuming. The Government for exigencies of service, for needs of public services and for efficient administration, promote persons easily available because in hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was borne in service and some decisions especially the ratio in Jaisinghani case as interpreted in two B.S. Gupta cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted. When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy. He emerges from the educational institution, appears at a competitive examination and starts challenging everything that had happened during the period when he has had nothing to do with service . If this has not a demoralising effect on service we fail to see what other inequitous approach would be more damaging. It is, therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or non statutory rules should not be permitted by any principle of seniority to secure a march over a promotee because that itself being arbitrary would be violative of Articles 14 and 16." In the present case, there was no direct recruitment upto 1977 for certain administrative reasons, and no observance of the quota system embodied in the prevailing Rules. The Assistant Medical Officers were pressed into service, promoted as Divisional Medical 846 Officers and were alone responsible for assuming the burden and discharging the functions and duties of those posts during all the years until direct recruitment was made. It would be grossly unjust and discriminatory in the circumstances to require them to be junior to direct recruits brought in some years later. The respondents rely on A.K. Subraman (supra). In that case, however, the facts which the Court took into consideration and upon which it proceeded to render judgment were different. The point raised in the present case falls more appropriately within the scope of the observations in A. Janardhana (supra), to which elaborate reference has been made earlier. Indeed, when A.K. Subraman (supra) was considered subsequently by this Court in P.S. Mahal vs Union of India the Court expressly referred to the exception implied in Bishan Sarup Gupta vs Union of India as the effect of a serious deviation from the quota rule, and it recorded its agreement with A Janardhana (supra). It said: "But this rotational rule of seniority can work only if the quota rule is strictly implemented from year to year. Some slight deviations from the quota rule may not be material but as pointed out by Palekar, J. in the Bishan Sarup Gupta case, "if there is enormous deviation, other considerations may arise". If the rotational rule of seniority is to be applied for determining seniority amongst officers promoted from different sources, the quota rule must be observed. The application of the rotational rule of seniority when there is large deviation from the quota rule in making promotions is bound to create hardship and injustice and result in impetmissible discrimination. That is why this Court pointed out in A.K. Subraman case that '. when recruitment is from two or several sources it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule, by itself, will not violate Article 14 or Article 16 of the 847 Constitution It is the unreasonable implementation of the same which may, in a given case, attract the frown of the equality clause. ' (SCC para 28, p.333:SCC (L&S) p.50) The rotational rule of seniority is inextricably linked up with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it regularity from year to year, it would be grossly discriminatory and unjust to give effect to the rotational rule of seniority. We agree wholly with the observation of D.A. Desai, J. in A Janardhana vs Union of India that '. where the quota rule is linked with the seniority rule if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, inequitous and improper. ' (SCC para 29, p.621 :SCC (L&S) p. 487) This was precisely the reason why the Court in the first Bishan Sarup Gupta case held that with the collapse of the quota rule, the rule of seniority set out in Rule 1 (f) (iii) also went. " In our opinion, the directly recruited Divisional Medical Officers are entitled to seniority only from the date of their entry into service and not from any anterior date, and therefore cannot enjoy a seniority above the petitioners. The date of appointment to a permanent vacancy, whether of a promotee or a direct recruit, will be the date for determining the seniority of the officer. We may also observe that there is no ground for detaining the confirmation of the petitioners merely because the quota reserved for direct recruitment has not been filled. As regards the claim to weightage made by the petitioners on the basis of their service in the lower grade of Assistant Medical Officers, we find no substance in the claim because the administrative instructions issued under the Railway Board 's letter No. E.54/SR 6/1/2 dated March 10, 1955, on which the petitioners rely, did not apply to the Medical Department of the Railways. In the result, the writ petition is allowed, the Seniority List published by the Railway Ministry 's letter No. 752 E/530 (E1A) 848 dated November 22, 1979 as well as the appointments made to the posts of Medical Superintendents by the Railway Ministry 's letter No. E(O)III 81 PM6/199 dated August 31, 1981 are quashed. The Railway administration is directed to draw up a fresh Seniority List of Divisional Medical Officers in accordance with the principles laid down in the judgment and to make fresh appointments from among the Divisional Medical Officers to the posts of Medical Superintendents. The petitioners are entitled to their costs against respondents Nos. 1, 2 and 3. A.P.J. Petition allowed.

The Indian Railways Medical Service consists of Assistant Divisional Medical Officers Class I (before January 1, 1973 described as Assistant Medical Officers Class II), Divisional Medical Officers, Medical Superintendents, Chief Medical Officers and Director General of Medical Services. The Petitioners in the writ petition who were Assistant Medical Officers Class II were confirmed, one in 1962 and the others in 1963. During the years 1970 to 72 they were selected by Departmental Promotion Committees for officiating appointments to the Class I post of Divisional Medical Officers. At that time the Indian Railway Medical Service (District Medical Officers) Recruitment Rules 1965 were applicable. Those Rules were repealed and replaced by the Indian Railway Medical Service (District Medical Officers) Recruitment Rules 1973. Under the Rules of 1965 and the Rules 1973 the posts of District Medical Officers were treated as selection posts. 819 The existing pay scale of Rs. 350 900 attached to the post of Assistant Medical Officer was revised by the Third Pay Commission and split into two A pay scales, a higher Class I scale of Rs. 700 1600 and a lower Class II scale of Rs. 650 1200 and the posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the lower pay scale. The upgraded posts in the higher pay scale of Rs. 700 1600 were designated as "Assistant Divisional Medical Officers". The petitioners were placed in the higher pay scale of Rs. 700 1600 and were designated as Assistant Divisional Medical Officers with effect from January 1, 1973. The Rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules 1975, which were further replaced by the Indian Railway Medical Service (Chief Medical Officers, Additional Chief Medical Officers, Medical Superintendents and Divisional Senior Medical Officers) Recruitment Rules, 1978. Under these Rules promotion is effected on the principle of "non selection", that is, on "seniority cum suitability" basis. The Rules of 1965 showed that there were 101 posts in the grade of Divisional Medical Officers. The Rules of 1973 mentioned 109 posts and referred to them as permanent posts only. The Railway Ministry for the promotion of Assistant Medical Officers to the Class I posts of Divisional Medical Officers indicated the number of anticipated vacancies for the purpose of permanent promotion and the number of anticipated vacancies for the purpose of officiating appointments, the number under each category being specified zone wise. A Class I Departmental Promotion Committee met on several occasions and considered the cases of candidates who had completed five years and above of service as Assistant Medical Officers for substantive promotion and for officiating promotion, the field of choice being extended to six times the number of vacancies. The petitioners were selected on the basis of merit and appointed to officiate as Divisional Medical Officers on different dates in 1971 and 1972, except petitioner No. 7 who was promoted and appointed in 1974. The Railway Board on October 30, 1979 published a combined seniority list of Divisional Medical Officers recruited directly or by promotion. Respondents Nos. 4 to 64 included both promotees and direct recruits and were shown in that list. The petitioners did not find place in the seniority list. Subsequently on the basis of that seniority list, some of the respondent Divisional Medical Officers were appointed on August 31, 1934 to of officiate as Medical Superintendents. In the Writ Petition under article 32 the petitioners challenged the validity of the combined seniority list dated 30th October, 1979 of Divisional Medical Officers and of the officiating promotions to the posts of Medical Superintendents as violative of articles 14 and 16 of the Constitution, contending: that they were promoted as Divisional Medical Officers much earlier than the promotee respondents; that their promotion was made by selection on the basis of merit 820 adjudged by the Departmental Promotion Committees under the Rules of 1965; that they had continued in service as Divisional Medical Officers against vacancies in permanent posts without interruption for periods ranging between 8 years to 12 years, and that the promotee respondents, who had held such posts for shorter periods, had been confirmed before the petitioners and shown senior in the seniority list and preferred for promotion as Medical Superintendents; that the petitioners should have been confirmed in the normal course; that the promotee respondents have been confirmed zone wise, and such confirmation cannot serve as a proper reference for determine seniority because when confirmation is granted zone wise, it depends on the fortuitous accrual of vacancies arising arbitrarily at different times and in different numbers in different individual zones; that if the date of confirmation is adopted as the criterion, confirmation should not be reckoned on a zonal basis. Promotion to the post of Medical Superintendents, which is an all India cadre post should properly be drawn on an All India basis and that if confirmation has to be considered zone wise then for the purpose of promotion to the all India cadre of Medical Superintendents the only logical and uniform criterion should be the total length of continuous service as Divisional Medical Officers reckoned from the date of promotion; that for the purpose of fixing seniority in the grade of Divisional Medical Officers the seniority in the grade OF Assistant Medical Officers or Assistant Divisional Medical Officers is of no material significance because under the Rules in force when the promotion in the instant case were made, the petitioners were governed by the principle of selection on the basis of merit; that the quota prescribed for direct recruitment and for promotion under the Rules has been wrongly applied at the stage of confirmation when it should have been applied at the stage of appointment and that there is no provision for applying the principle of rotation of vacancies between direct recruits and promotees for the purpose of determining relative seniority between them. The respondents, however contended: that the seniority list has been correctly prepared, it contains the names of only those officers who were either directly recruited as Divisional Medical Officers or had been approved for permanent promotion against the quota of posts reserved for them in vacancies allotted among the individual Railways on the basis of the cadre position of each Railway, and that none of the petitioners qualified for inclusion in the seniority list as they had been promoted in an officiating capacity to temporary vacancies in the posts of Divisional Medical Officers; that the petitioners have no right to be treated at par with those officers who were holding permanent posts on a confirmed basis, as confirmation was made on the basis of their selection for permanent promotion as Divisional Medical officers and their seniority was also fixed on that basis. According to the practice followed by the Railway Administration three select lists were prepared. List A set out the names of officers selected for substantive promotion against permanent vacancies. List included the names of officers selected for officiating promotion against temporary vacancies. The petitioners were placed in List B. The third list. List C, bore the names of officers included in List by earlier Depart mental Promotion Committees but not considered as "suitable yet" for substantive promotion by subsequent Departmental Promotion Committees. The inter se seniority between the direct recruit and the promotee Divisional Medical 821 Officers has been carefully fixed with reference to the direct recruitment and promotional quotas in force from time to time, without affecting the date of confirmation of the Divisional Medical Officers. The petitioners cannot claim inclusion in the impugned seniority list as none of them had been promoted as Divisional Medical Officers on a permanent basis against the quota of seats reserved for such promotions under the relevant Rules, and cannot get weightage of five years of substantive service rendered in the lower grade because the principle providing such weightage for seniority has not been applied to the Medical Department of the Railways. Allowing the petition, ^ HELD: 1. The seniority list published by the Railway Ministry 's letter No. 752 E/530 (EI A) dated November 22, 1979 as well as the appointments made to the posts of Medical Superintendents by the Railway Ministry 's letter No. E(O) III 81 PM6 199 dated August 31, 1981 are quashed. The Railway Administration is directed to draw up a fresh Seniority List of Divisional Medical Officers and to make fresh appointments from among Divisional Medical Officers to the posts of Medical Superintendents. [847 H; 848 A B] 2. There is nothing to indicate why the Railway Ministry sought to fill some of the vacancies in the permanent posts on a substantive basis and the others on an officiating basis. The explanation offered is that substantive appointments were made to permanent vacancies and officiating appointments were made to temporary vacancies. The documents on record do not speak of temporary vacancies at all. There is no material suggesting the need for treating some of the vacancies as temporary and to show that some vacancies would have ceased to exist within the foreseeable future or upon the happening of some anticipated contingency On the contrary, the petitioners had continued to fill the vacancies to which the petitioners were appointed should be regarded as permanent vacancies. [831 D G] 3. The explanation that officiating appointments were made when some of the candidates considered for substantive appointment were found to be of inferior calibre for such appointment and, therefore, some of the vacancies were left to be filled on an officiating basis is not plausible. The communication of the Railway Ministry to the Departmental Promotion Committee specifying the number and nature of the appointments to be made was issued long before the cases of individual officers were examined for promotion. It was only after the Departmental Promotion Committee had been informed of the Railway Ministry 's requirement that it commenced its task of selecting candidates for substantive appointment and for officiating appointment. The material produced by the respondents shows that the petitioners did not at any time fall within the field of choice for making substantive appointments. That was because their seniority in the grade of Assistant Medical Officers did not at the relevant time bring them within the field of choice for substantive appointment. They were considered for officiating appointment only, and not for substantive 822 appointment. It was the mere statistical fact of their seniority as Assistant Medical Officers, and not their merit, that precluded their consideration for substantive appointment as Divisional Medical Officers at the relevant time. [831 H; 832 A D] 4. If from the outset the temporary vacancies had been regarded as permanent vacancies, and substantive appointments had been made instead of officiating appointments, the petitioners would have been appointed substantively to those permanent vacancies. In the entire field of choice in which they fall, they were found to be the most meritorious. Ever since their respective appointments in 1971, 1972 and 1974 the petitioners have continued to serve without interruption as Divisional Medical Officers and were doing 50 when this writ petition was filed in 1981. They have continued to serve in the posts for a significant number of years, and there is no indication that their appointments will come to an end merely because the vacancies have been described as temporary. There is no material to show that their confidential Records contained any adverse entries or that otherwise they were not fit on their merit for substantive appointment to permanent vacancies. The petitioners have now been appointed Divisional Medical Officers on a substantive basis. The only reason why they were not originally appointed substantively to permanent vacancies as Divisional Medical Officers is that only a limited number of substantive appointments was desired by the Railway Ministry and the petitioners were not considered for those substantive appointments because they did not fill within the field of choice, having regard to their place of seniority in the lower grade of Assistant Medical Officers. [832 F H; 833 A B] 5. The petitioners are entitled to say that they should be considered at par, for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity. There is nothing to indicate why they should not be entitled to the benefits which the substantive holders of permanent posts enjoy. For the purpose of determining seniority among promotees the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts. [834 A C] Baleshwar Prasad vs State of UP.,[1981] 1 S.C.R. 449, 462 and O.P. Singla vs Union of India, , followed. In the instant case, as the petitioners are continuing to hold the posts of Divisional Medical Officers for several years, the inclusion of their names in List is wholly meaningless. [834 D] 7. If length of continuous service reckoned from the date of promotion furnishes the criterion for determining seniority between the petitioners and the substantively appointed Divisional Medical Officers, that principle should apply 823 with equal vigour as between the petitioners and those promotee respondents who also began to serve, like the petitioners, in officiating appointments as Divisional Medical Officers. There is no reason why such promotee respondents, although appointed subsequently to the petitioners, should be treated as senior to them. [834 F] 8. The date of confirmation is the material date for determining relative seniority. The Railway administration in according confirmation has been influenced by two principle factors. One is that confirmation has been considered zone wise. Confirmation has been made as vacancies have arisen within a particular zone. The vacancies differ from zone to zone. They no not arise equally in different zones but turn on factors peculiar to each zone, such as the strength of the cadre within the zone, and the differing number of vacancies arising in different zones at different times. In other words, confirmation based on the placement of an officer within a particular zone must necessarily be determined by factors confined to that zone and unrelated to an all India standard. It is apparent that confirmations limited by such a local perspective cannot serve as a legitimate base for drawing up a seniority list intended for effecting promotion, to the all India cadre of Medical Superintendents. To adopt the date of confirmation as the governing point in such circumstances is to inject an element of inequality into the very foundation of the promotion process. It is conceivable that the Railway Administration has adopted the rule of according confirmations zone wise for certain practical consideration and the validity of that practice need not be adjudicated on. But such confirmations cannot legitimately constitute the basic norm for drawing up a seniority list of Divisional Medical Officers for the purpose of promotion to the grade of Medical Superintendents. The principle must be that seniority should be related to the length of continuous service as Divisional Medical Officers reckoned from the date of promotion to the post; such service should not include any period served in a fortuitous, stop gap or adhoc appointment. [834 G H; 835 A E] 9. After implementation of the recommendations of the Third Pay Commission, all the officers comprising the two groups were Assistant Medical Officers, and an Assistant Medical Officer was nothing but as Assistant Medical Officer who drew the higher revised scale of pay. The conclusion is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by the Rules of 1965 and the Rules of 1973. Those Rules mention Assistant Medical Officers as a source of recruitment, without referring to any limiting qualification that they should be officers drawing a Class II scale of pay. The expression "Assistant Medical Officer" in those Rules is comprehensive enough to include all Assistant Medical Officers, whether drawing the class II revised scale of pay or entitled to the Class I revised scale of pay. And all such Officers were, under those Rules, governed by the principle of selection on merit for promotion as Divisional Medical Officers. The Assistant Medical Officers were designated as Assistant Divisional Medical Officers with effect from January 1, when the Rules of 1965 were still in force The Rules of 1973 came into force in August, 1973. It is true that when Assistant Medical Officers were designated as Assistant Divisional Medical Officers in the revised Class I scale of Rs. 700 1600 by 824 Notification No. E(GP) 74/1/153 dated July 24,1976, the notification spoke of the "appointment" of Class II Assistant Medical Officers as Assistant Divisional Medical Officers, but having regard to the terms of the schedule to the letter dated December 31, 1974 such notifications must be understood to mean that the Assistant Officers had been assigned the Class I scale of Rs. 700 1600 and merely described as Assistant Divisional Medical Officers. They continued to belong to the broad category of "Assistant Medical Officers". Upon Assistant Medical Officers being designated as Assistant Divisional Medical Officers under the new scheme, there was no corresponding amendment in the Rules of 1965 or the Rules of 1973. It is for the first time, under the Rules of 1978, that the post of Divisional Medical Officer is described as a "non selection" post to be filled by promotion from the ranks of Assistant Divisional Medical Officers and by direct recruitment. The only Assistant Medical Officers now entitled to promotion as Divisional Medical Officers were those drawing the Class I scale of Rs 700 1600 and designated as Assistant Divisional Medical Officers". The new sub division of Assistant Medical Officers described as Assistant Divisional Medical Officers was deemed to have taken birth on January 1, 1973 five and a half years before the Rules of 1978 were brought into force. It could never have been intended that this class of Officers should exist in a vacuum where no rules operated. There was no vacuum because they were comprehended within the expression "Assistant Medical Officer" in the Rules of 1965 and the Rules of 1973, and therefore, no amendment was considered necessary in those Rules to take congnisance of this class. [837 E H; 838 A G] 10. The principle of selection by merit, enunciated in the Rules of 1965 and the Rules of 1973 governed the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical Officer before the Rules of 1978 came into force Both before and after January 1, 1973, during the period before the Rules of 1978 came into force the principle of "non selection", that is seniority cum suitability in the lower grade, which was provided in the Rules of 1978 did not apply to the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers to the posts of Divisional Medical Officers. [838 G H; 839 A] 11. The confirmation of the petitioners and all other officers appointed to the posts of Divisional Medical Officer before the Rules of 1978 came into force must be governed by the Rules of 1965 and the Rules of 1973. The promotions and appointments made under the Rules of 1965, on the repeal of those rules by the Rules of 1973, fall to be governed by the Rules of 1973. [839 D E] 12. The inter se seniority between the members of a service will ordinarily depend on the date of entry into the grade. That is an event governed by the Rules of recruitment, whether it be direct recruitment or pro motion on the basis of selection on merit or on the basis of seniority in the lower grade or some other factor. Where seniority is fixed in a grade according to the length of service in that grade, that implies a reference back to the date of entry. It is wholly immaterial when the seniority list is prepared. [840 C E] In the instant case, applying the criteria for determining seniority vis a vis the promotee respondents and the petitioners to the case of petitioners and the 825 direct recruits, the petitioners must be held senior to the direct recruits appointed subsequently to them. [842 D E] O.P. Singla vs Union of India, , followed. The rules themselves do not lay down any principle of rotation. They specify the quotas only. It was for the first time on May 26/27, 1976 that the Railway Ministry by its Letter No E(O) I 74/SR 6/10 directed that the seniority of Class II officers of the Medical Department, promoted to Class I Senior Scale against the quota earmarked for a particular year vis a vis the officers recruited against the direct recruitment quota for that year will be filed on a rotational basis with reference to the direct recruitment and promotional quotas in force from time to time. " This directive, however, can be of no assistance to the respondents. It may be open to an administration to work the quota rule through a principle of rotation, but that implies that a quota rule is being actively operated and effect is being given to it. In the present case, the quotas laid down by the Rules were not observed at all and no direct recruitment was made, during the years 1973 to 1976. Indeed, the process of direct recruitment was employed on a substantial basis only from 1978 onwards. There was power under Rule 7 of the Rules of 1973 to relax the provisions of those rules, which would include the provision requiring the observance of specified quotas for recruitment from promotional and from direct recruitment sources. [843 G H; 844 A D] A. Janardhana vs Union of India & Ors., [1983] 3 S.C.C. 601, followed, and A.K. Subraman & Ors. etc. vs Union of India & Ors., [1975] 2 S.C.R. 979 inapplicable. P.S. Mahal vs Union of India, ; and Bishan Sarup Gupta vs Union of India, [1975] Supp. S.C.R 491, referred to. [847 E] 14. The directly recruited Divisional Medical Officers are entitled to seniority only from the date of their entry into service and not from any anterior date, and therefore cannot enjoy seniority above the petitioners.

Appeal No. 326 of 1957. Appeal by special leave from the judgment and order dated February 16, 1955, of the Orissa High Court in N. J. C. No. 117 of 1951. C. K. Daphtary, Solicitor General of India, K. N. Rajagopal Sastri, R. H. Dhebar and D. Gupta, for the appellants. Rameshwar Nath, section N. Andley and J. B. Dadachanji, for the respondent. May 5. The Judgment of the Court was delivered by KAPUR, J. This appeal pursuant to special leave is brought by the Commissioner of lncome tax against the judgment of the High Court of Orissa holding that the amounts received by the assessees respondents were not received in what was British India and 870 therefore not liable to income tax. The respondents at all material times were non residents carrying on business at Secunderabad which was then in the territories of the Nizam of Hyderabad. They acted as agents for the supply of gas plants manufactured by Messrs. T. V. section Iyengar & Sons, Madura, to the Nizam 's Government, and also as agents of the Lucas Indian Services, Bombay branch, for the supply of certain goods to that Government. The year of assessment is 1945 46. There does not appear to have been any written agreement between the two manufacturers and the respondents but the goods were to be supplied on a commission basis. In pursuance of this agreement the respondents received from M/s. T.V.S. lyengar & Sons, Madura, cheques drawn on the Imperial Bank of India, Madras, amounting to Rs. 35,202 in respect of all goods supplied from Madura and also from Lucas Indian Services, Bombay, by cheques drawn on Imperial Bank of India, Bombay branch, amounting to Rs. 5,302 in respect of goods supplied by them, thus making a total of Rs. 40,504. These cheques were sent by post and when received by the respondents at Secunderabad were credited in the account books of the respondents and sent to their banker G. Raghunathmal for collecting and crediting to the account of the respondents. As against these sums so deposited the respondents at once drew cheques and thus operated on these amounts deposited. In regard to the commission received from the Bombay firm it was paid into the account on December 22, 1944, but was given credit for only on January 2, 1945. The Income tax Officer assessed these sums as taxable income holding that the entire amount of Rs. 40,504 was received in British India and not at Secunderabad. An appeal was taken by the respondents to the Appellate Assistant Commissioner who upheld the order holding that income must be held to have accrued, arisen or received in British India. Against this order the respondents took an appeal to the Income tax Appellate Tribunal and it was held that the amounts were received by the respondents from Madura and Bombay firms as commission but 871 they were received at Secunderabad. The appeal was therefore allowed. The finding Of the Appellate Tribunal in their own words was: " The contention of the Appellants is that the cheques being negotiable instruments and the creditor having accepted them and passed through their books, II the receipt must be taken to be receipts in Hyderabad. We agree with the view submitted by the appellants. In Bhashyam 's Negotiable Instruments Act, 8th Edition, Revised, page 556, it is stated that it will be open to a creditor to accept a cheque in absolute payment of money due to him, in which case it will be equivalent to cash payment. That being the position it cannot be said that the income was received in British India ". At the instance of the Commissioner a reference under section 66(1) of the Act was made to the High Court of Orissa for their opinion on the following question : " Whether in the circumstances of the case, the sums of Rs. 35,202 and Rs. 5,302 received as commission from T. V. section lyengar & Sons Ltd., and Lucas Indian Services Ltd., respectively were income that accrued, arose or were received in British India ". The High Court found that the statement of case was imperfect and that the real question was different. It said : " The real question in all such cases is not merely whether the cheques were drawn on a bank in British India, and sent for collection to that bank. The question is whether when the cheques were received by the assessee having his place of business outside British India, those cheques were in fact received as absolute and final payments by way of unconditional discharge or whether they were received as mere conditional payments on realisation. The fact that cheques were drawn on a bank in British India or that they were sent for collection through a Secunderabad banker of the assessee though relevant, are not conclusive ". It therefore remitted the case to the Appellate Tribunal for submission of supplementary statement of case. It appears that at that stage the controversy was 872 confined to the question whether the cheques having been sent to Secunderabad and having been realised in British India would amount to a final discharge or an unconditional one. The Tribunal in its supplementary statement found that the course of conduct followed by the parties showed that the cheques were received from the Bombay and Madura firms in full satisfaction of the commission ascertained from time to time and due on such date. It said: " The facts that such entries were made in the assessee 's books, that the cheques were put into the bank immediately, that the bank at once gave credit to the assessee for these sums after charging discount thereon and immediately allowed the assessee to operate on those sums are significant ". Therefore the finding of fact by the Tribunal although not specific was that the receipt of the cheque by the respondents operated as full discharge of the debt due on account of commission from these two firms. The matter was decided by the High Court against the appellant and in the meanwhile this Court had given a judgment in Commissioner of Income tax vs Ogale Glass Works Ltd (1). Even after considering the decision of that case the High Court was of the opinion that the income of the respondents was not received in British India and answered the question against the Revenue. The High Court refused to give leave to appeal to this Court and it was this Court which gave special leave to appeal. The question is whether the amounts, of commission paid by cheques, drawn respectively on banks at Madras and Bombay and respectively posted from Madura and Bombay, can in the circumstances of this case be held to have been received in what was British India or at Secunderabad ? The Appellate Tribunal found that all the cheques whether from Madura or from Bombay were sent by the two respective firms from Madura or Bombay and were received by the respondents at Secunderabad and were treated as payment. The question still remains as to the effect of the sending of the cheques from Madura or Bombay by post. If there is an express request by the (1) 873 creditor that the amount be paid by cheques to be sent by post and they are so sent there is no doubt that the payment will be taken to be at the place where the cheque or cheques are posted. The respondents argued that there was an agreement between the Madura and Bombay firms and the respondents that the money would be paid whether in cash or by cheque 'at Secunderabad ' and therefore when the cheques were sent by post the post office was the agent of the debtor and not of the respondents. There is in support of the respondents an affidavit which was filed in the assessment proceedings and which was relied upon in the High Court. According to this affidavit it was verbally agreed that the commission would be paid at Secunderabad in cash or by cheque (as the case may be), the language used in the affidavit was: " The above commission was verbally decided to be paid to Messrs. Patney & Co. Ltd., Secunderabad the Agent Company in Hyderabad State at Secunderabad in cash or by cheque as the case might be ". In the case of payment by cheques sent by post the determination of the place of payment would depend upon the agreement between the parties or the course of conduct of the parties. If it is shown that the creditor authorised the debtor either expressly or impliedly to send a cheque by post the property in the cheque passes to the creditor as soon as it is posted. Therefore the post office is an agent of the person to whom the cheque is posted if there be an express or implied authority to send it by post (Commissioner of Income tax vs Ogale Glass Works Ltd. (1)). In that case there was an express request of the assessee to remit the amount of the bills outstanding against the debtor, that is, Government of India by means of cheques. But it was observed by this Court that according to the course of business usage in general which has to be considered as a part of the surrounding circumstances the parties must have intended that the cheques should be sent by post which is the usual and normal mode of transmission and therefore the posting of cheques in Delhi amounted to payment in (1) 110 874 Delhi to the post office which was constituted the agent of the assessee. But it was argued for the respondents that in the absence of such a request the post office could not be constituted as the agent of the creditor and relied on a passage in Ogale 's case (1) at p. 204 where it was observed: " Of course if there be no such request, express or implied, then the delivery of the letter or the cheque to the post office is delivery to the agent of the sender himself ". It was further contended that in this case there was an express agreement that the payment was to be made at Secunderabad and therefore the matter does not fall within the rule in Ogale Glass Works case (1) and the following principle laid down in judgment by Das, J. (as he then was), is inapplicable : " Applying the above principles to the facts found by the Tribunal the position appears to be this. The engagement of the Government was to make payment by cheques. The cheques were drawn in Delhi and received by the assessee in Aundh by post. According to the course of business usage to which, as part of the surrounding circumstances, attention has to be paid under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal 's finding they were in fact received by the assessee by post." In our opinion this contention is well founded. Whatever may be the position when there is an express or implied request for the cheque for the amount being sent by post or when it can be inferred from the course of conduct of the parties, the appellant in this case expressly required the amount of the commission to be paid at Secunderabad and the rule of Ogale Work 's case (1) would be inapplicable. The High Court judgment in our view was correct and we would therefore dismiss this appeal with costs. Appeal dismissed.

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

CIVIL APPEAL No. 2185 of 1987. From the Judgment and Order dated 4th August 1986 of the High Court of Delhi in R.F.A. No. 16 of 1986. S.N. Kacker, Awadh Behari and A.K. Sanghi for the Appellants. U.R. Lalit, R.S. Hegde and K.R. Nagaraja for the Respondents. The Judgment of the Court was delivered by SEN, J. This appeal by special leave by the defendants arises in a suit for a declaration and injunction brought by the plaintiffs and in the alternative for partition. They sought a declaration that they were the owners in possession of the portions of the property delineated by letters B2, B3, B4 and B5 in the plaint map which had been allotted to them in partition, and in the alternative claimed partition and separate possession of their shares. The real tussel between the parties is to gain control over the plot in question marked B2 in the plaint map, known as Buiyanwala gher. Admittedly, it was not part of the ancestral property but formed part of the village abadi, of which the parties were in unauthorised occupation. The only question is whether the plaintiffs were the owners in possession of the portion marked B2 as delineated in the plaint map. That depends on whether the document Exh. P 12 dated 3rd August, 1955 was an instrument of partition and therefore inadmissible for want of registration under section 49 of the Indian , or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares. The facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda. They and the defendants are the descendants of the common ancestor Chattar Singh who had two sons Jai Ram and Ram Lal. Soonda was the son of Ram Lal and died in 1966. Jai Ram in turn had two sons Puran Singh and Bhagwana. The latter died issueless in 1916 17. Puran Singh also died in the year 1972 and the defendants are his widow, three sons and two daughters. It is not in dispute that the two branches of the family had joint ancestral properties, both agricultural and residential in Village Nasirpur, Delhi 1110 Cantonment. The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, gher/ghetwar etc. The factum of partition was embodied in the memorandum of partition Exh. P 12 dated 3rd August, 1955 and bears the thumb impressions and signatures of both Puran Singh and Soonda. In terms of this partition, the ancestral residential house called rihaishi and the open space behind the same shown as portions marked A1 and A2 in the plaint map Exh. PW 25/1, fell to the share of Puran Singh. Apart from this, Puran Singh was also allotted gher shown as A3 in the plaint map admeasuring 795 square yards. Thus, the total area falling to the share of Puran Singh came to 2417 square yards. The plaintiffs ' ancestor Soonda on his part got a smaller house called baithak used by the male members and visitors, warked B1 in the plaint map having an area of 565 square yards. Apart from the house marked B1, Soonda also got ghers marked B2 to B5, demarcated in yellow in the plaint map and thus the total area got by Soonda also came to 2417 square yards. In terms of this partition, the plaintiffs claim that the parties have remained in separate exclusive possession of their respective properties. However, in February 1971 the plaintiffs wanted to raise construction over the gher marked B2 in the plaint map and started constructing a boundary wall. Defendants No. 1 3, sons of Puran Singh, however demolished the wall as a result of which proceedings under section 145 of the Code of Criminal Procedure, 1898 were drawn against both the parties about this property. The Sub Divisional Magistrate, Delhi Cantt, New Delhi by her order dated 26th April, 1972 declared that the second party, namely Puran Singh, father of defendants nons. 1 3, was in actual possession of the disputed piece of land marked B2 on the date of the passing of the preliminary order and within two months next before such date and accordingly directed delivery of possession thereof to him until evicted in due course of law. On revision, the Additional Sessions Judge, Delhi by order dated 4th March, 1974 agreed with the conclusions arrived at by the learned Sub Divisional Magistrate. On further revision, a learned Single Judge (M.R.A. Ansari, J.) by his order dated 6th Agust, 1975 affirmed the findings reached by the Courts below on condition that while party No. 2 Puran Singh would remain in possession of the property in dispute, he would not make any construction thereon. The plaintiffs were accordingly constrained to bring the suit for declaration and injunction and in the alternative, for partition. 1111 After an elaborate discussion of the evidence adduced by the parties, the learned Single Judge (D.R. Khanna, J.) by his judgment dated April 18, 1980 came to the conclusion, on facts, that the plaintiffs were the owners in possession of the property marked as B1, a smaller house known as baithak, and the disputed plot B2, and the properties, marked as A1, the ancestral residential house called rihaishi and A2, the open space behind the same, belonged to the defendants. Taking an overall view of the evidence of the parties in the light of the circumstances, the learned Single Judge came to the conclusion that the gher marked B2 belonged to the plaintiffs and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January 1971. In coming to that conclusion, he observed: "I have little hesitation that the portions marked A 1 and A 2 and B 1 and B 2 were ancestral residential houses of Ghers of the parties and Soonda and Puran had equal share in them. The residential house shown as A 1 and the open space behind that marked as A 2 were admittedly given to Puran in the partition of 1955. Similarly B 1 was allotted to Soonda. I am unable to hold that B 2 was also allotted to Puran. This would have been wholly unequitable and could not have by any stretch reflected the equal division of these joint properties. Puran in that case apart from getting the residential house for which he paid Rs.3,000 to Soonda would have also got far area in excess if defendants ' case that Gher B 2 also belongs to them is accepted. In any natural and equitable division of the properties, that allotment of the residential house marked 'A ' and the open space behind the same to Puran, Baithak B 1 and Gher No. 2 could have been naturally been given to Soonda. That it was actually done so, gets clarified in the document exhibit P1 dated 31.1.1971 which was written in the presence of a number of villagers between Puran and Soonda. " The learned Judge went on to say that the document Exh. P 12 was executed by Puran Singh and Soonda in the presence of the villagers who attested the same, and there was some sanctity attached to it. What is rather significant is that Puran Singh was required to pay Rs.3,000 as owelty money for equalisation of shares. Aggrieved, the defendants preferred an appeal under cl. 10 of the Letters Patent. A Division Bench of the High Court (D.K. Kapur, 1112 CJ. and N.N. Goswamy, J.) by its judgment dated 4th August, 1986 affirmed the reasoning and conclusion arrived at by the learned Single Judge and accordingly dismissed the appeal. Both the learned Single Judge as well as the Division Bench have construed the document Exh. P 12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to section 49 of the Act, and have referred to certain decisions of this Court in support of that conclusion. In support of the appeal, Shri S.N., Kacker, learned counsel for the appellants has mainly contended that the document Exh. P 12 is an instrument of partition and therefore required registration under section 17 of the Act. It is urged that the High Court has on a misconstruction of the terms wrongly construed it to be a memorandum of family arrangement and admissible for the collateral purpose of showing nature of possession under the proviso to section 49 of the Act. In substance, the submission is that the document does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. We regret, we find it rather difficult to accept the contention. In order to deal with the point involved, it is necessary to reproduce the terms of the document Exh. P 12 which read: "Today after discussions it has been mutually agreed and decided that house rihaishi (residential) and the area towards its west which is lying open i.e. the area on the back of rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Jaildar. House Baithak has come to the share of Chaudhary Soonda. The shortage in area as compared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side. Rest of the area of the field and gitwar will be half and half of each of co shares. The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda. Since house rihaishi has come to the share of 1113 Chaudhary Pooran Singh therefore he will pay Rs.3000 to Chaudhary Soonda. A copy of this agreement has been given to each of the co shares. D/ 3.8. 1955 Sd/ in Hindi LTI Pooran Singh Zaildar Ch. Soonda. " According to the plain terms of the document Exh. P 12, it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected. The opening words of the document Exh. P 12 are: 'Today after discussion it has been mutually agreed and decided that . . '. What follows is a list of properties allotted to the respective parties. From these words, it is quite obvious that the document Exh. P 12 contains the recital of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. So also the Panch Faisala Exh. P 1 which confirmed the arrangement so arrived at, opens with the words 'Today on 31.1.1971 the following persons assembled to effect a mutual compromise between Chaudhary Puran Singh and Chaudhary Zile Singh and unanimously decided that . . '. The purport and effect of the decision so arrived at is given thereafter. One of the terms agreed upon was that the gher marked B2 would remain in the share of Zile Singh, representing the plaintiffs. It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some 1114 right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, section 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of section 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla 's , 8th edn., pp. 54 57. The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts. The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil vs Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604. Speaking for himself and Sir Gilbert Stone, CJ. the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh vs Jagarnath Kuari LR (1932) 59 IA 130 and Subramanian vs Lutchman LR (1923) 15 IA 77 and expressed as follows: "It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit of extinguish . . any right, title or interest ' in the property which is admittedly over Rs. 100 in value. The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated." Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. in Ganpat Gangaji Patil vs Namdeo Bhagwanji Patil & Ors., ILR reiterated the same principle. See also: order cases in Mulla 's at pp. 56 57. Even otherwise, the document Exh. P 12 can be looked into under the proviso to section 49 which allows documents which would 1115 otherwise be excluded, to be used as evidence of 'any collateral transaction not required to be effected by a registered instrument '. In Varada Pillai vs Jeevarathnammal, LR (1919) 46 IA 285 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift 'because no legal title passed ' but to prove that the donee thereafter held in her own right. We find no reason why the same rule should not be made applicable to a case like the present. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. On its true construction, the document Exh. P 12 as well as the subsequent confirmatory panch faisala Exh P 1 merely contain the recitals of a past event, namely, a decision arrived at between the parties as to the manner in which the parties would enjoy the distinct items of joint family property in severalty. What follows in Exh. P 12 is a mere list of properties allotted at a partition and it cannot be construed to be an instrument of partition and therefore did not require registration under section 17(1)(b) of the Act. That apart, the document could always be looked into for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members. The matter can be viewed from another angle. The true and intrinsic character of the memorandum Exh. P 12 as later confirmed by the panch faisla Exh P 1 was to record the settlement of family arrangement. The parties set up competing claims to the properties and there was an adjustment of the rights of the parties. By such an arrangement, it was intended to set at rest competing claims amongst various members of the family to secure peace and amity. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The principle governing this was laid down by the Judicial Committee in Khunni Lal vs Gobind Krishna Narain & Anr., LR (1911) 38 IA 87. Ameer Ali, J. delivering the judgment of the Privy Council quoted with approval the following passage from the judgment in Lalla Oudh Behari Lall vs Mewa Koonwar, at p. 84: "The true character of the transaction appears to us to have 1116 been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arragement. " This view was adopted by the Privy Council in subsequent decisions and the High Courts in India. To the same effect is the decision of this Court in Sahu Madho Das & Ors. vs Pandit Mukand Ram & Anr., ; The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of section 17 read with section 49 of the as no interest in property is created or declared by the document for the first time. As pointed out by this Court in Sahu Madho Das ' case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. In the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P 12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. A mere agreement to divide does not require registration. But if the writing itself effects a division, it must be registered. See: Rajangam Ayyar vs Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai vs Gita Bai, ; It is well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that 1117 severance would ultimately affect the nature of the possession held by the members of the separated family as co tenants. The document Exh. P 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. In any view, the document Exh. P 12 was a mere list of properties allotted to the shares of the parties. In the result, the appeal fails and is dismissed with costs. P.S.S. Appeal dismissed.

% The parties are decendants of a common ancestor, who had two sons. These two branches of the family had joint properties, both agricultural and residential. The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records. This was followed by a partition of their residential properties including the house, ghers, ghetwars etc. The factum of partition was embodied in the memorandum of partition Exh. B 12 dated August 3, 1955 and bears the thumb impressions and signatures of the heads of the families, and later confirmed in the settlement dated January 31, 1971, Exh. P 1 written in the presence of a number of villagers. A dispute arose between the parties in February, 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share. In proceedings under section , the Sub Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land. In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate. On further revision the High Court affirmed the findings reached by the courts below. In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January, 1971. He construed the document Exh. p 12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to section 49 of the Act for a collateral purpose of showing nature of possession. In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107 conclusion arrived at by the Single Judge. In the appeal by special leave, it was contended for the appellants that the document Exh. P 12 does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected. It, therefore, required registration under section 17 of the . Dismissing the appeal, ^ HELD: 1. Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter. [1115B C] 2. If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor. If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of section 17 read with section 49 of the as no interest in property is created or declared by the document for the first time. it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. [1116C E] Sahu Madho Das & Ors. vs Pandit Mukand Ram & Anr., ; ; Khunni Lal vs Gobind Krishna Narain & Anr., LR (1911) 38 IA 87 and Lalla Oudh Behari Lall vs Mewa Koonwar, at p. 84 refereed to. In the instant case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records. There was thus a disruption of joint status. All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars. The document Exh. P 12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property. The parties set out competing claims to the properties and there 1108 was an adjustment of the rights of the parties. The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties. The opening words of the document are: 'Today after discussion it has been mutually agreed and decided that . ' what follows is a list of properties allotted to the respective parties. From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated. It cannot, therefore, be construed to be an instrument of partition. [1116F G; 1114C D] Section 17(1)(b) of the lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some rights in immovable property. Therefore, a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document. [1113H; 1114A] Rajangam Ayyar vs Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai vs Gita Bai, ; referred to. A document though unregistered can, however, be looked into under the proviso to section 49 of the Act which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument, for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co tenants. The document Exh. P 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide. [1116G H; 1117A] Varada Pillai vs Jeevarathnammal, LR (1919) 46 IA 285 referred to. In any view, the document Exh. P 12 is a mere list of properties allotted to the shares of the parties. It merely contains the recital of past events. It is, therefore, admissible in evidence. [1117B] Narayan Sakharam Patil vs Cooperative Central Bank, Malkapur & Ors., ILR ; Bageshwari Charan Singh vs Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian vs Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil vs Namdeo Bhagwanji Patil & Ors., ILR and Mulla 's , 8th Edn. 54 57 referred to.

minal Appeal No. 154 of 1959. Appeal by special leave from the judgment and order dated March 27, 1959, of the Mysore High Court in Criminal Appeal No. 168 of 1956. section N. Andley, J. B. Dadachanji, RameShwar Nath and Bavinder Narain, for the appellant. B. Gopalakrishnan and T. M. Sen, for the respondent. February 16. The Judgment of the Court was delivered by 130 RAGHUBAR DAYAL, J. This is an appeal by special leave against the judgment of the High Court of Mysore at Bangalore confirming the appellant 's conviction for an offence under section 5(2) of the Prevention of Corruption Act, 1947 (Act 11 of 1947), by the Special Judge, Dharwar. The appellant is alleged to have committed the offence while he was a Municipal Councillor and Chairman of the Managing Committee of the Navalgund Municipality. The only question for determination in this appeal is whether the appellant was a 'Public servant ' contemplated by section 2 of the Preven tion of Corruption Act. The contention for the appellant is that he was not such a 'public servant '. Section 2 of the Prevention of Corruption Act reads: "For the purposes of this Act, 'public servant ' means a public servant as defined in section 21 of the Indian Penal Code". Section 21 of the Indian Penal Code defines the persons coming within the expression 'public servant ' and its Tenth Clause reads: "Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district". The Rule 68 framed under the Bombay District Municipal Act, 1901 (Bombay Act III of 1901) and admittedly applicable to the appellant reads: "The Chairman of an Executive Committee shall sign payment orders on behalf of the Committee after the Committee have passed the bills and may also order payment of bills for fixed recurring charges such as pay bills in anticipation of the Committee passing them". The High Court held that the appellant, as Chairman of the Managing Committee, could expend the money of the Municipality as he could order payment of bills for fixed recurring charges and that therefore he 131 came within the purview of the expression 'public servant ' defined in the Tenth Clause of section 21 of the Indian Penal Code. The only criticism which the learned counsel for the appellant has urged against this view is that the High Court did not keep the distinction between the words ,duty ' and 'power ' in mind and that rule 68 empowers the Chairman to order payment and does not impose a duty on him to order payment. We are of opinion that the power to make payment of fixed recurring charges such as pay bills imposes a duty on the Chair. man to do so when necessary as the power it; vested in the Chairman for the benefit of the persons entitled to receive those recurring charges. Reference may usefully be made here to what was said in this connection in Julius vs The Lord, Bishop of Oxford (1). Earl Cairns, the Lord Chancellor, said in connection with the interpretation to be put on the expression 'it shall be lawful ' in a certain statute: "The words 'it shall be lawful ' are not equivocal. They are plain and 'unambiguous. They are words merely making that legal and possible which there would otherwise be no right 'or authority to do. They confer a faculty or er, and they do not of themselves do more than confer a faculty or power, But there may be something in the nature of the thing empowered to be done, something in the ob. ject for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple 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". The aforesaid power is conferred on the Chairman for the benefit of the persons who have served the Municipality and have got the right to receive their pay or money for articles provided. There may arise ciroumstances when any delay in payment may affect those persons adversely. The pay is due on the first day of (1). (1880) 5 App. 214, 222. 132 the month and it may not be convenient to fix a meet. ing of the Committee at a date for early payment of the pay due. A meeting already fixed may have to be adjourned for want of quorum. The passing of the pay bills, in the circumstances, is more or less a formal matter and therefore the rules empower the Chairman of the Managing Committee to order payment of the pay bills in anticipation of sanction by the Committee. The Chairman can exercise this power for the benefit of the employees voluntarily or when requested by those persons to exercise it. The mere fact that this power of the Chairman was to be exercised only with respect to fixed recurring charges and in anticipation of the Committee passing the bills for those charges therefore does not affect the question in any way. Clause ten of section 21 of the Indian Penal Code merely requires that the person should have the duty to expend property for certain purposes. It is not restricted to such cases only where there is no limitation on the exercise of that power of expending pro perty. The Chairman has the duty to order payment and to spend the money of the Municipality in certain circumstances. We therefore hold that the appellant was a (public servant ' when the alleged offence was committed. In view of our opipion, we do not discuss the effect of section 45 of the Bombay District Municipal Act which lays down that every municipal councillor shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, or the question whether the appellant, as a mere Municipal Councillor, comes within the definition of 'public servant ' in section 21 of the Indian Penal Code. These questions were not considered by the High Court. We therefore dismiss the appeal. Appeal dismissed.

The parties were members of a joint Hindu family possessed of considerable property movable and immovable. They volun tarily appointed Panchas to determine the shares of the parties and to divide the property. The Panchas first determined the shares of the parties and reduced the determination to writing. It was accepted by the parties and was signed by all of them and the Panchas. Thereafter, on various dates the Panchas divided several items of movable and immovable properties and the parties entered into possession of their shares. These divisions were duly entered in the " partition books " and were signed by the parties and the Panchas. The Panchas were unable to divide the remaining properties and with the consent of the parties they appointed one G to divide them. G divided some of the properties but he too was unable to divide the remaining properties. One of the parties served a notice cancelling the authority of the Panchas and filed a suit for partition of the remaining properties. Upon an application made by the plaintiff for revoking the reference the Trial Court cancelled the arbitration as one of the Panchas was unwilling to proceed with the division. Another party filed a suit for partition of all the properties contending that the division made by the Panchas was not binding as the award had not been made a rule of the court and the reference had been revoked and as the award was not registered. Held, that the divisions already made by the Panchas were binding on the parties and only the remaining properties were liable to be partitioned. By the reference to the Panchas, the 793 parties ceased to be members of the joint Hindu family. Thereafter, by the division of the family assets which was accepted by the parties and by the taking into possession of their shares by the parties, the properties came under the individual ownerships of the parties to whom they were allotted; and in respect of the remaining properties they became tenants in common. The proceedings taken by the Panchas were not revoked by the order of the trial Court revoking the reference as they had been accepted and acted upon by the parties. Where an award made in arbitration out of court is voluntarily accepted and acted upon by the parties and a suit is thereafter filed by one of the parties ignoring the acts done in pursuance of the acceptance of the award, the defence that the suit is not maintainable is not founded on the plea that there is an award which bars the suit but that the parties have by mutual agreement settled the dispute, and that the agreement and the subsequent actings of the parties are binding. Such a plea is not barred by section 32 of the Arbitration Act. The records made by the Panchas were documents which merely acknowledged partitions already made and were not required to be registered.

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

Appellant No. 1 was convicted of an offence under section 494 I.P.C. (and appellant No. 2 of abetting him) for going through a marriage which was, void by reason of its taking place during the life time of a previous wife. It was contended on behalf of the appellants that in law it was necessary for the prosecution to establish that the alleged marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through. On the other hand it was urged by the State that for the commission of an offence under section 494, it was not necessary that the second marriage should be a valid one and a person going through any form of marriage during the life time of the first wife would commit the offence; and that in any event, in the present case the rites necessary for a 'Gandharva ' form of marriage, as modified by custom prevailing among Maharashtrians, had been duly observed. HELD: (i) Prima facie, the expression 'whoever marries ' in section 494 must mean 'whoever marries validly ' or 'whoever marries and whose marriage is a valid one. If a marriage is not a valid one according to the law applicable to the parties, no question arises of its being void by reason of its taking place during the life of the husband or wife of the person marrying, [839 C D] (ii) For a marriage between two Hindus to be void by virtue of section 17 of the , two conditions are required to be satisfied, i.e. (a) the marriage is solemnised after the Act; and (b) at the date of such marriage, either party has a spouse living. Unless the mar riage is celebrated or performed with proper ceremonies and due form, it cannot be said to be 'solemnised ' within the meaning of section 17. Merely going through certain ceremonies, with the intention that the parties be taken to be married, will not make them ceremonies prescribed by law or approved by any established custom. [839 G H; 840 A C] (iii) The two ceremonies essential to the validity of a Hindu marriage, i.e. invocation before the sacred fire and sapatapadi, are also a requisite part of a 'Gandharva ' marriage unless it is shown that some modification of these ceremonies has been introduced by custom in any particular community or caste. It was not disputed that in the present case these two ceremonies were not performed when the appellant No. 1 married a second time and the evidence on record did not establish that these essential ceremonies had been abrogated by custom. The prosecution had therefore failed to establish that the second marriage was performed in accordance with the customary rites applicable. [840 H: 84 A C; 843 E G] 838 Mullas Hindu Law, 12th Edn. 605 and 615, relied upon. (iv) The facts that the two essential ceremonies may not have been performed for a period of five or seven years could not be said to have established a custom as contemplated by section 3(a) of the . [843 C E]

ivil Appeal No. 921 of 1968. Appeal by special leave from the judgment and order dated January 8, 1968 of the Kerala High Court in Writ Appeal No. 79 of 1967. 465 S.V. Gupte and A.S. Nambiar, for the appellant. Sarjoo Prasad and M.R.K. Pillai for respondent No. 1. C.M. Kuruvilla, Sardar Bahadur, Vishnu Bhadur Saharya Yougindra Khushalani, for respondent No. 2. The judgment of the Court was delivered by Bachawat, J. The appellant challenges the scheme nationalisation of road transport services in respect of 9 routes in the districts of Ernakulam and Kottayam. Chapter IVA the deals with nationalisation of road transport services. Section 68C provides for the preparation and publication of a draft scheme of nationalization of road transport services in general or any particular class of such service in relation to any area or route or portion thereof whether to the exclusion, complete or partial, of other persons or otherwise. Section 68D provides for the filing of objections of persons affected by the scheme, for the consideration of the objections by the government, for modification or approval of the scheme by the government and for publication of the approved or modified scheme. Section 68E provides that a scheme finally settled under sec. 68D may at any time be cancelled or modified by the State transport undertaking. The procedure laid down in secs. 68C and 68D shaH, so far as it can be made applicable, be followed in every case where the scheme is proposed to be modified as. if the modification proposed were a separate scheme. For the purpose of giving effect to the approved scheme in respect of a notified area or a notified route sec. 68F(2) (iii) authorises the Regional Transport Authority to modify the terms of an existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route. Section 68 authorises the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV A and in particular to provide the form in which any scheme or approved scheme may be published under secs. 68C and 68D. In exercise of its powers under sec. 68 I the State Government framed the Kerala Motor Vehicles (State Transport Undertaking) Rules, 1960. Rule 3 provides that every proposed scheme shall be in form I when it is in complete exclusion of existing road transport service, in form when the scheme is in partial exclusion of existing road transport service, in form III when the scheme is in supplementation of existing road transport service and in form IV when the scheme is to modify an existing scheme. On December 15, 1965 the Kerala State Transport Corporation published a draft scheme in form II for nationalization of 9 specified routes in the districts of Ernakulam and Kottayam in partial exclusion of the existing passenger transport services 466 concerned, giving the particulars of the stage carriage permits to be excluded. On October 17, 1966 after hearing the objectors the State Government approved the scheme. On October 24, 1966 the government published the approved scheme. On December 7, 1966 the appellant filed a writ petition in the Kerala High Court to quash the scheme. V.P. Gopalan Nambiyar J. dismissed the petition. A Divisional Bench of the High Court affirmed his order. The present appeal has been filed after obtaining special leave. The appellant 's contention is that the impugned scheme is a complete exclusion scheme and should have been in form I and as it is in form Ii it is in contravention of Rule 3 read with sec. 68C and is therefore invalid. Let us examine this contention. The scheme is in respect of 9 specified routes. The scheme excludes all private operators holding stage carriage. permits for those routes. Take the route Kottayam Ernakulam. All the private operators holding stage carriage permits for that route are excluded. It is therefore argued that the scheme is one of complete exclusion. But it appears that there are 33 existing routes partially overlapping the notified routes. The 33 existing routes and the notified routes have many common road sectors. The scheme does no.t interfere with the services on the 33 routes. In spite of the scheme the public can get services on the common road sectors from the operators running on the 33 routes. Take the notified Kottayam Ernakulam route. There is an existing Kottayam Muttupetty route. A portion of the Kottayam Muttupetty route overlaps the: Kottayam Ernakulam route. The impugned scheme does not exclude the services of the operators of the Kottayam Muttupetty route on the road sector common to the Kottayam Ernakulam and Kottayam Muttupetty routes. On these facts, it is impossible to. say that the impugned scheme is one of complete exclusion. Section 68C envisages schemes of road transport services in relation to any area or route or portion thereof whether to the exclusion, complete, or partial of other persons or otherwise. Rule 3 of the Kerala Motor Vehicles (State Transport Undertaking) Rules, 1960 speaks of schemes of road transport service in complete or partial exclusion of existing road transport services. From the language of sec. 68C and Rule 3 it appears that a complete exclusion scheme in relation to. any area or route would be a scheme which completely excludes the existing road services of private operators on the, area or route in question. The route includes the highway over which it runs. If other existing services are allowed to continue over a part of the highway relating to the notified route the scheme. is not one of complete exclusion. 467 A stage carriage permit is granted under secs. 46 to 48 for a specified area. The words "roads included in the proposed route or area" in sec. 47( 1 )(f) implies that a route includes the road or the physical track. Section 68F(2)(iii) implies that a portion of the route of an existing permit may relate to a notified route. This happens when the two routes have a common road sector Section 68F (2)(iii) authorises the exclusion of the common portion of the road from the existing permit for giving effect to. the scheme for the notified route. For the purposes of Chapters. IV and IVA there is no practical distinction between the route or the notional line from one terminus to another for which the permit is granted and the road over which the transport services are run and operated. As pointed out in Nilkanth Prasad & Ors. vs State of Bihar(1) "the distinction between "route" as the notional line and "road" as the physical track disappears in the working of Chap. " The route is also an area. (see Kondala Rao vs Andhra Pradesh S.T.C. Corporation(2) & C.P.C. Motor Service vs State of Mysore(3). The impugned scheme does not exclude the road transport services of the 33 existing routes over many sections of the highways relating to the notified routes. It follows that the scheme is not in complete exclusion of existing road transport services in respect of the notified routes and is not required to be in form I. There is no infirmity in the scheme because it was in form II. The impugned scheme is in partial exclusion of operators from Kottayam Ernakulam and Kottayam Eratupettah routes and 7 other routes. It is common case that there were earlier schemes relating to the Kottayam Ernakulam and Kottayam Eratupettah routes. In so far as the impugned schemes excludes private operators from those routes, it has the effect of modifying the earlier schemes. The appellant 's contention is that the impugned scheme is invalid as the modification of the earlier schemes were made without complying with the provisions of sec. 68E. In our opinion, this contention is baseless. The new scheme has been proposed and approved after following the procedure laid down in secs. 68C and 68D. In so far as the new scheme modities the earlier schemes, the modifications could be made under sec. 68E. As the procedure laid down in sees. 68C and 68D were followed the conditions of sec. 68E were satisfied. 68E does not require that the new scheme should expressly say that it cancels or modifies the earlier schemes. On the promulgation of the new scheme the earlier schemes stand modified by implication pro tanto. A scheme to modify an existing scheme simpliciter is required by Rule 3 of the Kerala Motor Vehicles (State Transport Under (1) [1962] Suppl. 1 S.C.R. 728 at 737. (2) A.I.R. 1961 S.C. 82 at 93. (3) [1962] Supp. I.S.C.R. 717; A.I.R. 1966 S.C. 1661. 468 taking) Rules, 1960 to be in Form IV. The impugned scheme was in Form H as it was in partial exclusion of the existing road transport service. Such a scheme could not be in form IV. The partial exclusion scheme was rightly proposed in form Ii and when approved it had the effect of modifying the earlier schemes. Counsel suggested that the approval of the scheme by the State Government on October 17, 1966 was defective as the Government was merely of the opinion that the proposed scheme was necessary to provide efficient, adequate and co ordinated road transport services and it did not form the opinion that the scheme was necessary to provide economical road transport service. The point was not taken in the courts below and we therefore indicated in the course. of the arguments that the appellant will not be permitted to raise. this point at this late stage. Several other objections were taken in the courts below but they are not pressed in this Court. The appeal is dismissed with costs. Y.P. Appeal dismissed.

The appellant entered into a contract on July 7, 1958 with the respondent to purchase from him 2000 bales of jute to be imported from Pakistan. The contract, inter alia. provided that shipment of the consignment would be made; during August November, 1958, that the buyers would obtain the necessary import licence, that if they failed to obtain the licence by November 1958, the period of shipment would be extended upto December 1958 and that if it was not obtained by. December 1958, the contract would be settled at the market price prevailing on January 24, 1959. The contract also contained an arbitration clause hereunder all disputes under the con tract including the question whether the contract had been terminated or completed were to be referred to the arbitration of an Arbitration Tribunal. The appellants applied to the Jute Commissioner on August 8 for an import licence but this was refused on the ground that the appellants had sufficient stock to carry on for some months more. 'They applied again on Nov ember 29, 1958 when their stock was reduced but the Jute Commissioner refused to issue the licence and ,asked them to meet their requirements from purchases of Indian jute. The respondents thereafter claimed damages from the appellants on the ground that the appellants had failed to furnish, the import licence as provided in the contract. The appellants disclaimed their 'liability and thereupon the 'disputes between the parties were referred to the Arbitration Tribunal. The Tribunal passed an award holding that the appellants had failed to carry out their part 'of the contract and Were liable to pay damages to the respondent assessed at Rs. 34,000 and interest. The appellants thereafter applied the High Court to set aside the award and contended (a) that they could not be held to have committed breach of the contract as they had done all that could be expected of them to obtain the licence; (b) that owing to the intervening causes, i.e., a change in the policy of the Government, which the parties could not foresee when they entered into the contract, the contract became impossible of performance and ought to have been treated as void under section 56 of the Contract Act; and (c) that the arbitrators had no jurisdiction as the arbitration clause in the said contract perished along with the contract. A Single Bench of the High Court dismissed the application and an appeal to a Division. Bench was also dismissed. On appeal to this Court. 822 Held, dismissing the appeal: (i) The provision in the contract that whereas the delay to provide a licence in November 1958 was to be excused but that the contract was to be settled at the market rate prevailing on January 2, 1959 if the appellants failed to deliver the licence in December1958 clearly meant that the appellants had taken upon themselvesthe absolute burden of furnishing the licence, latest by the end of December 1958 and had stipulated that in default theywould pay damages on the basis of price prevailing on January 2,1959. That being the position the defence of impossibility of performance or of the contract being void for that reason or that the court should spell out an implied term in the contract to that effect was not. available to the appellants. [832 B C]. Since under the Contract Act a promise may be express or im plied, in cases where the court gathers as a matter of construction that the contract itself contains impliedly or expressly a term according to which it would stand discharged on the happening of certain circumstances, the dissolution of the contract would take place under the terms of the contract itself and such cases would be outside the purview of section 56 Although in English law such cases might be treated as cases of frustration, in India they would be dealt with under section 32. In a majority of cases, however, the doctrine of frustration is not applied on the ground that the parties had agreed to an implied term; the court grants relief under the positive rule enacted in section 56 by pronouncing the contract to be frustrated and at an end if it finds that the whole purpose or the basis of the contract was frustrated by the intrusion or occurrence of an unex pected event or change of circumstances which was not contemplated by the parties at the date of the contract. In such cases there would be no question of finding an implied term embodying, a provision for discharge because the parties did not think about the matter at all nor could possibly halve an intention, regarding it. Case law reviewed. [829 C G]. Even if the appellants had established frustration, it would not be as if, the contract was ab initio void. In cases of frustration it is the performance of the contract which comes to an end but the contract would still be in existence for purposes such as the resolution of disputes arising under or in 'connection with it: and the question whether the contract was discharged under the doctrine of frustration would still have to be decided under the arbitration clause which operates in respect of such purposes. [832 E], Union of India vs Kishorilal, , referred to. (ii) If the arbitrators awarded damages on the basis of the market, price prevalent in Calcutta on January 2. 1959, there Could be no objection to their adopting that Irate for adjudicating the quantum of damages on the ground that such a basis was contrary to the public policy laid down by the Government of Pakistan. [832 H]

N: Criminal Appeal No. 196 of 1973. Appeal by Special Leave from the Judgment and Order dated 7 8 1973 of the Bombay High Court in Criminal Appeal No. 222 of 1970. section B. Bhasme, P. G. Gokhale and B. R. Agarwala for the Appellant. M. K. Ramamurthi, M. N. Shroff, Mrs. Hemanlaika Wahi for the Respondent No. 1. R. N. Sachthey for Respondent No. 2. The Judgment of the Court was delivered by KOSHAL, J. This appeal by special leave is directed against the judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Sevantilal Karsondas Modi (the sole appellant before us) for an offence under section 120 B of the Indian Penal Code read with clauses (a) and (b) of sub section (1) of section 135 of the , and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay. The appellant was one of 30 accused persons against whom the police initiated proceedings in the court of the trial Magistrate. Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended. The case against accused Nos. 18 and 19 was allowed to be withdrawn by the learned Magistrate on an application made by the Public Prosecutor under section 1162 494 of the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate for want of evidence against them. Charges were framed by him on 10 counts against the other 20 accused who were tried in consequence. At the trial, 266 witnesses were examined in support of the prosecution case and 6 in defence. Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial, while 13 of those charged were convicted and sentenced to various terms of imprisonment. All the 13 last mentioned went up in appeal to the High Court who acquitted accused Nos. 1, 21, 22 and 23. Accused No. 13 happens to be the appellant before us. He was convicted and sentenced by the learned Magistrate as aforesaid and also on a separate charge for an offence, under clauses (a) and (b) of sub section (1) of section 135 of the and sentenced to rigorous imprisonment for six months in consequence. His conviction on that charge, however, was set aside by the High Court, against whose judgment, as already stated, special leave to appeal was granted to him by this Court. The prosecution case in so far as it is relevant for the purpose of this appeal may be briefly stated. V. K. Asthana, (P.W. 228) who was then the Deputy Director in the Directorate of Revenue Intelligence in the Department of Customs at Bombay and is hereinafter referred to as 'Asthana ', received information in the first half of September 1966 to the effect that flat No. 2 forming part of the building known as Sagar Mandir and situated in that locality of Bombay which is called 'Shivaji Park ' was being used for storage of smuggled gold and disbursement thereof to its purchasers. After the flat had been kept under watch for a few days by some officials of the Department, a decision was taken by Asthana to raid the premises. The raiding party which consisted of senior Customs officers, took positions in the vicinity of Sagar Mandir on the morning of 14th September 1966. They included B.M. Sevalia, Preventive Officer, Bombay Customs (P.W. 7 and hereinafter referred to as 'Sevalia '), G. N. Alreja, Preventive Officer, Bombay Customs (P.W. 34 and hereinafter mentioned as 'Alreja), P. G. N. Ayengar, Appraiser in the Directorate of Revenue Intelligence (P.W. 144 and hereinafter called 'Ayengar ') and D.G. Mugwe, Principal Appraiser in the said Directorate (P.W. 152 and hereinafter referred to as 'Mugwe '). Sevalia was deputed to watch the movements of persons entering the flat and to give a signal on the arrival of the suspects. At about 8.50 A.M., accused No. 12 was seen entering the flat and Sevlalia alerted the other members of the raiding party by giving the agreed signal. Half an hour later, a car stopped at the entrance to the compound of the building and 1163 accused Nos. 5, 6 and 7 alighted therefrom. Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance. He turned back and so did his two companions. All three of them took to their heels but were caught by the raiding party on a direction by Mugwe. Accused No. 12 was found inside the flat. The person of each one of accused Nos. 5, 6 and 7 was searched and yielded 200 slabs of gold weighing 10 tolas each. All the slabs bore foreign markings and were contained in jackets having long pockets and worn by each of the captives. Bunches of keys exhibits K 4, K 5 and K 6 and a diary containing accounts exhibit 'O ' were found lying in the passage forming part of the flat. Bandi exhibit J 2 was secured from a room of the flat. A search of the person of accused No. 12 yielded keys exhibit K 2, which fitted the locks used in the flat, and sheets of accounts exhibit 'S '. While the search was going on, accused No. 13 was found peeping from outside through a grille forming part of the flat but started running away on seeing what was happening inside. He was chased and captured and two keys were seized from his person. One of them was found to fit the lock on the outer door of the flat and the other to fit the latch therein. He was also found wearing a bandi similar to bandi exhibit J 2. At his instance four slabs of gold and 10 gold bangles, each weighing 10 tolas, were recovered from underneath the mattress lying on a bed in the flat. Accused Nos. 5 to 7 and 13 were interrogated by the Customs officials. The statement of accused No. 13 exhibit Z 383 was recorded by Ayengar on the 15th of September 1966. In that statement, the appellant gave an exhaustive account of the circumstances in which he happened to come to Bombay and made his services available to the principal accused named J. K. Shah. The long and short of the statement may be summarised thus: One day J. K. Shah called accused No. 13, gave him some cloth and sent him in the company of one Goverdhan Das to have the cloth tailored into bandis of a special type having two wide and long pockets in the front. The cloth supplied was thick and strong. A few days after the bandis were ready, accused No. 13 was taken to the flat in question by his sister 's husband, named Natwarlal (accused No. 12) or by accused No. 15. Thereafter accused No. 13 visited the flat several times when he would receive bandis containing gold brought from outside and store them in the flat or would remove such bandis from the flat to other 1164 places in town. J. K. Shah had given him keys of the flat. Whatever gold was removed by him from the flat, was either deposited by him in a room on the second floor of a building situated in Modi Street or delivered to J. K. Shah in the latter 's office on the 3rd floor of building No. 111 situated in Tambakanta. The room in Modi Street had a telephone the number whereof was 262283 and a key of this room was supplied to him by J. K. Shah. He used to receive orders either from J. K. Shah or from accused No. 15 to go to the flat in Sagar Mandir and receive the gold there. He received gold in this way on the 12th and 13th of September 1966. On the day of his capture he was in the room in Modi Street when he received a telephone call from J. K. Shah at 11 or 11.15 A.M. requiring him to visit the flat in Sagar Mandir and find out if any trouble was brewing and that if that was so, J. K. Shah was to be informed on the telephone. Accused No. 13 rushed to Sagar Mandir in a taxi and tried to find out from outside if there was anything wrong. For that purpose he looked through a broken ventilator. While he was coming towards the road on the beach nearby he was detained and was taken inside the building. While the above statement was being recorded, accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons from whom he used to receive gold at Sagar Mandir. The evidence relied upon by the prosecution against accused No. 13 may be split up under the following heads: (a) He was seen visiting the flat in Sagar Mandir on the 8th, 9th and 13th September 1966 by the Customs officials who were watching the premises under the orders of Mugwe. (b) He was peeping into flat No. 13 between 11 A.M. and 12 noon on the 14th of September 1966. (c) When he found that the flat was under search by officers belonging to the Customs Department, he tried to run away. (d) He was found in possession of keys fitting the locks of the flat. (e) He was wearing a bandi similar to bandi exhibit J 2 which is a special type of bandi suitable for carrying gold slabs secretly. 1165 (f) 4 slabs of gold and 10 gold bangles were recovered from underneath the mattress at his instance. (g) The confession made by him and contained in statement exhibit Z 383. The learned trial Magistrate found all the above heads to have been established and that is why he convicted and sentenced accused No. 13 on two counts. The High Court took a different view in relation to heads (a) and (f). It was of the opinion that the identification of accused No. 13 by the Customs officials on the 8th, 9th and 13th of September 1966 could not safely be relied upon as they had seen people coming into and going out the Sagar Mandir only from a distance and for very short periods of time so that their view of such people could possibly be mere "fleeting glances". It further held the alleged recovery of four gold slabs and 10 gold bangles to be unreliable as the marginal witness to the recovery memo who was produced in court by the prosecution did not support it and stated that he had not seen accused No. 13 pointing out the slabs and the bangles. The High Court concluded therefore that the charge under clauses (a) and (b) of sub section (1) of section 135 of the was not sustainable. However it found the other heads of evidence proved and on the basis thereof upheld the conviction and sentence in relation to the charge of conspiracy to commit the other offences just above described. After hearing learned counsel for the parties at length we find ourselves unable to uphold the impugned judgment in so far as accused No. 13 is concerned. The circumstances that he was found peeping into the flat, that he tried to run away on seeing the Customs officials searching the premises, that he was in possession of duplicate keys of the flat and that he was found wearing a bandi similar to bandi exhibit J 2 are not incompatible with his innocence. He was a close relation of accused No. 12 who has been found to the person really incharge of the flat and it would thus be natural for him (accused No. 13) to share the flat with the permission of accused No. 12. In so living with his brother in law he may have been given to wear the bandi found on his person not for the purpose of carrying gold but just for use as ordinary raiment. Again, in a city like Bombay it is not unusual for persons sharing a particular accommodation to be provided with separate sets of keys for each in order to facilitate ingress or egress at will. Further, an innocent man finding his premises being watched by persons in authority may well feel funky at the prospect of a false implication on the basis of a mere 1166 suspicion (which may or may not be well founded and may try to make himself scarce. Without more, the circumstances covered by heads (b), (c), (d), and (e), therefore, cannot be regarded as incriminating circumstances. So the conviction really rests on the confession attributed to the appellant. If it is found to be voluntary and true it may receive some support from the four heads of evidence just above described. If, on the other hand, the confession appears to be either untrue in any material particular or having been caused by any inducement, threat or promise such as is described in section 24 of the Evidence Act, it must fall and with it fall the other heads of evidence, leaving no material to support the conviction. As it is, we find that the appellant has been able to prove the existence of circumstances which make it highly probable that his confession is hit by the mandate in section 24 above mentioned. Our reasons for coming to this conclusion follow. The case set up by accused No. 13 in so far as his confession is concerned, mainly consists of a plea that it was the result of an assault on him by the Customs officers including Ayengar and Sevalia and that the latter had forced him into making an endorsement in his own hand writing under the confessional statement to the effect that statement was voluntary and had been explained to him by Sevalia. Naturally, the story of the assault has been stoutly denied by Ayengar and Sevalia; but then the circumstances prevailing at the relevant time in the Customs House where the statement was recorded definitely indicate that all was not well with the manner in which the interrogation of various accused was being carried on. In this connection the outstanding feature of the situation is the fact that accused No. 15 when examined by Dr. section R. Joglekar (D.W.I.) on the 16th September 1966 at 6.15 P.M. was found to have on his person seven injuries which the doctor has described thus: "(1) Ecchymosis below right eye, outer part, 1/2"x1/3". blackish colour. (2) Ecchymosis below left eye, middle, 1/4"X1/4" blackish colour. (3) diffused contused area, 21/2"X3", on right thigh, upper part. (4) Contused area on right buttock, 3" x 2", lower part, wheal (?) marks seen. (5) diffused contused area on left thigh, back and outer part, 5" X 2", wheal (?) marks seen transverse. 1167 (6) Transverse wheal (?) marks on back of left knee. (7) Contused area on back of left leg, 2" X 1". According to the doctor, these injuries appeared to have been caused two to four days earlier. Admittedly accused No. 15 was apprehended by the Customs staff on the 14th September 1966. No explanation whatsoever is offered for his injuries by the prosecution but the stand taken by accused No. 15 himself in this behalf may be stated in his own words "At that time, there were six Customs Officers around me. In the gallery, I was again shown the 4 keys. I was again asked about the said keys and I had again given the same reply. The said officers on hearing this, get enraged and began to say that I was stating falsehoods. One of the officers then asked me to take out my clothes. I had then worn one under wear and a pant and one bush coat and a ganji. I was then asked to remove my pant as well as my underwear by the said officer and I did so accordingly against my will. That officer then ordered me to sit in the position of "a chair". I was so asked to sit like a chair without the support of a wall even to my back. The six officers were then standing around me at that time. After making me to sit in that chair position they began to ask me about the said keys. I had again given the same reply about the said keys. If I moved a little from the position of a chair given to me, I was kicked by all the officers immediately. I was able to sit in that position for 4 5 minutes. I used to fall down thereafter. I used to be kicked therefor, made to stand again and asked to resume the same position. In this way, I had fallen and had been assaulted again and again by the said officers for about an hour or so. While I was so being questioned and made to sit in that position again and again, one of the officers had gone out and had returned with a ruler in hand having a round shape. As I was made to sit in that position of a chair, I often used to move therefrom, the officers immediately used to assault me and I used to get up thereby. Out of the Custom Officers the officer who had the ruler in his hand used to assault me therewith, and the other officers used to assault me with kicks. I had been assaulted with that ruler on my left buttock, on my right buttock, on the back portion of the calf of my left, leg, on my right thigh, on the backside of my both legs etc. 1168 I had received injuries at all these places stated by me above and as a result of this assault on me, I could not even stand up. Throughout the assault; I was being questioned again and again about the said keys by all the said officers and at every time I was stating that I did not know anything more about the same. Thereafter I had fallen down on the ground with my face towards the ground. All the said six officers then went away. " This stand may not be devoid of exaggeration and embellishment but it receives great support from the testimony of Dr. Joglekar (D.W.I.) so that the probability appears to be that accused No. 15 received his injuries at the hands of the Customs staff and there being no explanation on the part of prosecution as to the situation in which he was beaten, it is reasonable to presume that the stand taken by him is correct and that the injuries were inflicted on him as a measure of coercion adopted to secure his confession. In coming to a contrary conclusion, the High Court was mainly influenced by the fact that although accused No. 15 had filed a complaint in court against the concerned officers of the Department of Customs, he did not prosecute it but had it dismissed for default. The High Court observed in this connection: "The only explanation for this unusual attitude offered by him to the Court is that he was afraid of vindicative attitude from the officers. We have not been able to conceive how officers could have adopted any vindicative attitude, when accused No. 15 was not concerned with any offence. Be that as it may, the fact remains that the complaint was not prosecuted and the evidence was recorded behind the back of the officers. It is not possible to hold on the present material that assaulting by the officers was for the purposes of extorting some confession and such assault alone was the cause of the injuries received by him. Beyond, therefore, creating a fog of suspicion, the injuries proved to have been caused to accused No. 15, cannot indicate that all the accused were subjected to torture, assault and pressure for giving statements to the liking of officers or compelling them to sign the prepared statements. " We do not appreciate this approach to the determination of the voluntary nature of the confession of accused No. 15. As we have already pointed out, the time of infliction of injuries coincided with the day on which accused No. 15 was apprehended and his confession was recorded. In this situation it was the imperative duty of the 1169 prosecution to explain the circumstances in which it became necessary for force to be used by the Customs staff on the person of accused No. 15 and in the absence of any such explanation there is no reason why his plea should not be taken at its face value. We are of course not directly concerned with the voluntary nature of the confession of accused No. 15 in this appeal but the circumstances discussed in the last paragraph indicate that the Custom of officials did not stick to ethical standards in the performance of their duties and, on the other hand, exhibited such a zeal in bringing the captives to book as transgressed the limits set thereon by law. We have already alluded to the fact that the High Court itself did not regard the recovery of four gold slabs and 10 gold bangles alleged to have been made at the instance of accused No. 13 to be trustworthy. Besides, the plea of accused No. 13 that he was coerced into making the confession was taken at the earliest opportunity, i.e., on the 20th of September 1966 which was the day next to that of his release from custody on bail. That plea is contained in letter exhibit 29 addressed by him on that date to the Additional Collector of Customs, Bombay, which contained the following averments: "From the 14th instant at 12 noon till about 3 p.m. I was locked up along in one room with some Customs Officers who continuously interrogated me, threatened and physically assaulted me to make and sign a statement prepared by them after ascertaining a few personal questions from me pertaining to my family and myself. I was not allowed to sleep during the entire night of the 14th/15th and was not allowed to see any person. The statement was written out by the officers themselves in English language and it was not explained to me and my signature was obtained which I have signed in Gujarathi. As a result of this threat, coercion and complete exhaustion, I had no alternative but to sign the statement after which only I was allowed to rest. " Taking note of these circumstances we would consider it extremely unsafe to regard the confession exhibit Z 383 signed by the appellant as having been made by him voluntarily and therefore trustworthy. The appellant, in our opinion, has shown the existence of circumstances which make it appear to the Court that the confession may well have been obtained in a manner which would bring it within the ambit 1170 of section 24 of the Evidence Act, it being undisputed that the concerned officers of the Department of Customs were "persons in authority" within the meaning of that expression as used in the section. In the result the appeal succeeds and is accepted. The judgment of the High Court is reversed, the conviction recorded against and the sentence imposed upon the appellant by the learned trial Magistrate and upheld by the High Court are set aside and he is acquitted of the charge in its entirety. N.V.K. Appeal allowed.

The appellant firm filed appeals against orders assessing it to income tax and super tax for the years 1945 1946 and 1946 1947 beyond the time prescribed by section 30(2) of the Income tax Act. The appeals were numbered, and notices were issued for their hearing under section 31. At the hearing of the appeals before the Appellate Assistant Commissioner, the Department took the objection that the appeals were barred by time. The appellant prayed for condonation of delay, but that was refused, and the appeals were dismissed as time barred. The appellant then preferred appeals against the orders of dismissal to the Tribunal under section 33 of the Act, and the Tribunal dismissed them on the ground that the orders of the Assistant Commissioner were in substance passed under section 30(2) and not under section 31 of the Act and that no appeal lay against them under section 33 of the Act. On a reference under section 66(1) of the Act the High Court held that the orders of the Appellate Assistant Commissioner were made under section 30(2) and were not appealable under section 33 of the Act. On appeal by special leave to the Supreme Court the question for determination was whether an order dismissing an appeal presented under section 30 as out of time was one under section 30(2) or under section 31 of the Act because if it was the former there was no appeal provided against it; if it was the latter it was open to appeal under section 33. Held that the orders of the Appellate Assistant Commissioner fell within section 31. A right of appeal is a substantive right and is a creature of the statute. section 30(1) confers on the assessee a right of appeal against certain orders and an order of assessment under section 23 is one of them. The appellant had therefore a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income Tax Officer. 167 An appeal presented out of time is an appeal and an order dismissing it as time barred is one passed in appeal. Section 31 is the only provision relating to the hearing and disposal of appeals and if an order dismissing an appeal as barred by limitation as in the present case is one passed in appeal it must fall within section 31 and as section 33 confers a right of appeal against all orders passed under section 31, it must also be appealable. To fall within section 31 it is not necessary that the order should expressly address itself to and decide on the merits of the assessment and it is sufficient that the effect of the order is to confirm the assessment as when the appeal is dismissed on a preliminary point. An order rejecting an appeal on the, ground of limitation after it had been admitted is one under section 31, though there is no consideration of the merits of the assessment. Held therefore that the orders of the Appellate Assistant Commissioner holding that there were no sufficient reasons for excusing the delay and rejecting the appeals as time barred would be orders passed under section 31 and would be open to appeal, and it would make no difference in the position whether the orders of dismissal were made before or after the appeals were admitted. Commissioner of Income tax, Madras vs Mtt. `r. section Ar. Arunachalam Chettiar, ([1953] S.C.R. 463), explained. Case law discussed.

Appeal No. 5 of 1964. Appeal by special leave from the judgment and order dated December 1, 1961 of the Andhra Pradesh High Court in Case Referred No. 21 of 1960. A.V. Viswanatha Sastri, K. Jayaram and R. Vasudeva Pillai for the appellant. K.N. Rajagopal Sastri and R.N. Sachthey, for the respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Andhra Pradesh answering the question referred to it under section 66 of the Income Tax Act, 1922, against the appellant. The question referred to was "whether on the facts and in the circumstances of the case a sum of Rs. 79,494/ is assessable as capital gains in the assessment year 1948 49. " The facts relevant to the question are as follows. The assessment year in question is 1948 49 and the accounting year is the official year 1947 48. The appellant, hereinafter referred to as the assessee, Alapati Venkataramaiah, was the proprietor of Mohan Tile Works, engaged in the manufacture of tiles and bricks and owned the factory buildings, plant and machinery. The assessee entered into an agreement dated March 17, 1948. with one Shri Manthena Venkata Raju agreeing to sell to the Mohan Industries Limited, hereinafter called the Company, the aforesaid factory, plant, machinery, furniture, stocks and goodwill for a sum of Rs. 2,00,000/ . The agreement recited that the assessee had been carrying on business under the name and style of Mohan Tile Works at Tenali and that the company to be called the Mohan Industries Limited is to be formed under the indian Companies Act, having for its object among other things the acquisition and the working of the said business. It appears that this agreement was drafted before the Company was incorporated and the recital clause was not modified when the agreement was actually executed. It is common ground that the Company was incorporated on July 5, 1947, before the date of the agreement. Since the answer to the question turns in part on the construction of the agreement it would be convenient to set out the relevant clauses, which are as follows: "1. The vendor shall sell and ' the company shall purchase: First the Goodwill of the said business (with the exclusive right to represent the company as carrying on such business in continuation of the Vendor or in succession thereto). 569 Secondly all the immovable properties specified in Schedule hereto; Thirdly all the plant, machinery, offices furniture, licences, livestocks, carts, implements and utensils to which the vendor is entitled in connection with the said business specified in the Second Schedule hereto; Fourthly all materials and semi processed materials in stock described in the third schedule. The consideration for the said sale shall be the sum of Rs. 2,00,000.00 which shall be paid and satisfied by payment in cash soon after the capital Rs. 3,00,000.00 has been raised or in any other manner agreed upon between the Directors of the Company and Vendor. The purchase shall be completed by Seventeenth day of March, 1948 at Tenali when possession of the premises shall as far as practicable be given to the company and ' the consideration aforesaid shall be paid and satisfied subject to the provisions of the agreement and thereupon the Vendor and all other necessary parties, if any, shall at the expense of the company execute and do all the assurances and things for vesting the said premises in the company and giving to it the full benefit of this Agreement as shall be reasonably required. If from any cause whatever other than the wilful default of the vendor the purchase shah not be completed by the said 17th day of March 1948 the company shall pay interest on the said sum of Rs. 2,00,000.00 (Two lakhs) cash at the rate of . . p.c. per annum. Upon the adoption of this agreement by the company in such manners as to render the same binding on the company the said Manthena shall be discharged from all liability in respect thereof. Unless before the day the company shall have become entitled to commence business either of the parties hereto may by notice in writing to the other, determine this agreement and after adopting this agreement the company shall stand in the place of the said vendor for the purpose of this clause. If this agreement shall not be adopted by the company in the manner aforesaid before and day next, either of the parties may by notice in writing to the other determine the same. " The assessee was appointed managing agents of the company on July 15, 1947, and on March 11, 1948, he wrote a letter on behalf of the company to the Director of Industries and Commerce. Madras, furnishing a detailed list of land, building and machinery comprising the assets of the company together with their value, in 570 connection with the grant of loan by Government. On March 20, 1948, the assessee was credited with the price of Rs.200000/ in the books of the company. On November 22, 1948, sale deed in respect of land was executed in favour of the company. On December 9, 1948, the company mortgaged the land with all its buildings and structures thereon and the machinery. plant and other property for Rs. 1,00,000/ to the State of Madras. On March 16. the Board of Directors, by resolution No. 22 approved the agreement dated March 17, 1948, and on April 10, 1949, the agreement was approved at the annual general meeting of the company. In the first annual report dated March 22, 1949, it was stated as follows: "The company was registered on 5th July 1947. The Memorandum of Association and Articles alongwith the prospectus of the company were published and the shareholders and the public are well aware of the objects and the prospectus of this industry in Andhra. To achieve their objects the directors entered into an agreement called vendor 's agreement, with Sri Alapati Venkatramiah, Proprietor of Mobart Tile Works on 17 3 1948. " It appears that the assessee had returned this income as capital gains in his return and the Income Tax Officer, without any discussion, held that the assessee realised an excess of Rs.79,494/over and above the original cost and this was capital gains assessable under section 12B of the Act. The assessee appealed to the Appellate Assistant Commissioner and in the grounds of appeal stated that "the Income Tax Officer erred in determining the excess over the original cost in respect of the building at Rs. 79,494/ as attracting tax to capital gains. As a matter of fact the building was sold at Rs. 1,69,950, but a sum of one lakh alone was received and ' the balance is yet to be received. The transaction therefore cannot be said to be complete nor can it be said that the profits had been realised. Therefore, the sum of Rs. 79,494/ as attracting capital gains is absolutely justified. " The Appellate Assistant Commissioner observed that the fact that a part of the sale amount had not been realised was irrelevant. Then he said that "at one stage it was contended that there was no legal transfer of the buildings. machinery, etc. to the limited company. There is no substance in this contention also. The limited company is said to have obtained a loan of more than a lakh of rupees from the Madras Government on the basis that they were the owners of the buildings. machinery, etc. which they had purchased from the appellant. The statement therefore that there was no legal transfer cannot be true. I am satisfied that the sum of Rs. 79,494/ as returned by the appellant under the head capital gains was rightly included in the assessment. " The assessee then appealed to the Appellate Tribunal. The Tribunal, by its order dated ' November 24, 1955, held that "there 571 was in fact no sale, much less legal transfer of lands, buil dings, machinery etc., to the limited liability company which was promot ed to take over the tiles business. There was only an agreement to sell . In fact, the assessee did not receive a single pie during the ye ar of account or even during the period when the capital gains was in force. He received in all Rs. 1 lakh in several instalments beginning from 25 3 1949, which is beyond the year of account. The point tha t the assessee himself returned the sum of Rs. 79,494/under the capital gains leads us nowhere. He might have done it under the advice of some "income tax expert". The assessee cannot be tied down to an inadv isably made wrong statement. In the circumstances, we delete the additio n." It appears that the Commissioner of Income Tax filed an appli cation under section 35 of the Act for the correction of the Tribunal 's Order on the ground that the Tribunal had not mentioned in the order c ertain documents which, if they had been considered, would perhaps supp ort a conclusion different from the one arrived at by the Tribunal. The Tribunal thereupon came to the conclusion that its earlier de cision deleting the amount from taxation was based on non considerati on of various materials on record and it proceeded to rectify this order as a mistake apparent from the record. Accordingly it deleted para 4 i n its order dated November 24, 1955, and substituted its order dated Mar ch 8, 1957. The Tribunal held that in pursuance of cl. 6 of the agr eement dated March 17, 1948, the possession of the entire factor y was immediately handed over to Mohan Industries and that the sale deed dated November 22, 1948 was executed for consideration of Rs. 4,500/ on ly and refers only to the land on which the factory is situated, and di d not refer to the factory, machinery and plant, etc. which had been taken possession of by Mohan Industries on March 17, 1948. Further it held that the entries in the account books of Mohan Industries under date March 20, 1948, showed that a sum of Rs. 2,00,000/ was credit ed in favour of the assessee and the asset accounts were debited as foll ows: Plant & Machinery a/L.P.27Rs. 15,989 0 0 Furniture account 2918,80500 Electric goods 31 1,289100 Site & Construction amount331,26,47O00 Stock amount 34 30,05000 Goodwill account 407,39660 Total 'Us.2,00,00000 572 Further it noticed that the assessee also made corresponding entries in the books on March 20, 1948, by debiting Rs. 2,00,000/ to Mohan Industries and crediting the various accounts in the same way. The Tribunal also relied on the letter dated March 11, 1948, from Mohan Industries to the Director of Industries, and the first annual report dated March 22, 1949. As stated above, the Tribunal referred the question set out above. The High Court came to the conclusion (1) that in the circumstances of the case it is immaterial as to when the money was actually paid because the transfer had already been made by putting the company in possession; (2) that the words used in section 12B are sale, exchange, relinquishment or transfer. If transfer is equivalent to sale, in that it should only be by a registered instrument, the Legislature would not have used two different words for that purpose. All that is required for the purpose of this section is that the assessee should have a right to receive the profits and not that he should have in fact received it. The assessee, in their view, had a right to receive the two lakh of rupees under the agreement immediately and in fact he treated it as having been received; (3) the entire movable and immovable property was transferred by giving possession to the company in the year of account and in order to perfect the title the only thing that is required was a registered conveyance in respect of land which was done subsequently; and (4) that it is apparent from the entire transaction and the method of accounting adopted both by the assessee and the company that the income had ,risen to the assessee in the year of account and there is no justification even for the contention that atleast immovable assets should be deemed to have been transferred only in the year in which the actual sale deed was executed. Accordingly, it answered the question in the affirmative. Mr. A.V. Vishwanatha Sastri, the learned counsel for the assessee contends that under section 12B of the Income Tax Act, as it stood at the relevant time, profits and gains are deemed to be the income of the previous year in which the sale, exchange or transfer took place. He says that the sale took place when on March 16, 1,949, the Board of Directors ratified the agreement dated March 17, 1948; till then there was only an agreement to sell and that an agreement to sell is neither a sale nor a transfer of a capital asset. The relevant part of section 12B was in the following terms: "12B. Capital gains (1) The tax shall be payable by an assessee under the head "Capital gains" in respect of any profits or gains arising from the sale, exchange or transfer of a capital asset effected after the 31st day of March 1946 and before the 1st day of April 1948, and such profits and gains shall be deemed to be income of the previous year in which the sale, exchange or transfer took place. . " 573 The word "capital asset" was defined to mean "property of any kind held by the assessee whether or not connected with his business, profession or vocation but does not include (i) any stock in trade, consumable stores or raw materials held for the purpose of his business, profession or vocation. " The question which arises is whether any sale or transfer took place before the first day of April, 1948. Upto that date, apart from the agreement to sell, three events had taken place. First, the assessee as managing agents had written on March 11, 1948, i.e., before the agreement was signed, to the Government regarding loan. Secondly, on March 17, 1948, the possession of the land and the buildings and machinery had ' been given to the company. Thirdly, on March 20, 1948, the assessee had been credited with the price of Rs. 2,00,000/ in the books of the company and he had also made appropriate entries in his own account books Turning now to the agreement dated March 17, 1948, it is urged that this is an agreement to sell and not a sale deed '. This is evident from clause 1 of the agreement. Further it is contended that it is a conditional agreement to sell. Reliance is placed on clauses 8 and 9 of the agreement. Clause 8 expressly contemplates adoption of the agreement by the company in such manner as to render the same binding on the company, and clause 9 contemplates that it is only after the adoption of the agreement that the company shall stand in the place of the said Mantuna Venkata Raju. It seems to us that it was a conditional agreement to sell and before it could ripen into a contract between the company and the assessee, it had to be adopted by the company. We may mention that Mr. Rajagopala Sastri urged that we should discard clauses 8 and 9 because they were meant to operate if the agreement had been executed before the incorporation of the company. But we are unable to rewrite the agreement. Clauses 8 and 9 are appropriate in an agreement which is made by an agent subject to confirmation by a principal and must be given effect to. When was the agreement adopted by the company '? We are relieved from addressing ourselves to this question because in the statement of the case, which was agreed to by the assessee and the Revenue, it is stated that "the said agreement was approved and accepted by a resolution of the Board of Directors of the Company on 26.3.1949 and in and by the said resolution the company agreed to pay purchase price in instalments commencing from 31.3.1949. The agreement was subsequently approved by the general body of share holders at a meeting held on 10 4 1949 and on such approval, acceptance and adoption, the agreement became binding on the assessee and the company. " Even if the agreement was accepted by the company in 1949, the question still remains whether any sale or transfer of assets took place before April 1948. Sale or transfer of an asset could take place, as it did in respect of the site, even before the agreement was L/P(N)4SCI 10 574 accepted. The assets comprised of two items of immovable property, viz., Plant and machinery valued at Rs. 15,989/ and site and buildings valued at Rs. 1,26,470/ . It is clear that title to these assets could not pass to the company till the conveyance was executed and registered. (See Commissioner of Income Tax vs Bhurangva Coal Co.(1) No such conveyance was executed before April 1, 1948. It is only on November 22, 1948, that a sale deed was executed and registered in respect of the site. Therefore, it is clear that the title to these assets did not pass to the company till after April 1, 1948, and consequently nO sale took place of these assets before April 1, 1948. Mr. Rajagopala Sastri however urges in the alternative that even if no sale took place before April 1, 1948, the assets had been transferred to the company before that date. He says that 'transfer ' is a wide word ' and had been used in section 12B to cover those cases where rights in assets have been transferred in such a manner as to give rise to capital gains. He further urges that in this case possession of the assets was transferred ' to the company on March 17, 1948, and the assessee could never get back possession of the immovable assets in view of section 53A of the Transfer of Property Act. In none of the cases cited before us has this point been considered. We are unable to sustain this contention. Before section 12B can be attracted, title must pass to the company by any of the modes mentioned in section 12B, i.e. sale, exchange or transfer. It is true that the word 'transfer ' is used in addition to the word 'sale ' but even so, in the context transfer must mean effective conveyance of the capital asset to the transferee. Delivery of possession of immovable property cannot by itself be treated as equivalent to conveyance of the immovable property. The High Court has relied on the entries made in the account books of the assessee and the company on March 20, 1948, but the date of sale or transfer according to section 12B is the date when the sale or transfer takes place, and it seems to us that the entries in the account books are irrelevant for the purpose of determining such a date. Mr. Rajagopala Sastri contends that the assessee should not be allowed at this stage to draw a distinction between movable and immovable assets, but in the statement of the case, which was agreed to by the assessee and ' the Revenue, a distinction is drawn thus: "The building and site was valued at Rs. 1,26,470/ .The machinery and electrical fitting which were permanently embedded in the earth were respectively valued at Rs. 15,989/ and Rs. 1,298 10 0. The stocks were valued at Rs. 30,050/ and goodwill at Rs. 7396 6 0. " We are, therefore, unable to prevent the assessee from relying upon the distinction between movable and immovable assets. In the (1) 575 result, we hold that the following assets were not sold ' or transferred before April 1, 1948. (i) Machinery valued at Rs. 15,989 0 0. (ii) Electrical fittings valued at Rs. 1,289 10 0. (iii) Buildings and site valued at Rs. 1,26,470 0 0. Therefore, no capital gains in respect of these items arose in the previous year ending March 31, 1948. This brings us to the movable assets. Stocks valued at Rs. 30,050/ are expressly exempt from the definition of capital asset, and therefore we hold that no capital gain accrued in respect of their sale or transfer. This leaves furniture valued at Rs. 18,805/ , and goodwill valued at Rs. 7,396/6/ . There is no doubt that possession of furniture was delivered on March 17, 1948, and as title to furniture can pass by delivery, capital gains, if any, accrued on that date. In the circumstances of the case, delivery must have been made with the intention of passing title. The position regarding goodwill is however different. It is an intangible asset and it ordinarily passes alongwith the transference of the whole business. It cannot be said in the circumstances of this case that the goodwill was transferred before April 1, 1948. Accordingly, we hold that only one asset, namely, furniture was transferred before April 1, 1948. In the result, we answer the question referred to the High Court as follows: "In the facts and circumstances of the case the sum of Rs. 79,494/ is not assessable as capital gains in the assessment year 1948 49, but only such part of it, if any, as is attributable to the capital gain made by the transfer of furniture valued at Rs. 18,805/ is assessable. " The appeal is accordingly accepted and as the assessee has succeeded substantially he will have his costs here and in the High Court. Appeal allowed.

The assessee, the Royal Western India Turf Club Ltd. was formed inter alia for the purpose of carrying on the business of a race course company in all its branches and to establish clubs, hotels and other convenience in connection with the property of the company. It had two classes of members, club members, whose number was limited to 350 and stand members who were elected by ballot. Every member Paid an entries fee and an annual subscription. The liability of the members was limited by guarantee and if there was any surplus on winding up, it was to be paid to the members in equal shares. An admission fee was levied from the members for admission to the Members ' Enclosure, and from non members for admission to the other Enclosures, and in each Enclosure there was a totalisator. The money 's received from members as well as non members were included in one pool and distributed amongst the holders of the winning tickets. In each Enclosure refreshments were supplied on payment. The company admitted that moneys realised from non members were receipts from business and taxable, but contended that the following items of receipts received from members were not assessable to income tax, viz., (1) season 0admission tickets from members, (2) daily admission gate tickets from members, (3) use of private boxes by members (4) income from entries and forfeits received from members whose horses did not run. The High Court of Bombay held that items 1, 2 and 3 did not fall either under section 10(1) or section 10(6) of the Income tax Act and were therefore not taxable, but item 4 fell within section 10(1) and section 10(6) and was taxable. The Commissioner of Income tax appealed; Held, (i) that the principles of Styles ' case as explained by subsequent cases had no application to the company as there was no mutual dealing between the members inter se in the nature of mutual insurance and no contribution to a common fund put up for payment of liabilities undertaken by each contributor to the other contributors, and no refund of surplus to the contributors, but on the other hand, the company realised moneys both from the members and non members for the same consideration, namely, by the giving of the same or similar facilities to all alike in the course of one and the same business carried on by it; (ii)that, as the company was formed for carrying on a business it had dealings with its members also in the ordinary course of business, and give the same or similar amenities to members and non members, and there were no mutual dealings between the members or a common fund for the discharge of common obligations to each other, the principle applicable to the surplus of contributions made by members of a club for Providing themselves with amenities was also not applicable to the case; (iii) a "trade association" means an association of tradesmen businessmen or manufacturers for their common protection and advancement, and the assessee was not therefore "a trade or similar association" within section 10(6) of the Income tax Act; 291 (iv) that all the abovementioned 4 item of receipts from members were received by the company from business carried on by it with its members within the meaning of section 10(1) and none of them was received by the company as a trade, profes sional or similar association within the meaning of section 10(6), and ail the items were accordingly assessable to income tax. The New York Life Insurance Co. vs Styles (Surveyor of Taxes) ; The Cornish Mutual Assurance Co. Ltd. vs The Commissioners of Inland Revenue L. R. ; , Jones vs South Wales Lancashire Coal Owners ' Association Ltd. L. R. Municipal Mutual Insurance Co. Ltd. vs Hills (1932) 16 Tax Cas. 430, English & Scottish Joint Co operative Wholesale Society Ltd. vs Commissioner of Agricultural Income tax, Assam [1948] A. C. 405; , Carlisle and Silhoth of Golf Club vs Smith , Royal Calcutta Turf Club vs Secretary of State Cal. 844, United Services Club, Simla vs The Crown Lah 109. Eccentric Club Case Dibrugarh District Club Ltd. vs Commissioner of Income tax, Assam Cal. 971, The Maharaj Bag Club Ltd. V. Commissioner of income tex, C.P. & Berar, (1931) 5 I.T.C. 201. Commissioners of Inland Revenue vs Stonehaven Recreation Ground Trustees The National Association of Local Government officers vs Watkins Commissioner of Income tax. Bombay vs Karachi Chamber of Commerce ; and Commissioner of Income tax. Bombay vs Karachi Indian Merchants Association , referred to.

Appeal No. 537 of 1960. Appeal from the judgment and order dated December 23, 1959, of the Mysore High Court in Writ Petition No. 229 of 1955. section section Shukla and E. Udayarathnam, for the appellant. H. N. Sanyal, Additional Solicitor General of India, R. Gopalakrishnan and P. D. Menon, for the respondents Nos. 1 and 2. R. Gopalakrishnan, for respondent No. 3 1962. April 18. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal arises from a writ petition filed by the appellant, Raghutilaka Tirtha Sripadangalavaru Swamiji, in the Mysore High Court challenging the validity of section 6 (2) of the Mysore Tenancy Act, 1952 (XIII of 1952) hereafter called the Act, and the notification issued under the said section on March 31, 1952. The appellant 's case as set out in his writ petition before the High Court was that the impugned section as well as the notification issued under it infringed his fundamental rights guaranteed under articles 14, 19 (1) (f), 26, 31 and 31A of the Constitution. This contention has been rejected by the High Court and it has been hold that the section and the notification under challenge are valid and constitutional. The appellant then applied for a certificate from the High Court, both under article 132 and article 133 of the Constitution. The High Court granted him a certificate under article 133, but refused to certify the, case under article 132. There 229 after the appellant applied to this Court for liberty to raise a question about the interpretation of the Constitution and permission has been accorded to the appellant accordingly. That is how the present appeal has come to this Court. The appellant owns 6 acres and 30 ghuntas of garden land in village Mulbagilu in Taluka Thirthahalli in the district of Shimoga. Respondent No. 3, Ramappa, Gowda, is his tenant in respect of this land. A registered lease deed was executed in favour of respondent No. 3 by the appellant on March 11, 1943; under this document respondent No. 3 undertook to pay 82 1/2 maunds of areca in addition to Rs. 17/12 in cash as rent per year. In 1955 respondent No. 3 filed an application before respondent No. 2, the Tehsildar of Thirthahalli, under section 12 of the Act and claimed that the standard rent payable by him to the appellant should be fixed (Tenancy case 85 of 1955 56). Meanwhile respondent No. 1, the Government of Mysore, had, in exercise of the powers conferred on it by section 6 of the Act, issued a notification No. R9. 10720/ L. section 73 54.2 on March 28/29, 1955. This notification purported to fix the standard rent for lands of the category to which the appellants land belongs at one third of the produce. Feeling aggrieved by this notification the appellant filed the present writ petition in the High Court on December 16, 1955, His case was that section 6 (2) as well 'as the notification issued under it were ultra vires, invalid and inoperative. Before dealing with the contentions raised before us by Mr. Shukla on behalf of the appellant it would be necessary to consider very briefly the scheme of the Act. The Act has been passed by the Mysore Legislature because it was thought necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and to regulate and impose restrictions on the 230 transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists in the State of Mysore except Bellary District and to make provisions for certain other purposes appearing in the Act. That is the recital contained in the preamble to the Act. It would thus be seen that the primary object of the Act is to afford much needed relief to the agricultural tenants by regulating their relations with their landlords and in that respect the Act bears a very close resemblance to the provisions of the Bombay Tenancy and Agricultural Lands Act, LXVII of 1948. Indeed, the material provisions of the Act with which we are concerned are substantially similar. Chapter I of the Act deals with the preliminary topic of defining the relevant terms used in the Act. Chapter II contains general provisions regarding tenancies. Section 4 defines persons who are deemed to be tenants. Section 5 provides that no tenancy would be for less than five years. Section 6 deals with the maximum rent payable by the tenants. Section 8 provides for the calculation of rent payable in kind in the manner indicated by cls. (i) and (ii) and prohibits the landlord from recovering or receiving rent calculated in any other manner. Under a,. 9 receipt of rent in terms of service or labour is prohibited. Section 11 abolishes all 'cases and section 10 enables the tenants to claim a refund of rent which has been recovered in contravention of the provisions of the Act. Section 12 then deals with enquiries with regard to reasonable rent. Sub section (3) of section 12 lays down five factors which have to be borne in mind by the authority dealing with an application for the fixation of reasonable rent. Section 13 is a corollary of section 12 and authorises the reduction of rent after reasonable rent has been determined under section 12. Section 14 deals with suspensions or remission of rent. Section 15 231 provides for termination of tenancy. Under section 18 a statutory bar is created against the eviction of a tenant from a dwelling house and under section 19 the tenant has the first option of purchasing the site on which he has built a dwelling house. Similarly, under section 22 the tenant is given an option of purchasing the land leased out to him. section 24 deals with some cases where relief can be granted against termination of tenancy and section 25 with relief against termination of tenancy for non payment of rent. Section 30 provides for the procedure to recover rent and section 31 protects the tenants ' rights under any other law. Chapter III deals with the procedure and jurisdiction of Amildar and provides for appeals against the decisions of the Amildar. Chapter IV deals with offences and prescribes penalties for them and Chapter V contains miscelaneous provisions. That, in its broad outlines, is the nature of the provisions made by the Act in order to give relief to the agricultural tenants. Section 6 with which we are directly concerned in the present appeal reads thus: "6. (1) Notwithstanding any agreement, usage, decree or order of a court or any law, the maximum rent payable in respect of any period after the date of coming into force of this Act by, a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner : Provided that where the tenant does not cultivate the land the rent payable shall be the reasonable rent to be fixed by the Amildar. (2) The Government may, by notification in the Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants of lands 232 situate in any particular area or may fix such rate on any other suitable basis as they think fit. " As we have already indicated, the provisions of the two sub clauses of a. 6 are substantially similar to the provisions of section 6 ( 1) and (2) of the corresponding Bombay Act. Indeed, it would be correct to say that Act with which we are concerned has been modelled on the pattern of the Bombay Act and has adopted most of its important provisions. The validity of section 6 of the Bombay Act was challenged before this Court in "VasantalMaganbhai Sanjanwala vs The State of Bombay (1)" and it has been held that the said section is valid. The reasons given by this Court in upholding the validity of is. 6 of the Bombay Act apply with equal force in support of the validity of section 6 of the Mysore Act and so the point raised by the appellant in challenging the validity of the impugned section is really covered by the earlier decision of this Court. Mr. Shukla, however, contends that the preamble to the Act differs from the preamble of the Bombay Act inasmuch as the latter preamble refers to the fact that that Act was passed inter alia for the purpose of improving the economic and social conditions of peasants and ensuring the full and efficient use of land for agriculture and so considerations of social justice on which the validity of the corresponding provision of the Bombay Act was sought to be sustained cannot be invoked in dealing with the present appeal. , We are not impressed by this argument. It is true that the preamble to the Act merely says that the Act was passed because it was though necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and it does not refer to the requirement of social justice or does not specifically mention the object of ensuring the full and efficient (1) ; 233 use of land for agriculture. But in dealing with a law which has been passed for the purpose of effecting an agrarian reform it would be pedantic to ignore the essential basis of its material provisions merely on the ground that the concept of social justice on which the said provisions are based has not been expressly stated to be one of the objects of the Act in the preamble. We have already examined briefly the broad scheme of the Act and it is obvious that the important provisions of the Act are intended to improve the economic and social conditions of the agricultural tenants and so the policy of social justice can be safely said to be writ large on the face of the Act. Therefore, we do not think that the argument based upon the fact that the preamble does not refer to social justice distinguishes section 6 of the Act from the corresponding section of the Bombay Act. Then it is urged that unlike the Mysore Act, the Bombay Act has distinguished between irrigated land and non irrigated land and has provided by section 6(1) that the maximum rent payable in the case of irrigated land shall not exceed one forth and in the case of other lands shall not exceed one third of the crop of such land or its value as determined in the prescribed manner. It is true that section 6(1) of the Act makes no such distinction between irrigated and non irrigated lands. But that, in our opinion, is not a matter of essential importance. Like section 6(1) of the Bombay Act section 6(1) of the Act also intends to provide for a maximum ceiling beyond which agricultural rent will not be allowed to soar and so far as the fixation of a maximum ceiling of rent is concerned it is not essential that a distinction must necessarily be made between. irrigated lands and non irrigated lands. It must be borne in mind that what the section does is to prescribe the maximum and not to provide for a minimum In prescribing a maximum it may be open to the Legislature to provide for a maximum which would be 234 common to all lands whether irrigated or not, That is why we are not inclined to attach any importance to the point that in the absence of classification of land, while prescribing a maximum section 6(1) suffers from any infirmity. Then it is argued that the Bombay Act while prescribing a maximum has taken the precaution of also prescribing a minimum and the absence of the latter provision makes a material difference. This argument is clearly misconceived. It is true that section 8 of the Bombay Act which had been inserted by the Bombay Legislature in 1956 did provide for the maximum and the minimum rent, but as the decision of this Court in the case of Sanjanwala (1) shows in upholding the validity of the impugned provision of the Bombay Act no reliance was placed upon the fixation of the minimum rent. Indeed, the minimum rent was fixed subsequent to the decision of the High Court which was under appeal before this Court in that case and the fact that a minimum had been prescribed subsequently has been only incidentally mentioned in the judgment. Therefore the absence of a provision fixing the minimum rent does not introduce any infirmity in the impugned provision. We are, therefore, satisfied that the case of the impugned section is substantially similar to the case of section 6 of the Bombay Act with which this Court was concerned in the case of Sanjanwala (1) and the challenge to the validity of section in the present appeal must, therefore, be held to be covered by the said decision. That takes us to the question as to whether the impugned notification is invalid. This notification has been issued in exercise of the powers conferred on the State Government by section 6(2) and it provides that the rate of maximum rent payable by the tenants of lands situated in the areas specified in Schedule I and Schedule If to the notification 235 shall be one third and one fourth respectively of the crop or crops raised on such lands with effect from the year commencing on April 1, 1955. Schedule I deals with Maidan areas in which the maximum rent or rents shall be one third of the, crop or crops and Schedule If deals with Malanad areas in which the maximum rate of rent shall be one fourth of the crop or crops raised. It appears that the classification of lands between Maidan an Malanad lands is well known in Mysore. Maidan lands are lands on the plains, whereas Malanad are lands on hilly tracts. The distinction between the two categories of lands takes into account the different conditions of rain fall, the different nature of the cultivation, the difference ' in the living conditions and the availability of labour and the difference in the quantity and the quality of the produce. It is true that the notification does not prescribe the lower rate of the maximum rent area by area in the sense of district by district, but it purports to prescribe the said maximum by classifying the land in the whole of the State in the two well known categories of Maidan and Malanad lands. It is urged by Mr. Shukla that the impugned notification is invalid, because it is inconsistent with the provisions of section 6(1). The argument is that section 6(1) lays down a general rule and section 6(2) provides for an exception to the said general rule. On that assumption it is contended that an exception cannot be allowed to swallow up the general rule and that is precisely what the notification purports to do. This argument is based on the decision of the House of Lords in Macbeth vs Ashley It would be noticed that this argument raises the question about the construction of the two sub clauses of s.6. Before addressing ourselves to that question, (1) [1874] L.R. 2 SC. 236 however, we may refer to the decision of the House of Lords on which the argument is based. It appears that II o 'clock at night was the hour appointed for closing public houres in Scotland, although in special cases, and for well considered reasons, a deviation was allowed with reference to any particular locality really requiring it. The Magistrates of Rothesay had ordered for closing at 10 instead of 11 and the effect of the order was that it embraced every public house in the burgh. The House of Lords held that the Magistrates order .was ultra vires. The statutory provision with which the House of Lords was concerned was contained in the Act of Parliament, 25 and 26 Vict. c. 35. As a result of these provisions 11 o 'clock at night was appointed to be the hour for closing public houses. There was however, a proviso which said inter alia that in any particular locality requiring other hours for opening and closing inns, hotels, and public houses it shall be lawful for such justices and Magistrates respectively to insert in the schedule such other hours, not being earlier than six or later than eight o 'clock in the morning for opening,, or earlier than nine o 'clock or later than eleven o 'clock in the evening for closing the same as they shall think fit. It is in pursuance of the authority conferred on them by the said proviso that the Magistrates of Rothesay passed an order embracing every public house in the burge by which a deviation from the statutorily fixed hour was effected. In dealing with the validity of the order issued by the Magistrates Lord Chancellor Lord Cairns expressed his opinion that if the exception is to swallow up the rule it ceases, of course, to be an exception at all and that which might fairly have been an exercise of discretion becomes no exercise of the kind of discretion mentioned in the Act of Parliament. It was for this reason that the order 237 issued by the Magistrates was declared to be ultra vires. It was conceded that the Magistrates had a discretion, but the Lord Chancellor observed that the words "conferring discretion" expressly bear with reference to a particular locality and not with the whole burgh. What should be true about the whole burgh had been treated as a matter reserved for and determined by the consideration of the Imperial Parliament. The Lord Chancellor did not express any opinion on the question as to whether the discretion vested in the Magistrates can be exercised by them more than once but without deciding that point he held that the order of the Magistrates really amounted to evading an Act of Parliament. In substance, the Magistrates had once for all attempted with regard to all the public houses in their district to change the rule laid down by the Act of Parliament. Lord Chelmsford, who concurred with the opinion expressed by the Lord Chancellor, rested his conclusion on the ground that it was impossible to say that the limits which the Magistrates had defined could be called a particular locality within burgh and so it appeared that what the Magistrates had done was something very like an attempt to evade the Act of Parliament. According to Lord Selborne, the participle "requiring" is connected with the substantive "locality" and therefore it must be a requirement arising out of the particular circumstances of the place. That is why Lord Selborne thought that the Magistrates must in exercise of an honest and bona fide judgment, be of opinion that the particular locality which they ex(opt from the ordinary rule is one which, from its own special circumstances, requires that difference to be made. It would thus be seen that though the general basis of tHe decision, as it has been expressed by Lord Cairne, appears to be that the exception cannot swallow up the rule one of the reasons which 238 ultimately influenced the decision was that the discretion had to be exercised bona fide and after due deliberation in respect of a particular locality and that the manner in which the order was issued indicated that the requirements of the particular localities had not been duly examined by the Magistrates. It is significant that though Lord Cairns posed the question as to whether the discretion in question can be exercised more than once, he did not choose to answer it; but the trend of the opinions expressed by the Law Lords during the course of their speeches may seem to suggest that the discretion cannot be exercised more than once and in any case, it must be exercised by special reference to the particular locality as indicated by the proviso. If an order is made in respect of the whole of the burgh, it cannot be said that it has been passed after exercising due discretion in respect of the requirements of each particular locality. With respect, if the discretion is given to the Magistrates to provide for a departure from the rule prescribed by the general provision by reference to particular localities, it is not easy to see why the said discretion cannot be exercised more than once. Indeed, situations may arise when the Magistrates may have to consider the matter from time to time in respect of different localities and if it appears to the Magistrates considering the cases of different localities that in regard to each one of them a departure from the general rule should be made, it is not easy to follow why the proviso does not justify different orders being passed by the Magistrates in respect of different but particular localities. On the other hand, if the main provision is construed to mean that the time prescribed by it was to apply generally only with certain exceptions contemplated by the proviso, that would be a different matter. However, it is not necessary for us to pursue this point further and to express a definite 239 opinion on the general proposition that an exception cannot swallow the general rule because, as we will presently show, this rule cannot be applied to the provisions of section 6 at all. In this connection we may, however, point out that both in Max a well and in Craies, the decision in Macbeth 's case (1) appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute, because it was not in honest and bona fide exercise of the discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edn., p. 121, and Craies on Statute Law, 5th Edn., p. 75.) But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeth 's case (1) is sound, does it apply to section 6 at all and the answer to this question will depend upon the construction of the provisions contained in the two sub clauses of section 6. It would be noticed that section 6(1) declares a maximum beyond which no landlord can recover rent from his tenant. In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement, usage, decree or order of a court or any other law, The provisions of this sub section apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former. The fixation of the maximum by sub section (1) is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of sub section (2) must be judged. In that connection we may point out that there is one proviso to (1) (1874) L. R. 2 S.C App 352. 240 cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar. Sub section (2) is so worded that in terms it cannot be said to be a proviso to sub section (1) add in substance it is not such a proviso nor is it an exception to sub section Having prescribed the maximum beyond which agricultural rent cannot go under a. 6(1) the legislature has premitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas. The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit. In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed. The provision is an independent provision and so the two sub sections must be read as different, independent, though coordinate, provisions of the Statute. It would, we think, be erroneous to treat sub section (2) as a proviso or exception to sub section Whereas sub.a. (1) deals with and applies to all leases individually and prescribes a ceiling in that behalf, sub section (2) is intend to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt simi lar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it. The argument that by issuing the notification the Government has purported to amend a. 6(1) is, in our opinion, not well founded. As we have already seen, a. 6(1) is intended to apply to all the agricultural leases until a notification is issued under a. 6(2) in respect of the areas where the leased lands may be situated. It is not suggested that 241 under section 6(2) it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellant 's argument it would be competent to the Government to fix lower rents, say districtwise. If instead of prescribing the lower rates districtwise after classifying the lands into two categories which are well recognised, the Government prescribed the rates by reference to the said categories of lands throughout the State, we do not see how the said notification can be said to be inconsistent with section 6(2) or with section 6( 1) either. The scheme of section 6 does not seem to postulate that after the notifications are issued under section 6(2) some area must inevitably be left to be covered by section 6(1). Such an assumption would be inconsistent with the object underlying the said provision itself. What section 6(1) has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them. Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate, The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them. Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under a. 6(2) might cover all the areas in the State and that may mean that the general ceiling prescribed by section 6(1) may not apply to any land which is covered by the notification. If section 6(1) is not a general rule and section 6(2) is not an exception to it, then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the 242 general rule. That, in substance, is the view which the Mysore High Court has taken in the matter and we think that the said view is right. In the result. , the appeal fails and is dismissed with costs. Appeal dismissed.

The Amritsar Improvement Trust framed a scheme under section 3 of the Punjab Development and Damaged Areas Act, 1951, which empowered it to frame a scheme for the development of a damaged area, It passed a resolution to acquire certain property of the appellant for widening a road under the scheme. The appellant contended that the scheme was without jurisdiction as the area was not a "damaged area" within section 2 (d) of the Act which contemplated only two classes of areas, i. e. (i) areas which may, by notification, under the Act be declared by the Government to be "damaged areas", and (ii) areas already notified under the Punjab Damaged Areas Act, 1949. The respondents contended that a notification 243 issued under the Punjab Damaged Areas Act, 1947, which declared the entire walled City of Amritsar as a "damaged area" should be deemed to be a declaration" under the 1949 Act because of the operation of section 22 of the Punjab General Clauses Act and was sufficient to sustain the scheme and that the scheme could not be challenged as it had been notified by the State Government and under section 5 (4) of the Act the publication was conclusive evidence that the scheme had been duly framed and sanctioned. Held, that the scheme was without jurisdiction and that the proceedings for the acquisition of the appellant 's property were illegal. Admittedly the area had not been declared a "damaged area either under the 1951 Act or under the 1949 Act. The declaration under the 1947 Act was of no avail, firstly, because there was no basis for the argument that it would be "deemed to be a declaration" under the Act of 1949 and secondly even if it were so deemed the same was not within the definition of damaged area" in the Act of 1951. The appellant was not precluded by section 5 (4) from challenging the scheme and the acquisition ; since the collusiveness postulated by section 5 (4) was only in respect of the formalities prescribed by sections 3,4 and 5 and did not touch a case where there was complete lack of jurisdiction in the authorities to frame a scheme.

Civil Appeal Nos. 392 95 of 1988. Appeal under Section 130E(b) of the Central Excise and Salt Act, 1944 from the order dated 15.12.1986 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos. C/2130 to 2132/86 C & 1027/83 and order No. 757 760/86. B. Datta, ASG, Mrs. Indira Sawhney and P. Parmeshwaran for the Petitioners. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals under Section 643 130E(b) of the (hereinafter called the Act) are against the order dated 15th December, 1986 passed by the Customs, Excise and Gold (Control, Appellate Tribunal (hereinafter called CEGAT). These appeals are related to a dispute regarding the duty of custom imposed on the respondent. The department had levied duty on the product known as 'Sancticizer 429 ' imported by the respondent. The respondent had contested this duty and filed a claim for the refund. The Assistant Collector of Customs rejected this claim. The Assistant Collector on test found it to be organic compound (easter type) inform of colourless viscose liquid and as per 7.0.046m should be considered as polymeric plasticizer. The Appellate Collector found that Chapter 38 of the was residuary in nature. According to him, if the item was not covered by any other chapter of the then it would fall under Chapter 38. The Appellate Collector further found that linear polysters were covered by CCCN 39.01(E). The Appellate Collector held that the impugned goods are formed by the condensation of diabasic acid within dihydric alcohols and were similar to the poly condensation product of terphthalic acid or Adipic acid with ethanediel covered by above mentioned CCCN headings. The Appellate Collector held this CCCN headings corresponds to 39.01/06 of the . The Appellate Collector upheld the decision of the Assistant Collector. The respondent challenged the aforesaid order of the Appellate Collector before the Tribunal. The Tribunal allowed the appeals relying on the two decisions of the Tribunal one being Bhor Industries Ltd. vs Collector of Customs, Bombay, and the other Collector of Customs, Bombay vs Bhor Industries Ltd. and another, The Tribunal was of the view that the product was classifiable under the heading 38.01/19(6) of the . The decision of the Tribunal was later on followed by the subsequent decision referred to hereinbefore. In Bhor Industries Ltd. vs Collector of Customs, Bombay (supra), the Tribunal observed that these are ordinarily liquids and, in rare instances, solids, as simple high boiling solvents for the polymers. These are neither resins nor do they seem to be plastic materials; on the other hand, these are added to resins to impart better flexibility or plastic properties to them. It was further observed that there was no evidence had been produced before the Tribunal to show that Sancticizer was a resin or plastic material as defined in Explanatory Notes to C.C.C.N. It was neither similar to resols or polysiobutylene to attract the mischief of Note 2(c) to Chapter 39 nor a separately defined Chemical Compound so as to fall within Chapters 28 or 29 of 644 . Hence, it was classifiable not under Heading 39.01/06 as it stood before its amendment in 1978 but under 38.01/19(6) of as "plasticizer, not elsewhere specified". The Tribunal in its decision considered the technical leaflet on the product. Sancticizer 429 was described as a medium high molecular polyester plasticizer made from a glycol reacted with a dibasic acid. Among the properties claimed for the product are good low temperature flexibility, excellent electrical properties, outstanding migration resistance, humidity, stability and resistance to oil and solvant extraction. It is said to be an excellent plasticizer for making oil resistant high temperature PVC wire and cable compounds. It is also stated to be useful for plasticizing ethyl cellulose, mitrocellulose, acrylic caulking compunds, and adhesive systems based upon polyvinyl accetate, styrene butadiene, and acrylic latices. Reference was also made to Kirk othmer 's "Encyclopaedia of Chemical Technology" 3rd edition page 111, where it was observed as follows: "A plasticizer is incorporated in a material to increase its workability, flexibility, or distensibility. Addition of a plasticizer may lower the melt viscosity, the second order transition temperature, or the elastic modulus of the plastic. For effectiveness with polymeric materials, a plasticizer needs to be initially mixed with the polymer either by dissolution of the resin in the plasticizer or the plasticizer in the resin, by heat or dissolving both in a common solvent and subsequent evaporation of the solvent. In "Plastics materials" (4th edition, page 80), J.A. Brydson refers to plasticizers ordinarily liquids and in rare instances solids as simply high boiling solvents for the polymer. The action is explained by saying that plasticizer molecules insert themselves between polymer molecules reducing but not eliminating polymer polymer contacts and generating additional free volume; also as some interaction between polymers and plasticizers off setting the spacing effect; or both. " The Tribunal came to the conclusion that plasticizers were not resins; these are added to resins to impart better flexibility or plastic properties to the latter. Nor did they seem to be plastic materials by themselves. The Tribunal found that Sancticizer 429 which is admitedly a plasticizer would, therefore, not have fallen for classification 645 under Heading No. 39.01/06 of the Customs Tariff Schedule as it stood prior to its amendment in 1978. The said reasoning was reiterated by the Tribunal in the decision of Collector of Customs, Bombay vs Bhor Industries Ltd. and another. There, the Tribunal observed that as per various technical authorities, plasticizers are not resins. Rather, these are added to resins to impart better flexibility or plastic properties to them. These are not plastic materials by themselves either. Further, goods under reference are not similar to resols or polysiobutylenes. Therefore, their classification under Heading 30.01/106 of the , prior to and even after its amendment in 1978, should not be applicable. Furthermore, not being separately defined chemical compounds, these would also not fall within Chapter 28 or 29 of the Act. Since these are not specified elsewhere, their appropriate classification would be under Heading No. 39.01/19(6) as "Plasticizers, not elsewhere specified". It is well settled in these matters how a good is known in the trade and treated in the trade literature is relevant and significant and often decisive factor. In that view of the matter, the Tribunal was right in the view it took. These appeals fail and are accordingly dismissed. N.V.K. Appeals dismissed.

In response to a notice issued under Section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the appellant contended that he was not in possession of 23.61 acres of surplus agricultural land as set out in the said notice, and that the authorities had failed to notice that he had transferred by means of a registered deed of gift dated January 7, 1972 an extent of 12.35 acres of land to his invalid daughter who remained unmarried inspite of being 30 years old because she was born a crippled child, and that the lands were part of Abadi and, therefore, stood excluded from the operation of the said Ceiling Act. The Prescribed Authority as well as the Appellate Authority did not find favour with the aforesaid contentions, and held that the appellant had failed to establish that the transfer of land in favour of his daughter was made in good faith, and was not intended for the immediate or deferred benefit of the appellant and other members of his family, and furthermore the transfer appeared to be a device to defeat the provisions of the Act. Being aggrieved with the order of the Prescribed Authority, that was affirmed by the Appellate Authority the appellant approached the High Court by way of Writ Petition to quash the said orders. The High Court, however, dismissed the Writ Petition. In the appeal to this Court it was contended on behalf of the 541 appellant: ( 1 ) though the registered deed of gift had been executed after the prescribed date viz. January 21, 1971, the transfer was in pursuance of an earlier family arrangement to provide maintenance for the invalid daughter and, therefore, the transfer falls outside the purview of Section 5(6) of the Act; (2) if the transfer attracted the operation of Section 5(6) and did not constitute an excepted transfer under Clause (b) of the proviso to Section 5(6), then Section 5(6) should be held ultra vires Article 31 A of the Constitution; (3) the Ceiling Act is violative of Article 14 of the Constitution in that it discriminates between major unmarried daughter and minor unmarried daughter by excluding the former from the definition of family ' under Section 3(7) of the Act. Dismissing the Appeal, ^ HELD: 1(i) From the definition of 'family ' in Section 3(7) it can be seen that a major daughter of a tenure holder, even if she is unmarried. is undoubtedly not treated as a member of the family. [544D] (ii) The Legislature has provided by section 5(6) that any extent of land transferred after 24.1.197l has also to be included in the total extent of holding of the tenure holder for the purposes of calculation of the ceiling area, unless the transfer falls within the category of excepted transfers under clauses (a) or (b) of the proviso. [544E] In the instant case, the finding of the Prescribed Authority and the Appellate Authority, which has found acceptance with the High Court, is a finding of fact and as such its correctness cannot be canvassed in an appeal under Article 136 of the Constitution. Even otherwise, the appellant had failed to prove that there was an earlier family arrangement and if there was one, to explain why he had delayed the execution of gift till after the Ceiling Act came into force, especially when the purported gift would only result in himself and his sons being in possession of the land and enjoying the income therefrom. [544F G] 2. There is, no scope for the appellant to raise any contention that section 5(6) is ultra vires Article 31 A. Its constitutionality cannot be assailed by reason of the immunity enacted in Article 31 B. [545A,B] 3. The provisions of the Ceiling Act do not discriminate between man and woman qua man and woman but merely organise a scheme where life 's realism is legislatively pragmatised. [545E] D.G. Mahajan vs Maharashtra, ; and Ambika 542 Prasad vs U.P. State, ; , referred to.

r Case (C) No. 78 of 982 etc. (Under Article 139A of the Constitution of India.) Vepa Sharathy, Attorney General, G. Ramaswamy, Additional Solicitor General, R.K. Jain, B.N. Bhat, K. Lahiri, K. Parasaran, A.K. Ganguli. F.S. Nariman, Uday Lalit, A.C. Manoj Goel, K.M.K. Nair, Kailash Vasudev, Sudhir Walia, Mohit Mathur, Ms. A. Subhashini, K. Swamy, T. Topgay, Rathin Das, Ajit Kumar Sinha, S.C. Sharma, Amlan Ghosh, Ms. J.S. Wad, Mayakrishnan, D.P. Mukherjee, G.S. Chatterjee, and K. N. Bhat for the appearing Parties. The Judgments of the Court were delivered by SRARMA, CJ. The two constitutional questions of vital importance which arise in this case are : (i) whether a seat can be earmarked at all in the Legislature of a State after its complete merger in India for a repre 914 sentative of a group of religious institutions to be elected by them, and (ii) whether seats can be reserved in favour of a particular tribe far in excess of its population. My answer to both the questions is in the negative. These cases relate to the constitution of Legislative Assembly of Sikkim which merged with India in 1975. They were instituted as writ petitions under Article 226 of the Constitution before the Sikkim High Court and have been later transferred to this court. The main case being Writ Petition No. 4 of 1980 registered as Transfer Case No. 78 of 1982 after transfer to this Court was filed by the petitioner R.C. Poudyal in person and he was conducting this case himself, and will be referred to as the petitioner or the writ petitioner in this judgment. During the course of the hearing of the case, Mr. R.K. Jain assisted the Court as amicus curiae and pressed the writ petition on his behalf. Transfer Case No. 84 of 1982 was filed by Somnath Poudyal as Writ Petition No. 12 of 1980 in the High Court, taking a similar stand as in writ petition No. 4 of 1980. The third case being Writ Petition No. 15 of 1990 filed by Nandu Thapa, also challenging the impugned reservations, is Transfer Case No. 93 of 1991. During the hearing, however, the stand taken by his counsel, Mr. K.N. Bhat was substantially different from the case of the main writ petitioner, and he lent support to some of the arguments of the contesting respondents. The case in Writ Petition No. 16 of 1990 of the High Court (Transfer Case No. 94 of 1991 here) is similar to that in Transfer Case No. 93 of 1991. The writ petition has been defended mainly by the State of Sikkim, represented by Mr. K. Parasaran, Union of India appearing through Mr. Attorney General and by Mr. F. section Nariman on behalf of certain other parties. The relevant provisions relating to the impugned reservations are those as included in the Representation of the People Acts, 1950 and 1951, by the Representation of the People (Amendment) Act, 1980 (Act 8 of 1980)) purportedly made by virtue of Article 371F(f), inserted in the Constitution in 1975 by the Constitution (Thirty Sixth Amendment) Act, 1975 and consequential amendments in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976. The writ petitioner contends that the impugned provisions of the Representation of the People Acts arc ultra times of ' the Constitution and cannot be saved by Article 37IF(f). Alternatively it has been argued that if the provision,; of Article 371F(f) are interpreted as suggested on behalf of the respondents, the same would be violative of the basic features of the Constitution and would, therefore, itself be rendered invalid. Another line which was pursued during the argument was that assuming the inter 915 pretation of the Act and the Constitution as put by the respondents is correct, still the circumstances do not justify the impugned reservations in the Assembly which are, therefore, fit to be struck down. The case of the respondents who are challenging the stand of the writ petitioner, is that the constitutional amendment bringing in Article 371F(f), as also the relevant amended provisions of the Representation of the People Acts are legal and valid, and having regard to all the relevant circumstances in which Sikkim became a part of the Indian Union the writ petition of the petitioner is fit to be dismissed. For appreciating the points arising in the case and the arguments addressed on behalf of the parties it will be necessary to briefly consider the historical background of and the constitutional position in Sikkim before and after its merger with India. Sikkim, during the British days, was a princely State under a hereditary monarch called Chogyal, subject to British paramountcy. The Chogyal, also described as Maharaja, was a member of the chamber of Princes entitled to gun salute of 15. The provisions of the Government of India Act, 1935 were applicable and Sikkim thus did not have any attribute of sovereignty of its own. On the independence of India in 1947 there was a public demand in Sikkim for merger with India which was resisted by the Rulers. The statements made in paragraph 3 (v) in the counter affidavit of the Union of India, respondent No. 1, sworn by the Deputy Secretary, Ministry of Home Affairs, is illuminating. It has been inter alia said that there was a strong and clearly expressed sentiment on the part of the people of Sikkim favouring closer relations with India and ' growth of genuine democratic institutions which led to large scale agitations demanding merger with India. However, the Government of India did not favour an immediate change in Sikkim 's status, and, therefore, only a treaty was entered into between Sikkim and the Government of India whereunder the latter assumed the responsibility with respect to the defence, external affairs and communication of Sikkim on the terms detailed in the document dated 3.12.1950. Chogyal, thereafter, took several steps towards sharing his power with the people by providing for elections, which will be dealt with later. The public demand developed into violent demonstrations leading to complete breakdown of law and order, which forced the then Chogyal to request the Government of India to assume the responsibility for establishment of law and order and good administration in Sikkim. Ultimately a formal agreement was signed on May 8, 1973 to which the Government of India, the then 916 Chogyal and the leaders of the political parties representing the people of Sikkim, were parties. I will have to refer to this agreement in greater detail later but it will be useful even at this stage to see one of the clauses of the Agreement which reads as follows: "(1) The three parties hereby recognize and undertake to ensure the basic human rights and fundamental freedoms of the people of Sikkim. The people of Sikkim will enjoy the right of election on the basis of adult suffrage to give effect to the principles of one man one vote." (emphasis added) 6. The population of Sikkim has bee., constituted mainly by three ethnic groups known as Lepchas, Bhutias and Nepalis. People from India also have been going to and settling in Sikkim but their number was small before 1973. Although the population of Nepalis has been far larger than the Lepchas and the Bhutias, their influence in the polity was considerably less as Chogyal was a Bhutia and with a view to perpetuate his hold, there was a consistent policy for uniting Lepchas and Bhutias as against the rest. On the lapse of British paramountcy and in its place the substitution of the protectorate of India, Chogyal in an attempt to assuage the public sentiment, issued a Proclamation providing for establishment of a State Council of 12 members, allocating 6 seats to Bhutia and Lepchas and 6 to Nepalis, all to be elected by the voters divided in 4 territorial constituencies. Only after a few months a second Proclamation followed on March 23, 1953, adding seats for 6 more members with one of them as President of the Council to be nominated by the Maharaja, i.e., Chogyal. Thus the total number rose to 18. Maharaja, however, reserved his right to veto any decision by the Council and to substitute it by his own. Another Proclamation which was issued in 1957 again maintained the parity of 6 seats each for Bhutia Lepchas and Nepalis. By a further Proclamation dated 16.3.1958, there was an addition of 2 more seats to the Council, one described as Sangha seat earmarked for religious Budhist Monasteries run by Monks who arc Lamas, and another declared as general seat. Thus, for the first time in 1958 Chogyal, by creating a general seat took note of the presence of the immigrants who were neither Bhutia Lepchas nor Nepalis and were mostly Indians. He also introduced the Lamas in the Council as he was sure of their support for him, as will be seen later. Appended to the Proclamation, there was a Note of the Private Secretary to 917 the Chogyal which has been referred to by the respondents in their arguments in support of the impugned reservations. The Note is in three sub paras dealing with the Sangha seat, the general seat and the question of parity between the Bhutia Lepchas and the Nepalis. It has been mentioned in the first sub para (a) that the Sangha constituted a vital and important role in the life of the community in Sikkim and had played a major part in taking of decisions by the Councils in the past. In sub para (b) it has been stated that the political parties have been demanding one third of the total seats in the Council to be made available to all persons having fixed habitation in Sikkim although not belonging to any of the categories of Bhutias Lepchas and Nepalis, and the Maharaja by a partial concession had allowed one seat for the general people. The last sub para declares the desire of the Maharaja that the Government of Sikkim should be carried on equally by the two groups of the Bhutia Lepchas and Nepalis, without one community imposing itself or encroaching upon the other. By a later Proclamation dated December 21, 1966 the Sikkim Council was reconstituted with a total number of 24 members, out of whom 14 were to be elected from 5 territorial constituencies, reserving 7 seats for Bhutia Lepchas and 7 seats for Nepalis; one by the Scheduled Castes, one by the Tsongs, and one was to be treated as a general seat. The Sangha seat was maintained, to be filled up by election through an electoral College of the Sang has and the remaining 6 seats to be nominated by the Chogyal as before. It appears that it was followed by another similar Proclamation in 1969, which has not been placed before us by the parties. In spite of the establishment of the Sikkim Council, the ultimate power to govern remained concentrated in the hands of Chogyal, who besides having the right to nominate 6 members in the Council, reserved to himself the authority to veto as also of taking final decision in any matter. The people could not be satisfied with this arrangement, and as said earlier, there was widespread violent demonstrations and complete collapse of law and order which forced the Chogyal to approach the Government of India to take control of the situation. The 3 parties namely the Chogyal, the people of Sikkim represented by the leaders of the political parties, and the Government of India were ultimately able to arrive at the terms as included in the Tripartite Agreement of 8.5.1973 and the authority of Chogyal was considerably reduced. The preamble in the agreement specifically mentioned that the people of Sikkim had decided to adopt, 918 "A system of elections based on adult suffrage which will give equitable representation to all sections of the people on the basis of the principle of one man one vote." (emphasis supplied) It was further said that with a view to achieve this objective, the Chogyal as well as the representatives of the people had requested the Government of India to take necessary steps. The first paragraph dealing with the Basic Rights declared that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principle of one man one vote. Another provision of this agreement which is highly important for decision of the issues in the present case is to be found in the 5th paragraph which reads as follows: "The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin, and ' that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected." Strong reliance has been placed on the above paragraph on behalf of the respondents in support of their stand that the Bhutia Lepchas who contribute to less than one fourth of the total population of the State, are entitled to about 40% of the seats in the Council as allowed by the impugned provisions. The next Proclamation which is relevant in this regard was issued on the 5th of February, 1974 and was named as the Representation of Sikkim Subjects Act, 1974. It directed the formation of Sikkim Assembly consisting of 32 elected members 31 to be elected from 31 territorial constituencies and one Sangha constituency to elect one member through an electoral College of Sanghas. The break up of the 32 seats is given in section 3, directing that 16 constitutencies including one for the Sangha 919 were to be reserved for Bhutia Lepchas, and the reamining 16 including one for Tsongs and another for the Scheduled Castes for Nepalis. As a result the general seat disappeared. A further Act was passed the same year in the month of July by the newly constituted Sikkim Assembly emphasising once more the decision of the people to hold the elections to the Assembly "on the basis of one man one vote", that is to say every person who on the prescribed date was a Subject of Sikkim, was not below the prescribed age and was not otherwise disqualified under the Act was entitled to be registered as voter at any future election. The Assembly which was established under the 1974 Act was vested with larger powers than the Council earlier had, and the fight for effective power between Chogyal and the people entered the crucial stage. The main party, Sikkim Congress, representing the people captured 31 out of 32 seats at the poll at the election held in pursuance of the agreement, and it is significant that its elections manifesto went on to state: "We also aspire to achieve the same democratic rights and institutions that the people of India have enjoyed for a quarter of century." (emphasis added) Ultimately a special opinion poll was conducted by the Government of Sikkim and an unambiguous verdict was returned by the people in favour of Sikkim 's joining and becoming a part of the Indian Union. In pursuance of this development the Constitution of India was amended by the Constitution (Thirty Fifth Amendment) Act, 1974, inserting Article 2A which made Sikkim associated with the Union of India on certain terms and conditions. The amendment came into force in February 1975. On the 10th of April, 1975 the Sikkim Assembly passed another momentous resolution abolishing the institution of Chogyal and declaring that Sikkim would henceforth be a constituent unit of India, enjoying a democratic and fully responsible government. A request was made in the resolution to the Government of India to take the necessary measures. Accordingly the Constitution was further amended by the Constitution (Thirty Sixth Amendment) Act, 1975 which became effective in May, 1975. As a result of this constitutional amendment Sikkim completely merged in the Union of India. By the Thirty Fifth Amendment of the Constitution, Sikkim was, 920 as mentioned earlier, merely associated with the Union of India by insertion of Article 2A on the terms and conditions set out separately in a schedule added as the Tenth Schedule. Certain amendments were made in Articles 80 and 81 also. By the Thirty Sixth Amendment of the Constitution, a full merger of Sikkim with Union of India was effected by adding Sikkim as Entry 22 in the First Schedule of the Constitution under the heading "1. The State '. Further, some special provisions were made in a newly added Article 371F, and strong reliance has been placed on behalf of the respondents on the provisions of clause (f) in Article 371F as authorising the impugned amended provisions in the Representation of the People Acts. Article 2A, the Tenth Schedule, and certain other provisions in some of the Articles were omitted. In 1978 the Bhutia Lepchas were declared as Scheduled Tribes in relation to the State of Sikkim by a Presidential Order issued under clause (1) of Article 342 of the Constitution of India, and they thus became entitled to the benefits of reservation of seats in the State legislature in accordance with Article 332. The consequential reservation in the state legislature were made in the Representation of the People Act, 1950 and the Representation of the People Act, 1951, twice by the Act 10 of 1976 and the Act 8 of 1980, but not consistent with clause (3) of Article 332 which is in the following terms "332 Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. (1). . . . . . . (2). . . . . . . . (3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State." 921 Out of the total seats of 32 in the House, 12 have been reserved for Sikkimese of Bhutia Lepcha origin and one seat for the Sanghas by clauses (a) and (c) respectively of the newly inserted sub section (1A) in section 7 of the Representation of the People Act, 1950. Dealing further with the Sangha seat it is provided in section 25A of the 1950 Act that there would be a Sangha constituency in the State and only Sanghas belonging to Monasteries recongnised for the purpose of elections held in Sikkim in April, 1974 shall be entitled to be registered in the electoral roll, and the said electoral roll shall be prepared or revised in such a manner as may be directed by the Election Commission. Consequently amendments were made by inserting section 5A in the Representation of the People Act, 1951. The extent of each constituency and the reservation of seats were initially directed to follow the position immediately before the merger under the Thirty Sixth Amendment of the Constitution, and later amendments were made in this regard in the Delimitation of Parliamentary and Assembly Constituencies Order, 1976. The amended provisions of sub section (3) of section 7 dealt with (besides dealing with Arunachal Pradesh) this matter. These special provisions have been challenged by the writ petitioner on various grounds. The first objection taken on behalf of the respondents is to the maintainability of the writ petitions on the ground that the dispute raised by the petitioner is of political nature and the issues are not justiciable. The argument proceeds thus. To acquire fresh territories is an inherent attribute of sovereignty and this can be done by conquest, treaty or otherwise on such conditions which the sovereign considers necessary. Any question relating thereto entirely lies within the political realm and is not amenable to the court 's jurisdiction. Referring to Articles 2 and 4 of the Constitution it has been urged that the admission into the Union of India is permissible without a constitutional amendment and the terms and conditions of such admission are not open to scrutiny by the courts. Article 371F must, therefore, be respected, and the impugned amendments of the Representation of the People Acts must be held to be legally valid on account of the provisions of clause (f) of Article 371F. I am afraid this argument fails to take into account the vital difference between the initial acquisition of additional territory and the admission to the same as a full fledged State of the Union of India similar to the other States. Special provisions for any State can certainly be made by an 922 amendment of the Constitution, as is evident by Articles 371A. 371B, 371C et cetera, but it is not permissible to do so in derogation of the basic features of the Constitution. So far the power of sovereignty to acquire new territories is con territories is concerned, there cannot be any dispute. The power is inherent, it was, therefore, not considered necessary to mention it in express terms in the Constitution. It is also true that if an acquisition of new territories is made by a treaty or under an agreement the terms of the same will be beyond the scrutiny of the courts. The position, however, is entirely different when new territory is made part of India, by giving it the same status as is enjoyed by an existing State under the Constitution of India. The process of such a merger has to be under the Constitution. No other different process adopted can achieve this result. And when this exercise is undertaken, there is no option, but to adopt the procedure as prescribed in conformity with the Constitution. At this stage the court 's jurisdiction to examine the validity of the adopted methodology cannot be excluded. So far the present case in concerned the decision does not admit of any doubt that when the Thirty Sixth Amendment of the Constitution was made under which Sikkim joined India as a full fledged State like other States, power of amendment of the Constitution was invoked, and this had to be done only consistent with the basic features of the Constitution. As mentioned earlier when Sikkim became associated with India as a result of the Thirty Fifth Amendment of the Constitution, it did not become a State of the Union of India. A special status was conferred on Sikkim by Article 2A read with Tenth Schedule but, without amending the list of the States in the First Schedule. Although the Status, thus bestowed on Sikkim then, was mentioned as Associate, it could not be treated as a mere protectorate of India. The protectorateship had been there in existence from before under the earlier treaties and by Article 2A read with Tenth Schedule something more was achieved. This, however, was short of Statehood. Consequently Sikkim was not enjoying all ,he benefits available under the Constitution of India. By the Thirty Sixth Amendment there came a vital change in the Status of Sikkim. It was included as the 22nd Entry in the list of the States in the First Schedule without any reservation. Article 2A. the Tenth Schedule and other related provisions included in the Constitution by the Thirty Fifth Amendment, were omitted from the Constitution. Thus, as a result of the Thirty Sixth Amendment Sikkim became as much 923 a State as any other. Considered in this background, the objection to the maintainability of the writ petitions cannot be upheld. Further, the challenge by the writ petitioner is to the amendments introduced in the Representation of the People Acts by the Central Act 8 of 1980 as being unconstitutional and not protected by Article 371F(f) and this point again has to be decided by the Court. If the conclusion be that clause (f) of Article 371F permits such amendments the further question whether clause (f)) itself is violative of the basic features of the Constitution will have to be examined. In my view the position appears to have been settled by the Constituted Bench of this Court in Mangal Singh and Anr. vs Union of India, ; , at page 11.2 in the following terms : "The law referred to in articles 2 & 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament. Power with which the Parliament is invested by articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme. (emphasis added) 16. It would be of considerable help to refer also to several observations made by Gajendragadkar, J. on behalf of the Bench of 8 learned Judges of this Court in Re: The Berubari Union and Exchange of Enclaves: , although the facts of that case were not similar to those before us. Dealing with the treaty making power of a sovereign State the learned Judge observed at pages 283 284 of the report that it is an essential attribute of sovereignty that a State can acquire foreign territory and in case of necessity cede the parts of its territory in favour of the foreign State, but this power is of course subject to the limitations which the Constitution of the State may either expressly of by necessary implication impose in that 924 behalf Article 1 (3) (c) does not confer power or authority in India to acquire territories, and what the clause purports to do is to make a formal provision for absorption and integration of any foreign territories which may be acquired by virtue of its inherent rights to do so. In this background Articles 1, 2, 3 and 4 were examined and the question was concluded thus: "The crux of the problem, therefore, is: Can Parliament legislate in regard to the Agreement under article 3?" "There can be no doubt that foreign territory which after acquisition becomes a part of the territory of India under article 1 (3) (c) is included in the last clause of article 3 (a) and that such territory may, after its acquisition, be absorbed in the new State which may be formed under article 3 (a). Thus article 3 (a) deals with the problem of the formation of a new State and indicates the modes by which a new State can be formed. " Dealing with the nature of the power of ceding a part of the territory, it was held that such a power cannot be read in Article 3 (c) by implication, and in the case of a part of the Union Territories there can be no doubt that Article 3 does not cover them. The conclusion arrived at was that this was not possible by a law under Article 3 and an amendment of the Constitution was essential. It is true that in case of acquisition Article 2 comes into play but that is only at the initial stage when the new territory joins and becomes the territory of India under Article 1 (3)(c). In the present case the power under Article 2 was not exercised at any point of time. Initially, as pointed out earlier, Sikkim joined India as an Associate State by Article 2A introduced in the Constitution by an amendment. When further steps of its complete merger with India were taken, the methodology under Article 3 was not available in view of the observations in Berubari case. Correctly assessing the situation, fresh steps for amendment of the Constitution once more were taken and Sikkim was granted the status of a full Statehood at par with the other States by the Thirty Sixth Amendment of the Constitution. Once this was done it had to be consistent with the basic features of the Constitution. If we assume that the stand of the respondents as mentioned earlier on this aspect is correct, the result %ill be that in a part of India, 925 joining the nation later, a different rule may have to be allowed to prevail. This is not a fanciful hypothesis. Even during this last decade of the present century there are Tribes, in isolation from the rest of the world, maintaining a social order of primitive nature completely oblivious of the long strides of civilisation through history. In case of illness, the treatment is entrusted to the witch doctor and the trial of an alleged crime is left to certain persons supposed to be having super natural powers employing bizzare methods for decision on the accusation. Without any regard for human dignity, women accused of being possessed of witchery are burnt alive and many such customs are followed which are highly abhorrent to every concept of justice, liberty, equality and every other quality for which our civilisation stand,, today. If steps are taken to grant legitimacy to a state of affairs repulsive to the basic features of our Constitution, the Courts are under a duty to judicially examine the matter. Mr. Parasaran, in the course of his argument fervently appealed lo this Court to decline to consider the questions raised by the petitioner on merits, on the ground that the issues are political. He proceeded to contend, in the form of a question, that if one of our neighbouring countries (he discreetly omitted to identify it) wishes to join India on certain conditions inconsistent with the philosophy of our Constitution, should we deny ourselves the opportunity of forming a larger and stronger country, and in the process, of eliminating the unnecessary tension which is causing grave concern internationally. If I may say so, the fallacy lies in this line of thought due to the assumption that there is only one process available in such a situation and that is by way of a complete merger under our Constitution, as has been adopted in the case of Sikkim, by the Thirty Sixth Amendment. The plea ignores other alternatives which may be adopted, for example, by forming a confederation. However, this question is highly hypothetical and is surely political in nature and I do not think it is necessary to answer it in precise terms. The maintainability of the writ petitions has also been questioned by Mr. Attorney General and Mr. Nariman on similar grounds. I have considered the plea of unjusticiability of the dispute raised in the light of all the arguments addressed before us, but since I do not find any merit therein, I hold that the courts are not only vested with the jurisdiction to consider and decide the points raised in the writ petitions, but are under 926 a duty to do so. 20. On the merits of the writ petitions let us first consider the position with respect to Sangha seat. It is not in dispute that the reserved seat is earmarked for the representative of a number of Buddhist Monasteries to be elected by an electoral college of Lamas in which the entire population of Sikkim excepting the registered Buddhist Priests, have been denied any say. For the purpose of explaining Sangha, Mr. Parasaran has referred to the book on Hindu law of Religious and Charitable Trusts by B.K. Muk herjee, dealing with Buddhism and stating that Buddhism was essentially a monastic religion and the Buddhist Order or congregation of monks was known by the name of Sangha and this Sangha together with Buddha and Dharma (sacred law) constituted three jewels which were the highest objects of worship among the Buddhists. With a view to show that the Sangha could be given an exclusive voting right to a seat reserved for this purpose, further reliance was placed on a passage saying that the Sangha was undoubtedly a juristic person and was capable of holding property in the same way as a private person could. Further as a corporation the Sangha enjoyed a sort of immortality and was consequently fit to hold property for ever. In other words, Sangha also described as a Buddhist congregation has, like the Christian Chruch, a corporate life and a jural existence. Maths were founded by Adi Shankaracharya and other Hindu ascetics on the model of these Buddhist vihars. Now, coming to the impugned provision of the Act it will be seen that section 7(1A)(c) of the Representation of the People Act, 1950 allots one seats for Sanghas referred to in section 25A. Section 25A states that notwithstanding anything contained in sections 15 and 19, the Sanghas belonging only to such Monastries as were recongnised for the purpose of elections held in April 1974 for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll. The Election Commission has to prepare or revise the same in consultation with the Government of Sikkim. Before Sikkim joined India, Buddhism was the State religion. The Gazetteer 1864 of Sikkim stated that "Lamas or Tibetan Buddhism is the State religion of Sikkim". The position continued till 1974 when the elections for Constituent As sembly were held. The case of the writ petitioner is that the reservation in favour of the Sangha based on religious with a separate electorate of the religious monasteries is violative of the basic structure of the Constitution of India, and is not permissible after Sikkim joined India as a full fledged State. It is further contended that the number of the persons actually 927 entitled to exercise the right being considerably very small (about 30 only). their share works out to be disproportionately very high. In reply Mr. Parasaran contended that Sangha has played a vital role in the life of the community for a long time in the past, and a body consisting of Lamas and laity Lhade Medi has contributed towards cultural, social and political development of the people of Sikkim. The Sangha seat was, therefore, introduced in order to provide for their representation. Their interest is synonymous with the interest of the minority communities and this reservation, which is coming from the time of Chogyal, should be maintained. He quoted from the Book 'the Himalayan Gateway ' by George Kotturan, dealing with the history and culture of Sikkim, which states that the author found the monasteries everywhere looking after the spiritual needs of a small community. The Chogyal also allowed the Lamas to play a role in the administration and this arrangement is, therefore, not fit to be disturbed. The learned counsel explained the position in his own way as asserting that in substance the reservation is not in favour of a religious body and it is not based solely on religious consideration. The Buddhist priests were rendering useful service to the people and the reservation must, therefore. be upheld as valid and the fact that they belong to a particular religious body should be ignored. Similar was the approach of the Attorney General and Mr. Nariman but no further light was thrown during their arguments. Mr. Phur Ishering Lepcha who was added later in these cases as a party respondent on an intervention application, filed his written argument inter alia stating that Sangha is a distinct identity which has played a very vital role in the life of the community since the earliest known history of Sikkim and has played a major part in deciding the important issues. The Lhadi Medi, a body consisting of all the Lamas and laity has contributed towards cultural,, social and political development of the people of Sikkim, and the reservation in favour of Sangha was introduced in order to provide for the representation of ' a section which was responsible for the basic culture of the Sikkimese Bhutia Lepchas including some sections of the Nepali community of Sikkim. Reliance has been placed on many passages from the book 'Himalyan Gateway ' by Georage Kotturan, referred to earlier. In substance the stand taken in the argument by Mr. Parasaran and supplemented by his written submissions, has been re emphasised by Phur Ishering Lepcha. The excerpts from the book give the history of Buddhism, and 928 described how the religion got modified from time to time under the guidance of many Saints going to Sikkim from India. It is further stated that the culture of Sikkim under the Chogyal was essentially religious and the patron saint of Sikkim Lhatsum Chhembo, believed to be an incarna tion of an Indian Saint, is according to the traditional belief, incarnated more than once; and that the late 12th Chogyal of Sikkim, Palden Thondup Namgyal (referred to in the book as 'Present Chogyal ') was (according to the belief) and incarnate of Chogyal Sidkeong who himself was an incar nate Lama. There is a list of Monasteries of Sikkim as given at page 481 which indicates that the separate electorate contains only a little more than 30 Sanghas. Some passages from other books have also been quoted in the written argument and what is stated at page 15 of 'Sikkim and Bhutan Twenty One years on the North East Frontier 1887 1908" by J.C. White, C.I.E. (Political Officer of Sikkim 1889 1908) indicates that 'as a rule the Lamas are ignorant, idle and useless, living at the expense of the country, which they are surely dragging down. There are, of course, exceptions to every rule and I have met several lamas" who appeared to be thoroughly capable, 'but I am sorry to say that such men were few and far between. The majority generally lead a worldly life and only enter the priesthood as, a lucrative profession and one which entails no trouble to themselves". Another book 'The Himalaya Aspects of Change, 1981 ' by J.S. Lall (Dewan of Sikkim, 1949 1952) mentions at pages 228 229 that 'Though Lamaist Buddhism continues to be the official religion, it is professed mainly by the Butias, Lepchas and Newars, along with a few of the other tribal groups such as Tamangas, and the Buddhistic overlay wears thin in Dzongu where nun traditions survive". It is further mentioned that the influence of the Monasteries was diminishing and fewer and fewer young boys were being sent by their families as novices for the priesthood. The last Chogyal, who was himself an incarnate Lama was greatly concerned at this loss of interest and set up a training school for attracting more novices. Fresh impetus in a different way was also given to the "Buddhist revival ' through the presence of a renowned teacher and mystic from Tibet. All this was happening quite late probably in 19.50s. Reliance has also been placed on 'Himalayan Village ', a book by Geoffrey Gorer which at pages 192 193 reads thus "Finally lamaism is a social Organisation. The lamas (to a 929 lesser extent the nuns) are arranged in a disciplined hierarchy. They are a section of society which performs for the whole society its religious functions; in return the rest of society should give material support to the lamas. In Tibet this social aspect is extremely important, the lamas possess the greater part of the temporal power and are also as a group an exploiting class; the monasteries own land and the peasants attached to the land are practically monastery serfs. The lower ranking lamas also work for the benefit of those of higher rank and are possibly as much exploited as the peasants, but they have, at least in theory, the possibility of rising to the higher ranks, which possibilities are completely shut out from the laymen. In Sikkim, as far as I can learn, the social influence of the lamas is considerably less;". (emphasis added) Another book by A.C. Sinha "Politics of Sikkim A Sociological Study" describes the system of Sikkim thus "The political system of Sikkim is a typically Himalayan theocratic feudalism parallel to the Tibetan Lamaist pattern. The ruler is not only the secular head of the State, but also an incarnate lama with responsibility to rule the subjects in accordance with the tenets of the "Choos" the Dharma. The basic tenets of the Lamaist polity in Sikkim ever since 1642 are the Chos (Chhos) as the established religion and the rulers (rGyalpo) who are instrumental in upholding the doctrine justifying the appellation, the "Chos rGyal" (Chogyal). " (emphasis added) This book goes on to record how the Buddhist Monasteries having the patronage of the Chogyal came to wield authority in Sikkim. The Monks, however, "Were drawn from the high born Bhotias and Lepchas". The Lamas did not confine their participation only to the administration but also controlled the electorate. At page 78 it is stated that the major portion 930 of the trans Himalayan trade was in the hands of Marwaris, the aristocracy and some of the Lamas. Another intervenor which placed its case is Sikkim Tribal Welfare Association, a registered Organisation for the purpose of inter alia "to effectively and efficiently establish and promote a strong and healthy Organisation of the Bhutias, Lepchas and Sherpas of Sikkim at Gangtok, and subsequently to build up similar organisations in the four districts of Sikkim". In its written argument very long excerpts have been given from a book by Joseph Dalton Hooker who visited Sikkim in 1848 (the book was published in 1854), giving detailed descriptions of the features, habits, customs et cetera of the Lepchas which are certainly very interesting but, of little relevance in the present cases. The intervenor has relied on this book for showing that the Lepchas were inhabiting Sikkim earlier than the arrival of the Nepalis who were inducted by the British rulers and others. The customs followed by them, as mentioned in the book, indicate that "their existence was primitive in nature so much so that every tribe had a priest doctor; who neither knew or practised the healing art, but was a pure exorcist; all bodily ailments being deemed the operations of devils, who are cast out by prayers and invocations". On the question as to who are the early settlers in Sikkim there is serious controversy, the other view being that so far the Bhutias are concerned they could not be treated as aboriginals. I do not think anything turns on the question as to the order in which the different sections of the population settled in Sikkim and I, therefore, do not propose to consider the affidavits filed by the parties on this aspect. From the records, however, it is clear that a seat in the Council was allotted to the Sanghas for the first time in 1958 and the Lamas manning the Sanghas are drawn from the minority section of the population (less than 25%) belonging to Bhutia and Lepcha tribes. The reason given by the different respondents in support of the reservation of the Sangha seat is the historical background showing that the Lamas, besides performing the religious rites and discharging the religious and spiritual duties were rendering social service and with the patronage of Chogyal were permitted to take part in the administration. It is argued that although the Chogyal might have disappeared, the participation by these Buddhist Monks in the administration should not be denied. The issue is whether this is permissible after Sikkim joined India as a full fledged State. 931 24. It is firmly established and needs no elaboration that an amendment of the Constitution which violates the basic features of the Constitution is not permissible. It has been contended on behalf of the respondents that the provisions of clause (f) of Article 371F do not in any way offence any of the basic features and since the clause permits the impugned reservations in the Representation of the People Acts, they have to be. upheld. So far the reservation of Sangha seat is concerned, the question is whether this violates Article 15 as also several other provisions of the Constitution; and further whether these constitutional provisions are unalterable by amendment. If they are basic in nature they will have to be respected and clause (f) must be construed not to have violated them in spite of the non obstante clause with which the Article begins. Let us first consider Article 15 which prohibits discrimination on the ground of religion. The Buddhist Monasteries, which are the beneficiaries of the reservation, are admittedly religious institutions. What the respondents have tried to suggest is that although basically the Monasteries are religious in nature, they form a separate section of the society on account of the social services they have been rendering mainly to the Bhutia Lepcha section of the population. Further emphasis has been laid on the fact that they were participating in the administration by the blessings of the Chogyals for about 17 years yes, only 17 years as the, seat in their favour was created for the first time in 1958 before the merger with India. The argument is that in this background they should not be treated as merely religious institutions for the purposes of reservation, and in any event religion is not the only basis for putting them in a separate group. The classification, therefore, is not unconstitutional. I do not find. myself in a position to agree with the respondents. The Buddhist, Monasteries are religious in nature out and out, and, besides taking care, of the spiritual needs of the people and looking after the ritual side of the Buddhist religion, they are also trying to do all what their religion expects, from them. The concern for the people and the society stands high on the agenda of Buddhism, and for that matter, of all religions. But it is only in the capacity of Monks that they have been trying to help a minority section ' of the people of Sikkim and that is their true identification. The position could have been different if the reservation had been in favour of a social group devoted to public service, which for identification had led to 032 religious groups including these Monks as well. But that is not so. The position is just the other way. The attempt of the respondents is to defend reservation in favour of a particular religious body and by way of justification for the same to bring in the element of social service. They forget that the role of the Sanghas in rendering social service to a section of the public is not a feature special for these Monasteries. The self less services rendered by the Christian Missionaries to the helpless sick persons, specially in many under developed parts of the world, and to the badly injured soldiers in the war; or, for that matter, the all round care of the society which has been taken by the innumerable Hindu Maths and temples trusts) in the different parts of India for ages cannot be ignored. A very large number of charitable institutions run by Hindu and Muslim religious bodies have been always helping the people in many ways. Learned and selfless religious saints and leaders have made significant contributions in establishment of civilised society for centuries and history shows that this has been done through the instrumentality of religious institutions and organisations. Similar is the position with respect to the other religions in India. The positive role religion has played in lifting humanity from barbaric oblivion to the present enlightened and cultured existence should not be belittled. But, at the same time, it cannot be forgotten that religion has been from time to time, misused to bring on great misfortunes on mankind. In modern times, therefore, social and political thinkers do not hold unanimous view on the question of the desirability to allow religion to influence and control politics and the State instrumentality. The difference in the two perceptions is vital and far reaching in effect, and generally one view or the other has been accepted as national commitment, not subject to a change. When I proceed to examine the issue further I will not be using the expression 'religion ' in its pure and true sense spreading universal compassion and love, but in the ordinary concept as it is popularly understood today and accepted by the general man in the modern time, sometimes as a spiritual experience, sometimes as customary rituals but most of .he time as a social and political influence on one segment of the population or other, bringing with it (although not so intended) mutual distrust between man and man, and hostility amongst different religious groups. In .his process the very welfare of the society, which is of prime consideration becomes the casualty. It has to be remembered that if the Constitution is so interpreted as to permit, by an amendment a seat to be reserved in the legislature for 933 a group of religious institutions like the Buddhist Monasteries, it will follow that such a reservation would be permissible for institutions belonging to other religions also. There will not be any justifiable reason available against a similar provision for the Christian Missionary institutions in the country on the ground of their services, to the cause of upliftment of Adivasis, their contribution in the field of education, and their efforts for medical assistance to the underprivileged; or, for the innumerable other religious institutions of Hindus, Muslims, Sikhs and other religions providing invaluable relief to the helpless. And all this may ultimately change the very complexion of the legislatures. The effect that only one seat has been reserved today for the Monasteries in Sikkim is the thin edge of the wedge which has the potentiality, to tear apart, in the course of time, the very foundation, which the democratic republic is built upon. In this background the question to ask is whether all this is prohibited as being abhorrent to the basic feature of the Constitution. I have no hesitation in answering the issue in the positive. Now let us have a brief survey of the relevant provisions of the Constitution. The Preamble, which is the key to understand the Constitution, emphasises by the very opening words, the democratic nature of the Republic guaranteeing equality of status to all which the people of India had resolved to constitute by adopting, enacting and giving to themselves the Constitution. The personality of the Constitution is developed in Part III dealing with the Fundamental Rights, and the framers of the Constitution, even after including Article 14 ensuring equality before law, were not satisfied unless they specifically prohibited religion as a ground for differential treatment. The freedom of propagation of religion and the right to manage religious affairs et cetera were expressly recognised by Articles 25 to 28 but when it came to deal with the State, the verdict was clear and emphatic that it must be free from all religious influence. Mr. Nariman claimed that a prohibition against discrimination on the ground of religion is not a basic feature of a democratic State. He placed strong reliance on the constitutions of several countries with special emphasis on the Constitution of Cyprus. The argument is that although Cyprus is an independent and sovereign republic with a democratic Constitution, the seats in the legislature are divided between the Greek population following the Greek Orthodox Church and the Muslim Turkish community. There is a division even at the highest level, the President 934 always to be a Greek Christian and the vice president a Muslim Turk. Mr. Nariman emphasised on the separate electorate provided by Cyprus Constitution and urged that these provisions do not render the Constitution undemocratic or illegal. He also referred to the Statesman 's Year Book (containing statistical and historical annual of the States of the world for the year 1985 86) showing that the population of the Christian community following Greek Orthodox Church was in 1983, 5,28,700 but was allotted only 70% of the seats in the legislature, and the Turkish Muslims with a population of only 1,22,900, the remaining 30% of seats. In other words the Muslims forming only about 20% of the total population., were allotted 30% of the seats. The fallacy in the argument of the learned counsel is the erroneous assumption that fundamental features of all constitutions are same or similar. The basic philosophy of a constitution is related to various elements including culture and tradition, social and political conditions, and the historical background. If the partition of India had not taken place in 1947 and the people belonging to all the religious communities had decided to agree on some arrangement like the people of Cyprus. by adopting a constitution providing for sharing of power on religious basis, the Constitution of Cyprus could have been relevant. There was a sustained effort on the part of the Indian National Congress and of ' several other political and social groups, by and large representing the people who remained in divided India and proceeded to frame the present Constitu tion, to avoid the partition of the country on the basis of religion, but they could not succeed. Unfortunately the struggle for maintaining the unity of the country was defeated by religion used as a weapon. The country was visited by a grave national tragedy resulting in loss of human life on a very big magnitude. Religious fundamentalism triumphed, begetting and encouraging more such fundamentalism. In the shadow of death and destruction on an unprecedented scale the making of the Constitution was taken up. The Constitution of Cyprus or any other constitution framed in circumstances different from those obtaining in this country, therefore cannot be relevant for understanding the basic philosophy and ethos of our Constitution. Although it is not strictly relevant for the decision in the present case, it may be noted that this patchwork Constitution of Cyprus of which the parties represented by Mr. Nariman seem to be so enamoured of, has completely failed to keep the country together. The learned counsel also referred to the provisions contained in Articles 239A, 240 and 371A with respect to the Union Territories and 935 State of Naggaland; and Article 331 permitting the President to nominate one or two members of Anglo Indian Community to the House of People if he is of the opinion that the Community is not adequately represented in the House. I do not see how these Articles can be of any help to the respondents in the present case. None of these provisions are linked with any particular religion at all. There should not be any misapprehension that an 'Anglo Indian ' has to be a Christian [see the definition of the expression in Article 366 (2)]. Religion not only became the cause of partition of the country, it led to wide spread bloodshed which continued even later and in which people belonging to the different communities died in very large numbers. The people of India are convinced that this tragedy was the direct result of the policy of the British rulers to divide the people on the basis of the religion and give them differential political treatment. During their earlier resistance to the establishment of the British rule, the Hindus and the Muslims were working together, and the combination was proving to be dangerous to the foreigners, and in 1857 the Empire had to face a serious threat. That in this background the principles of divide and rule was adopted and an atmosphere of distrust and hatred between the main communities of the country on the basis of religion was created, are undisputed facts of history. The people, who made exemplary sacrifices, unfortunately failed in their fight for independence of the undivided nation and were left with no alternative but to be reconciled with partition of the country. These were the people who proceeded to frame the present Constitution, and despite the Net back they had suffered, they reiletrated their firm belief in a democratic republic where religion has no role to play. All this is what has been described as 'Enacting History, ' by jurists and is available as aid to the interpretation of the Constitution. If we proceed to consider the entire Constitution harmoniously along with all the other materials, relevant in law for this purpose including the 'Enacting History, there is no escape from the conclusion that any weightage at the poll in favour of a group on the ground of religion is strictly prohibited and further, that this is a basic feature, which is not amenable to amendment. The provisions of section 7 (1A)(c) and the other connected amendments must, therefore, be held to be ultra vires. There is also another serious flaw in the reservation for the 936 Sangha rendering the same to be unconstitutional. By the impugned provisions of the 1950 Act, a special electorate has been created for this seat which is highly abhorrent to the fundamental tenets of the Constitution. Much thought was bestowed in the Constituent Assembly on the question whether separate electorate could be permitted under the Constitution. An Advisory Committee was constituted on January 24, 1947 for determining the fundamental rights of citizens, minorities, et cetera. The Advisory Committee was empowered to appoint sub committees see B. Shiva Rao 's Framing of Indian Constitution, Vol. II, pp. 56 571 and accordingly a Sub Committee on Minorities was appointed on February 27, 1947, to consider and report, inter alia, on the issue whether there should be joint or separate electorates. The Sub Committee by a majority of 28 to 3 decided that there should be no separate electorates for election to the legislatures. Shiva Rao 's Vol. II, p 3921 The Report of the Sub Committee was accepted by the Advisory Committee and the following observations were made : "The first question we tackled was that of separate electorates; we considered this as being of crucial importance both to the minorities themselves and to the political life of the country as a whole. By an overwhelming majority, we came to the conclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpened communal differences to a dangerous extent and has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political conditions that have developed in the country and from this point of view the arguments against separate electorates seem to us absolutely decisive. We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of joint electorates." (emphasis added) [Shiva Rao 's Vol. II, p. 412] I think that the Advisory Committee was right in suggesting that the decision against separate electorates was absolutely decisive for all times 937 to come. Sardar Patel, after referring to the suffering and the heavy penalty the nation had to pay on this count, expressed his satisfaction "that there has been unanimity on the point that there should be no more separate electorates and we should have joint electorates hereafter. So this is a great gain". Replying to the Debate Sardar Patel expressed his views in the following words : "I had not the occasion to hear the speeches which were made in the initial stages when this question of communal electorates was introduced in the Congress; but there are many eminent Muslims who have recorded their views that the greatest evil in this country which has been brought to pass is the communal electorate. The introduction of the system of communal electorates is a poison which has entered into the body politic of our country. Many Englishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the country as a result of this communal electorate, I never thought that that proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously. (emphasis added) (Constituent Assembly Debates; Vol. V, p. 225) I, however, find that the impugned amendment was made without bestowing serious thought and the respondents are supporting the same so determinedly that it has become necessary for this Court to consider the proposition 'seriously '. Pandit Govind Ballabh Pant, opposing an amend ment moved by B. Pocker Sahib Bahadur of the Muslim League providing for separate electorate for Muslims, expressed his indignation thus We all have had enough of this experience, and it is somewhat tragic to find that all that experience should be lost and still people should hug the exploded shibboleths and slogans." (emphasis added) 938 [Constituent Assembly Debates; Vol. V, p.224] Shri V.I. Muniswami Pillai, on this occasion reiterated these sentiments and said with a sigh of relief : ". Sir, which I would like to tell this House is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our country. The conditions that were obtaining in the various provinces were the real cause for introducing the system of separate electorates. The Poona Pact gave us both the separate and joint electorates but now we have advised according to this report that has been presented here that the Depressed Classes are doing to enjoy joint electorates. It is hoped, Sir, that, in the great Union that we are all envisaging that this Country will become in the years to come, joint elector ates will give equal opportunity for the Caste Hindus and the Minority communities to come together and work together and produce a better India." [Constituent Assembly Debates; Vol. V,p.202] Unfortunately, the firm belief of Mr. Pillai was not shared when the reservation in question was introduced by amendment three decades later in 1980. It will be helpful, for appreciating the reference by Sardar Patel to the opinions of even Englishmen in his reply and to the Poona Pact by Shri Pillai, to recall briefly the developments during the British Rule relevant to this aspect. In order to break the united front of the Indians against foreign domination, one of the most effective steps taken on behalf of the regime was to introduce separate electorates with weightage for the Muslims. The occasion was provided by the demand of the separate electorate for the Muslims by a deputation headed by Aga Khan presented to the then, Viceroy, Lord Minto, in 1906. Lord Minto not only supported him but added that in view of the service that the Muslims had rendered to the Empire, their position deserved to "be estimated not merely on "their" 939 numerical strength but in respect of the political importance of "the" community and the service that it had rendered to the Empire". The demand was accepted in 1909 by Minto Morley Reforms. The matter was again considered in 191.9 by the Montague Chenisford Committee. Their report disapproved the idea of separate electorates by stating that such electorates "were opposed to the teaching of history : that they perpetuated class division : that they stereotyped existing relations; and that they constituted a very serious hindrance to the development of the self governing principle". Sardar Patel was, in his reply, presumably referring to these expressions and similar other opinions: Unfortunately, however, the principle of communal electorates was adopted for the Muhammadans in the country and in Punjab for Sikhs. Having, thus succeeded in introducing this highly undesirable system of separate electorates on the basis of religion, the British rulers proceeded to extend the same with a view to divide the people further by proposing separate elector ate.% for the "Depressed Classes" in 1932 under the, Communal Award of Prime Minister Ramsay MacDonald. By that time the leadership of the country was in the hands of Mahatma Gandhi, who fully realised the dangerous fall out of the proposed measure. Rejecting the suggestion of the British Prime Minister to accept the same even for a temporary period, he staked his life for fighting out the menace by deciding to go on fast unto death. The rulers conceded and backed out, and the matter was sorted out by the famous Yarvada Pact. Separate electorate for the Muslims, however, could not be undone, and was given effect to in the Government of India Act, 1935, ultimately leading to the partition of the Country. In this background the Debate in the Constituent Assembly took place, and the recommendations of the Advisory Committee in favour of joint electorate both at the Central and the State levels were accepted. It is significant to note here that in the original draft Constitution there was no express pro vision declaring that the elections to the Parliament and to the State legislatures would be on the basis of joint electorates and the matter had been left to be dealt with by auxiliary legislation under Articles 290 and 291 of the draft Constitution Shiva Rao, Framing of India 's Constitution, Vol. IV, p. 1411. On a deep deliberation on the issue it was realised that any provision for separate electorates would be a deadly virus for the health of the nation. The Constituent Assembly considered it right 940 to reject the idea once for all and not leave the. matter to be dealt with later. Accordingly Article 325 adopted in the following terms: "325. No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House of either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such con stituency on grounds only of religion, race, caste, sex or any or them. During the hearing it was also contended that if the Constitution permits nominations to be made in the legislatures how can the creation of a separate electorates for the Sangha seat be objected to. I do not find any parallel between the two. After the establishment of a democratic government at every level in the country in one from or the other, nomination under the Constitution amounts to exercise of a power to induct a member in the legislature by an authority, who ultimately represents the people, although the process of the representation may be a little involved. So far a handful of the Buddhist Monasteries in Sikkim are concerned, they cannot be said to represent the people of Sikkim in any sense of the term. Allotting a seat in the legislature to represent these religious institutions is bad enough by itself; and then, to compound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil. I do not think this can be compared with any of the provisions in the Constitution relating to nominations. From the entire scheme of the Constitution, it is clear that its basic philosophy eloquently rejects the concept of separate electorate in India. This conclusion is reinforced by the historical background referred to above, the delebrations of the Advisory Committee, and the discussion which took place in the Constituent Assembly before giving final shape to the Constitution. I do not discover any reason for assuming that while inserting Article 371F(f) in the Constitution there was complete reversal of faith on this basic and vital matter, which was otherwise also not permissible. It follows that consistent with the intention of the rest of the Con 941 stitution the provision regarding the delimitation of the Assembly constituencies in Article 371F(f) has to be interpreted in the same sense, as the expression has been used in the other provisions. Clause (f) of Article 371F neither by its plain language nor intendment permits separate electorates and any attempt to give a different construction would not only be highly artificial and speculative but also would be violative of a basic feature of the Constitution. I, accordingly, hold that the provisions of section 25A of the Representation of the People Act, 1950 are also ultra vires the Constitution and this furnishes another ground to strike down section 7 (1 A) (c). So far the reservation of 12 seats in favour of the Bhutia Lepchas is concerned, the ground relied upon by the respondents for upholding the same is the historical background coupled with the 5th term under the head BASIC RIGHTS in the Tripartite agreement of the 8th May, 1973, which reads as follows: "(5) The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the` population acquires a dominating position due mainly to its ethnic origin, and the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected. " It is further said that in view of this Tripartite Agreement the Proclamation dated 5.2.1974 was made reserving 16 constituencies out of the total number of 32 in favour of Bhutia Lepchas, and when the Government of Sikkim Act, 1974 was passed, which came into force on 4.7.1974, the following provision was included in section 7: "7. (1) For the purpose of elections to the Sikkim Assembly Sikkim shall be divided into constituencies in such manner as may be determined by law. (2) The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately repre 942 sents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes no single section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin. ' In these circumstances the Thirty Fifty Amendment of the Constitution of India was made which became effective from 23.2.1975 and Sikkim was thus Associated with the Union of India. The Thirty Sixth Amendment of the Constitution inserting the new Article 371F was thereafter made with clause (f) which reads as follows: "(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim". and clause (k) in the following terms: "(k) all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority '. The argument is that the impugned provisions of the Representation of the People Acts are thus fully protected by the Thirty Sixth Constitutional Amendment. I have not been able to persuade myself to accept the contention made on behalf of the respondents for several reasons. Before proceeding further it will be useful to have a survey of the relevant circumstances and the documents relevant to this aspect at a glance. Chogyal was an autocratic ruler anxious to relain his absolute 943 power, while the people were becoming more aware of their rights in the changing world. By the middle of this century, encouraged by the developments in India which was not only neighboring country but on which Sikkim was solely dependent for its vital needs including defence, they were able to build up a formidable force demanding establishment of a truly democratic government. The materials on record fully establish that in this struggle of power, Chogyal had to heavily rely on Bhutia Lepchas, who were close to him as he was one from that group. According to the case of the respondents the Bhutia Lepchas had arrived in Sikkim earlier than the Nepalis and the Nepalis were inducted in the area mainly on account of the policy followed by the British paramountcy. The records also show that protest in vain was made to the British General posted in the area, long time back when the Nepalis were arriving on the scene. The BhutiaLepchas, who were following the Buddhist religion, were paying high respect for the Lamas who were enjoying the patronage of Chogyal. Appreciating their usefulness the Chogyal later earmarked a seat for them on the basis of a separate electorate in 1958. When public demand for effective participation in the administration grew stronger, the Chogval adopted the line of appeasement by establishing a Council where initially 12 members were divided half and half (vide the Proclamation of 28th December, 1952) between the Bhutia Lepchas on the one hand and the Nepalis on the other. But soon he appreciated that unless he reserved to himself the right to induct some more nominees of his own, his position would be jeopardised. He, therefore, hurriedly issued another Proclamation within 3 months, on the 23rd March, 1953, declaring that 6 more members would be included in the Council to be nominated by him in his discretion including the President of the Council. In Article 26 he expressly declared that notwithstanding the provisions of the other Articles he would be retaining his power to veto any decision made by the Council and substitute his own decision therefore. The steps taken by the Chogyal could not control the demand for democracy and the public agitation gathered more support. Ultimately the people came out victorious, not only in getting rid of the Chogyal, but also in their demand for democracy to be established on the lines as in India. The Chogyal, of course, in his vain attempt to retain his authority, was trying to scuttle away the overwhelming public opinion by one method or the other and with that view, was trying, to give weightage to BhutiaLepchas, to which group he himself belonged and on whose support he 944 could count, and in this situation the Tripartite Agreement of 8th May, 1973 came to be executed. The fact that Chogyal was going to be a party to it and was desperately trying to have something in the terms, to build his strategy on, cannot be ignored while assessing the meaning and effect of paragraph 5 of the Agreement. The Tripartite Agreement described itself in the very opening sentence as envisaging a democratic set up for Sikkim, and the Chogyal joined the people of Sikkim in declaring that he was also convinced and was in favour of the establishment of a fully responsible Government in Sikkim. The other provisions of the Agreement unmistakably indicate that the intention was to have a democratic government in Sikkim exactly similar to the one in India. It (Agreement) provided guarantee of Fundamental Rights, the rule of law and independent judiciary, as also. "a system of elections based on adult suffrage which will give equitable representation to all sections of the people on the basis of the principle of one man one vote". (emphasis added) All the three parties expressly recognised and undertook to ensure the basic human rights and fundamental freedoms of the people and that "the people of Sikkim will enjoy the right of election on the basis of adult suffrage to get effect to the principle of one man one vote." (emphasis supplied) Equality before law and independence of the judiciary were assured. It further recited that the Chogyal as well as the representative of the people had requested the Government of India to assume responsibility for the establishment of law and order and good administration and "to ensure the further development of a constitutional Government", as also to provide the head of the administration described as Chief Executive to help and achieve the State 's objectives. A firm decision was taken to hold fair and free elections under the supervision of a representative of the Election Commission of India. The Chief Executive was to be nominated by the Government of India and it was only the passing of the formal order in this regard which was left to the Chogyal. Towards the end of the Agreement 945 it was emphasised that the Government of India was solely responsible for the defence and territorial integrity of Sikkim and for the conduct and regulation of the external relations whether political, economic or financial, and necessary powers for carrying out these responsibilities were reaffirmed. A perusal of the document clearly indicates that the spirit of the Indian Constitution pervaded through out the entire Agreement and the terms thereof were drafted respecting the main principles embodied in our Constitution. It must, therefore, be held that an interpretation cannot be given to the Agreement which will render it as deviating from the constitutional pattern of the Indian Constitution. A question may be raised that since the Agreement included paragraph (5) which has been quoted earlier, does that inject in this Agreement an element incompatible with the Indian Constitution. In my opinion the answer is in the negative. The safeguard under the scheme envisaged in paragraph (5) was capable of being provided by the Indian Constitution. Many provisions in the different parts of the Constitution including Part III are relevant in this regard. Their representation of all sections has been the concern of the Constitution also; and with that view provisions have been made for reservation of seats in favour of certain classes in the Parliament and the state Legislatures and some special rights have been given to the minority. In my view these constitute adequate guarantee against unfair dominance by the majority. This of course does not lead to the conclusion that power would be concentrated in the hands of the minority, or that their would be division of the authority in the matter of ' carrying on the affairs of the State, on mathematically equal terms, between the different groups; because the first will result in the abnegations of democracy itself, and the second will lead to an unworkable situation ending in chaos. The principle of adult suffrage with one man one vote rule, as repeated again and again in the documents referred to above, indicates the concept of democracy which had to be established in Sikkim. In the Proclamation of the 5th February 1974 total number of 32 seats in the Assembly were divided half and half between the two groups, but it is significant to note that as soon as the Assembly was constituted after election. it immediately modified the provision fixing the parity of seats by declaring in section 6(2) of the Government of Sikkim Act, 1974 that the matter would be determined by law. The intention that no single section of the population should acquire a "dominating position due mainly to its 946 ethnic origin" does not mean that the majority hold by a particular section would not be allowed to be reflected in the legislature. The word 'dominating" indicates something more than merely forming a majority. What was intended was to eliminate the chance of a particular section of the population misusing its position to the prejudice of the legitimate rights of the others. The risk of such an undesirable situation could and should have been eliminated by adopting such methods as provided in the Indian Constitution. It cannot be legitimately contended that the safeguard in this regard under the Indian Constitution is in any way inadequate. If at all, the minority in this country are in certain matters enjoying special benefits not available to the majority '.and this is the reason that repeated attempts have been and are being made by various groups to claim minority status, as is evident by reported cases. The necessary consequence of assuming otherwise would be to hold that under the Constitution applicable to the rest of the country, the minorities here have no protection again the "dominance of the majority, and our stand about the rule of law and equality of status to all in this country is an empty claim made before the world. The further point is as to whether the provisions of clause (f) of Article 371F envisage and authorise the Parliament to exercise its power only in such a manner which would be consistent with the relevant provisions of the Constitution applicable to the rest of the country if the same is capable of achieving the object with reference to the special conditions of Sikkim; or, that they allow the Parliament to take any decision in this regard, including such measures which would perpetuate the situation obtaining in Sikkim in the past, on the ground of historical background. For the reasons indicated earlier, I am of the view that clause (f) permits the Parliament to take only such steps which would be consistent with the provisions of the Constitution coming from before, so that Sikkim could completely merge with India and be placed at per with the other States. This conclusion is irresistible if the facts and circumstances which led to the ultimate merger of Sikkim in India are kept in mind. They have been briefly referred to earlier in paragraph 10 above. After the Proclamation of the 5th of February, 1974, Sikkim went to polls. The main representative of the people was Sikkim Congress as was proved by the result of the election. Sikkim Congress winning 31 out of the total of 32 seats. The election manifesto on the basis of which the people almost unanimously 947 voted in favour of Sikkim Congress, inter alia, declared thus "We also aspire to achieve the same democratic rights and institutions that the people of India has enjoyed for a quarter of century. ' (emphasis added) Respecting this pledge, solemnly given to the people, the Assembly passed a unanious resolution dated 10.04.1975 and submitted it to the people for their approval. A plebiscite was thus held in which about 64% of the electorate cast their votes. The Resolution was approved by the 62% of the total electorate and only less than 2% went against the same. The Statement of Objects and Reasons of the Constitution (Thirty Sixth Amendment) Act, 1975 refers to the unanimous Resolution of the State Assembly, which after taking note of the persistent anti people activities of the Chogyal decided to abolish the institution of the Chogyal and to make Sikkim a constituent unit of India in the following terms : "The institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a constituent unit of India, enjoying a democratic and fully responsible Government. " In this background, the Statement of Objects and Reasons further proceeds to declare : "5. Accordingly, it is proposed to include Sikkim as a full fledged State in the First Schedule to the Constitution and to allot to Sikkim one seat in the Council of States and one seat in the House of the People. It is also proposed to insert a new article containing the provisions considered necessary to meet the special circumstances and needs of Sikkim." (emphasis added) 43. The intention was clear that the people of Sikkim, by a near unanimous verdict, decided to join India as a full fledged State with the aspiration of participating in the affairs of the country on the same terms applicable to the rest of India. The decision to insert a new Article was considered necessary only the limited purpose to meet the special cir 948 cumstances and needs of Sikkim. The question is whether a provision for granting a disproportionately higher representation of the Bhutia Lepchas in the State legislature was necessary. If it was not, clause (f0 of Article 371F must be construed as not protecting the impugned statutory amendments. If we examine the different clauses of Article 371F, we find that several additional provisions deviating from the original, have been incorporated in the Constitution, in view of the special circumstances peculiar to Sikkim. By Article 170 the minimum size of the Assembly of the States .is fixed at 60 seats which was too large for a small State like Sikkim with a total population of only three lacs. This was a special feature which distinguished it from the other States. The ratio of the number of the representatives to the population did not justify a House of 60 and, therefore, by clause (.a) the minimum number was fixed only at 30. For obvious reasons clauses (c) and (e) had to be inserted in the Article as the appointed day with reference to Sikkim could not have been the same as the appointed day with reference to the other States. Clause (d) also became relevant for allotting a seat to the State of Sikkim in the House of the People. So far clause (b) is concerned, the same became necessary for a temporary period for the smooth transition of Sikkim from merely to associate" status to a full fledged State of the Union. In order to avoid a bumpy ride during the period that the effect of merger was being constitutionally worked out, there was urgent need of special temporary provisions to enables the State functionaries to discharge their duties. If the other clauses are also examined closely it will be manifest that they were necessary in view of the special needs of the Sikkim. The point is whether for the protection of the Bhutia Lepcha Tribe, the safeguards already provided in the Constitution were inadequate so as to call for or justify special provisions of reservation, inconsistent with the Constitution of India as it stood before the Thirty Sixth Amendment. The problem of Bhutia Lepcha Tribe is identical to that of the other Tribes of several States where they are greatly out numbered by the general population, and which has been effectively dealt with by the provisions for reservation in their favour included in Part XVI of the Constitution. It cannot be justifiably suggested that by subjecting the provisions of the reservations to the limitations in clause (3) of Article 332, the Tribes in India have been left unprotected at the mercy of the overwhelming majority of the general population. The reservations in Part XVI were considered adequate protection to them and 949 it had not been proved wrong for about three and a half decades before 1975, when Sikkim merged with India. It must, therefore, be held that the adequate safeguard in favour of the Bhutia Lepchas was already available under the Constitution and all that was required was to treat them as Tribes like the other Tribes. As a matter of fact this position was correctly appreciated in 1978 when the Presidential Order was issued under Article 342 of Part XVI. The interpretation of Article 371.F (f), as suggested on behalf of the respondents, is inconsistent with the issuance of the said Order. 1, therefore, hold that the object of clause (f) was not to take care of this problem and it did not authorise the Parliament to pass the Amendment (Act 8 of 1980) inserting section 7(1A) (a) in the Representation of the People Act, 1.950 and section 5A in the Representation of the People Act, 1951 and other related amendments. They being violative of the constitutional provisions including those in Article 371F (f) are ultra vires. The next point is as to whether clause (f) of Article 371F will have to be struck down on the ground of violation of the basic features of the Constitution, if it is interpreted as suggested on behalf of the respondents. The Preamble of the Constitution of India emphatically declares that. we were giving to ourselves the Constitution with a firm resolve to constitute a sovereign, democratic, republic; with equality of status and of opportunity to all its citizens. The issue which has direct bearing on the question under consideration is as to what is the meaning of 'democratic republic '. The expressions 'democracy ' and 'democratic ' have been used in varying senses in different countries and in many places have been subjected to denote the state of affairs which is in complete negation of the meaning in which they are understood. During the present century it progressively became more fashionable and profitable to frequently use those terms and accordingly they have been grossly misused. We are not concerned with that kind of so called democracy, which is used as a stepping stone for the establishment of a totalitarian regime, or that which is hypocritically dangled before the people under the name of democracy but is in reality an oligarchical set up concentrating the power in a few. We are also not concerned with the wider theoretical conception in which the word can be understood. In our Constitution, it refers to denote what it literally means. that is, 'people 's powers. ' It stands for the actual, active and effective exercise of power by the people in this regard. Schumacher gives 950 a simple definition of democracy as "the ability of a people to choose and dismiss a government". Giovanni Sartori translates the same idea in institutional form and says that democracy is a multi party system in which the majority governs and respects the right of minority. In the present context it refers to the political participation of the people in running the administration of the government. It conveys the state of affairs in which each citizen is assured of right of equal participation in the polity. The expression has been used in this sense, both in the Indian Constitution and by the people of Sikkim as their goal to achieve. The repeated emphasis that was given to the rule of one man one vote in the various documents preceding Sikkim 's merger with India, clearly defines the system of government which the people of Sikkim. by an overwhelming majority decided to establish and which was exactly the same as under the Indian Constitution. This goal cannot be achieved by merely allotting each person one vote which they can cast in favour of a particular candidate or a special group of persons, selected for this purpose by others, in which they have no say. The result in such a case would be that while one man of this class is assigned the strength of one full vote, others have to be content with only a fraction. If there is 90% reservation in the seats of a House in favour of 10% of the population in the State, and only the remaining 10% of the seats are left to the majority population, then the principle of adult suffrage as included in Article 326 is sacrificed. By permitting the 90% of the population to vote not only for 10% seats available to them, but also for the 90% reserved seats the basic flaw going to the root of the matter is not cured. The choice of the candidate and the right to stand as a candidate at the election arc inherent in the principle of adult suffrage, that is, one man one vote. By telling the people that they have a choice to elect any of a select group cannot be treated as a free choice of the candidate. This will only amount to lip service, to thinly veiled to conceal the reality of an oligarchy underneath. It will be just an apology for democracy, a subterfuge; and if it is permitted to cross the limit so as to violate the very core of the principle of one man one vote, and is not controlled by the constitutional safeguards as included in clause (3) of Article 332 (see paragraph 12 above) of the Constitution it will amount to a huge fraud perpetrated against the people. So far the Sangha seat is concerned even this transparent cloak has been shed off. It has to be appreciated that the very purpose of providing reservation in favour of a weaker class is to aid the elemental principle of democracy based on one man one vote to succeed. The disproportionately 951 excessive reservation creates a privileged class, not brought to the same plane with others but put on a higher pedestal, causing unhealthy competition, creating hatred and distrust between classes and fostering divisive forces. This amounts to abnegations of the values cherished by the people of India (including Sikkim), as told by their story of struggle and sufferings culminating into the framing of the Indian Constitution (and the merger of Sikkim as one of the State in 1975). This is not permissible even by an amendment of the Constitution. In a search for constitutions similar to ours, one may look towards Canada and Australia and not to Cyprus. But the Canadian and Australian Constitutions also differ from our Constitution in many respects, including some of the fundamental principles and the basic features. The unalterable fundamental commitments incorporated in a written constitution are like the soul of a person not amenable to a substitution by transplant or otherwise. And for identifying what they are with reference to a particular constitution, it is necessary to consider, besides other factors, the historical background in which the constitution has been framed, the firm basic commitments of the people articulated in the course of and by the contents of their struggle and sacrifice preceding it (if any), the thought process and traditional beliefs as also the social ills intended to be taken care of. These differ from country to country. The fundamental philosophy therefore, varies from Constitution to Constitution. A Constitution has its own personality and as in the case of a human being, its basic features cannot be defined in the terms of another Constitution. The expressions 'democracy ' and 'republic ' have conveyed not exactly the same ideas through out the world, and little help can be obtained by referring to another Constitution for determining the meaning and scope of the said expressions with reference to our Constitution. When we undertake the task of self appraisal, we cannot afford to forget our motto of the entire world being one big family (Vasudhaiva Kutumbkam) and consequent commitment to the cause of unity which made the people suffer death, destruction and devastation on an unprecedented scale for replacing the foreign rule by a democratic government on the basis of equal status for all. The fact that they lost in their effort for a untitled independent country is not relevant in the present context, because that did not shake their faith in democracy where every person is to be treated equal, and with this firm resolve, they proceeded to make the Constitution. An examination of the provisions of the Constitution does not leave room from any doubt that this 952 idea has been kept as the guiding factor while framing the Constitution. 'Democracy ' and 'republic ' have to be understood accordingly. Let us now examine the Constitution in this light. As explained by the Preamble the quality of democracy envisaged by the Constitution does not only secure the equality of opportunity but of status as well, to all the citizens. This equality principle is clearly brought out in several Articles in the different parts of the Constitution, including Part III dealing with Fundamental Rights, Part IV laying down the Directive Principles of State policy and Part XVI having special provisions relating to certain classes. The spirit pervades through the entire document as can be seen by the other provisions too. When the question of the qualification for election as President arises, all classes of citizens get same treatment by Articles 58 and 59 (subject to certain qualifications which are uniformly applied) and similar is the position with respect to the Vice President and the other constitutional functionaries. The protection in Part III is available to all, and the State has to strive to promote the welfare of the people and the right to adequate means of livelihood, to justice and free legal aid, and to work et cetera with respect to everybody. Certain special benefits are, however, extended or may be extended to certain weaker classes, but this again is for the sake of placing them on equal footing with the others, and not for defeating the cause of equality. So far the question of equality of opportunity in matter of employment is concerned, provisions for reservation of posts are included in favour of backward classes who may be inadequately represented in the services. Welfare measures also are permitted on the same line, but, when it comes to the reservation of seats in the Parliament or the State Legislature, it is given a different treatment in Part XVI. Clause (2) of Article 330 and clause (3) of Article 332 lay down the rule for maintaining the ratio, which the population of the class bears to the total population. This is significant. The sole objective of providing for reservations in the Constitution is to put the principle of equal status to work. So far the case of inadequate repre sentation of a backward class in State services is concerned, the problem is not susceptibly to be solved in one stroke: and consequently the relevant provisions are kept flexible permitting wider discretion so as to attain the goal of adequate proportionate representation. The situation in respect to representation in the legislature is entirely different. As soon as an election takes place in accordance with the provisions for proportionate repre sentation, the objective is achieved immediately, because there is no prob 953 lem of backlog to be tackled. On the earlier legislature disappearing, paving the way for new election, the people get a clean slate before them. The excessive reservation in this situation will bring in an imbalance of course of another kind but defeating the cause of equal status all the same. The pendulum does not stand straight it swings to the other side. The casualty in both cases is the equality clause. Both situations defeat the very object for which the democratic forces waged the war of independence; and they undo what has been achieved by the Constitution. This is clearly violative of the basic features of the Constitution. I hold that if clause (f) of Article 371F is so construed as to authorise the Parliament to enact the impugned provisions it will be violative of the basic features of the Constitution and, therefore, void. The views expressed above are adequate for the disposal of the present cases, but it may be expedient to examine the matter from one more angle before concluding the judgment. It was very strongly contended by the learned advocates for the respondents that the impugned provisions should be upheld and the writ petitions dismissed by reason of the historical background of Sikkim. It was repeatedly emphasised that in view of the 5th term of the Tripartite Agreement and in view of the fact that the Sangha seat was created by Chogyal as far back as in 1958, the arrangements agreed upon by the parties are not liable to be disturbed. Reference was made to the several Proclamations of Chogyal by the counsel for the different respondents and intervenors one after the other. In my view the impact of the historical background on the interpretation of the situation is to the contrary. During the period, referred to, the fight between the despotic Chogyal trying to retain his authority and the people demanding installation of a democratic rule was going on. No importance can, therefore, be attached to the terms included in the Agreement at the instance of the ruler or to his Proclamations. On the other hand, what is relevant to be considered is the demand of the people which ultimately succeeded. It ' we proceed to interpret the situation by respecting and giving effect to the acts and omissions of Chogyal in his desperate attempt to cling to, power and subvert to the democratic process set in motion by the people, we may have to rewrite the history and deprive the people of Sikkim of what they were able to wrest from his clutches from time to time ultimately ending with the merger. The reservation of the Sangha seat was also one of such anti people acts. So far the Note to the Proclamation of 16 May, 1968 is concerned if it has to be enforced, the Nepalis shall also be entitled 954 to reservation of equal number of seats as the, Bhutia Lepchas and same number of seats should be earmarked for nomination by the authority in power. Actually Mr. Bhatt appearing for some of the respondents seriously pressed before us the claim of Nepalis for reservation in their favour. This entire line of thought is wholly misconceived. We can not ignore the fact that as soon as the Assembly vested with effective authority was constituted it proceeded to undo what is being relied upon before us on behalf of the respondents. When they passed the historic resolution dated April 10, 1975, discussed earlier in detail the 5th terms of the Agreement was given up, and when the people were invited to express. their opinion by holding a plebiscite, they gave their verdict, unburdened by any such condition, by a near unanimous voice. I presume that this was so because it was known that the in built safeguards of the Indian Constitution were adequate for taking care of this aspect. This is a complete answer to such an argument. The history, so far it may be relevant, condemns in no uncertain terms the excessive reservation in favour of the Bhutia Lepchas and the Sangha. The Thirty Sixth Amendment in the Constitution has to be understood in this light. My conclusion, therefore, is that the impugned provisions are ultra vires the Constitution including Article 371F (f). Consequently the present Sikkim Assembly constituted on the basis of the election, held under the impugned provisions has to be declared illegally constituted. Therefore, the concerned authorities must take fresh and immediate steps under the law consistent with the Constitution as applied to the rest of the country. The writ petitions are accordingly allowed with costs payable to the writ petitioners. Before finally closing, I would like to say a few words in the light of the opinion of my learned Brothers as expressed in the majority judgment disagreeing with my conclusions. In view of this judgment all the petitions have now to be dismissed, but I want to emphasize that what has been held therein is that the Parliament has not exceeded its Constituent and Legislative Powers in enacting the impugned provisions and consequently the writ petitions have to be dismissed. This does not mean that the Parliament is bound to give effect to the discriminatory provisions by reason of the historical background in which Sikkim joined India. It is within the 'wisdom ' (to borrow the expression from paragraph 30 of the 955 majority judgment) of the Parliament to take a decision on the issue and as hinted in the same paragraph, the present situation hopefully may be a transitory passing phase. The provisions in clause (f) of Article 371F have been, in paragraph 31 of the judgment, described as 'enabling ', that is, not obligatory. It, therefore, follows that although this Court has not jurisdiction to strike down the impugned provisions, it is perfectly within the domain of the Parliament to undo, what I prefer to call, 'the wrong '. The unequal apportionment of the role in the polity of the country assigned to different groups tends to foster unhealthy rivalry impairing the mutual feeling of goodwill and fellowship amongst the people, and encouraging divisive forces. The reservation of a seat for the Sanghas and creation of a separate electorate have a still greater pernicious portent. Religion, as it has come to be understood, does not mix well with governance; the resultant explosive compound of such an ill suited combination has proved to be lethal for the unity of the nation only a few decades ago leading to the partition. The framing of our Constitution was taken up immediately thereafter. Our country has suffered for a thousand years on account of this dangerous phenomenon resulting in large scale internecine struggles and frequent blood spilling. Today a single seat in the legislature of one State is not conspicuously noticeable and may not by itself be capable of causing irreparable damage, but this seed of discord has the potentiality of developing into a deadly monster. It is true that some special rights have been envisaged in the Constitution for handicapped classes but this has been done only to off set the disadvantage the classes suffer from, and not for bringing another kind of imbalance by making virtue out of minority status. The Constitution, therefore. has taken precaution to place rigid limitations on the extent to which this weightage can be granted, by including express provisions instead of leaving the matter to be dealt with by subsequent enactments limitations both by putting a ceiling on the reservation of seats in the legislatures and excluding religion as the basis of discrimination. To ignore these limitations is to encourage small groups and classes which are in good number in our country on one basis or the other to stick to and rely on their special status as members of separate groups and classes and not to join the mainstream of the nation and be identified as Indians. It is ', therefore, absolutely essential that religion, disguised by any mask and concealed within any cloak must be kept out of the field exclusively reserved for the exercise of the State powers. To my 956 mind the message has been always dear and loud and now it remains for the nation to pay heed to and act through its elected representatives. VENKATACHALIAH, J. These petitions under Article 226 of the Constitution of India which where originally filed in the High Court of Sikkim and now withdrawn by and transferred to this Court under Article 139 A raise certain interesting and significant issues of the constitutional limitations on the power of Parliament as to the nature of the terms and conditions that it could impose under Article 2 of the Constitution for the admission of the new States into the Union of India. These issues arise in the context of the admission of Sikkim into the Indian Union under the Constitution (36th Amendment) Act, 1975 as the 22nd State in the First Schedule of the Constitution of India. Earlier, in pursuance of the resolution of the Sikkim Assembly passed by virtue of its powers under the Government of Sikkim Act, 1974, expressing its desire to be associated with the political and economic institutions of India and for the representation of the people of Sikkim in India 's Parliamentary system, the Constitution [35th Amendment] Act, 1974 had come to be passed inserting Article 2A which gave the State of Sikkim the status of an 'Associate State '; but later Sikkim became, as aforesaid, an integral part of the Indian Union as a fill fledged State in the Union by virtue of the Constitution (36th Amendment) Act, 1975, which, however, provided for special provisions in Article 371 F to accommodate certain historical incidents of the evolution of the political institutions of Sikkim. It is the constitutionality of the incidents of this special status, particularly in the matter of reservation of seats for various ethnic and religious groups in the Legislative Assembly of the State that have been assailed as "unconstitutional" in these petitions. Sikkim is a mountain State in the North East of India of an area of about 7200 sq. on the Eastern Himlayas. It has a population of about four lakhs. Sikkim is of strategic location bounded, as it is, on the West by Nepal, on the North by Tibet, on the East by Bhutan and on the Southern and Western sides by the State of West Bengal in the Indian Union. It lies astride the shortest route from India to Tibet. The State is entirely mountainous. Covered with dense forests, it lies in the Northern most Areas in Lachen and Lachung. Mountains rise to 7000 m and above Kanchenjunga (8,579 m) being World 's Third Highest Peak. Sikkim has several hundred 957 varieties of orchids and is frequently referred to as botanist 's paradise '. ("India 1991" page 930). To the historian, Sikkim 's history, lore, culture and traditions are a fascinating study. The early history of this mountainous land is lost in the mists of time. But it is said that in 1642, Phuntsog Namgyal became the first Chogyal, the spiritual and temporal Ruler in the Namgyal dynasty which ruled Sikkim till it joined the mainstream of Indian polity in 1975. The main inhabitants of Sikkim are the Lepchas, the Bhutias and the later immigrants from Nepal. The Lepchas were the original indigenous inhabitants. The Bhutias are said to have come from Kham in Tibet during the 15th and 16th centuries. These people of Tibetan origin are called Bhutias said to be a derivative from the word "Bod" or "Tibet" and as the tradition has it took refuge in the country after the schism in Tibet in 15th and 16th centuries. One of their Chieftains was crowned the 'Chogyal ' of Sikkim in 1642. It would appear that Sikkim was originally quite an extensive country but is stated to have lost large chunks of its territories to Nepal and Bhutan and finally to the British. Lepchas and Bhutias are Buddhists by religion. Sikkim was a British protectorate till 1947 when the British paramountancy lapsed whereafter under a Treaty of the 3rd December, 1950 with India, Sikkim continued as a protectorate of India. Over the past century there was large migration into Sikkim of people of Nepalese origin. The influx was such that in the course of time, Sikkimese of Nepalese origin constituted almost 2/3rd of Sikkim 's population. There has been, accordingly, a clamour for protection of the original Bhutias Lepchas now an ethnic majority from the political voice and expression being sub merged by the later immigrants from Nepal. These ethnic and demographic diversities of the Sikkimese people; apprehensions of ethnic dimensions owing to the segmental pluralism of the Sikkimese society and the imbalances of opportunities for political expression are the basis of and the claimed justification for the insertion of Article 371 F. The phenomenon of deep fragmentation, societal cleavages of pluralist societies and recognition of these realities in the evolution of pragmatic adjustments consistent with basic principles of democracy are the recurrent issues in political Organisation. 958 In his "Democracy in Plural Societies", Arend Lijphart makes some significant observations at Page 16. "A great many of the developing countries particularly those in Asia and Africa, but also some South American countries, such as Guyana, Surinam, and Trinidad are beset by political problems arising from the deep divisions between segments of their populations and the absence of a unifying consensus. The theoretical literature on political development, nation building, and democratization in the new states treats this fact in a curiously ambivalent fashion. On the one hand, many writers implicitly refuse to acknowledge its importance. "Such communal attachments are what Cliffor Geertz calls primordial" loyalties, which may be based on language, religion, custom, region, race, or assumed blood ties. The subcultures of the European consociational democracies, which are religious and ideological in nature and on which, two of the countries, linguistic divisions are superim posed, may also be regarded as primordial groups if one is willing to view ideology as a kind of religion." "At the same time, it is imperative to be alert to qualitative and quantitative differences within the broad category of plural societies: differences between different kinds of segmental cleavages and differences in the degree to which a society is plural. The second prominent characteristic of non Western politics is the breakdown of democracy. After the initial optimism concerning the democratic prospects of the newly independent countries, based largely on the democratic aspirations voiced by their political leaders, a mood (if disillusionment has set in. And, according to many observers, there is a direct connection between the two fundamental features of non Western politics: a plural society is incapable of sustaining a democratic government." 959 Pluralist societies are the result of irreversible movements of history. They cannot be washed away. The political genius of a people should be able to evolve within the democratic system, adjustments and solutions. Pursuant to Article 371 F and the corresponding consequential changes brought about in the Representation of the People Act, 1950, Representation of the People Act, 1951, as amended by the and the Representation of the People (Amendment) Act, 1980, 12 out of the 32 seats in the Sikkim Assembly are reserved for the Sikkimese of "Bhutia Lepcha" origin and one seat for the "Sangha", Buddhist Lamaic monasteries the election to which latter being on the basis of a separate Electoral roll in which only the "Sanghas" belonging to the Lamaic monasteries recognised for the purposes of elections held in Sikkim in April, 1974, are entitled to be registered. These reservations of seats for the ethnic and religious groups are assailed by the petitioners who are Sikkimese of Nepali origin as violative of the fundamentals of the Indian constitutionalism and as violative of the principles of republicanism and secularism forming the bedrock of the Indian constitutional ethos. The basic contention is that Sikkim citizen is as much as citizen of the Union of India entitled to all the Constitutional guarantees and the blessings of a Republican Democracy. It is necessary here to advert to the movement for the establishment of a responsible Government in Sikkim and of the evolution of its political institutions. By a Royal Proclamation of 28th December, 1952, State Council was set up in which out of the 12 elected members, 6 were to be Bhutias Lepchas and the other 6 Sikkimese of Nepalese origin. Sikkim was divided into four constituencies with the following break down of the distribution of seats between Bhutias Lepchas and the Nepalis : (i) Gangtok Constituency 2 Bhutia Lepcha 1 Nepali (ii) North Central Constituency 2 Bhutia Lepcha 1 Nepali (iii) Namchi Constituency 1 Bhutia Lepcha 2 Nepalis (iv) Pemayangtse Constituency 1 Bhutia Lepcha 2 Nepalis 960 By "the State Council and Executive Council Proclamation, 1953" dated 23rd March, 1953, a State Council of 18 members consisting of 12 elected members, 5 nominated members and a President to be nominated by the Maharaja was constituted. Out of the 12 elected members, again 6 were to be Bhutias Lepchas and the other 6 of Nepalese origin. Clauses 1. 2 and 3 of the Proclamation read "1 This Proclamation may be cited as the State Council and Executive Council Proclamation, 1953, and shall come into operation immediately on its publication in the Sikkim Government Gazette. There shall be constituted a State Council for the State of Sikkim. 3. The State Council shall consist of (a) A president who shall be nominated and appointed by the Maharaja; (b) Twelve elected members, of whom six shall be either Sikkim Bhutia, or Lepcha and the remaining six shall be Sikkim Nepalese; and, (c) Five members nominated by His Highness the Maharaja in his discretion." In 1958, the strength of the council was increased to 20. The break up of the its composition was as under : (1) Seats reserved for Bhutia & Lepchas 6 (2) Seats reserved for Nepalis 6 (3) General seat 1 (4) Seat reserved for the Sangha 1 (5) Nomination by His Highness 6 By the "Representation of Sikkim Subjects Regulation, 1966" dated 21.12.1966 promulgated by the then Chogyal, the State Council was to 961 consist of territorial constituencies as under 1. Bhutia Lepchas 7 2. Sikkimese Nepalese 7 3. The Sanghas 1 4. Scheduled Caste 1 5. Tsong 1 6. General seat 1 7. Nominated by the Chogyal 6 Total =24 8.The year 1973 saw the culmination of a series of successive political movements in Sikkim towards a Government responsible to the people. On 8th May, 1973, a tripartite agreement was executed amongst the Ruler of Sikkim, the Foreign Secretary to the Government of India and the political parties representing the people of Sikkim which gave expansion to the increasing popular pressure for self Government and democratic institutions in Sikkim. This tripartite agreement envisaged the right of people of Sikkim to elections on the basis of adult suffrage. It also contemplated the setting up of a Legislative Assembly in Sikkim to be re constituted by election every four years. The agreement declared a commitment to free and fair elections to be overseen by a representative of the Election Commission of India. Clause 5 of the Tripartite agreement said : "(5) The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimiese Nepali, which includes Tsong and Scheduled Caste origin, are fully protected." This agreement was effectuated by a Royal Proclamation called the Representation of Sikkim Subjects Act. The reservations of seats 962 under this dispensation were as under "3. The Assembly shall consist of thirty two elected members. A(i) Sixteen Constituencies shall be reserved for Sikkimese of Bhutia Lepcha origin. A(ii) Out of these sixteen constituencies, one shall be reserved for the Sangha. B(i) The remaining sixteen constituencies shall be reserved for Sikkimese of Nepali, including Tsong and Scheduled Caste, origin. B(ii) Out of the above mentioned sixteen constituencies of reserved for Sikkimese of Nepali origin, one constituency shall be reserved for persons belonging to the Scheduled Castes notified in the Second Schedule annexed hereto." 9.The Sikkim Assembly so elected and constituted, passed the Government of Sikkim Act, 1974 "for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening close ties with India". Para 5 of the Tripartite agreement dated 8.5.1973 was incorporated in Section 7 of the said Act. Sections 30 and 33 of the said Act further provided "30. For the speedy development of Sikkim in the social, economic and political field, the Government of Sikkim may (a)request the Government of India to include the planned development of Sikkim within the ambit to the Planning Commission of India while that Commission is preparing plans for the economic and social development of India and to appropriately associate officials from Sikkim in such work; (b) request the Government of India to provide facilities for students from Sikkim in institutions for higher learning and for the employment of people from Sikkim in the public 963 services of India (including All India Services), at par with those available to citizens of India; (c) seek participation and representation for the people of Sikkim in the political institutions of India." "33. The Assembly which the has been formed as a result of the elections held in Sikkim in April, 1974, shall be deemed to be the first Assembly duly constituted under this Act, and shall be entitled to exercise the powers and perform the functions conferred on the Assembly by this Act. " 10.Article 2A of the Constitution introduced by the Constitution (35th Amendment) Act, 1974 was the Indian reciprocation of the aspirations of the Sikkimese people and Sikkim was given the status of an "Associate State" with the Union of India under terms and conditions set out in the 10th Schedule inserted in the Constitution by the said Constitution (35th Amendment) Act, 1974. The year 1975 witnessed an uprising and dissatisfaction of the people against the Chogyal. The Sikkim Assembly, by an unanimous resolution, abolished the institution of "Chogyal" and declared that Sikkim shall thenceforth be "a constituent unit of India enjoying a democratic and fully responsible Government". The resolution also envisaged an opinion poll the matter. Its resolution was endorsed by the people of Sikkim in the opinion poll conducted on 14.4.1975. The Constitution (36th Amendment) Act, 1975 came to be passed giving statehood to Sikkim in the Indian polity Article 2A was repealed. Article 371 F introduced by the 36th Constitutional Amendment, envisaged certain special conditions for the admission Sikkim as a new State in the Union of India. Certain legislative measures for amendments to the Electoral Laws considered necessary to meet the special situation of Sikkim, were also brought into force. Clause(f) Article 371F reads : "(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim, make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be 964 filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim. ' The sought to extend, with certain special provisions, the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to Sikkim. Section 25A of the said Act provides : "25 A. Conditions of registration as elector in Sangha Constituency in Sikkim Notwithstanding anything contained in sections 15 and 29, for the Sangha Constituency in the State of Sikkim, only the Sanghas belonging to monasteries, recognised for the purpose of the elections held in Sikkim in April, 1974, for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll, and the said electoral roll shall, subject to the provisions of sections 21 to 25, be prepared or revised in such manner as may be directed by the Election Commission, in consultation with the Government of Sikkim. " By the "Representation of the People (Amendment) Ordinance, 1979" promulgated by the President of India on 11.9.1979, amendments were introduced to the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to enable fresh elections to the Sikkim Assembly on certain basis considered appropriate to and in conformity with the historical evolution of the Sikkim 's political institutions. the Ordinance was later replaced by Representation of the People Amendment) Act, 1980 by which subsection (1 A) was inserted in Section of the Representation of the People Act, 1950. That sub section provides: "(1 A). Notwithstanding anything contained in sub section (1), the total number of seats in the Legislative Assembly of the State of Sikkim, to be constituted at anytime after the commencement of the Representation of the People (Amendment) Act 1980 to be filled by persons chosen by direct election from assembly constituencies shall be thirty two, of which 965 (a)twelve seats shall be reserved for Sikkimese of Bhutia Lepcha origin; (b)two seats shall be reserved for the Scheduled Caste of that State; and (c)one seat shall be reserved for the Sanghas referred to in Section 25 A. Explanation : In this sub section 'Bhutia ' includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherps, Tibetan, Tromopa and Yolmo." Section 5 A was also introduced in the Representation of the People Act, 1951. Sub section (2) of Section 5A provides : "5A (2) Notwithstanding anything contained in Section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 unless (a)in the case of a seat reserved for Sikkimese of BhutiaLepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assembly constituency in the State other than the constituency reserved for the Sanghas ' (b)in the case of a seat reserved for the Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any assembly constituency in the State; (c)in the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency; and (d)in the case of any other seat, he is an elector for any assembly constituency in the State." 12.Petitioners assail the constitutionality of the provisions for reservation of seats in favour of Bhutias Lepchas and the "Sangha". 966 On the contentions urged in support of the petitions, the points that fall for consideration, are the following (a)Whether the questions raised in the petitions pertaining as they do to the terms and conditions of accession of new territory are governed by rules of public international law and are non justiciable on the "political questions doctrine"? (b)Whether clause (f) of Article 371 F of the Constitution of India, introduced by the Constitution (36th Amendment) Act, 1975 is violative of the basic features of democracy? (c)Whether Secton 7(1A) and Section 25A of the Representation of the People Act, 1950 as inserted by , 19761 and Representation of the People (Amendment) Act, 1980 respectively and Section 5A(2) of the Representation of the People Act, 1951 as inserted by the Representation of the People (Amendment) Act, 19801 providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias Lepachas, are unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution? (d)Whether the aforesaid provisions and the reservations made thereunder are violative of Article 14,170(2) and 332 of the Constitution? Whether they violate 'one person one vote ' rule? Or are these differences justified in the historical background of Sikkim and are incidental to the political events culminating in the cession of Sikkim? (e)Whether the reservation of 12 seats out of 32 seats reserved for Bhutias Lepchas is ultra vires of clause (f) of Article 371 F in that while that provision enabled the protection of the rights and interests of different ' sections of population of Sikkim and for the number of seats in the Legislative Assembly which may be filled by the candidates belonging to such sections, the impugned provisions pro 967 vide for one section alone, namely, the Bhutias Lepchas. (f)Whether, at all events in view of the Constitution (Sikkim) Scheduled Tribes Order, 1978 declaring Bhutias and Lepchas as a Schedule Tribe, the extent of reservation of seats is disproportionate and violative of Article 332(3) of the Constitution which requires that the number of seats to be reserved shall bear as nearly as may be, the same proportion to the total number of the seats in the Assembly as the population of the Scheduled Tribe in the State bears to the total population of the State. (g)Whether the reservation of one seat for Sangha to be elected by an Electoral College of Lamaic monasteries is based purely on religious distinctions and is, therefore, unconstitutional as violative of Articles 15(1) and 325 of the Constitution and as violative of the principle of secularism? Re Contention (a) 13. The territory of Sikkim was admitted into the Indian Union by an act of voluntary cession by the general consent of its inhabitants expressed on a Referendum. Referring to the acquisition of title to territory by cession, a learned author says : "(f) Title by Cession Title to territory may also be acquired by an act of cession, which means, the transfer of sovereignty over State territory by the owner (ceding) State to the acquiring State. It rests on the principle that the right of transferring its territory is a fundamental attribute of the sovereignty of a State. " "Plebiscite The method of plebiscite in certain cases was adopted by the Treaties of Peace after the First World War, and it had the buoyant blessing of President Wilson who told the Congress: "No peace can last or ought to last, which does not recognise and accept the principle that government drive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples 968 about from sovereignty as if they were property. " Article 26 of the Constitution of France (1946) provides that no new territory shall be added to France without a plebiscite. In certain cases, cession may be made conditional upon the result of a plebiscite, which is held to give effect to the principle of self determination. In other words, no cession shall be valid until the inhabitants have given their consent to it by a plebiscite. It is often only a technicality, as in Outer Mongolia, in 1945, and in South West Africa, in 1946. As Oppenheim observes, it is doubtful whether the law of nations will ever make it a condition of every cession that it must be ratified by a plebiscite." [See : Substance of Public International Law Western and Eastern : A.K. Pavithran First Edition, 1965 at pp. 281 21] Sri Parasaran urged that the rights of the inhabitants of a territory becoming part of India depend on the terms subject to which the territory is admitted and Article 2 confers wide powers on the Parliament. Sri Parasaran urged that the considerations that guide the matter are eminently political and are outside the area of justiciability. Sri Parasaran said that the inhabitants of a territory can claim and assert only those rights that the succeeding sovereign expressly confers on them. Sri Parasaran relied upon the following observations of Chief Justice Chandrachud in Vinod Kumar Shantilal Gosalia vs Gangadhar Narsingdas Agarwal & Ors., ; "Before considering the merits of the respective contentions bearing on the effect of the provisions of the Administration Act and the Regulation, it is necessary to reiterate a well settled legal position that when a new territory is acquired in any manner be it by consent, annexation or cession following upon a treaty the new " sovereign" is not bound by the rights which the residents of the conquered territory had against their sovereign or by the obligations of the old sovereign towards his subjects. The rights of the residents of a territory against their state of sovereign come to an end with the conquest, annexation or cession of that territory and do not pass on to the new environment. The inhabitants of the acquired territory 969 bring with them no rights which they can enforce against the new State of which they become inhabitants. The new state is not required, by any positive assertion or declaration, to repudiate its obligations by disowning such rights. The new state may recongnise the old rights by re granting them which, in the majority of cases, would be a matter of contract or of executive action; or, alternatively, the recognition of old rights may be made by an appropriate statutory provisions whereby rights which were in force immediately before an appointed date are saved. Whether the new state has accepted new obligations by recognising old rights, is a question of fact depending upon whether one or the other course has been adopted by it. And, whether it is alleged that old rights are saved by a statutory provision, it becomes necessary to determine the kind of rights which are saved and the extend to which they are saved. " But, we are afraid these observations are inapposite in the present context as the situation is different here. What the argument overlooks is that the petitioners are not seeking to enforce such rights as vested in them prior to the accession. What they seek to assert and enforce, are the rights which the Indian Constitution confers on them upon the accession of their territory into the Indian Union and as arising from the conferment on them of Indian citizenship. In the present cases the question of recognition and enforcement of the rights which the petitioners, as residents of the ceded territory had against their own sovereign or by the obligations of the old sovereign its people, do not arise. The principal questions are whether there are any constitutional limitations on the power of Parliament in the matter of prescription of the terms and conditions for admission of a new State into the Union of India; and if so, what these limitations are. Articles 2 and 4 of the Constitution provide "2. Parliament may by law admit into the Union. or establish, new States on such terms and conditions as it thinks fit." 970 "4. (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary. (2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purpose of article 368. Can the Parliament in imposing terms and conditions in exercise of power under Article 2 stipulate and impose conditions inconsistent with the basic and fundamental principles of Indian Constitutionalism? Or is it imperative that the newly admitted State should be treated exactly similar to the States as at the time of the commencement of the Constitution? If not, what is the extent of the permissible departure and latitude and do the conditions in clause (f) of Article 371 F and as expressed in the electoral laws as applicable to Sikkim go beyond these constitutionally permissible limits? These are some of the questions. 15.The learned Attorney General for the Union of India and Sri Parasaran sought to contend that the terms and conditions of admission of a new territory into the Union of India are eminently political questions which the Court should decline to decide as these questions lack adjudica tive disposition. This political thickets doctrine as a restraint on judicial power has been the subject of forensic debate, at once intense and interesting, and has evoked considerable judicial responses. 16.In "The Constitution of the United States of America" (Analysis and Interpretation; Congressional Research Service: Library of Congress 1982 Edn. at p.703), the following statement of the law on the subject occurs: " It may be that there will be a case assuredly within the Court 's jurisdiction presented by the parties with standing 971 in which adverseness and ripeness will exist, a case in other words presenting all the qualifications we have considered making it a justiciable controversy, which the Court will nonetheless refuse to adjudicate. The "label" for such a case is that it presents a "political question". Tracing the origins and development of this doctrine, the authors refer to the following observations of Chief Justice Marshall in Marbury vs Madison, US 137, 170 (1803) : "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their natural political, or which are, by the constitution and laws, submitted to the executive can never be made in this court. (emphasis supplied) The authors further say "But the doctrine was asserted even earlier as the Court in Ware vs Hylton, US 199 (1796) refused to pass on the question whether a treaty had been broken. And in Martin vs Mott, US 19 (1827) the Court held that the President acting under congressional authorization had exclusive and unreviewable power to determine when the militia should be called out. But it was in Luther vs Borden US 1 (1849) that the concept was first enunciated as a doctrine separate from considerations of interference with executive functions. " 17.Prior to the decision of the Supreme Court of the United States in Baker vs Carr, ; the cases challenging the distribution of political power through apportionment and districting, weighed voting, and restrictions on political action were held to present non justiciable political questions. The basis of this doctrine was the "seeming conviction of the courts that the issues raised were well beyond the judicial responsibility". In Baker vs Carr, the Court undertook a major rationalisation and formulation of the 'political question doctrine ' which led to considerable narrowing 972 of its application. The effect Baker vs Carr., and the later decision in Poweel vs McCormack, ; is that in the United States of America certain controversies previously immune from adjudication were held justiciable and decided on the merits. The rejection of the political thickets arguments in these cases marks a narrowing of the operation of the doctrine in other areas as well. In Japan Whaling Ass 'n vs American Cetacean Society, 478 the American Supreme Court said "We address first the Japanese petitioners ' contention that the present actions are unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker vs Carr., ; , 217 ; , (1969) the Japanese Petitioners argue that the danger of "embar rassment from multifarious pronouncements by various departments on one question" bars any judicial resolution of the instant controversy." (Page 178) "We disagree. Baker carefully pointed out that not every matter touching on politics is a political question, id., at 209; , , , and more specifically, that it is "error to suppose that every case of controversy which touches foreign relations lies beyond judicial cognizance." Id., at 211; , , The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as "courts are fundamentally under equipped to formulate national policies or develop standards for matters not legal in nature." (P. 178) 973 "As Bakerplainly held, however, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary 's decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation 's foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary 's characteristic roles is to interpret Statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones." (PP. 178 9) (emphasis supplied) 18.Our Court has received and viewed this doctrine with a cautious reservation. In A.K Roy vs Union of India, ; at 296 7, Chief Justice Chandrachud recognised that the doctrine, which was essentially a function of the separation of powers in America, was to be adopted cautiously and said "It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential ' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict. The result, more or less, is that in America 974 the phrase "political question ' has become 'a little more than a play of words". There is further recognition of the limitation of this doctrine in the pronouncement of this Court in Madhav Rao vs Union of India; , and State of Rajasthan vs Union of India; , 19.It is urged for the respondents that Article 2 of the Constitution empowers the Parliament, by law, to admit into the Union new States "on such terms and conditions as it finds fit" and that these considerations involve complex questions of political policy and expedience; of international relations; of security and defence of the realm etc. which do not possess and present judicially manageable standards. Judicial response to these questions, it is urged, is judicial restraint. The validity of clause (f) of Article 371 F introduced by the Constitution (36th Amendment) Act, 1975 is assailed on the ground that the said clause provides for a reservation which violates 'one person one vote ' rule which is essential to democracy which latter is itself a basic feature of the Constitution. The power to admit new States into the Union under Article 2 is, no doubt, in the very nature of the power, very wide and its exercise necessarily guided by political issues of considerable complexity many of which may not be judicially manageable. But for that reason, it cannot be predicated that Article 2 confers on the Parliament an unreviewable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the Constitutional scheme. This is not to say that the conditions subject to which a new State or territory is admitted into the Union ought exactly be the same as those that govern all other States as at the time of the commencement of the Constitution. It is, however, urged that Article 371F starts with a non obstante clause and therefore the other provisions of the Constitution do not limit the power of impose conditions. But Article 371 F cannot transgress the basic features of the Constitution. The non obstante clause cannot be construed as taking clause (f) of Article 371F outside the limitations on the 975 amending power itself The provisions of clause (f) of Article 371 F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution. Whether clause (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. Whatever the merits of the contentions be, it cannot be said the issues raised are non justiciable. In Mangal Singh & Anr. vs Union of India, ; at 112 this Court said : ". Power with which the Parliament is invested by articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme". Even if clause (f) of Article 371 F is valid, if the terms and conditions stipulated in a law made under Article 2 read with clause (f) of Article 371F go beyond the constitutionally permissible latitudes, that law can be questioned as to its validity. The contention that the vires of the provisions and effects of such a law are non justiciable cannot be accepted. Contention (a) requires to be and is rejected. Re : Contentions (b), (c) and (d) 20.The objection of non justiciability thus out of their way, he petitioners urge that the provisions in clause (f) of Article 371F enabling reservation of seats for sections of the people and law made in exercise of that power providing reservation of seats to Bhutias Lepchas violate fundamental principles of democracy and republicanism under the Indian Constitution and violate the 'one person one vote ' rule which, it is urged, is a basic to the republican principle found in Article 170(2) of the Constitution. 976 Sri R.K. Jain, learned senior counsel for the petitioners said that apart from the invalidity of the power itself the exercise of the power in the matter of the extent of the reservations made for Bhutias Lepchas has the effect of whittling down, correspondingly, the value of the votes of the Sikkimese of Nepalese origin and is destructive of the equality principle and the democratic principle. Clauses (1) and (2) of Article 170 provide "170. (1) Subject to the provisions of article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State. (2)For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable be the same throughout the State. Explanation. In this clause, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published:" This provision incorporates the rule of 'fair and effective representation '. Though the rule 'one person one vote ' is a broad principle of democracy, it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy. These are the usual problems that arise in the delimitation of constituencies. In what is called "First past thepost" system of elections, the variations in the size and in the voting populations of different constituencies, detract from a strict achievement of this ideal. The system has the merit of preponderance of "decisiveness" over "representativeness". Commenting on this phenomenon Keith Graham in "The Battle of Democracy. Conflict, Consensus and the Individual" says : "This, in existing systems where voters are electing representatives, examples of gross inequality between the powers of different votes occur, either because of disparities in constituency size or because of the anomalies produced in a first past the post system. There was, for instance, an 977 occasion when one Californian State Senator represented six million electors and another one fourteen thousand electors (Portter 1981:114); in February, 1974 constituencies in England varied from 96,380 to 25,007 electors (Hansard Society Commission 1976:7); and in the United Kingdom between 1945 and 1976 nine out of ten of the elected governments acquired more than 50 per cent of the seats, but none acquired 50 per cent of the votes cast (ibid.:9). When the United States Supreme Court asserted that it had jurisdiction in the matter of huge disparities in the value of citizens ' votes. it did so, significantly, by referring to the Fourteenth Amendment, which guarantees equal protection of the laws." (Page 55) 21.The concept of political equality underlying a democratic system. is a political value. Perfect political equality is only ideological. Indeed, a, Rodney Brazier points out in his "Constitutional Reform: Reshaping the British Political System" : "Inextricably linked in the voting system with unfairness is the supremacy of decisiveness over representativeness. The first past the post system has developed into a mighty engine which can be relied on to produce a government from one of the two principal parties. But in that development the purpose of gathering a House of Commons which is broadly representative of the electorate has rather faded. This would be possibly not be as important as it is if the elective function worked on the basis of a majority of voters conferring a parliamentary majority on the winning party. Patently, however, it does not do so. Mrs. Thatcher 's 144 seat landslide majority in 1983, and her huge 102 seat majority in 1987, were achieved even though on both occasions some 57 per cent of votes were given to other parties. Almost 60 per of voting citizens voted against the Conservative Government. This is by no means a recent phenomenon. Attlee 's 146 seat majority in 1945 was won on under 48 per cent of the vote, and indeed no winning party has been supported by half or more of those going to the polls since the general election of 1935. Are the 978 virtues of the British electoral system simplicity, decisiveness, its ability to produce stable governments, and so on so self evident as to justify such distortions of the electoral will? It is really necessary to have voting system predicated either on the representative function, or (as in Britain) on the elective function?" (Page 46) Again, Brazier in "Constitutional Practice ' (Clarendon Press Oxford) says "The first past the post system usually has the advantage of producing a majority government at a general election: it is decisive, simple, and familiar to the electorate. Yet it is also unfair. No one could say that a scheme which gives one political group three per cent of the seats from 22.6 per cent of the national vote, but which gives another party 36 per cent of the seats with a mere eight per cent more of the votes, does anything but violence to the concept of fair play as the British understand it. The present system also underspins elective dictatorship in a way that different electoral rules, Which would return more MPs from third (and perhaps fourth) parties, would undermine. And we speak of 'majority governments ' by reference to seats won in the House, but no government has been returned with a majority of the popular vote since 1935." (Page 191) Arend Lijphart in "Democracy in Plural Societies" observes "Formidable though the classic dangers are of a plurality of sovereign states, these have to be reckoned against those inherent in the attempt to contain disparate communities within the framework of a single government. In the field of peace research, there is a similar tendency to frown on peace which is achieved by separating the potential enemies significantly labeled "negative ' peace and to strive for peace based on fraternal feeling within a single integrated and just society: "positive" peace. (P. 47) The problem of equality of the value of votes is further complicated by a progressive rural depopulation and increasing urbanisation. In the 979 work "Legislative Apportionment : Key to Power" (Howard D. Hamilton) the learned author says : "But even the right to vote, and its exercise does not in itself insure equal voice in the affairs of government. Today more than 175 years after the nation was founded the votes of millions of citizens are worth only one half, one quarter and even one one hundredth the value of votes of others because of the unfair formulas by which we elect the Unites States Congress and the legislatures of the forty eight states. As our population grows and moves continuously toward urban centres, the ballots of millions become less and less equal to the votes of others. Our system of representative government is being sapped at its roots." "Who are the second class citizens in this under represented majority? They are the millions living in our towns and cities, says the United States Conference of Mayors, pointing to the fact that the 59 per cent of all Americans who were living in urban centers in 1947 elected only 25 percent of the state legislators." (Page 74) Gordon E. Baker writing on "One Person, One Vote : "Fair and Effective Representation?" [Representation and Misrepresentation Rand McNally & Co. Chicago] says : "While population inequality among legislative districts is hardly new, its has become a major source of controversy primarily in the twentieth century." "A statistical analysis of the New Jersey Senate by Professor Ernest C. Reock, Jr., revealed that "The average relative population deviation rose from 27.7. per cent in 1791 to 80.0 per cent in 1922. The ratio between the largest and smallest counties only 7.85 at the. beginning of that period reached 33.51 at the end. The minimum percentage of the state 's population residing in counties electing a majority of the Senate dropped from 41.0 per cent to 15.9 per cent." (PP. 72 3) 980 22. Sri Jain, however, relied upon the decision in B 4. Reynolds vs M. O. Sims, at 527 in which it was observed : "Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any allege infringement of the right of citizens to vote must be carefully and meticulously scrutinized." " Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system." "And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear exordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State 's voters could vote two, five or 10 times for their legislative representatives, while voter s living elsewhere could vote only once. " Even so, Chief Justice Warren observed ". We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." (p.536) ". So long as the divergences from a strict population standard are based on legitimate considerations incident to the 981 effectuation of a rational state policy some deviations from the equal population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature." (p.537) (emphasis supplied) 23.Section 24 of the Australian Constitution requires that "the House of Representatives shall be composed of members directly chosen by the people of Commonwealth". The High Court of Australia considered the principle of Reynolds vs Sims, (supra) somewhat inapposite in the Australian context. In Attorney General (CTH) exhibit Rel Mckinlay vs The Commonwealth,[1975] ; at p.22 Barwick CJ observed : "It is, therefore, my opinion that the second paragraph of s.24 cannot be read as containing any guarantee that there shall be a precise mathematical relationship between the number of members chosen in a State and the population of that State or that every person in Australia or that every elector in Australia will have a vote, or an equal vote. " Mason, J. said : "The substance of the matter is that the conception of equality in the value of a vote or equality as between electoral divisions is a comparatively modern development for which no stipulation was made in the system of democratic representative government provided for by our Constitution." (p.62) 24.It is true that the right to vote is central to the right to participation in the democratic process. However, there is less consensus amongst theorists on the propriety of judicial activism in the voting area. In India, the Delimitation Laws made under Article 327 of the Constitution of India, are immune from the 'judicial test of their validity and the process of allotment of seats and constituencies not liable to be called in question in any court by virtue of Article 329(a) of the Constitution. But the laws providing reservations are made under authority of other provisions of the Constitution such as those in article 332 or clause (f) of Article 371F which ' 982 latter is a special provision for Sikkim. 25.The rationale and constitutionality of clause (f) and the other provisions of the electoral laws impugned in these petitions are sought to be justified by the respondents on grounds that first, a perfect arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and, secondly, that even if the impugned provisions make a departure from the tolerance limits and the constitutionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evolution of Sikkim 's political institutions. This, it is urged, is the justification for the special provisions in clause (f) which was specifically intended to meet the special situation. It is sought to be pointed out that throughout the period when the ideas of responsible Government sprouted in Sikkim, there has been a vigilant political endeavour to sustain that delicate balance between Bhutias Lepchas on the one hand and the Sikkimese of Nepalese origin on the other essential to the social stability of that mountain State. Clause (f) of Article 371F was intended to prevent the domination of the later Nepali immigrants who had, in course of time, outnumbered the original inhabitants. What Article 371 F(f) and the electoral laws in relation to Sikkim seek to provide, it is urged, is to maintain this balance in the peculiar historical setting of the development of Sikkim and its political institutions. 26.So far as the 'Sangha ' is concerned it is urged that though it was essentially a religious institution of the Buddhists, it however occupied a unique position in the political, social and cultural fife of the Sikkimese society and the one seat reserved for it cannot, therefore, be said to be based on considerations 'only ' of religion. In the counter affidavit filed by the Sikkim Tribal Welfare Association, certain special aspects of the position of the 'Sangha ' in Sikkim 's polity are emphasised. Reference to and reliance has been placed on the extracts from "The Himalayan Gateway ' (History and Culture of Sikkim) in which the following passages occur: "The reservation for the Sangha is the most unique feature of the political set up in the State. It is a concession to continuity and is admittedly short term. Before the revolu tion the Buddhist Sangha of the Lamas wielded immense power, both religious and political. The people have come to have great faith in their wisdom and justice. They are 983 universally respected and still command considerable influence with a section of the people who would be called poor and politically backward. The presence of onle of their representatives in the Assembly could possibly give the illiterate masses a greater faith in its deliberations. "(P.149) "Finally lamaism is a social Organisation. The lamas (to a lesser extent the nuns) are arranged in a disciplined hierarchy. They are a section of society which performs for the whole society its religious functions; in return the rest of society should give material support to the lamas. (PP. 192 193) "It is calculated that about ten per cent of the combined Bhutia Lepcha population are monks. Could there be anything more telling for the spiritual heritage of the people. According to tradition the second son of every Bhutia house hold is to be called to the Sangha the order of Buddhist monks. No matter where one goes, one can come across a monastery called Gompa. For a small state like Sikkim in which the Buddhist Bhutia Lepcha population hardly exceed thirty thousands, there are more than thirty famous monasteries. In fact most of the prominen t hilltops of the country are crowned with a monastery shrine or a temple. Apart from these at every village there is a Gompa or a village monastery with a resident lama looking after the spiritual needs of a small community. Frequently, Chorten, the lamaist version of the original Buddhist stupa, are also seen." (pp. 112 3) "Life in the countryside centres round the monastery of the Buddhist monks, the lamas. Birth, death, sickness all are occasions for the lamas to be called in for the performance of appropriate ceremonies. Just putting up a prayer flag even needs the attendance of lamas. "(p. 115) Since the rulers were also monk incarnates constantly in transaction with the high Lamas of Tibet and the DebRaja of Bhutan, these monks were used as emissaries, 984 medioators, and settlers of various state affairs. In internal administration also, the monks held important positions. They were appointed to the State Council, they managed the monastery estates, administered justice and even helped the laity in fighting against the enemies. Though economically dependent, they were very much influential both in the court and in public life. In fact, it was these clergymen who managed the affairs of the state in collaboration with Kazis." (p. 18, 19) 27.As is noticed earlier Article 2 gives a wide latitude in the matter of prescription of terms and conditions subject to which a new territory is admitted. There is no constitutional imperative that those terms and conditions should ensure that the new State should, in all respects, be the same as the other States in the Indian Union. However, the terms and conditions should not seek to establish a form or system of Government or political and governmental institutions alien to and fundamentally different from those the Constitution envisages. Indeed, in "Constitutional Law of India", [Edited by Hidayatullah, J. published by the Bar Council of India Trust], it is observed "Foreign territories, which after acquisition, become a part of the territory of India under Article 1(3) (c) can be admitted into the Union of India by a law passed under Article 2. Such territory may be admitted into the Union of India or may be constituted into new States on such terms and conditions as Parliament may think fit. Such territory can also be dealt with under clause (a) or (b) of Article 3. This means that for admitting into the Indian Union or establishing a new State, a parliamentary, law is necessary and the new State so admitted or established cannot claim complete equality with other Indian States, because Parliament has power to admit or establish a new State "on such terms and conditions as it thinks fit". I, Page 58) (Emphasis supplied] 985 28.In judicial review of the vires of the exercise of a constitutional power such as the one under Article 2, the significance and importance of the political components of the decision deemed fit by Parliament cannot be put out of consideration as long as the conditions do not violate the constitutional fundamentals. In the interpretation of constitutional document, "words are but the framework of concept and concepts may change more than words themselves". The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that 'the intention of a Constitution is rather to outline principles than to engrave details '. Commenting on the approach appropriate to a Constitution, a learned author speaking of another federal document says (The Australian Law Journal, Vol. 43 at p.256) : "A moment 's reflection will show that a flexible approach is almost imperative when it is sought to regulate the affairs of a nation by powers which are distributed, not always in the most logical fashion, among two or more classes of political agencies. The difficulties arising from this premise are much exacerbated by the way in which the Australian Constitution came to be formed : drafted by many hands, then subjected to the hazards of political debate, where the achievement of unanimity is often bought at the price of compromise, of bargaining and expediency." 29.An examination of the constitutional scheme would indicate that the concept of 'one person one vote ' is In its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arithmetical precision. Articles 332 (3A) and 333 are illustrative instances. The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degrees of political development in different parts of India, might supply the justification for 986 even non elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of various parts of the country, may not justify standards based on mathematical accuracy. Articles 371A, a special provisions in respect of State of Negaland, 239A and 240 illustrate the permissible areas and degrees of departure. The systemic deficiencies in the plenitude of the doctrine of fun and effective representation has not been understood in the constitutional philosophy as derogating from the democratic principle. Indeed the argument in the case, in the perspective, is really one of violation of the equality principle rather than of the democratic principle. The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment. Article 371F (f) cannot be said to violate any basic feature of the Constitution such as the democratic principle. 30.From 1975 and onwards, when the impugned provisions came to be enacted, Sikkim has been emerging from a political society and monarchical system into the mainstream of a democratic way of life and an industrial civilisation. The process and pace of this political transformation is necessarily reliant on its institutions of the past. Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals. The provisions of clause (f) of the Article 371F and the consequent changes in the electoral laws were intended to recognise and accommodate the pace of the growth of the political institutions of Sikkim and to make the transition gradual and peaceful and to prevent dominance of one section of the population over another on the basis of ethnic loyalties and identities. These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium. The political and social maturity and of economic development might in course of time enable the people` of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future one hopes sooner usher in a more egalitarian dispensation. Indeed, the impugned provisions, in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character. 987 It is true that the reservation of ' seats of the kind and the extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass the Constitutional muster. But in relation to a new territory admitted to the Union, the terms and conditions are not such as to fall outside the permissible constitutional limits. Historical considerations and compulsions do justify in equality and special. treatment. In Lachhman Dass etc. vs State of Punjab & Ors. , ; this court said "The law is now well settled that while Article 14 prohibits discriminatory legislation directed against one individual or class of individuals, it does not forbid reasonable classification, and that for this purpose even one person or group of persons can be a class. Professor Willis says in his Constitutional Law p.580 "a law applying to one person or one class of persons is constitutional if there is sufficient basis of reason for it. . And if after reorganisation of States and integration of the Pepsu Union in the State of Punjab, different laws apply to different parts of the State, that is due to historical reasons, and that has always been recognised as a proper basis of classification under Article 14. " In State of Madhya Pradesh vs Bhopal Sugar Industries Ltd., ; at 850 this court said: The Legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute. . where application of unequal laws is reasonably justified for historical reasons, a geographical classification founded on those historical reasons would be upheld. " We are of the view that the impugned provisions have been found in the wisdom of Parliament necessary in the admission of a strategic border 988 A State into the Union. The departures are not such as to negate fundamental principles of democracy. We accordingly hold and answer contentions (b), (c) and (d) also against the petitioners. Re : Contentions (e) and (f) 31. Sri Jain submitted that clause (f) of Article 371F would require that wherever provisions for reservation of seats are considered necessary for the purpose of protecting the rights and interests of different sections of the population of Sikkim, such reservations are to be made for all such sections and not, as here, for one of them alone. This contention ignores that the provision in clause (f) of article 371 F is merely enabling. If reservation is made by Parliament for only one section it must, by implication, be construed to have exercised the power respecting the other sections in a negational sense. The provision really enables reservation confined only to a particular section. Sri Jain contended that Bhutias and Lepchas had been declared as Scheduled Tribes under the Constitution [Sikkim Scheduled Tribes] Order, 1978 and that the extent of the reservation in their favour would necessarily be governed by the provisions of Article 332(2) of the Constitution which requires that the number of seats to be reserved shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Schedule Tribes in the State bears to the total population of the State. But, in our opinion, clause (f) of Article 371F is intended to enable, a departure from article 332(2). This is the clear operational effect of the non obstante clause with which Article 371F opens. Sri Jain pointed out with the help of certain demographic statistics that the degree of reservation of 38% in the present case for a population of 20%, is disproportionate. This again has to be viewed in the historical development and the rules of apportionment of political power that obtained between the different groups prior to the merger of the territory in India. A parity had been maintained all through. We are of the opinion that the provisions in the particular situation and the permissible latitudes, cannot be said to be unconstitutional. Re : Contention (g) 989 The contention is that the reservation of one seat in favour of the 'Sangha ' which is Bhuddhist Lamaic religious monasteries, is one purely based on religious considerations and is violative of Articles 15(1) and 325 of the Constitution and offends its secular principles. The reservation of one seat for the 'Sangha ', with a special electorate of its own, might at the first blush appear to resuscitate ideas of separate electorates considered pernicious for the unity and integrity of the country. The Sangha, the Buddha and the Dharma are the three fundamental postulates and symbols of Buddhism. In that sense they are religious institutions. However, the literature on the history of development of the political institutions of Sikkim adverted to earlier tend to show that the Sangha had played an important role in the political and social life of the Sikkimese people. It had made its own contribution to the Sikkimese culture and political development. There is material to sustain the conclusion that the 'Sangha ' had long been associated itself closely with the political developments of Sikkim and was inter woven with the. social and political life of its people. It view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. In the historical setting of Sikkim and its social and political evolution the provision has to be construed really as not invoking the impermissible idea of a separate electorate either. Indeed, the provision bears comparison to Articles 333 providing for representation for the Anglo Indian community. So far as the provision for the Sangha is concerned, it is to be looked at as enabling a nomination but the choice of the nominee being left to the 'Sangha ' itself We are conscious that a separate electorate for a religious denomination would be obnoxious to the fundamental principles of our secular Constitution. If a provision is made purely on the basis of religious considerations for election of a member of that religious group on the basis of a separate electorate, that would, indeed, be wholly unconstitutional. But in the case of the Sangha, it is not merely a religious institution. It has been historically a political and social institution in Sikkim and the provisions in regard to the seat reserved admit to being construed as a nomination and the Sangha itself being assigned the task of and enabled to indicate the choice of its nominee. The provision can be sustained on this construction. Contention (g) is answered accordingly. 990 33.For the foregoing reasons, all the petitions are dismissed without any order as to costs. S.C. AGRAWAL, J. With due deference to my learned brethren for whom I have the highest regard, I regret my inability to concur fully with the views expressed in either of these judgments. It has, therefore, become necessary for me to express my views separately on the various questions that arise for consideration. These cases arise out of Writ Petitions which were originally filed under Article 226 of the Constitution in the High Court of Sikkim and have been transferred to this Court for disposal under Article 139A of the Constitution. They involve challenge to the validity of the provisions in serted in the Representation of the People Act, 1950 (hereinafter referred to as the '1950 Act ') and the Representation of the People Act, 1951 (hereinafter referred to as the '1951 Act ') by the (10 of 1976) (hereinafter referred to as the '1976 Act ') and the Representation of the People (Amendment) Act, 1980 (Act No. 8 of 1080) (hereinafter referred to as the '1980 Act '), whereby (i) twelve seats out of thirty two seats in the Legislative Assembly of Sikkim have been reserved for Sikkimese of Bhutia Lepcha origin; and (ii) one seat has been reserved for Sanghas and election to the seat reserved for Sanghas is required to be conducted on the basis of a separate electoral roll in which only the Sanghas belonging. to monasteries recognised for the purpose of elections held in Sikkim in April, 1974 for forming the Assembly for Sikkim are entitled to be registered. For a proper appreciation of the questions that arise for consideration, it is necessary to briefly refer to the historical background in which the impugned provisions were enacted. Sikkim is mainly inhabited by Lepchas, Bhutias and Nepalese. Lepchas are the indigenous inhabitants. Bhutias came from Kham in Tibet some time during fifteenth and sixteenth centuries and one of the chieftains was crowned Chogyal, or religious and secular ruler, in 1642. Lepchas and Bhutias are Buddhists. By the end of the last century, Sikkim became a British protectorate and it continued as such till 1947 when British rule came to an end in India. During this period, while it was British protec 991 torate, there was immigration of Nepalese on a large scale and as a result, by 1947, Sikkimese of Nepali origin out numbered other people in a ratio of 2:1. After the end of the British rule in 1947, Sikkim came under the protection of the Government of India. On December 3, 1950, the Maharaja of Sikkim entered into a treaty with the President of India whereby it was agreed that Sikkim shall continue to be a Protectorate of India and subject to the provisions of the Treaty, shall enjoy autonomy in regard to its internal affairs. On December 28, 1952, the Ruler of Sikkim issued a Proclamation to make provision for election of members of the State Council. The said Proclamation envisaged twelve elected members in the Council out of which six were to be Bhutia Lepcha and six were to be Nepalese. On March 23, 1953, another Proclamation known as the State Council and Executive Council Proclamation, 1953, was issued. It provided for a State Council consisting of eighteen members (a President to be nominated and appointed by the Maharaja twelve elected members and five nominated members). Out of the elected members six were to be either Sikkimese Bhutia or Lepcha and the remaining six were to be Sikkimese Nepalese. By Proclamation dated March 16, 1958, the strength of the Council was raised to twenty. The six seats for nominated members were retained and while maintaining the reservation of six seats for Bhutias and Lepchas and six seats for Nepalese, it was provided that there shall be one general seat and one seat shall be reserved for the Sangha. It was provided that voting for the seat reserved for the Sangha will be through an electoral college of the Sanghas belonging to monasteries recognised by the Sikkim Darbar (Ruler of Sikkim). Certain adaptations and modifications in the laws relating to election to and composition of the Sikkim Council were made by the Proclamation dated December 21, 1966 (known as the Representation of Sikkim Subjects Regulation, 1966) issued by the Chogyal (Ruler) of Sikkim. Under the said Proclamation, for the purpose of election to the Sikkim Council, Sikkim was divided into five territorial constituencies, one General Constituency and one Sangha Constituency. The General Constituency was to comprise the whole of Sikkim and the Sangha Constituency was to comprise the Sanghas belonging to the monasteries recognised by the Sikkim Darbar. It was also declared that, besides the President who was to be appointed by the Chogyal, the Sikkim Council was to consist of twenty four members out 992 of which seven were to be Bhutia Lepcha and seven were to be Sikkimese Nepali who were to be elected from five territorial constituencies; three members were to be elected from the general constituency out of which one seat was to be a General seat, the second from the Scheduled Castes as enumerated in the Second Schedule annexed to the Proclamation, and the third from Tsongs; and the Sangha Constituency was to elect one member through an electoral college of the Sanghas. Six seats were to be filled in by nomination made by the Chogyal at his discretion. On May 8, 1973, a tripartite agreement was entered into by the Chogyal of Sikkim the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of Sikkim, whereby it was agreed that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principal of one man one vote and that there shall be an Assembly in the Sikkim and that the said Assembly shall be elected every four years and the elections shall be fair and free, and shall be conducted under the supervision of a representative of the Election Commission of India, who shall be appointed for the purpose by the Government of Sikkim. Para (5) of the said agreement provided as under : "(5) The system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population. The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali, which includes Tsong and Scheduled Caste Caste origin, are fully protected '. This tripartite agreement was followed by Proclamation dated February 5, 1954 issued by Chogyal of Sikkim. The said Proclamation known as the Representation of Sikkim Subjects Act, 1974, provided that for the purpose of election to the Sikkim Assembly, Sikkim would be divided into thirty one territorial constituencies and one Sangha constituency and the Sangha constituency would comprise the Sanghas belong 993 ing to monasteries recognised by the Chogyal of Sikkim. The Assembly was to consist of thirty two elected members. Sixteen Constituencies were to be reserved for Sikkimese of Bhutia Lepcha origin, out of which one was reserved for the Sangha. The remaining sixteen constituencies were to be reserved for Sikkimese of Nepali, including Tsong and Scheduled Caste, origin out of which one constituency was to be reserved for persons belonging to the Scheduled Castes notified in the Schedule annexed to the Proclamation. The elections to the thirty one territorial constituencies were to be held on the basis of adult suffrage and the Sangha constituency was to elect one member through an electoral college of the Sanghas and a member of the electoral college for the Sanghas was not eligible to vote for any other constituency. Elections for the Sikkim Assembly were held in accordance with the Representation of Sikkim Subjects Act, 1974 in April 1974. The Sikkim Assembly thus elected, passed the Government of Sikkim Bill, 1974, and after having received the assent of the Chogyal of Sikkim the said Bill was notified as the Government of Sikkim Act, 1974. As stated in the Preamble, the said Act was enacted to provide "for the progressive realisation of a fully responsible Government in Sikkim and for further strengthening its close relationship with India". Section 7 of the said Act relating to elections to the Sikkim Assembly gave recognition to paragraph 5 of the tripartite agreement dated May 8, 1973 in sub section (2) wherein it was provided: "(2) The Government of Sikkim may make rules for the purpose of providing that the Assembly adequately represents the various sections of the population, that is to say, while fully protecting the legitimate rights and interests of Sikkimese of Lepcha or Bhutia origin and of Sikkimese of Nepali origin and other Sikkimese, including Tsongs and Scheduled Castes no single section of the population is allowed to acquire a dominating position in the affairs of Sikkim mainly by reason of its ethnic origin". Section 30 of the said Act made provision for association with the Government of India for speedy development of Sikkim in the social, ,economic and political fields. By section 33 of the said Act, it was declared that the Assembly which had been formed as a result of the elections held in April, 1.974 shall be deemed to be the first Assembly duly constituted 994 under the said Act. In order to give effect to the wishes of the people of Sikkim for strengthening Indo Sikkim cooperation and inter relationship, the Constitution of India was amended by the Constitution (Thirty Fifth Amendment) Act, 1974, as a result of which Article 2 A was inserted and Sikkim was associated with the Union on the terms and conditions set out in the Tenth Schedule inserted in the Constitution by the said amendment. It appears that on April 10, 1975, the Sikkim Assembly unanimously passed a resolution wherein, after stating that the activities of the Chogyal of Sikkim were in violation of the objectives of the tripartite agreement dated May 8, 1973 and that the institution of Chogyal not only does not promote the wishes ' and expectations of the people of Sikkim but also impeded their democratic development and participation in the political and economic life of India, it was, declared and resolved : "The institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a constituent unit of India, enjoying a democratic and fully responsible Government". It was further resolved : "1. The Resolution contained in part A" shall be submitted to the people forthwith for their approval. The Government of India is hereby requested, after the people have approved the Resolution contained in part "A" to take such measures as may be necessary and appropriate to implement this Resolution as early as possible". In accordance with the said Resolution, a special opinion poll was conducted by the Government of Sikkim on April 14, 1975 and in the said poll, 59, 637 votes were cast in favour and 1496 votes were cast against the Resolution out of a total electorate of approximately 97,000. In view of the said resolution adopted unanimously by the Sikkim Assembly which was affirmed by the people of Sikkim in special opinion poll, the Constitution was further amended by the Constitution (Thirty Sixth Amendment) Act, 1975 whereby Sikkim was included as a full 995 fledged State in the Union and Article 371 F was inserted whereby special provisions with respect to the State of Sikkim were made. By virtue of Clause (b) of Article 371 F the Assembly of Sikkim formed as a result of the elections held in Sikkim in April 1974 was to be deemed to be the Legislative Assembly of the State of Sikkim duly constituted under the Constitution and under Clause (c) the period of five years for which the Legislative Assembly was to function was to be deemed to have commenced on the date of commencement of the Constitution (Thirty Sixth Amendment) Act, 1975. Clause (f) of Article 371 F empowers Parliament to make provision for reservation of seats in the Legislative Assembly of the State of Sikkim for the purpose of protecting the rights and interests of the different sections of the population of Sikkim. Thereafter Parliament enacted the 1976 Act to provide for the extension of the 1950 Act and the 1951 Act to the State of Sikkim and introduced certain special provisions in the 1950 Act and the 1951 Act in their application to Sikkim. Many of those provisions were transitory in nature being applicable to the Sikkim Assembly which was deemed to be the Legislative Assembly of the State of Sikkim under the Indian Constitution. The only provision which is applicable to future Legislatures of Sikkim is that contained in Section 25 A which reads as under : "25 A. Conditions of registration as elector in Sangha Constituency in Sikkim Notwithstanding anything contained in sections 15 and 19, for the Sangha Constituency in the State of Sikkim, only the Sanghas belonging to monasteries, recognised for the purpose of the elections held in Sikkim in April 1974, for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll, and the said electoral roll shall, subject to the provisions of sections 21 to 25, be prepared or revised in such manner as may be directed by the Election Commission, in consultation with the Government of Sikkim". In exercise of the powers conferred on him by Cl. (1) of Article 342 of the Constitution of India, the President of India promulgated the Constitution (Sikkim) Scheduled Tribes Order, 1978 (C.O.11) on June 22, 1978 and it was prescribed that Bhutias And Lepchas shall be deemed to be Scheduled Tribes in relation to the State of Sikkim. 996 Since the 1976 Act did not make provision for fresh elections for the Legislative Assembly of Sikkim and the term of the said Assembly was due to expire, the Representation of the People (Amendment) Bin, 1979 was introduced in Parliament on May 18, 1979 to amend the 1950 Act and the 1951 Act. While the said Bill was pending before Parliament, Lok Sabha was dissolved and the said Bill lapsed. Thereafter the Legislative Assembly of Sikkim was also dissolved on August 13, 1979 and fresh elections for the Assembly were to be held. The Representation of the People (Amendment) Ordinance, 1979 (No.7 of 1979) was, therefore, promulgated by the President on September 11, 1979 whereby certain amendments were introduced in the 1950 Act and the 1951 Act. Elections for the Sikkim Legislative Assembly were held in October, 1979 on the basis of the amendments introduced by the said Ordinance. Thereafter, the 1980 Act was enacted to replace the Ordinance. By the 1980 Act, sub section (1 A) was inserted in Section 7 of the 1950 Act and it reads as under : "(1 A). Notwithstanding anything contained in sub s.(1), the total number of seats in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the. commencement of the Representation of the People (Amendment) Act, 1980 to be filled by persons chosen by direct election from assembly constituencies shall be thirty two, of which (a) twelve seats shall be reserved for Sikkimese of BhutiaLepcha origin; (b) two seats shall be reserved for the Scheduled castes of that State; and (c) one seat shall be reserved for the Sanghas referred to in Section 25 A. Explanation : In this sub section 'Bhutia ' includes Chumbipa, Dopthapa, Dukpa, Kagatey, Sherpa, Tibetan, Tromopa, and Yohmo". Similarly, the following provision was inserted in Section 5 A of the 1951 Act : 997 "(2) Notwithstanding anything contained in Section 5, a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of the State of Sikkim, to be constituted at any time after the commencement of the Representation of the People (Amendment) Act, 1980 unless (a) in the case of a seat reserved for Sikkimese of BhutiaLepcha origin, he is a person either of Bhutia or Lepcha origin and is an elector for any assembly constituency in the State other than the constituency reserved for the Sanghas; (b) in the case of a seat reserved for the Scheduled Castes, he is a member of any of those castes in the State of Sikkim and is an elector for any assembly constituency in the State; (c) in the case of a seat reserved for Sanghas, he is an elector of the Sangha constituency; and (d) in the case of any other seat, he is an elector for any assembly constituency in the State. " The petitioners in these cases are Sikkimese of Nepali origin and they are challenging the validity of Section 25 A introducted in the 1950 Act by the 1976 Act and sub section (1 A) of Section 7 of the 1950 Act and sub section (2) of Section 5 A of the 1951 Act which were introduced by the. 1980 Act insofar as they relate to : (1) Reservation of 12 seats out of 32 seats in the Sikkim Legislative Assembly for Sikkimese of Bhutia Lepcha origin; and (2) Reservation of one seat for Sanghas. The petitioners have not challenged the validity of the Constitution (Thirty Sixth Amendment) Act, 1975 whereby Article 371 F was inserted in the Constitution. In Transferred Cases Nos. 78 of 1982 and 84 of 1982, the case of the petitioners is that Article 371 F should be construed in a manner that it is 998 consistent with the general philosophy of the Constitution particularly democracy and secularism and they have challenged the provisions of the 1976 Act and the 1980 Act providing for reservation of 12 seats in the Legislative Assembly of Sikkim for Sikkimese of Bhutia and Lepcha origin and reservation of one seat for Sanghas on the ground that the said provisions fall outside the ambit of Article 371 F and are violative of the provisions contained in Articles 332, 14 and 15 and 325 of the Constitution. In the alternative, the case of the petitioners is that if Article 371 F is given a wider construction, it would be unconstitutional being violative of the basic features of the Constitution. The petitioners in Transferred Cases Nos. 93 and 94 of 1991 have taken a different stand. Instead of challenging the reservation of seats for Sikkimese of Bhutia and Lepcha origin as well as Sanghas, they have relied upon clause (f) of Article 371 F to claim similar reservation of ' seats in the Assembly for Sikkimese of Nepali origin. Before I proceed to deal with contentions urged by the learned counsel on behalf of the petitioners in these matters, it is necessary to deal with the submissions of Shri K. Parasaran appearing for the State of Sikkim and the learned Attorney General appearing for the Union of India that the matters in issue being political in nature are not justiciable. It has been urged that admission of Sikkim as a State of Indian Union constitutes acquisition of territory by cession in international law and the terms and conditions on which the said cession took place as contained in Article 371 F, are intended to give effect to the tripartite agreement dated May 3, 1973 which was political in nature. It is further urged that under Article 2 of the Constitution, Parliament is empowered by law to admit into Union of India and establish new States on such terms and conditions as it thinks fit and that Article 371 F prescribing the terms and conditions on which the State of Sikkim was admitted into the Union of India is a law under Article 2 of the Constitutions and merely because it was introduced in the Constitution by the Constitution (Thirty sixth Amendment) Act enacted under Article 368 of the Constitution. by way of abundant caution, is of no consequence and that it does not alter the true character of the law. The submission is further that since the terms and conditions on which Sikkim was admitted in Union of India, are political in nature, the said terms and conditions cannot be made the subject matter of challenge before this Court because the law is well settled that courts do not adjudicate upon questions which are political in nature. 999 The political question doctrine has been evolved in the United States to deny judicial review in certain fields. The doctrine received a set back in the case of Baker vs Carr. ; , , wherein Brennan, J., rejecting the contention that the challenge to legislative apportionment raises a non justiciable political question, has observed : ". The non justiciability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for case by case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution". (pp. 210 211) xx xx xx xx ". Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial congnizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility of judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action." (pp. 211 212) xx xx xx ". Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it. or the impossibility of deciding without an initial policy determination of a kind 1000 clearly for nonjudicial discretion; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court 's undertaking independent resolution without expression lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable for the case at bar, there should be no dismissal for non justiciability on the ground of a political question 's presence '. (p. 217) In Powell vs McCormack, , after reiterating the observations of Brennan, J. In Baker vs Carr (Supra),Warren, CJ has stated "In order to determine whether there has been a textual commitment to a co ordinate department of the Government, we must interpret the Constitution. In other words, we must first determine what power the Constitution confers upon the House through article I, 5, before we can determine to what extent, if any, the exercise of that power is subject to judicial review. If examination of 5 disclosed that the Constitution gives the House judicially unreviewable power to set qualifications for memebership and to judge whether prospective members meet those qualifications, further review of the House determination might well be barred by the political question doctrine. On the other hand, if the Constitution gives the House power to judge only whether elected members possess the three standing qualifications set forth in the Constitution, further con sideration would be necessary to determine whether any of the other formulations of the political question doctrine are inextricable from the case at bar". (p. 516) In A.K Roy vs Union of India, ; , Chandrachud, CJ, has thus explained the doctrine as applicable in the United States: "The doctrine of the political question was evolved in the United States of America on the basis of its Constitution 1001 which has adopted the system of a rigid separation of powers, unlike ours. In fact, that is one of the principal reasons why the U.S. Supreme Court had refused to give advisory opinions. In Baker vs Carr, Brennan, J. said that the doctrine of political question was "essentially a function of the separation of powers". There is also a sharp difference in the position and powers of the American President on one hand and President of India on the other. The President of the United States exercises executive power in his own right and is responsible not to the Congress but to the people who elect him. In India, the executive power of the Union is vested in the President of India but he is obliged to exercise it on the aid and advice of his Council of Ministers. The President 's "satisfaction" is therefore nothing but the satisfaction of his Council of Ministers in whom the real executive power resides. It must also be mentioned that in the United States itself, the doctrine of the political question has come under a cloud and has been the subject matter of adverse criticism. It is said that all that the doctrine really means is that in the exercise of the power of judicial review, the courts must adopt a 'prudential ' attitude, which requires that they should be wary of deciding upon the merit of any issue in which claims of principle as to the issue and claims of expediency as to the power and prestige of courts are in sharp conflict. The result, more or less, is that in America the phrase "political question" has become "a little more than a play of words". (pp. 296 297) In Madhav Rao vs Union of India, ; , it was contended that in recognising or de recognising a person as a Ruler the President exercises "political power" which is a sovereign power and that the relevant covenants under which the rights of the Rulers were recognised were 'political agreements '. Rejecting the said contention, Shah, J. (as the learned Chief Justice then was) speaking for the majority, observed "The functions of the State are classified as legislative, judicial and executive: the executive function is the residue which does not fall within the other two functions. Con 1002 stitutional mechanism in a democratic policy does not contemplate existence of any function which may qua the citizens be designated as political and orders made in exercise whereof are not liable to be rested for their validity before the lawfully constituted courts" (p.75) Similarly, Hedge, J. has stated "There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens. Our Constitution recognises only three powers viz. the legislative power, the judicial power and the executive power. It does not recognise any other power. (p.169) In State of Rajasthan vs Union of India, ; , Bhagwati, J. as the learned Chief Justice then was, has observed : "It will, therefore, be seen that merely because a question has a political colour, the Court cannot hold its hands in despair and declare judicial hands off. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed, it would be its constitutional obligation to do so." (p.80) Relying upon these observations and after taking note of the decisions in Baker vs Carr (supra) and Powell vs McConmack (supra), Venkataramiah, J., as the learned Chief Justice then was, in S.P. Gupta vs Union of India, [1982] 2 SCR 365 has laid down : "In our country which is governed by a written Constitution also many questions which appear to have a purely political colour are bound to assume the character of judicial questions. In the State of Rajasthan & Ors. etc. etc, vs Union of India etc. , (supra) the Government 's claim that the validity of the decision of the President under Article 356(1) of the Constitution being political in character was not justiciable on that sole ground was rejected by this Court." (p. 1248) 1003 The same view has been reiterated by Verma, J. speaking for the majority in Mrs. Sarojini Ramaswami vs Union of India & Ors., Writ Petition (Civil) No. 514 of 1992 decided on August 27, 1992. Sikkim was not admitted in the Indian Union on the basis of any treaty or agreement between the Chogyal of Sikkim and the Government of India. It was so admitted in pursuance of the unanimous resolution that was passed by the Assembly of Sikkim on April 10, 1975, after the said resolution had been approved by majority of the people of Sikkim at the special opinion poll conducted on April 14, 1975. The said resolution does not contain any terms and conditions on which the people of Sikkim wanted to join the Indian Union except stating that "Sikkim shall henceforth be a Constituent unit of India enjoying a democratic and fully responsible Government". The Tripartite Agreement of may 8, 1973 was also not an agreement containing terms and conditions for admission of Sikkim in the Indian Union. It contains the framework for "establishment of a fully responsible Government in Sikkim with a more democratic Constitution". This agreement was implemented by the enactment of the Government of Sikkim Act, 1974. It cannot, therefore, be said that Article 371 F contains a political element in the sense that it seeks to give effect to a political agreement relating to admission of Sikkim into the Indian Union. It is, however, urged that a law made under Article containing the terms and conditions on which a new State is admitted in the Indian Union is, by its very nature, political involving matters of policy and, therefore, the terms and conditions contained in such law are not justiciable. In this context, emphasis is laid on the words "on such terms and conditions as it thinks fit" in Article 2 and it is contended that Parliament has complete freedom to lay down the terms and conditions for admission of a new State in the Indian Union and such terms and conditions are outside the scope of judicial review. I find it difficult to subscribe to this proposition. It is no doubt true that in the matter of admission of a new State in the Indian Union, Article 2 gives considerable freedom to Parliament to prescribe the terms and conditions on which the new State is being admitted in the Indian Union. But at the same time, It cannot be said that the said freedom is without any constitutional limitation. In may view the power conferred on Parliament under Article 2 is circumscribed by the overall constitutional scheme and Parliament, while prescribing, the terms and conditions on 1004 which a new State is admitted in the Indian Union, has to act within the said scheme. Parliament cannot admit a new State into the Indian Union on terms and conditions which derogate from the basic features of the Constitution. It cannot make a law permitting the said State to continue as a monarchy because it would be in derogation to the republican form of Government established under the Constitution. Similarly it would not be permissible for Parliament to prescribe that the new State would continue to have an autocratic form of administration when the Constitution en visages a democratic form of Government in all the States. So also it would not be open to Parliament to provide that the new State would continue to be a theocratic State in disregard of the secular set up prevailing in other States. To hold otherwise would mean that it would be permissible for Parliament to admit to the Union new States on terms and conditions enabling those States to be governed under systems which are inconsistent with the scheme of the Constitution and thereby alter the basic feature of ' the Constitution. It would lead to the anomalous result that by an ordinary law enacted by Parliament under Article 2 it would be possible to bring about a change which cannot be made even by exercise of the constituent power to amend the Constitution, viz., to alter any of the basic features of the Constitution. The words "as it thinks fit" in Article 2 of the Constitution cannot, therefore, be construed as empowering Parliament to provide terms and conditions for admission of a new State which are inconsistent with the basic features of the Constitution. The said words can only mean that within the framework of the Constitution, it is permissible for Parliament to prescribe terms and conditions on which a new State is admitted in the Union. With regard to the power conferred on Parliament under Articles and 3 of the Constitution, this Court in Mangal Singh vs Union of India, ; , has laid down ". Power with which the Parliament is invested by articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to 1005 override the constitutional scheme". P. 112 in this context, it may also be mentioned that Article 2 of the Constitution is modelled on Section 121 of the Commonwealth of Australia Constitution Act which provides : "section 121 The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of Parliament, as it thinks fit." This provision has not yet been used and there has been no occasion for the Courts to construe this provision. A learned Commentator on the Australian Constitution has, however, expressed the view that under Section 121 "no terms and conditions could be imposed which are inconsistent with the provisions of the Constitution, e.g., nothing could be done to prevent the Judicature chapter of the Constitution from applying to the new State ' (R.D. Lumb : The Constitution of the Commonwealth of Australia (1986) 4th Ed. p. 736) I am, therefore, of the view that while admitting a new State in the Union, Parliament, while making a law under Article 2, cannot provide for terms and conditions which are inconsistent with the scheme of the Constitution and it is open to the Court to examine whether the terms and conditions as provided in the law enacted by Parliament under Article 2 are consistent with the constitutional scheme or not. This would mean that power conferred on Parliament under Article 2 is not wider in ambit than the amending power under Article 368 and it would be of little practical significance to treat Article 371 F as a law made under Article 2 of the Constitution or introduced by way of amendment under Article 368. In either event, it will be subject to the limitation that it cannot alter any of the basic features of the Constitution. The scope of the power conferred by Article 371 F, is therefore, subject to judicial review. So also is the law that is enacted to give effect to the provisions contained in Article 371 F. The contention, raised by Shri Parasaran as well as the learned Attorney General, that such an examination is outside the scope of judicial review, cannot. therefore be accepted. 1006 Shri Parasaran and the learned Attorney General have laid emphasis on the use of the expression "notwithstanding anything in this Constitution" which precedes clauses (a) to (p) of Article 371 F. The submission is that as a result of the said non obstante clause in Article 371 F, it is permissible for parliament to enact a law in derogation of the other provisions of the Constitution while giving effect to clauses (a) to (p) of Article 371 F and the said law would not be open to challenge on the ground that it is violative of any of the other provisions of the Constitution. There is no doubt that the non obstante clause in a statute gives overriding effect to the provisions covered by the non obstante clause over the other provisions in the statute to which it applies and in that sense, the non obstante clause used in Article 371 F would give overriding effect to clauses (a) to (p) of Article 371 F over other provisions of the Constitution. But at the same time, it cannot be ignored that the scope of the non obstante clause in Article, 371 F cannot extend beyond the scope of the legislative power of Parliament under Article 2 or the amending power under Article 368. As pointed out earlier, the legislative power under Article 2 does not enable Parliament to make a law providing for terms and conditions which are inconsistent with the Constitutional scheme and in that sense, the said power is not very different from the amending power under Article 368, which does not extend to altering any of the basic features of the Constitution. The non obstante clause in Article 371 F, has therefore, to be so construed as to conform to the aforesaid limitations or otherwise Article 371 F would be rendered unconstitutional. A construction which leads to such a consequence has to be eschewed. This means that as a result of the non obstante clause in Article 371 F, clauses (a) to (p) of the said Article have to be construed to permit a departure from other provisions of the Constitution in respect of the matters covered by clauses (a) to (p) provided the said departure is not of such a magnitude as to have the effect of ' altering any of the basic features of the Constitution. In order to avail the protection of Article 371 F, it is necessary that the law should not transcend the above mentioned limitation on the scope of the non obstante clause. This takes me to the question whether the impugned provisions contained in the 1976 Act and the 1980 Act make such a departure from he provisions of the Constitution as to render them inconsistent with the 1007 Constitutional scheme and have the effect of altering any of the basic features of the Constitution. As indicated earlier the challenge to the impugned provisions relates to two matters, viz., (i) reservation of twelve seats for Sikkimese of Bhutia Lepcha origin; and (ii) reservation of one seat for Sanghas. With regard to the reservation of twelve seats for Sikkimese of Bhutia and Lepcha origin under sub s.(1 A) inserted in Section 7 of the 1950 Act by Act No. 8 of 1980, Shri R.K. Jain, the learned Senior counsel, appearing as amicus curiae for the petitioner in T.C. No. 78 of 1982, has advanced a two fold argument. In the first place, he has urged that the reservation of seats for Sikkimese of Bhutia Lepcha origin without making a corresponding reservation for Sikkimese of Nepali origin is violative of the right to equality guaranteed under Article 14 of the Constitution. The other contention turns on the extent of such reservation. Shri Jain has submitted that Bhutias and Lepchas have been declared as Scheduled Tribes under the Constitution (Sikkim) Scheduled Tribes Order, 1978 dated June 22, 1978 and reservation of seats for Scheduled Tribes in the Legislative Assembly of a State is governed by Article 332 of the Constitution. Shri Jain has referred to Cl. (3) of Article 332 which prescribes that the number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under Cl. (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State. Shri Jain has pointed out that according to the 1971 census, the total population was about 2,09,843 out of which Bhutias and Lepchas were around 51,600 and according to 1981 census, the total population was around 3,16,385 out of which Bhutias and Lepchas were around 73,623. The submission of Shri Jain is that keeping in view the fact that Bhutias and Lepchas constitute about 25% of the total population, reservation of twelve out of thirty two seats in the Legislative Assembly for Bhutias and Lepchas, which constitute 38% of the total number of seats in the Assembly, is far in excess of the ratio of the population of Bhutias and Lepchas to the total population of Sikkim and, therefore, the aforesaid reservation of twelve seats for Bhutias and Lepchas is violative of Clause (3) of Article 332 of the Constitution. Shri Jain has contended that the said provision for reservation is destructive of Democracy which is a basic feature of the 1008 A Constitution. In support of the aforesaid submission, Shri Jain has placed reliance on the decision of the U.S. Supreme Court in Reynolds vs Sims, 19641 ; In my view, both these contentions of Shri Jain cannot be accepted. The reservation of seats for Bhutias and Lepchas is necessary because they constitute a minority and in the absence of reservation they may not have any representation in the Legislative Assembly. Sikkimese of Nepali origin constitute the majority in Sikkim and on their own electoral strength they can secure representation in the Legislative Assembly against the unreserved seats. Moreover, Sikkimses of Bhutia and Lepcha origin have a distinct culture and tradition which is different from that of Sikkimese of Nepali origin. Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution. The said declaration has not been questioned before us. The Constitution in Article 332 makes express provision for reservation of seats in the Legislative Assembly of a State for Scheduled Tribes. Such a reservation which is expressly permitted by the Constitution cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution. The second contention relating to the extent of the reservation of seats for Bhutias and Lepchas is based on the provisions of Article 332 (3) of the Constitution. Clause (3) of Article 332 postulates that the number of seats reserved for Scheduled Castes or Scheduled Tribes in the Legislative Assembly of the State shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes or the Scheduled Tribes in the State bears to the total population of the State. The said provision has, however, to be considered in the light of Clause (f) of Article 371 F which provides "(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for 1009 election to the Legislative of the State of Sikkim. " This provision empowers Parliament to make provision prescribing the number of seats in the Legislative Assembly in the State of Sikkim which may be filled in by candidates belonging to the different sections of the population of Sikkim with a view to protect the rights and interests of those sections. The non obstante clause in Article 371 F enables Parliament to make a departure from the ratio contemplated by Article 332 (3) within the limitation which is inherent in the power conferred by Article 371 F, i.e., not to alter any of the basic features of the Constitution. It is, therefore, necessary to examine whether in providing for reservation of twelve seats out of thirty two seats for Bhutias and Lepchas Parliament has acted in disregard of the said limitation. While examining this question, it has to be borne in mind that Lepchas are the indigenous inhabitants of Sikkim and Bhutias migrated to Sikkim long back in fifteenth and sixteenth centuries and they follow the same faith (Budhism). They have a culture which is distinct from that of Nepalese and others who migrated to Sikkim much later. Since the proportion of Nepalese in the population of Sikkim was much higher than that of Bhutias and Lepchas, it became necessary to provide for reservation of seats for Bhutias and Lepchas in the State Council of Sikkim when representative element through elected members was introduced in the administration of Sikkim in 1952. Ever since then, till Sikkim was admitted as a new State in the Indian Union, there was reservation of seats for Bhutias and Lepchas in the Sikkim Council which later became the Sikkim Assembly. Since the Ruler of Sikkim was of Bhutia origin following the Budhist faith, there was reservation of seats in the Sikkim Council and Sikkim Assembly for Sikkimese of Nepali origin on the same lines as Bhutias and Lepchas and in such reservations a parity was maintained between the seats reserved for Sikkimese of Bhutia Lepcha origin on the one hand and Sikkimese of Nepali origin on the other. On the date when Sikkim was admitted in the Indian Union, Sikkim Assembly was consisting of thirty two elected members out of which sixteen seats (including one Sangha seat) were reserved for Sikkimese of Bhutia Lepcha origin and sixteen seats (including one seat for Scheduled Castes) were reserved for Sikkimese of Nepali origin. This parity in the reservation of seats in the Sikkim Council and Sikkim Assembly between Sikkimese of Bhutia and Lepcha origin and Sikkimese of Nepali origin was with a view 1010 to ensure that neither of two sections of the population of Sikkim acquires a dominating position due mainly to their ethnic origin. This was expressly provided in para 5 of the Tripartite Agreement of May 8, 1973 and Section 7(2) of the Government of Sikkim Act, 1974. Clause (f) of Article 371 F seeks to preserve the said protection which was envisaged by Clause (5) of the Tripartite Agreement because it also provides for protecting the rights and interests of the different sections of population of Sikkim. The impugned provision contained in clause (a) of sub section (1 A) of s.7 of the 1950 Act by providing for reservation of twelve seats for Sikkimese of Bhutia Lepcha origin seeks to give this protection in a more limited manner by reducing the ratio of the seats reserved for Sikkimese of Bhutia and Lepcha origin from 50% prevalent in the Assembly in the former State of Sikkim to about 38% in the Assembly for the State of Sikkim as constituted under the Constitution of India. It would thus appear that by providing for reservation to the extent of 38% of seats in the Legislative Assembly for Sikkimese of Bhutia lepcha origin Parliament has sought to strike a balance between protection to the extent of 50% that was available to them in the former State of Sikkim and the protection envisaged under Article 332(3) of the Constitution which would have entitled them to reservation to the extent of 25% seats in accordance with the proportion of their population to the total population of Sikkim. It is argued that this departure from the provisions of Article 332(3) derogates from the principle of one man, one vote enshrined in the Constitution and is destructive of Democracy which is a basic feature of the Constitution. This argument proceeds on the assumption that for preservation of Democracy, the principle of one man, one vote is inviolable and it fails to take note of the non obstante clause in Article 371 F which when read with clause (f) of Article 371 F envisage that Parliament may, while protecting the rights and interests of the different sections of the population of Sikkim (which would include Sikkimese of Bhutia Lepcha origin), deviate from the provisions of the Constitution, including Article 332. The principle of one man, one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of constituencies, it often happens that the population of one constituency 1011 differs from that of the other constituency and as a result although both the constituencies elect one member, the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population. Take the instance of Great Britain. There a statutory allocation of seats between England, Scotland, Wales and Northern Ireland whereunder Scotland is to have not less than 71 seats; Wales not less than 35 and Northern Ireland 17. It has been found that Scotland is over represented to the extent of 14 seats and Wales to the extent of 5 seats and England is under represented to the extent of 14 seats. The justification that has been offered for these inequalities is that constituencies in sparsely populated areas such as the Highlands would otherwise be inconveniently large geographically. Prof. Wade has questioned this justification (H.W.P. Wade : Constitutional Fundamentals, The Hamlyan Lectures, 32nd series, 1980, p.5). He has pointed out that within the constituent counties of the United Kingdom, there are great inequalities in the size of individual constituencies and that the smallest constituency contains only 25,000 voters and the largest 96,000, nearly four times as many. He has referred to the Report of the Blake Commission on Electoral Reforms (1976) wherein it is recommended that, the discrepancy should never exceed two to one, and has observed "this is surely the maximum which should be regarded as tolerable" (p.7). Criticising the existing state of affairs, Prof. Wade has said "The British Parliament, addicted though it is to the pursuit of equality in so many other ways, does not seem interested in equality of representation between voters any more than between the different parts of the United Kingdom. Since 1948 it has insisted rigidly on the principle of one man, one vote. When will it accept the correlative principle one vote, one value? ' (p.8) The matter of apportionment of seats in the State Legislatures has come up for consideration before U.S. Supreme Court in a number of cases. In Reynolds V. Sims (supra), the Court, while examining the said matter on the touch stone of the equal protection clause, has held that the equal protection clause requires that the seats in both houses of a bicameral State Legislature be apportioned on a population basis and that such deviations from the equal population principle are constitutionally 1012 permissible so long as such deviations are based on legitimate considerations incident to the effectuation of a rational state policy. Chief Justice Warren, expressing the views of six members of the Court, has observed ". We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." (p.577) xx xx xx ". So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature". (p.579) Variance to the extent of 16% has been upheld by the Court. (See: Mahan vs Howell, ; The High Court of Australia, in Attorney General (CTH) exhibit Rel. Mckinlay vs The Commonwealth; , has considered the issue in the context of Section 24 of the Australian Constitution which provides that "the House of Representatives shall be composed of members directly chosen by the people of the Commonwealth". It was argued that the words "chosen by the people of Commonwealth" required each electoral division within a State so far as practicable to contain the same number of people or, alternatively, the same number of electors. The said contention was rejected and it was held (by Majority of six to one) that Section 24 of the Constitution did not require the number of people or the number of electors in electoral divisions to be equal. The decisions of the U.S. Supreme Court on apportionment were held to be inapplicable in the context of the Australian Constitution. Barwick C.J., has observed: "It is, therefore, my opinion that the second paragraph of s.24 cannot be read as containing any guarantee that there shall be a precise mathematical relationship between the 1013 numbers of members chosen in a State and the population of that State or that every person in the Australia or that every elector in Australia will have a vote, or an equal vote. ' (p.22) Similarly, Mason, J., as the learned Chief Justice then was, has stated: "The substance of the matter is that the conception of equality in the value of a vote or equality as between electoral divisions is a comparatively modern development for which no stipulation was made in the system of democratic representative government provided for by our Constitution." (p.62) In this regard, the scheme of our Constitution is that under Article 327 Parliament is empowered to make a law relating to delimitation of constituencies and under Article 329 (a) the validity of such a law or the allotment of seats to such constituencies cannot be called in question in any court. In exercise of the power conferred on it under Article 327 Parliament has enacted the Delimitation Act, 1962 which provides for constitution of a Delimitation Commission to readjust on the basis of the latest census figures the allocation of seats in the House of the People to the several States, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies for the purpose of elections to the House of People and to the State Legislative Assembly. In Section 9(1) of the said Act it is prescribed that the Commission shall delimit the constituencies on the basis of the latest census figures but shall have regard to considerations referred to in clauses (a) to (d). Clause (a) requires that all constituencies shall, as far as practicable, be geographically compact areas, and in delimiting them regard shall be had to physical features, existing boundaries of administrative units, facility of communication and public convenience. Clause (b) requires that every assembly constituency shall be so delimited as to fall wholly within on parliamentary constituency. Clauses (c) and (d) relate to location of constituencies in which seats are reserved for Scheduled Castes and Scheduled Tribes. This shows that population, though important, is only one of the factors that has to be taken into account while delimiting constituencies which means that there need not be uniformity of population and electoral strength in the matter of delimitation of constituencies. In other words, 1014 there is no insistence on strict adherence to equality of votes or to the principle one vote one value. In clause (3) of Article 332, the words "as nearly as may be" has been used. These words indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion. to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, bears to the total population of the State. The non obstante clause in Article 371 F read with clause (f) of the said Article enlarges the filled of deviation in the matter of reservation of seats from the proportion laid down in Article 332(3). The only limitation on such deviation is that it must not be to such an extent as to result in tilting the balance in favour of the Scheduled Castes or the Scheduled Tribes Tribes for whom the seats are reserved and thereby convert a minority in majority. This would adversely affect the democratic functioning of the legislature in the State which is the core of representative Democracy. Clause (a) of sub section (I A) of s.7 of the 1950 Act provides for reservation of twelve seats in an Assembly having thirty two seats, i.e., to the extent of about 38% seats for Sikkimese of Bhutia Lepcha origin. The said provision does not, therefore, transgress the limits of the power conferred on Parliament under Article 371 F(f) and it cannot be said that it suffers from the vice of unconstitutionality. The other challenge is to the reservation of one seat for Sanghas. With regard to this seat, it may be mentioned that Section 25 A of the 1950 Act makes provision for an electoral roll for the Sangha constituency wherein only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim, in April 1974 for forming the Assembly for Sikkim. are entitled to be registered. Clause (c) of sub s.(2) of section 5 A of the 1951 Act prescribes that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of Sikkim to be constituted at any time after the commencement of the 1980 Act unless, in the case of the seat reserved for Sanghas, he is an elector of the Sangha constituency. The aforesaid provisions indicate that for the one seat in the Legislative Assembly of Sikkim which is reserved for Sanghas. a separate electoral roll 1115 has to be prepared under Section 25 A of the 1950 Act and only the Sanghas belonging to monasteries recognised for the purpose of elections held in April 1984 for forming the Assembly for Sikkim are entitled to be registered in the said electoral roll and, in view of Section 5 A(2)(c), no person other than an elector for the Sangha constituency is qualified to be chosen to fill the said reserved seat for Sanghas. To assail the validity of these provisions Shri Jain has urged that the provision in s.7(1 A)(c) of the 1950 Act is violative of the right guaranteed under Article 15(1) of the Constitution inasmuch as by reserving one seat for Sanghas (Budhist Lamas), the State has discriminated against a person who is not a Budhist on the ground only of religion. Shri Jain has also urged the provisions contained in S.25 A of the 1950 Act and S.5 A(2)(c) of the 1951 Act are violative of Article 325 of the Constitution inasmuch as these provisions provide for election to the seat reserved for Sanghas on the basis of a separate electoral roll in which Sanghas alone are entitled to be registered and exclude others from being registered as electors on that electoral roll on the ground only of religion. The submission of Shri Jain is that these provisions are inconsistent with the concept of secularism which is a basic feature of the Constitution. The reservation of one seat for Sanghas and election to the same through a separate electoral roll of Sanghas only has been justified by Shri Parasaran on the basis of historical reasons. He has argued that the Sangha has played a vital role in the life of community since the earliest known history of Sikkim and have also played a major part in deciding important issues in the affairs of the State. It has been pointed out that Lhade Medi, a body consisting of the Lamas and laity, has contributed towards cultural, social and political development of the people of Sikkim and that the Sangha seat was introduced in order of provide for the representation of a section which was responsible for the preservation of the basic culture of the Sikkimese Bhutias and Lepchas including some sections of the Nepali community of Sikkim who are Budhists. It has been submitted that their interests are synonymous with the interests of the minority communities of Sikkim and that as such a seat for the Sangha has always been nominated and later reserved in the Sikkim State Council and the State Assembly respectively. 1016 Clause (1) of Article 15 prohibits discrimination by the State against any citizen on the ground only of religion, race, caste, sex or any of them. Clause (3), however, permits the State to make special provision for women and children. Similarly, Clause (4) permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Clauses (3) and (4) do not, however, permit making of special provisions in derogation of the prohibition against discrimination on the ground of religion. This Court has laid down that this constitutional mandate to the State contained in Article 15(1) extends to political as well as to other rights and any law providing for elections on the basis of separate electorates for members of different religious communities offends against this clause. (See Nain Sukh Das and Anr. vs The State of Uttar Pradesh and Others, ; Similarly Article 325 requires that there shall be one general electoral roll for every constituency for election to either House of Parliament or to the house of either House of Legislature of a State and precludes a person being rendered ineligible for inclusion in any such roll or to be included in any special electoral roll for any such constituency on the grounds only of religion, race, caste, sex or any of them. The provisions which permit election on the basis of separate electorates are, those contained in Clauses (a), (b) and (c) of Clause (3) of Article 171 relating to Legislative Council of a State. The said provisions provide for separate electorates of members of municipalities, district boards and local authorities Cl. (a), graduates of universities Cl. (b), and teachers Cl. They do not provide for preparation of separate electoral rolls on the ground of religion. The question for consideration is whether the impugned provisions providing for reservation of one seat for Sanghas, preparation of a special electoral roll for the Sangha constituency in which Sanghas alone can be registered as electors and a person who is an elector in the said electoral roll alone being eligible to contest for the Sangha seat, can be held to be violative of the provisions of Articles 15(1) and 325 on the ground that in relation to one seat reserved for Sanghas in the Legislative Assembly of the State of Sikkim a person who is a non Budhist is being discriminated on the ground of religion only and similarly in the preparation of the special electoral roll for Sangha constituency a person who is a non Budhist is rendered ineligible for 1017 inclusion in the said electoral roll on the ground only of religion. For this purpose it is necessary to construe the words "on grounds only of religion. " in Articles 15(1) and 325. In this context, it may be pointed out that sub s.(1) of s.298 of the Government of India Act, 1935 contained the words "on grounds only of religion, place of birth, discent, colour. . In Punjab Province vs Daulat Singh and Ors., the provisions of section 13 A of the Punjab Alienation of Land Act, 1900 were challanged as contravening sub s.(1) of section 298 of the Government of India Act, 1935. In the Federal Court, Beaumont J., in his dissenting judgment, has taken view that in applying the terms of sub section (1) of Section 298, it was necessary for the Court to consider the scope and object of the Act which was impugned so as to determine the ground on which such Act is based. This test was not accepted by the Judicial Committee of the Privy Council. Lord Thankerton, delivering the opinion of the Judicial Committee has observed: "Their Lordship are unable to accept this as the correct test. In their views, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in section 298, sub section 1, but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a contravention of the sub section is to ascertain the reaction of the impugned Act on the personal right conferred by the sub section, and, while the scope and object of the Act may be of assistance in determining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of each personal right, object of the however laudable, will not obviate the prohibition of sub s.1". (p.18) In State of Bombay vs Bombay Education Society and Others, ; , this Court, in the context of Article 29(2) wherein also the expression "on grounds only of religion. . has been used, has accepted the test laid down by the Judicial Committee of the Privy Council in Punjab Province vs Daulat Singh and Others (supra). I may, in this context, also refer to the decision of this Court in The 1018 State of Madras vs Srimathi Champakam Dorairajan, ; , wherein, the question was whether there was denial of admission to Srinivasan, one of the petitioners, on the ground only of caste. It was found that the denial of admission to the said petitioner, who was a Brahmin and had secured higher marks than the Anglo Indian and Indian Christians but could not get any of the seats reserved for the said communities for no fault of his except that he was a Brahmin and not a member of the said communities, could not but be regarded as made on ground only of his caste. (p.532) The validity of the impugned provisions has, therefore, to be considered by applying the aforesaid test of effect of operation of the said provisions. It is not disputed that Sangha, (Budhist order ' or congregation of monks) has an important place in Budhism. Sangha together/with the Buddha and Dharma (sacred law) constituted the three Jewels which were the highest objects of worship among the Buddhists and a monk at the time of his ordination had to declare solemnly that he had taken refuge in Buddha, Dharma and Sangha. [B.K. Mukherjea on The Hindu Law of Religious and Charitable Trusts ', Tagore Law Lectures : Fifth Ed. (1983), p.181. In Sikkim, Lamaistic Buddhism was the official religion and Sanghas (Bhudhist Lamas) staying in the Budhist monasteries played an important role in the administration. Since only a Budhist can be a Sangha, the effect of the reservation of a seat for Sanghas and the provision for special electoral roll for the Sangha constituency wherein only Sanghas are entitled to be registered as electors, is that a, person who is not a Budhist cannot contest the said reserved seat and he is being discriminated on the ground only of religion. Similarly a person who is not a Budhist is rendered ineligible to be included in the electoral roll for Sangha constituency on the ground only of religion. The historical considerations to which reference has been made by Shri Parasaran do not, in my view, justify this discrimination of non Budhists because the said considerations which had significance at the time when Sikkim was governed by the Chogyal who professed Lamaistic Budhism and ran the administration of Sikkim in accordance with the tenets of his religion, can no longer have a bearing on the set up of the functioning of the State after its admission into the Indian Union. In this regard, it may 1019 be pointed out that the reason for the reservation of one seat for Sanghas, as set out in cl. (a) of the note that was appended to the Proclamation of March 16, 1958, was as follows : "(a) It has long been felt that, as the Monasteries and The Sangha have constituted such a vital and important role in the life of the community since the earliest known history of Sikkim, and have played a major part in the taking of decisions in the Councils of the past, there should be a seat specifically reserved for The Sangha in the Sikkim Council. It is for this reason that a seat has been provided specifically for their representation". This shows that the reservation of one seat for Sanghas in Sikkim Council and subsequently in the Sikkim Assembly was in the context of the administrative set up in Sikkim at the time wherein Sanghas were playing a major part in the taking of decisions in the Council. The said reason does not survive after the admission of Sikkim as a new State in the Indian Union. The continuation of a practice which prevailed in Sikkim from 1958 to 1976 with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral college composed of Sanghas alone cannot, therefore, be justified on the basis of historical considerations and the impugned provisions are violative of the Constitutional mandate contained in Article 15 (1) and Article 325 of the Constitution. The next question which arises for consideration is whether the departure as made by the impugned provisions from the provisions of Articles 15(1) and 325 of the Constitution is permitted by Article 371 F of the Constitution. It has already been pointed out that Article 371 F, whether it is treated as having been inserted in the Constitution by way of an amendment under Article 368 or by way of terms and conditions on which Sikkim was admitted into the Indian Union under Article 2, does not permit alteration of any of the basic features of the Constitution. Although the expression 'Secular ' did not find a place in the Constitution prior to its insertion in the Preamble by Constitution (Forty Second Amendment) Act, 1976, but the commitment of the leaders of our freedom struggle during the course of freedom movement which find,,, expression in the various provisions of the Constitution leaves no room for doubt that 1120 secularism is one of the basic features of the Constitution. It was so held in the Kesavananda Bharati case, [1973] Supp. SCR 1 [Sikri, CJ. at pp. 165 6; Shelat and Grover, JJ. at p.280; Hegde and Mukharjea, JJ. at p.314 and Khanna J. at p.685] and in Smt. Indira Gandhi vs Raj Narain [Mathew, J. at p.503 and Chandrachud, J. at p. 6591. The matter has now been placed beyond controversy by incorporating the expression secular" in the Preamble by the Constitution (Forty second Amendment) Act, 1976. In so far as clause (1) of Article 15 is concerned express provision has been made in clauses (3) and (4) empowering the State to make special provisions for certain classes of persons. Sanghas, as such, do not fan within the ambit of clauses (3) and (4) of Article 15 and therefore, a special provision in their favour, in derogation of clause (1) of Article 15 is not permissible. Article 325 also does not postulate any departure from the prohibition with regard to special electoral roll contained therein. This is borne out by the background in which Article 325 came to be adopted in the Constitution. Under the British Rule, separate electorates, for Muslims were provided by the Indian Councils Act, 1909. The Communal Award announced in 1932 provided for separate electorates for Muslims, Europeans, Sikhs, Indian Christian and anglo Indians. By it, separate electorates were sought to be extended to the depressed classes also. This was opposed by Mahatma Gandhi who undertook fast unto death and thereupon the said proposal was given up. The Congress Working Committee in its resolution adopted in Calcutta in October 1937 declared the communal award as being 'anti national, anti democratic and a barrier to Indian freedom and development of Indian unity '. The Congress felt that separate electorates was a factor which led to the partition of the country. When the Constitution was being framed, the question whether there should be joint or separate electorates was first considered by the Advisory Committee constituted by the Constituent Assembly to determine the fundamental rights of citizen, minorities etc. The advisory Committee in its report dated August 8, 1947 has stated : "The first question we tackled was that of separate electorates; we considered this as being of crucial importance 1121 both to the minorities them selves and to the political life of the country as a whole. By an overwhelming majority, we came to the conclusion that the system of separate electorates must be abolished in the new Constitution. In our judgment, this system has in the past sharpened communal differences to a dangerous extent and has proved one of the main stumbling blocks to the development of a healthy national life. It seems specially necessary to avoid these dangers in the new political conditions that have developed in the country and from this point of view the arguments against separate electorates seem to us absolutely decisive. We recommend accordingly that all elections to the Central and Provincial Legislatures should be held on the basis of joint electorates." [Shiva Rao, Framing of India 's Constitution, Select Documents, Vol. II, p.412] When the report of the Advisory Committee came up for consideration before the Constituent Assembly, Shri Muniswami Pillai, expressing his satisfaction with the report, said : "One great point, Sir, which I would like to tell this house is that we got rid of the harmful mode of election by separate electorates. It has been buried seven fathom deep, never more to rise in our country." [Constituent Assembly Debates, Vol. V p. 2021 An amendment was moved by Shri B. Pocker Sahib Bahadur belonging to Muslim League to the effect that all the elections to the Central and Provincial Legislatures should, as far as Muslims are concerned, be held on the basis of separate electorates. The said amendment was opposed by most of the members. Pandit Govind Ballabh Pant, speaking on the said occasion, stated ". So, separate electorates are not only dangerous to the State and to society as a whole, but they are particularly 1022 harmful to the minorities. We all have had enough of this experience, and it is somewhat tragic to find that all that experience should be lost and still people should hug the exploded shibboleths and slogans. " [Constituent Assembly Debates; Vol. V, p.224] Sardar Patel in his reply to the debate was more emphatic. He said: "I had not the occasion to hear the speeches which were made in the initial stages when this question of communal electorates was introduced in the Congress; but there are many eminent Muslims who have recorded their views that the greatest evil in this country which has been brought to pass is the communal electorate. The introduction of the system of communal electorates is a poison which has entered into the body politic of our country. Many Englishmen who were responsible for this also admitted that. But today, after agreeing to the separation of the country as a result of this communal electorate, I never thought that proposition was going to be moved seriously, and even if it was moved seriously, that it would be taken seriously." [Constituent Assembly Debates; Vol. V, p. 255] The Constituent Assembly rejected the move and approved the recommendation of the Advisory Committee. But in the original Draft Constitution there was no express provision to the effect that elections to the Parliament and to the State Legislatures shall be on the basis of the joint electorates for the reason that electoral details had been left to auxiliary legislation under Articles 290 and 291 of the Draft Constitution. Subsequently it was felt that provision regarding joint electorates is of such fundamental importance that it ought to be mentioned expressly in the Constitution itself. Article 289 A was, therefore, inserted to provide that all elections to either House of Parliament or the Legislature of any State shall be on the basis of the joint electorates. [Shiva Rao : Framing of India 's Constitution, Select Documents, Vol. IV p. 141]. Article 289 A, as proposed by the Drafting Committee, was substituted during the course of debate in the Constituent Assembly and the said provision, as finally 1023 adopted by the Constituent Assembly was numbered as Article 325. This would show that. Article 325 is of crucial significance for maintaining the secular character of the Constitution. Any contravention of the said provision cannot but have an adverse impact on the secular character of the Republic which is one of the basic features of the Constitution. The same is true with regard to the provisions of clause (1) of Article 15 which prohibits reservation of seats in the legislatures on the ground only of religion. It is no doubt true that the impugned provisions, relate to only one seat out of 32 seats in the Legislative Assembly of Sikkim. But the potentialities of mischief resulting from such provisions cannot be minimised. The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphatically rejected by the Constituent Assembly. It is a poison which, if not eradicated from the system at the earliest, is bound to eat into the vitals of the nation. It is, therefore, imperative that such provision should not find place in the statute book so that further mischief is prevented and the secular character of the Republic is protected and preserved. While dealing with fundamental liberties, Bose J., in Kedar Nath Bajoria vs The State of West Bengal, , has struck a note of caution : "If we wish of retain the fundamental liberties which we have so eloquently proclaimed in our Constitution and remain a free and independment people walking in the democratic way of life, we must be swift to scotch at the outset tendencies which may easily widen, as precedent is added to precedent, into that which in the end will be the negation of freedom and equality". (p.52) Similar caution is called for to preserve the secular character of the Republic. Having found that the impugned provision providing for a separate electoral roll for Sangha Constituency contraveness Article 325 and reservation of one seat for Sanghas contravenes Article 15(1) and Articles 325 and 15(1) are of crucial importance to the concept of Secularism envisaged 1024 in the Constitution it becomes necessary to examine whether Article 371 F permits a departure from the principle contained in Articles 325 and 15(1) while applying the Constitution to the newly admitted State of Sikkim. I am unable to construe the provisions of Cl (f) of Article 371 F as conferring such a power clause (f) of Article 371 F which empowers Parliament to make provision for reservation of seats in the Legislative Assembly of Sikkim for protecting the rights and interest of the different sections of the population of Sikkim, must be considered in the context of clause (5) of the tripartite agreement of May 8, 1973. The 'different sections ' contemplated in clause (f) of Article 371 F are Sikkimese of Bhutia Lepcha origin on the one hand and Sikkimese of Nepali origin on the other and the said provision is intended to protect and safeguard the. rights and interests of these sections. Clause (f) of Article 371 F, in my view, cannot be construed to permit reservation of a seat for Sanghas and election to that seat on the basis of a separate electoral roll composed of Sanghas only. It must, therefore, be held that clause (c) of sub s.(1 A) of s.7 and Section 25 A of the 1950 Act and the words "other than constituency reserved for Sanghas" in clause (a) of sub s.(2) of s.5 A and clause (c) of sub s.(2) of s.5 A of the 1951 Act are violative of the provisions of Articles 15(1) and 325 of the Constitution and are not saved by Article 371 F of the Constitution. The said provisions, in my view, are however, severable from the other provisions which have been inserted in the 1950 Act and the 1951 Act by the 1976 Act and the 1980 Act and the striking down of the impugned provisions does not stand in the way of giving effect to the other provisions. I would, therefore, strike down s.25 A inserted in the 1950 Act by the Act 10 of 1976 and the provisions contained in clause (c) of sub s.(1 A) which has been inserted in Section 7 of the 1950 Act by Act 8 of 1.980, the words "other than the constituency reserved for the Sanghas" in clause (a) of sub s.(2) as well as clause (c) of sub s.(2) inserted in Section 5 A of the 1951 Act by Act 8 of 1980 as being unconstitutional. In Transferred Cases Nos. 93 and 94 of 1991, Shri K.N. Bhatt and Shri K.M.K. Nair, the learned counsel appearing for the petitioners therein have not assailed the validity of the provisions with regard to reservation of seats for Sikkimese of Bhutia and Lepcha origin. They have. however, 1025 urged that Clause (f) of Article 371 F imposes an obligation on Parliament to make provision for protection of the rights and interests of Sikkimese of Nepali origin also and that while making reservation for protection of rights and interest of Sikkimese of Bhutia Lepcha origin, Parliament was also required to provide for similar reservation of seats for Sikkimese of Nepali origin to protect the rights and interests of Sikkimese of Napalis origin. In this regard, it has been submitted that reservation for seats in the Sikkim Council and subsequently in Sikkim Assembly for Sikkimese of Nepali origin had been there since the elective element was introduced in 1952. It was also urged that after Sikkim was admitted in the Indian Union, there has been large influx of outsiders in Sikkim as a result of which the original residents of Sikkim including Sikkimese of Nepali origin have been vastly out numbered by settlers coming to Sikkim from other parts of the country. In my view, there is no substance in these contentions. According to the figures of 1971 census Sikkimese of Nepali origin were 1,40,000 whereas Sikkimese of Bhutia Lepcha origin were 51,600 and as per per the figures of 1981 census the corresponding figures were 2,24,481 and 73,623 respectively. This shows that the ratio of Sikkimese of Nepali origin and Sikkimese of Bhutia Lepcha origin is about 3:1. In view of the vast difference in their numbers the Sikkimese of Nepali origin can have no apprehension about their rights and interests being jeopardised on account of reservation of twelve seats for Sikkimese of Bhutia Lepcha origin in the Legislative Assembly composed of thirty two seats. As regards the apprehension that the Sikkimese of Nepali origin would be out numbered by the settlors from other parts of the country I find that no material has been placed by the petitioners to show that the number of settlors from other parts of the country into Sikkim is so large that Sikkimese of Nepali origin are being out numbered. The figures of the 1971 and 1981 census, on the other hand, indicate to the contrary. According to the 1.971 census in the total population of 2,09,843 the Sikkimese of Nepali origin were about 1,40,000, i.e., about 67%, and according to the 1981. census in the total population of 3.16,385 Sikkimese of Nepali origin were 2,24,481, i.e., about 70%. In these circumstances, it cannot be said that reservation of seat for Sikkimese of Nepali origin was required in order to protect their rights and interests and in not making any provision for reservation of seats for Sikkimese of Nepali origin Parliament has failed to give effect to the provisions of clause Article 371 F of the Constitution. 1026 For the reasons above mentioned, these cases have to be partly allowed and it is declared that Section 25 A introduced in the 1950 Act by Act No. 10 of 1976, Clause (c) of sub s.(1A) introduced in Section 7 of the 1950 Act by Act No. 8 of 1980, the words "other than constituency reserved for the Sanghas"in clause (a) of sub s.(2) introduced in Section 5 A of the 1951 Act by Act no.8 of 1980 and clause (c) of sub s.(2) introduced in s.5 A of the 1951 Act by Act no.8 of 1980 are unconstitutional nd avoid. T.N.A. Petitions dismissed.

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

ivil Appeal No. 1297 of 1968. Appeal by special leave ,from the judgment and order dated October 5, 1967 of the Bombay High Court, Nagpur Bench in S.C.A. No. 770 of 1966. S.V. Gupte, Santosh Chatterjee and G.S. Chatterjee, for the, appellant. 321 B.R.L. Iyengar and Naunit Lal, for respondents Nos. 1 to 3 and 5. N.S. Bindra and S.P. Nayar, for respondent No. 7 and the intervener. The Judgment of the Court was delivered by Vaidialingam, J. The appellant, the State Corporation, constituted under the Road Transport Corporation Act (LXIV of 1950), challenges in this appeal, by special leave, the order of the Nagpur Bench of the Bombay High Court dated October 5, 1967 in Special Civil Application No. '770 of 1967. The appellant, as well as respondents 1 to 5 and 8 to 16, applied to the Regional Transport Authority, Nagpur, on various dates in the year 1964 65, under section 46 of the (Act IV of 1939) (hereinafter called the Act) for grant of stage carriage permits on the routes (a) Chanda to Chimur; (b) Arni to Manora; (c) Sakoli to Lakhandur; (d) Sondkheri to Kalmeshwar; and (e) Chanda to Rajura. The appellant 's applications in respect of routes (a) and (c) were for additional trips and timings. Regarding (b), (d) and (e), the appellant 's applications were for grant of permits over the new routes opened for the first time. The applications were notified by the Regional Transport Authority under section 57(3) of the Act. The appellant and the other applicants filed objections and representations against each other 's applications. The Regional Transport Authority, after considering the applications and objections and hearing the parties, passed order granting the permits in favour of the appellant, in respect of all the routes. The order in respect of route (a) was passed on May 18, 1965, for routes (b) and (c) on August 19, 1965, for route (d) on October 9, 1965 and for route (e) on October 30, 1965. Respondents 1 to 5 filed appeals before the Appellate Committee of the Transport Authority of Maharashtra, challenging the grant of permits in favour of the appellant and rejecting their respective applications. Their appeals were Nos. 64, 82. 84, 106 and 114, all of 1965. Respondents 8 to 16 do not seem to have filed any appeals. All the appeals were heard and disposed of by the Appellate Committee by a common order, dated June 9, 1966. Before the Appellate Committee respondents 1 to 5 raised a contention that the mandatory information required to be submitted in an application for permit under section 46 of the Act, read with Form P.St. S.A. prescribed under rule 80 of the relevant rules, have not been fully and completely furnished by the appel 322 lant in its application. They also filed an affidavit pointing out what, according to them, were the details of information that should have been furnished by the appellant. The Appellate Committee, after noting that the appellant herein represented that the major items of information, as required under section 46 and the relevant form, had been given in the application, has expressed the view that information regarding certain other matters, as provided in the form of application, had not been provided by the State Corporation, and in consequence there was a major defect in its application and that the other operators had no opportunity to properly object and contest the claim of the State Corporation. In this view the Appellate Committee remanded the matter to the Regional Transport Authority for reconsideration with a direction that the State Corporation should be asked to furnish complete information and, after receipt of such information in the prescribed form, they must be duly published and an opportunity afforded to the respondents 1 to 5 herein to be duly heard by way of object.ion and that the entire matter be re heard and decided afresh. Respondents 1 to 5 challenged this order of the Appellate Committee before the Nagpur Bench of the Bombay High Court in Special Civil Appeal No. 770 of 1966 under articles 226 and 227 of the Constitution. They contended before the High Court that the Appellate Committee should have rejected the application of the State Corporation on the ground that the mandatory provisions of section 46 of the Act had not been complied with. They also urged that the application, filed by the State Corporation, inasmuch as it lacked information on vital matters, as provided in section 46 of the Act read with the form prescribed, could not be considered to be an application under the Act and, as such, it did not deserve to be considered at all. The order of the Appellate Committee really amounted to allowing the appellant to convert a defective application so as to bring it in conformity with the provisions of the Act and the form, which is not permissible in law. Though the appellant pleaded that all the necessary particulars had been furnished in its application and that even in respect of all matters on which further information was called for, it had already been furnished and that the authorities had jurisdiction to call for any additional information that may be neces sary for a proper consideration and disposal of the applications filed by the parties, the High Court, in the order under attack, has taken the view that there has been no proper compliance, by the State Corporation, with regard to the matters dealt. with, particularly in columns 10, 14 and 15 of the prescribed form, viz., the application for permit. The High Court is of the view 3 2 3 that the information furnished by the appellant, under those headings, cannot be considered to be either sufficient or adequate. The High Court has taken the view that withholding of information on vital points, constitutes a defect in the application of the appellant and that creates considerable difficulty to the authorities in considering the claim for grant of a permit. It is also of the view that the Act does not, either expressly or impliedly, give power to either the Regional Transport Authority or the Appellate Committee to give an opportunity to an erring applicant to furnish additional or further particulars so as to convert a defective application into a proper application. The High Court is also of the view that the provisions of section 46 of the Act read with section 48, cast a mandatory duty upon an applicant, applying for a permit, to give the particulars required in the several clauses of section 46. If the required particulars are not given, it is the view of the High Court that such applications are not applications within the meaning of section 46 and the rules and therefore are liable to be rejected. In the end the High Court has held that after the application filed by the State Corporation had been held to be defective, the Appellate Committee had no jurisdiction to give the State Corporation a fresh opportunity to furnish additional paritculars and, in that view, set aside the order of the Appellate Committee. The High Court, in consequence, remanded the appeals to the Appellate Committee, directing the latter to reconsider, on the materials already on record, the applications of all parties excepting that of the State Corporation and to decide the question of grant of permits between the rival parties afresh. The appellant has come up to this Court, against this order of the High Court. Mr. Gupte, learned counsel for the appellant, apart from contending that the High Court was in error in interfering in a writ petition, with the order of the Appellate Committee, when exercising jurisdiction under articles 226 and 227, has raised substantially two contentions: (1) That the form prescribed by the State Government, in this case, for an application for permit, has gone beyond the rule making power of the State Government under section 68 of the Act. (2) That the provisions of section 46 of the Act are not mandatory and there is no jurisdiction in the authorities functioning under the Act to reject an application summarily on the ground that the application is not in conformity with the Act or the rules framed thereunder. It is not necessary for us to reiterate the nature of the jurisdiction exercised by a High Court under article 226 or article 227. Under article 226 the High Court has power to quash an order when the error committed by a Tribunal or authority is one of 324 law and that is apparent on the face of the record. Similarly the powers of judicial supervision of a High Court under article 227 of the Constitution are not greater than those under article 226 and must be limited to seeing that the Tribunal functions within the limits of its authority (Vide: Nagendra Nath Bora vs The Commissioner of Hills Divn. & Appeals Assam(1). In this case, as we have already pointed out, the High Court has taken the view that the application filed by the appellant, for lack of the necessary particulars provided in the form prescribed, cannot be considered to be an application under the Act and in respect of such an application, the authorities have no jurisdiction to deal with. It is really the correctness of this view expressed by the High Court that arises for consideration. Since the impugned order of the Appellate Committee was challenged on the ground of lack of jurisdiction, it is not possible to hold that the High Court could not have entertained the writ petition. Mr. B.R.L. Iyengar, learned counsel for the contesting respondents, has urged that in order that an application filed by a party may be considered by the authorities charged with the duty of granting permits, the essential condition precedent is that the application must conform to the requirements of the statute in this case the Act. Section 46 of the Act provides various matters in respect of which an applicant will have to give full and detailed particulars. Over and above the requirements contained in els. (a) to (e) of the said section, any other matter that may be prescribed by the rules framed under the Act, by virtue of clause (f) of section 46 will have also to be properly and fully dealt with by an applicant. By vitrue of the rule making powers under section 68 of the Act, the State Government have framed the Bombay Motor Vehicles Rules, 1959 (hereinafter referred to as the rules); and r. 80(1) provides that every application for a permit in respect of a transport vehicle, including a private service vehicle, is to be in one of the forms mentioned therein. The appropriate form with which this Court is concerned now is the Form P.St. S.A. in respect of item 2. The form deals with various items, some of which may be covered by clauses (a) to (d) and others are over and above these particulars. The object underlying the Act, of an applicant being called upon to give the necessary particulars in respect of these matters, is obvious, viz., that the other applicants and the various other interested persons will be able to know the nature of the claim made by a particular applicant and either make suitable representations against the same or file objections. The High Court 's view, counsel points out, that the absence of particulars in this case, in respect of items 10, 14 and 15 in the form is a non compliance with the Act and is no application under (1) ; 3 2 5 the Act, is correct. Therefore counsel urged that the Appellate Committee 's order allowing the appellat to, so to say, amend the application, by giving additional particulars, was properly set aside by the High Court. Mr. Bindra, appearing for the State, while supporting the appellant that the Appellate Committee, in this case, acted within its jurisdiction in calling for particulars, urged that the form prescribed under the rules was perfectly valid and is not beyond the rule making power of the State Government. The scheme of the Act has been considered in several decisions of this Court and we do not propose to cover the ground over again. Chapter IV containing sections 42 to 68, deals with control of transport vehicles. Section 42 emphasises the necessity for permits. Section 45 deals with the various authorities to whom the application for permits, in the circumstances stated therein. is to be made. Section 46 provides that an application for a permit shall 'as far as may be, contain ' the particulars mentioned in clauses (a) to (f). Clauses (a) to (e) deal with certain definite particulars, but cl. (f) refers to 'such other matters as may be prescribed '. Section 2(21) defines the expression 'prescribed ' to mean 'prescribed by rules made under the Act. '. Therefore it will be seen that an application for a permit, apart from containing the particulars referred to in clauses (a) to (e) of section 46, must also contain. under el. (f), such other matters as may be prescribed. We will come to the rule making power a lit.tie later. Section 47 provides for the various matters to be taken into account by the Regional Transport Authority in considering an application for a stage carriage permit. That section also provides for taking into consideration any representation made by certain other parties referred to therein. Sub section (2) gives power to a Regional Transport Authority to refuse to grant a permit if from any time table furnished it appears that the provisions of the Act relating to the speed at which vehicles may be driven are likely to be contravened; but the proviso to this sub section casts a duty on the Authority to give an opportunity to the applicant to amend the time table before such refusal. Sub section (3) gives power to a Regional Transport Auhtority to limit the number of stage carriages in region or in any specified area or in any specified route within the region. Section 48 empowers the Regional Transport Authority, on an application made to it under section 46, to grant a stage carriage permit, subject to the provisions of section 47, in accordance with the application or with such modifications as it deems fit. It also gives the Authority power to refuse to grant such a permit. Section 57 deals with the procedure in applying for and granting permits. Sub section (3) provides for the Regional Transport Authority making L2SupCI/70 9 326 available an application for a permit for inspection at its office and also publish the application in the prescribed manner inviting representations within the period mentioned therein. The proviso to sub section (3) gives power to t,he Authority concerned to summarily refuse the application without, following the procedure laid down in sub section (3), in the circumstances mentioned therein. Sub sections (4), (5) and (6) read together, deal with the consideration of the representation received from a party and disposal of an application for a permit at, a public hearing in which an applicant and a person who had made a representation are given an opportunity of being heard. Sub section (7) casts a duty on the Regional Transport Authority, when refusing an application for permit, to give in writing to the applicant, concerned, its reasons for the refusal. Section 68(1) gives power to the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV. Sub section (2) enumerates the various matters in respect of which rules can be framed without prejudice to the generality of the power contained in sub section Clause (c) of sub section (2) deals with the 'forms to be used for the purposes of this Chapter, including the forms of permits '. The State Government has framed the rules. Rule 80(1) provides that every application for a permit in respect of a transport vehicle, including a private service vehicle shall be in one of the enumerated forms and the forms are mentioned as items (i) to (x). Item (ii) deals with a permit in respect of a service of stage carriages and the form prescribed is Form P.St. S.A. Sub r. (2) provides that the application shall be addressed to the Regional Transport Authority or to the Regional Transport Officer, as the case may be and accompanied by the fee prescribed by rule 84. In this case we are concerned with the Form P.St. It is seen from the judgment of the High Court that a copy of an application filed by the appellant in respect of the route Arni to Manora has been filed and it has been directed to form part of the record of the case. The form P.St. S.A. provides for nearly 22 items in respect of which a party has to fill up particulars. The particulars governed by item 4 may be related to section 46(a), those of items 5 and 7 to section 46(b), items 6 and 8 to section 46(c), item 10 to section 46(d) and items 11, 12, 14 to section 46(e). Over and above these particulars, the form provides several other matters on which information has to be given. The ground on which the High Court has regarded the application of the appellant as invalid is that the application did not give full and detailed particulars in respect of item 10, 14 and 15. We will now refer to the relevant entries in the application made by the appellant regarding the route Arni to Manora in 327 respect of columns 10, 14 and 15 and also the answers given by the appellant: "10. Number of vehicles kept in reserve to maintain the service regularly and to provide for special occasion : Nagpur Division which will operate this/these route(s) holds 470 vehicles against. , 376 schedule, to be operated by that Division. Thus there will be 94 vehicles in reserve to maintain the services regularly and to provide for special occasions. Particulars of any stage or contract carriage permit valid in the State held by the applicant. section 4 61, 5 61, 6 61, 7 61, 8 61, 9 61, 10 61, 13 61, 39 63, 40 63, 63 63, etc. Particulars of any permit held by the applicant in respect of the use of any transport vehicle in any other State : Pt. section 4/52, 4/53, 7 59, 1 60, 63 63, etc. " According to the High Court, the information given by the appellant is not sufficient and, that especially in respect of columns 14 and 15 the applicant has not given exhaustively the list of t, he permits owned by it. We are not inclined to accept the contention of Mr. Gupte that the form prescribed, requiring the furnishing of information on the various particulars and matters referred to therein is beyond the rule making power of the Government. Section 46, as we have already pointed out, requires information to be given by an applicant for permit not only in respect, of 'all the particulars ' enumerated under els. (a) to (e), but also under cl. He has to give information on such other matters as may be prescribed and 'prescribed ' as defined in section 2(21), means 'prescribed by rules made under the Act '. Section 68 to which we have already referred, gives power to the State Government to make rules for the purpose of carrying into effect, the provisions of Chapter IV and also, without prejudice to the generality of ' this power, to make rules in respect of the various matters mentioned in sub section Clause (c) of sub section (2) specifically gives power to prescribe the form to be used for the purpose of Chapter ' IV, including the form of permit. section Therefore, an application filed by a party for a permit must, at any rate, substantially con 328 form to the requirements of section 46, as well as to the form framed under the rule making power of the State Government. We have already pointed out that rule 80 provides that every application for permit should be in the appropriate form mentioned therein. Therefore section 46, the relevant rule, and the form prescribed, have to be read together, and so read it follows that an applicant for a permit must comply, at any rate, substantially with the various matters mentioned therein. It must be borne in mind that section 68 is not controlled by section 46 of the Act. In fact it specifically enables the St.ate Government to make rules for the purpose of carrying into effect the provisions of the Chapter. The Chapter itself, we have mentioned, is entitled 'Control of Transport Vehicles ' and if, with a view to carrying into effect the object. of control of transport vehicles, the form requires information on various matters over and above those enumerated in els. (a) to (d) of section 46, it cannot be stated that the State Government has acted beyond its rule making powers when prescribing such a form. The form so prescribed, in our opinion, forms an integral part of rule 80 which the State Government is authorised to make, under section 68 of the Act. Therefore, we are not inclined to accept the contention of Mr. Gupte that the matters enumerated in a form provided by a rule framed under the rule making power of the State Government cannot be considered to be 'such other matters as may be prescribed under section 46(f) '. The further contention that in order to treat the matter as one prescribed under section 46(f), it must have been enumerated as such in a rule framed 'under the Act, has also to be rejected. Even otherwise, we have already pointed out that section 68 is not controlled by section 46, in which case also it follows that the form prescribed by the State Government, by virtue of a rule framed under its rule making powers, must be considered to be valid. Mr. Gupte drew our attention of the decision of the Mysore High Court in Narayana vs S.T. Authority(1). One of the questions that arose for consideration in that decision was whether an application for a permit under the Act can be considered to be defective when it did not deal with certain matters provided in a from prescribed under r. 156 of the Rules framed by the State of Madras under the Act. The High Court held that such an application has to be considered to be defective and observed: "It is true that if by a rule properly made by the State, it was provided that further particulars in addition to those referred to in clauses (a) to (e) of section 46, should be furnished in the application, these particulars should have to be so furnished as directed by section 46(f). (I) A.I.R. 1950 Mys. 33=I.L.R. (1950) Mys. 329 But no such rule made by the State was pointed out to us. What the State did under r. 156 was to merely prescribe the form in which an application should be made, although that form contained columns which referred to many matters not specified in section 46. rule, which was made under section 68(2)(c) of the Act prescribed only a form. It did not prescribe any particulars. That being the position, those additional matters for which columns were provided in the form prescribed by it cannot merely for that reason, claim the status of particulars prescribed by rules under the Act, and cannot, therefore, be regarded as particulars referred to in section 46(f) of the Act. " We are not inclined to agree with this reasoning of the learned Judges of the Mysore High Court. We have already held that the form prescribed by the St.ate Government under the rules becomes part of the rule itself, which the State Government is competent to frame. Therefore the contention of Mr. Gupte that in prescribing the form the State Government has exceeded its rule making power, cannot be accepted. The further question that arises for consideration, is as to whether the view of the High Court that the application of the appellant is defective and suitable to be dismissed inasmuch as columns 10, 14 and 15 in the application form have not been properly filled up, is correct. Here again, we are not inclined to agree with the reasoning of the High Court that under such circumstances the application filed by the appellant cannot., be treated to be an application under the Act. It is needless to state that an application must. furnish full and complete information that is within his knowledge or possession, in his application for the grant of a permit. The scheme of the Act is quite clear, viz. that an applicant must have a proper permit for operating transport services. To obtain that permit, certain formalities and procedure have to be gone through. Apart from the other applicants having an opportunity to make representations or objections to the claim made by a particular applicant, certain other persons and authorities, as will be seen under section 57(3), have been given a right to make representations. Such filing of objections or making of representations can be effective only if an applicant gives all the information which is in it.s power or control. The expression, 'as far as may be ', occurring in section 46 of the Act, must only mean that an applicant must give information on the various particulars and matters referred to in section 46, in so far as those requirements apply to him and in respect of which it is possible to give information. In the absence of the expression 'as far as may be ' in the 330 old section 46 of the Act, the Mysore High Court, in two of its decisions C.K.M. Services vs Mys. Revenue Board(1) and Sethuramachar vs Hiranayya(2) has taken the view that the provisions in section 46 must be considered to be mandatory and non compliance with those provisions will mean that there is no proper and valid application under the Act and that an authority would be justified in rejecting the same. In Sethuramachar 's case( '2) the High Court has indicated that in the section, as it now stands, the position may be different. The Madhya Pradesh High Court in an unreported decision in S.H. Motor Transport Company vs The State Transport Appellate Authority(3) (a certified copy of which has been given to us) has held that when an applicant does not give some information on certain particulars required under section 46, it must be understood that he does not intend to do the necessary things as mentioned therein. In our opinion, the matter has to be approached from a slightly different angle, viz., whether the authorities have got the power to reject an application summarily if it does not contain information on any matters or particulars referred to in the form. We are unable to find any provision in the statute giving a power to the transport. authorities to reject an application summarily on that ground; but, we have already emphasized that the application must give the necessary information on the various particulars and matters enumerated in the form prescribed for such purpose. It is to the interest of the applicant himself to give full and clear information because he stands the risk of the permit not being granted to him for lack of information on certain matters. But this is quite a different thing from the power of the authority to reject an application forthwith on the ground that the application is defective. The only provision where such a power to reject summarily is given is under the proviso to section 57(3). Under this proviso, the Regional Transport Authority, without following the procedure of publishing an application and inviting objections can summarily refuse the application in the circumstances mentioned therein. No doubt it may be asked that if an application lacks information on very vital matters, the whole object of publishing the same and inviting objections could not be achieved because the parties entitled to make objections and representations cannot effectively make the same. But, as we have already pointed out it is really in the interest of the applicant himself to give the information as far as it lies within his power, on all matters. What the High Court has done in this case, was really to reject the application of the appellant summarily, a power which even the Transport Authority does not, in our opinion, have under (1) A.I.R. 1960 Mys. (2) A.I.R. 1960 Mys. 90. (3) Misc. Petition No. 6 of 1969, decided on 3 3 1969. 331 the Act. Probably the statute did not give power to an authority to reject an application summarily in cases not coming within the proviso to section 57(3) because when considering an application for grant of permit on merits, it may be open to the Regional Transport Authority, after giving reasons, under section 57(7), to refuse the application for permit. In such a case, as the Regional Transport Authority is bound to give reasons, the sufficiency and validity of the reasons given may also be canvassed before the appellate authority in an appeal under section 64 of the Act. But all this can be done only at the time of considering the grant of permit on merits, and not at an earlier stage, and the refusal to grant the permit will be not on the ground that the application is defective, but on the ground that the particulars or information and other matters given in the permit do not enable the Regional Transport Authority to take the view that a particular applicants claims are superior to those of others. The question can also be considered from another point of view. Section 47 makes it obligatory on a Regional Transport Authority, in considering an application for stage carriage permit, to have regard to the various matters mentioned therein. One of the matters about which regard must be had is contained in cl. (e) viz., "the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending". In respect of item 10, in our opinion, the answer given by the appellant appears to be fairly satisfactory. In respect of items 14 and 15, the High Court 's view appears to be that over and above the number of permits mentioned therein, the appellant should have given an exhaustive list of the other permits held by it in the State under item 14 or in any other State, under item 15. The Transports. Authorities. in our opinion, would be acting within their jurisdiction when they take into account the matter governed by cl. (e) of section 47(1) in calling upon a party to give more complete details, and give an opportunity to the other parties before it to state their objections. That is exactly what had been directed to be done by the Appellate Committee when it sent back the proceedings to the Regional Transport Authority. In this view, it follows that the order of the High Court treating the appellant 's applications as invalid and excluding them from the consideration of the Transport Authority, is not warranted by the provisions of the Act. The result is that the order of the High Court, dated October 5, 1967 is set aside and that of the Appellate Committee, dated June 9, 1966 is restored. Respondents 1 to 3 and 5 will pay the costs of the appellant.

The appellant, as well as. Respondents 1 to 5 and 8 to 16, applied to the Regional Transport Authority, Nagpur, on various dates in the. years 1964 65, under s: 46 of Act IV of 1939 for grant of stage carriage permits on certain routes. After notification of the applications and considering objections of and hearing the parties, the Regional Transport Authority passed orders granting permits in favour of the appellant. Respondents 1 to 5 filed appeals before the Appellate Committee of the transport authority of Maharashtra challenging the permits granted to the appellant on the ground that in the appellant 's application, mandatory information required to be submitted under section 46 read with the form prescribed under Rule 80 of the relevant rules had not been furnished by the appellant. The Appellate committee upheld the challenge and remanded ' the matter to the Regional Transport Authority for re consideration with a direction that the appellant should be asked to furnish complete information and, after the receipt of such information in the prescribed form as well as compliance with the normal procedure the entire matter be re heard and decided afresh. Respondents 1 to 5 challenged this order of the Appellate Committee before the High Court trader articles 226 and 227 of the Constitution contending that the Committee should have rejected the applications of the appellant on the ground that the mandatory provisions of section 46 had not been complied with and that the order of the Committee really amounted to allowing the appellant to convert a defective. application so as to bring it in conformity with the provisions of the Act and the form, which was not permissible in law. The High Court accepted this contention holding that the Appellate Committee had no jurisdiction to give the appellant a fresh opportunity to. furnish the necessary particulars. It therefore remanded the matter with a direction that the applications of all parties excepting that of the State. Road Transport Corporation be considered and a decision reached on the grant of permits between the rival applicants. In appeal before this Court it was contended inter alia that the. High Court was in error in interfering in a writ petition under articles 226 and 227 with the order of the Appellate Committee; that the form prescribed by the State Government for an application for a permit had ' gone beyond the rule making power of the State. Government under section 68 of the Act; and that the provisions of section 46 of the Act are not mandatory and there is no jurisdiction in the authorities functioning under the Act to reject an application summarily on the ground that it was not in conformity with the Act or the Rules framed thereunder. 320 HELD: Allowing the appeal: (i) Since the impugned order of the Appellate Committee was challenged on the ground ' of lack of jurisdiction, it was not possible to hold that the High Court could not have entertained the writ petition under Ars. 226 and 227. C] Nagendra Nath Bora vs The Commissioner of Hills Division (ii) The form prescribed by the State Government requiring the furnishing of information on the various particulars and matters referred to. therein was not beyond the rule making power of the State: Government under section 68 of the. Section 46, rule 80, and the form prescribed, have. to be read together, and so read it follows that an applicant for a permit must comply, at any rate, substantially with the various matters mentioned therein. Section 68 is not controlled by section '46 of the Act. In fact it specifically enables the State Government to make rules for the purpose of carrying into. effect the provisions of Chapter IV. The Chapter itself is entitled 'Control of Transport Vehicles ' and if, with a view to carrying into effect the object of control of transport vehicles, the form requires information on various matters over and above those enumerated in cls. (a) to (d) of section 46, it cannot be stated that the State Government has acted beyond its rule making powers when prescribing such a form. The form so prescribed, forms an integral part of rule 80 which the State Government is authorised to make. , under section 68 of the Act. [330 A D] C.K.M. Services vs Mys. Revenue Board, A.I.R. 1960 Mys. 72; and Sethuramachar vs Hirannayya, A.I.R. 1960 Mys. 90; referred to. (iii) The order of the High Court treating the appellant 's applications as invalid and excluding them from the consideration of the Transport Authority, was not warranted by the provisions of the Act. There is no provision in the statute giving a power to the transport authorities to reject an application summarily on the ground that it does not give some information on certain particulars required under section 46. It is needless to state that an applicant must furnish full and complete information that is within his knowledge or possession in his application for the grant of a permit. It is in the interest of the applicant himself to give such full and complete information because he stands the risk of the permit not being granted to him for lack of information on certain matters. But this is quite a different thing from the power of the authority to reject an application forthwith on the ground that the application is defective. D F] S.H. Motor Transport Company vs The State Transport Appellate Authority. Petition No. 6 of 1969, decided on 3 3 1969 by the Madhya Pradesh High Court, disapproved.

Appeals Nos. 15 and 16 of 1969. Appeals from the judgment and order dated December 3, 1968 of the Gujarat High Court in Letters Patent Appeals Nos. 43 and 42 of 1966 respectively. M. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dada chanji, for the appellants (in both the appeals). I. N. Shroff, for the respondent (in both the appeals). The Judgment of the Court was delivered by Hegde, J. Common questions of law arise for decision in these appeals, by certificate. The suits from which these appeals arise have been considered together and decided by common judgments, 838 both in the High, Court as well as in the courts below. It is convenient to do so in this Court as well. The suits in questions are representative suits. The plaintiffs appellants who are consumers of electricity in the Godhra area sued the respondent company on behalf of all the consumers in that area seeking to restrain the respondent from enforcing the enhanced charges sought to be collected from the consumers of power used for lights and fans as well as of motive power. The facts leading to these appeals may no,%, be stated. On November 19, 1922, the then Government of Bombay granted a licence under the to a concern called Lady Sulochna Chinubhai & Co. authorising it to generate and supply electricity to the consumers in Godhra area. Clause 10 of the licence prescribed the maximum charges that the licensee could levy for the power supplied. The respondent is the successor of the said licensee. After the (to be hereinafter referred to as the Supply Act) came into force, a rating committee was constituted under section 57(2) of the Supply Act at the request of the respondent on January 19, 1950. On the recommendation of that committee, the Government fixed with effect from February 1, 1952, the following charges for the power supplied: (i) 0 7 9 pies per unit for the electricity supplied for lights and fans with a minimum of Rs. 3/ per month per installation and (ii) for motive power at 4 annas per unit with a minimum of Rs. 4 8 0 per month per installation. The Supply Act was amended in 1956. The respondent increas the charges for motive power from January 1, 1963 to 35 NP. per unit with a minimum of Rs. 7/ per month for every installation. On June 22. , 1963, the rates for light and fans were increased with effect from July 1, 1963 to 70 NP. per unit with a minimum of Rs. 51 per month for every installation. The contention of the appellants is that the respondent wag not competent to enhance the charges, in question without the matter having been considered by a rating committee. Their suits to restrain the respondent from levying the proposed increased charges were decreased by the trial court. Those decrees were affirmed by the first appellate court as well as by a single judge of the Gujarat High Court in second appeals but the appellate bench of the Gujarat High Court reversed those decrees and dismissed the suits holding that under the Supply Act as amended in 1956 the respondent has a unilateral right to enhance the charges subject to the conditions prescribed in the VI Schedule to that Act. It is 839 as against those decisions these appeals have been brought. Civil Appeal No. 15 of 1969 relates to the enhancement of charges for electricity power for lights and fans and Civil Appeal No. 16 of 1969 relates to the enhancement of charges for the motive power. The only question that arises for decision in these appeals is whether under the provisions of the Supply Act as amended in 1956, the respondent was competent to unilaterally enhance the charges. In these appeals we are not concerned with the provisions of the Electricity Act, 1916. There is no dispute as regards the charges fixed by the Government with effect from February 1, 1952, under section 57(2)(c) of the Supply Act on the basis of the recommendation made by the rating committee. The appellants admit their liability to pay enhanced charges that may be fixed by ' the Government on the basis of any recommendation by a freshly, appointed rating committee. They merely challenge the respondent 's right to unilaterally enhance the charges. According to the appellants they have a vested right to be governed by the charges fixed in 1952 until the same is revised by the Government on the basis of the recommendation of a rating committee. It was urged on their behalf that the amendments made in 1956 ' do not affect the charges fixed in 1952 and they continue to rule till altered by the Government in accordance with law. The respondent repudiates those contentions. It denies that the appellants have any vested right in the charges fixed. It was urged on its behalf that the amendments made to the Supply Act in 1956 have substantially altered the scheme as regards levying charges; it is now open to a licensee to alter the charges fixed by the Government unilaterally subject to the conditions prescribed in section 57(A) and in Sch. VI of the Supply Act. We may mention at this stage that even according to the appellants the charges that may be fixed by the Government now on the basis of the recom mendation of a rating committee can be unilaterally altered by the licensee after the period fixed in the Government order in accordance with cl. (e) of section 57(A)(1), expires. In order to decide the point in controversy, we have to take into consideration the relevant provisions of the Supply Act as it stands now and as it stood prior to its amendment in 1956. For the sake of convenience we shall set out side by side the relevant provisions. The Supply Act as it stood before The Supply Act 1956 as amended In 1956 section 57. Licensee 's charges to consu section 57. The mers Provisions of the Sixth Schedule and the Seventh Schedule 840 ( 1st column of page no 840) (1) The Provisions of the Sixth Schedule and the Table ap pended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licences not being a local authority, from the date of the commencement of the licensees next succeeding year of account. and from such date the licensee shall comply therewith accordingly and any provisions of such licence or of the (I.X of 1910), or any other law, agreement or strument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said Schedule and Table. (2) Where the provisions of the. Sixth Schedule and the Table appended to the Seventh Schedule are under sub section (1) deemed to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee, namely : (a) The Board or where 'no Board is constituted under this Act, the Provincial Government, may, if it is satisfied that the licensee has failed to comply with any provisions of the Sixth Schedule and shall when requested so to do by the licensee. constitute a rating committee to examine the licensee 's charges for the supply of electricity and to recommend thereon to the Provincial Government; Provided that no rating commitee shall be constituted in respect of a licensee within three ( 2nd column of the page no 840) shall be deemed to be incorporated in the licence of every licensee. not being a local authority (a) in the case of a licence granted before the commencement of this Act, from the date of the commencement of the licences next succeeding year of account; and (b) in the case of a licencee granted after the commencement of this Act, from the date of the commencement of supply, and as from the said date. the licensee shall comply with the provisions of the said Schedules accordingly , and any provisions of, the , and the the licence granted, to him thereunder and of any other law. agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of section 57A and the said Schedules. section 57(A) (1) : where the provisions of the Sixth Schedule and the Seventh Schedule are under section 57 deemed, to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee namely : (a) the Board or where no Board is constituted under this Act, the State Government (i) may, if satisfied that the licensee has failed to comply with any of the provisions of the Sixth Schedule, and (ii) shall, when so requested by the licensee in writing constitute a rating committee to examine the licensee 's charges for the supply of electricity and 841 (1st column of the page no 841) years from the date on which such a committee has reported in respect of that licensee, unless the Provincial Government declares that in its opinion circumstances have arisen rendering the orders passed on the recommendation of the previous rating committee unfair to the licensee or airy of his consumers. (b) The rating committee shall after giving the licensee a reasonable opportunity of being heard and after taking into consideration the efficiency of operation and management and the potentialities of his undertaking report to the Provincial Government making recommendations (and giving reasons therefore)regarding the charges for electricity which the licencee may make to any class or classes of consumers so however that the recommendations are not likely to prevent the licensee from earning clear profits sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return during his next succeeding three years of account if the potentialities of the undertaking of the licensee, with efficient operation and management so permit. (c) Within one, month after the receipt of the report under Clause (b) the Provincial Government shall cause the report to be published in the, offcial Gazette. and may at the same time make an order in accordance therewith fixing the Been see 's charges for the supply (2nd column of the page no 841) to make recommandations in that behalf to the State Government Provided that where it is proto constitute a rating committee under this section on account failure of the licensee to comply with any provisions of the Sixth Schedule. such committee shall not be constituted unless the licensee has been given a notice in writing of thirty clear days (which period, if the circumstances so warrant may be extended from time to time) to show cause against the action proposed to be taken Provided further that no such rating committee shall be constituted if the alleged failure of the licensee to comply with any provisions of the Sixth Schedule raises any dispute or difference as to the interpretation of the said provisions or any matter arising therefrom and such difference or dispute has been referred by the licensee to the arbitration of the Authority under paragraph XVI of that Schedule before the notice referred to in the preceding proviso was given or is so referred within the period of the said notice Provided further that no rating committee shall be constituted in respect of a 'licensee within three years from the date on which such a committee has reported in respect of that licensee, unless the State Government declares that in its opinion circumstances have arisen rendering the orders passed on the recommendations of the previous rating. committee unfair to the licensee or any of the consumers : (b) a rating committee under clause (a) shall: (i) where such committee is to be, constituted under subclause (i) of that clause. be constituted not later than three months after the 842 (1st column of the page no 842) of electricity with effect from such date, not earlier than two months after the date of publication of the report, as may be specified in the order; and the &Msee shall forth with give effect to such order Provided that nothing in this clause shall be deemed to pre vent a licensee from reducing at any time any charges, so fixed. THE SIXTH SCHEDULE 1.The Licensee shall so adjust his rates for the Sale of electricity by periodical revision that his clear profit in any year shall not as far as possible exceed the amount of reasonable return Provided that the licensee shall not be considered to have failed so to adjust his rates if the clear profit in any year of account has not exceeded the. amount of &be reasonable return by more than thirty per centum of the amount of the reasonable return. (1) If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return one third of such excess. not exceeding 7 1/2 per cent of the amount of reasonable return shall be at the disposal of the undertaking. Of the balance of the excess, one half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half, shall either be distributed in the form of a proportionable rebate on the amounts collected from the sale of electricity and meter rentals 'or carried forward in the accounts of the licensee for distribution, to the consumers in future, in (2nd column of the page no 842) expiry of the notice referred to in 'the first proviso to that clause (ii) where such committee is to be constituted at the request of the licensee, be constituted within three months of the date of such request; (c) a rating committee shall, after giving the licensee a reasonable opportunity of being heard and after taking into consideration the efficiency of operation and management and the potentialities of his undertaking, report to the State Government within three months from the date of its constitution, making recommendations with reasons there for, regarding the charges for electricity which the licensee may make to any class or classes of consumers so, however. that the recommendations are not likely to prevent the licensee from earning clear profit,, sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return as defined in the Sixth Schedule during his next succeeding three years of account: Provided that the State Government may, if it go deems necessary, extend the said period of three months by a further period not exceeding three month within which the report of the rating committee may be submitted to it; (d) within one month after the receipt of the report under clause (c), the State Government shall cause the report to be published in. the Official Gazette, and may at the same time make an order In accordance therewith fixing the licensee 's charges for 843 such manner as the Provincial Government may direct. (2) The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account. (3) On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve. (2nd column of the page no 843) supply of electricity with effect from such date,not earlier than two months or later than three months.after the date of publication of the report as may be specified in the order and the licensee shall forthwith give effect to such order; (e)the charges for the supply of electricity fixed under clause (d)shall be in operation for such period not exceeding three years as the State Government may specify in the order Provided that nothing in this clause shall be deemed to prevent a licensee from reducing at any time any charges so fixed. THE SIXTH SCHEDULE 1. Notwithstanding anything contained in the except sub section (2) of section 9 of 1910, 22A, and the provisions in the licence of a licensee. the licensee shall so adjust his (charges) for the sale of electricity whether by enhancing or reducing them that his clear profit in any year of account shall not, as far as possible, exceed the amount of reasonable return Provided that such (charges) shalt not be enhanced more than once in any year of account : Provided further that the licensee shall not be deemed to have failed so to adjust his (charges) if the clear profit in any year of account has not exceeded the amount of reasonable return by (twenty) per centum of the amount of reasonable return: Provided further that the licensee shall not enhance the (charges) for the supply of,electricity until after the expiry of a notice in writing of, not less than sixty 844 (2nd column of the page no 844) clear days of his intention to so enhance the (charges) given by him to the State Government and and to the Board Provided further that if the (charges) of supply fixed in pursuance of the recommendations of a rating committee con stituted under sec. 57A are lower than those notified by the licensee under and in accordance with the preceding Proviso ', the licensee shall refund to the consumers the excess amount recovered by him from them : Provided also that nothing in this Schedule shall be deemed to prevent a licensee from levying. with the previous approval of State Govt. minimum charges for supply of electricity for any purpose. The notice referred to in the third proviso to paragraph I shall be accompanied by such financial and technical data in supPort of the proposed enhancement of charges as the State Government may, by general or special order, specify. (1) If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return, one third of such excess, not exceeding (five per cent) of the amount of reasonable return, shall be at the disposal of the undertaking. Of the balance of the excess, one half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a Proportional rebate on the amounts collected from the sale of electricity and meter rentals or carried, forward in the accounts of the licensee for distribution to the consumers in future, in such manner as the State Government may direct. (2) The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear 845 (2nd column of the page no 845) profit is less than the reasonable return in any yea of account. (3) On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve: Provided that where the Undertaking is purchased by the Board or the State Government the amount of the Reserve may be deducted from the price payable to the licensee. From an examination of these provisions it would be seen that under the Supply Act prior to its amendment in 1956, the charges fixed by the Govt. under s ' 57(2)(c) remained in force unless reduced by the licensee in the meantime till the same were altered by a subsequent order made by the Govt. after getting a fresh recommendation from the rating committee but under the law as it now stands the rate fixed by the Government under section 57 (A)(1)(d) would be in operation only for such period not exceeding three years as the State Govt. may specify in the order. Thereafter it can be enhanced by the licensee in accordance with the provisions contained in Sch. It was urged on behalf of the appellants that the present section 57 (A (1) (e) can only govern the charges fixed under section 57(A)(1)(d) and it has not impact on an order made under the old section 57(2)(c). According to the appellants the charges so fixed can only be modified by the Government after getting a report from the rating committee. Mr. Chagla, learned Course for the appellants contended that the, consumers who 'get power from the respondent have a vested right in the charges fixed in 1952 and that vested right cannot be considered to have been taken away by the provisions of the Amending Act. He argued that the provisions of the Amending Act are not retro spective in character nor is there any inconsistency between those provisions and the present provisions as the two operate on different fields; hence in view of section 6 of the , we must hold that the charges fixed by the Government in 1952 continue to be in operation. In this connection he relied on certain observations made by this Court in State of Punjab vs Mohar Singh(") and Deep Chand vs State of U.P. & Ors. On the other hand it was contended by the learned Counsel for the respondent that the rights and liabilities of the.respondents at present are exclusively regulated by the provisions of the Supply (1) ; (2) [1959] 2 Supp. section C.R. 8. 846 Act as it stands now; the terms of licences as they originally stood or as they stood on the coming into force of the Supply Act in 1948 are of no consequence now; they cannot be looked into for finding out the rights or duties of the licensee as at present; for that purpose we must look into those terms as modified by the provisions of the Supply Act as It is now. It was also urged on its behalf that there is no question of vested rights in these cases; herein we are only concerned with the procedure to be adopted in modifying the charges fixed in 1952. In Mohar Singh 's case(1) this Court laid down that the provisions of section 6(c), (d) and (e) of the relating to the consequences of the repeal of a law are applicable not only when an Act or Regulation is repealed simpliciter but also to a case of repeal and simultaneous enactment re enacting all the provisions of the. repealed law. In the course of its judgment this Court observed that when the repeal is followed by a fresh legislation on the same subject, the Court has undoubtedly to look into the provisions of the new Act but that only for the purpose of determining whether they indicate a different intention. The line of inquiry would be, not whether the new Act keeps alive the old rights and liabilities but whether it manifests any intention to destroy them. In Deep Chand 's case(2) this Court was considering the effect of repugnancy between a State Act and a Central Act. The observations made in that context, we think, have no bearing on the point in issue in this case. It is true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to continue in force even after the new Statute or Regulation comes into force. But in the cases before us there is no question of affecting any vested right. There is no dispute that the charges fixed can be altered. The controversy relates to the procedure to be adopted in altering them. That controversy does not touch any vested right. The procedure in question must necessarily be regulated by the law in force at the time of the alteration of the charges. Section 57 of the Supply Act as it stands now lays down that the provisions of Sch. VI shall be deemed to be incorporated in the licence of every licensee not being a local authority, in 'the case of a licence granted before the commencement of the Act from the date of the commencement of the licensee 's next succeedmg year of account. Admittedly the licence with which. we are concerned in these cases was granted even before the Supply Act was enacted. Therefore quite clearly the licence in question is governed by the present section 57. Hence we have to read into that licence the provisions contained in Sch.1 VI. If any of the earlier (1) ; (2) [1959] 2 Supp. S.C.R. 8. 8 47 provisions in the licence either as they stood when the licence was originally granted or as they stood modified as per the provisions of the Supply Act prior to its amendment in 1956 are in consistent ,with the provisions of Sch. VI or section 57(A) as they are now they must be held to be void and of no effect. In other words we must read into the licence the provisions of Sch. VI and strike out therefrom such terms as are inconsistent with those provisions and thereafter give effect to the same. For determining the , rights and duties of the licensee as at present we have only to look into the terms of the licence as modified by Sch. We cannot go behind them. That much is clear from the language of the Supply Act. The intention of the legislature is clear and unambiguous. Therefore there is no need to call into aid any rule of statutory construction or any legal presumption. Further no reason was advanced before us, nor can we conceive of any why those who obtained licenses prior to the amendment of Supply Act in 1956 should be in a more disadvantageous position than those who got their licenses thereafter. Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act in 1956 should be placed in a better position than those served by licensees who obtained their licenses thereafter. After all, every law has some reason behind it. Section 57(A)(2)(e) was intended to meet the changing economic circumstances. The purpose behind the new provisions appears to be to permit the licensees to so adjust their charges as to get reasonable profits. , But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied, get the same refunded to the consumers. The law declared by the Amending Act does not affect any, right or privilege, accrued under the repealed provision. It merely prescribes as to what could or should be done in future. Therefore there is no basis for saying that it affects vested rights. For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands the past history of that law being wholly irrelevant. If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right. If we merely look at those terms, as we think we ought to, then there is no dispute that the respondent was within its rights in enhancing the charges as admittedly it has followed the procedure prescribed by law. We also do not agree with Mr. Chagla in his contention that there is no inconsistency between the present scheme relating to the enhancement of charges vis a vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. ' Under the former scheme once the Government fixes the charges the licensee cannot alter 848 it but at present at the end of the period order the licensee has a unilateral right to accordance with the conditions prescribed fixed in the Government enhance the charges in in the VI Schedule. Therefore in view of section 57 the provisions contained in that schedule have an over riding effect. In Amalgamated Electricity 'Co., Ltd. vs N. section Bhathena and Anr.(1) this Court was called upon to consider the scope of section 57.(A) and the Sch. VI as it stands now. Therein the controversy was whether the appellant therein was entitled ' to levy charges more than the maximum charges prescribed in its licence issued in 1932. It may be noted that in that case the notice of enhancement of the charges was given on September 25, 1958. This Court held that the maximum stipulated in the licence no longer governed the. right of the licensee to enhance the charges; his rights were exclusively governed by the provisions contained in paragraph 1 of Sch. VI of the Supply Act. It is true that in that case this Court was considering the right of the licensee under the Supply Act vis a vis his right under the licence granted under the but that difference is not material. What this Court in fact considered was the right of the licensee under the existing law to enhance the charges. Dealing with the scope of paragraph 1 of Sch. VI, Ayyangar, J. who spoke for the majority observed thus : "para 1 of Sch. VI both as it originally stood and as amended, as seen already, empowered the licensee "to adjust his rates, so that his clear profit in any year shall not, as far as possible, exceed the amount of reasonable return". We shall reserve for later consideration the meaning of the expression "so adjust his rates". ' But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he conforms to the requirements of that paragraph viz., the rate charged does not yield a profit exceeding the amount of reasonable return. The conclusion is therefore irresistible that the maxima prescribed by the State Government which bound the licensee under the Electricity Act of 1910 no longer limited the amount which a licensee could, charge after the Supply Act, 1948 came into force since the "clear profit" and "reasonable return" which determined the rate to be charged was to be computed on the basis of very different criteria and factors than what obtained under the Electricity Act." , For the reasons above, these appeals fail and they are dismissed with costs. One hearing fee. G.C. Appeals dismissed.

In respect of his assessment to wealth tax for the assessment years 1957 58, 1958 59 and 1959 60, the appellant filed returns in the status of a Hindu Undivided Family. His family at the material time consisted of himself, his wife and two minor daughters. The appellant claimed to be assessed in the status of a Hindu Undivided Family inasmuch as the wealth returned consisted of ancestral property received or deemed to have been received by him on partition with his father and brothers. The Wealth Tax Officer did not accept the contention of. the appellant and assessed him as an individual. The Appellate Assistant Commissioner confirmed this view. However the Appellate Tribunal held that the appellant should be assessed in the status of Hindu Undivided Family but the High Court, upon a reference, disagreed with the view of the Appellate Tribunal and held that as the appellant family did not have any other male coparcener, all the assets forming the 'subject matter of the returns filed by the appellant belonged to him as an individual and not to a Hindu Undivided Family. On appeal to this Court, HELD:Allowing the appeal: The status of the appellant was rightly determined as that of a Hindu ,Undivided Family by the Appellate Tribunal. The expression "Hindu Undivided Family" in the Wealth Tax Act is used in the sense in which a Hindu joint family is understood in the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu Undivided Family as an assessable unit must consist of at least two male members. [886 C] Under section 3 of the Wealth Tax Act not a Hindu coparcenary but a Hindu Undivided Family is one of the assessable legal entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the Hindu joint family; it in cludes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grand sons and great grand sons of the holder of the joint property for the time being. [885 F H] Kalyanji Vithaldas vs Commissioner of Income Tax, 5 I.T.R. 90, Commissioner of Income Tax vs Gomedalli Lakshminarayan considered. 88 3 Commissioner of Income Tax vs A. P. Swamy Gomedalli, , Attorney General of Ceylon vs A.R. Arunachallam Chettiar , Gowali Buddanna 's [1960] 6 I.T.R. 203 referred to. T.S. Srinivasan vs Commissioner of Income Tax 60, I.T.R. 36 distinguished.

Appeals Nos. 173 to 175 of 1960. 134 Appeals from the judgment and orders dated March 11, 1958, of the Bombay High Court in I. T. R. No. 36 of 1957. of. A. V. ViSwanatha Sastri, section M. Dubash and G. Gopalakrishnan, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for respondents. March 1. The Judgment of the Court was delivered by KAPUR, J. These are three appeals pursuant to a certificate under a. 66A(2) of the Indian Income tax Act, 1922 (hereinafter called the 'Act), against the judgment and orders of the High Court of Bombay in Income tax Reference No. 36 of 1957. The appeals though directed against the same order are three in number because each partner of the firm has brought a separate appeal. The firm was carrying on the business of wine merchants at Bombay and came into existence prior to April 1, 1939. The firm had been assessed to income tax under the provisions of the Income tax Act of 1918. The firm which was registered under the provisions of the Income tax Act of 1922 (hereinafter termed the Act) was dissolved on March 24, 1945, and from the day following that i.e. March 25, 1945, a Private limited company i.e. section section Miranda and Co. Ltd. succeeded to the business of the firm. A claim made under section 25(4) of the Act to the effect that no tax was payable on the profits of the registered firm for the period between April 1, 1944, to March 24, 1945, was allowed. In respect of the chargeable accounting period April 1, 1944, to March 24, 1945, the registered firm was taxed to excess profits tax under the Excess Profits Tax Act, 1940. It also deposited as required certain sums of money tinder section 10 of the Finance Act, 1942, read with section 2 of the Excess Profits Tax Ordinance, 1943. In accordance with those provisions the firm became entitled to repayment of a portion of the excess profits tax amounting to a sum of Rs. 2,35,704. The shares of the three partners who are respective appellants in 135 the three appeals were James Miranda Rs. 58,926, Donald Miranda Rs. 58,926 and Mrs. N. Q. Miranda Rs. 1,17,854. It was submitted that the amount refunded, was business profit and therefore exempt con from tax under section 25(4) of the Act. The Income tax Officer rejected that submission and the share of each of the appellants was assessed to income tax and super tax and the balance after deducting the same he repaid to each of the partners but he computed the rate applicable to the tax by including the appellants ' total business income which was exempt under s;. 25(4) of the Act. On appeal this assessment was confirmed but on further appeal the Income tax, Appellate Tribunal held that the sum which was refunded was income from business and was therefore, exempt from income tax under section 25(4) of the Act. At the instance of the Commissioner of Income tax, the Tribunal referred the following question of law for the opinion of the High Court: "Whether the repayment of excess profits tax made by the Central Government in pursuance of Section 10 of the Indian Finance Act, 1942, or Section 2 of the Excess Profits Tax Ordinance, 1943, is profits from business for the purposes of Section 25(4) of the Indian Income tax Act?" The High Court held that the amount so refunded was income from other sources taxable under section 12 of the Act and the appellants were therefore not entitled to the benefit of section 25(4) of the Act. In dealing with the nature of the tax the learned Chief Justice said: .lm15 "Clearly the view of the Legislature was that this income should be treated as a statutory income with the consequences that must necessarily follow by reason of its being a statutory income. " It was argued on behalf of the appellants that the amount refunded was income, profits and gains from business and fell under section 10 of the Act and was therefore exempt under section 25(4) of the Act. For the determination of this question it is necessary to refer to the relevant provisions of the Excess Profits Tax Act, 1940, and the Finance Act, 1946. Section 12(1) of the Excess Profits Tax Act was as follows: 136 .lm15 section 12(1) "The amount of the excess profits tax payable in respect of a business for any chargeable accounting period diminished by any amount allowable by way of relief under the provisions of section 11 or section 11 A shall, in computing for the purposes of income tax or super tax the profits and gains of that business, be allowed to be deducted as an expense incurred in that period.", The relevant part of section 11(11) of the Indian Finance Act, 1946, provided: "Any sum being excess profits tax repaid in respect of any chargeable accounting period under the provision; of section 10 of the Indian Finance Act, 1942, or of section 2 of the Excess Profits Tax Ordinance, 1943, shall be deemed to be income for the purposes of the Indian Income tax Act 192 2, and shall, notwithstanding the provisions of section 34 of that Act, be treated as income of the previous year which constitutes or includes the chargeable accounting period in respect of which the said sum is repayable: Provided that any such sum repaid in respect of any profits which are. also assessable to excess profits tax under the law in force in the United Kingdom shall be treated, for the purpose of assessment to income tax and super tax, as income of the previous year during. which the repayment is made. " It is not necessary to quote section 10(1) of the Finance Act, 1942, or the relevant provisions of the Excess Profits Tax Ordinance, 1943. Section 12(1) of the Excess Profits Tax Act shows that the amount of excess profits tax payable ,in respect of a business for any chargeable accounting period was an allowable expenditure. Under section ll(ll) of the Indian Finance Act, 1946, any excess profits refunded under the provisions of Indian Finance Act, 1942, or of section 2 of the Excess Profits Tax Ordinance, 1943, were deemed to be income and were to be treated as income of the previous year which constituted or which included the chargeable accounting period in respect of 'which the said sum was repayable. Thus the sum repaid was 137 to be treated as income for the purposes of the Act for the previous year, notwithstanding section 34 of the Act. The preamble of the Excess Profits Tax Act shows that the object of that Act was to impose a tax on profits arising out of certain businesses. Therefore when any portion of the tax collected on excess profits tax was refunded under the provisions of the Finance Act, 1942 or the Excess Profits Tail, Ordinance, '1943, it necessarily had the same quality which it had before the amount which was charged with the payment of tax had under the provisions of those Acts. In a, judgment of this Court, Mc Gregor. and Balfour Ltd. vs Commissioner of Income Tax, West Bengal (1), the amount received as a refund by the assessee was held to be income for the purpose of the Act and for assessment it was treated as income of the previous year. After reference in that case to R. 4(1) of the Rules applicable to oases I and II of Schedule 'D '. of the English Income Tax Act, 1918 (8 and 9 Geo. V, c. 40), it was observed "The object and purpose of the legislation in each case is the same, and though the two provisions are not ipsissima verba, they are substantially in the same words and also in pari materia. There can be no doubt that the intention underlying the two provisions is the same and the language is substantially similar. " Thus this Court was of the opinion that the intention of the legislature ins. 11(14), of the Indian Finance Act, 1946, which was the section applicable in that case and of R. 4(1) of the English Income Tax Act was the same. The operative words of section 11(11) of the Finance Act, 1946, and of section 11(14) of that Act are almost identical. It would, thus appear that the amount of excess profits tax was an allowable deduction for the purpose of computation of the business profits of an, assessee under section 12(1) of the Excess Profits Tax Act and when it or a portion of it wag refunded it had to be treated as income of the assessee. When it was deposited with 138 the Central Government it was a portion of the profits of the business of the assessee and when it was returned to the assessee it must be restored to its character of being a part of the profits of a business. It cannot be said that its nature changes merely because it is refunded as 'a consequence of some provisions in the Finance Act or the Excess Profits Tax Ordinance. Its nature remains the same. The effect of the deposit under the Acts above mentioned, was as if a slice of the business profit was taken and deposited with the Central Government Treasury and then when it was found that a larger amount had been deposited than was exigible a portion of it was returned. By being put in a Government Treasury it does not cease to be what it was before i.e. profits of a business. As we have said it is significantly clear from the very preamble of the Excess Profits Tax Act i.e., it was a tax imposed on profits arising out of certain businesses. An argument was raised on behalf of the Commissioner that the tax was not paid out of the profits of the business, but in respect of the profits. That is immaterial; it was charged, levied and paid on the amount by which the profits during any chargeable accounting period exceeded the standard profits. It would be mere quibbling with words if one were to say that it was not a slice taken out of the profits of a business. In the cage Mc Gregor and Balfour Ltd. vs Commissioner,of Income Tax (1) this Court quoted with approval the observation, of the Master of the Rolls in A. & W. Nesbitt Ltd. vs Mitchell (1) where it was said: "But in respect of what is that payment made? It is not a legacy, it is not a sum which has fallen from the skies; it is a sum which is repaid because there was too large a sum paid by the company to the revenue authorities over the whole period 'during which Excess Profits Duty was paid, and that sum, means and is intend to represent a repayment of a sum which was paid by them in respect of the duty charged upon the excess profits of their trading. It comes back,, therefore, not having lost its character but being still the repayment of a sum too much, it is true but a sum taken (1) (2) , 217, 218 139 out of the profits which were made by the company in the course of its trading, profit,; which at the time they were made were subject to income tax and subject to excess profits duty, and that is the character of the repayment that has been made. " The amount deposited comes back without losing its character. No doubt the words in the English Rule are "shall be treated as profits for the year in which the payment is received", and in B 11(11) of the Indian Finance Act, 1946, such sum has to be treated as income of the previous year but as pointed out by this Court in Balfour and Mc Gregor case (1), the intention underlying the two provisions is the same and even the language used in the two provisions is substantially the same. Counsel for the Commissioner drew our attention to Kirke 's Trustees vs Commissioners of Inland Revenue (2), and it was submitted that the Lord Chancellor held at p. 329 that for the amount so received the assessment falls to be made under Case VI of Schedule 'D '. Lord Shaw of Dunfermline at p. 332 said that the repayment was to be treated as trading profits for the year of repayment and therefore assessable as such under Schedule 'D '. He was also of the opinion that the charge was to be one under Case VI. Lord Sumner said that it became a minor matter to decide whether the charge was to be made under Case I or Case VI but this is little consolation to the respondent (the Commissioner of Income tax) because Case VI was also dealing with taxes in respect of annual profits and gains which do not fall in one of the other cases. In our opinion the amount refunded did not lose its character which it had before the deposit and therefore it is an erroneous view to take that the income was assessable under section 12 of the Act and not under B. 10. If it was income falling under section 10, as in our opinion it was, then the appellants were entitled to get the benefit of section 25(4) of the Act and the amount was not liable to taxation. The appeals are therefore allowed with costs. One hearing fee. Appeals allowed.

Section 20(1) of the (XXVII of 1953), read with the proviso, is a perfectly reasonable provision and in the interest of the employees and it is not correct to say that it can apply only to the direct recruits of the existing air 812 companies and not at all to loaned employees working under them. The two conditions of its applications are (i) that the officer or employee was employed by the existing air company on July 1, 1952, and (ii) that he was still in its employment on August 1, 1953, the appointed day. In the instant case where the appellants who had been recruited by the Scindia Steam Navigation Co., Ltd., and on purchase by it of the Air Services of India Ltd., loaned to the latter, and were working under its direction and control on and between the said dates and being paid by it, Held, that in law they were the employees of the Air Ser vices of India from the appointed day, notwithstanding the existence of certain special features of their employment, and as such governed by section 20(1) of the Act and since they did not exercise the option given to them under the proviso, they became employees of the Corporation established under the Act and ceased to have any rights against the original employers. Nokes vs Doncaster Amalgamated Collieries Ltd., [1940] A.C. 1014, considered.

iminal Appeals Nos. 102 and 103 of 1958. Appeals by special leave from the judgment and order dated March 28, 1958, of the Calcutta High Court in Criminal Appeal No. 428 of 1957 and reference section 374 Cr. P. C. No. 8 of 1957 arising out of the 1325 judgment and order dated September 21, 1957, of the Court of the Sessions Judge of Cooch Behar in Sessions Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case No. 18 of 1957). section K. Kapur, for the appellants. B. Sen, P. K. Ghosh for P. K. Bose, for the respondent. September 19. The Judgment of the Court was delivered by IMAM J. In these appeals the appellants were convicted for the murder of Malchand Bhadani. A charge under section 302, Indian Penal Code had been framed against each of them. The Sessions Judge found that the murder had been committed in the furtherance of their common intention. In his opinion as appellant Bipin Behari Sarkar had actually committed the murder he convicted this appellant under section 302 of the Indian Penal Code. He convicted the appellant Bishnu Charan Saha under section 302/34 of the Indian Penal Code. He sentenced both the appellants to death. The appellants appealed to the Calcutta High Court while the Sessions Judge made a reference for the confirmation of the death sentence passed by him. The High Court found the appellants guilty under section 302/34 of the Indian Penal Code. It accordingly confirmed the sentence of death imposed on the appellants by the Sessions Judge. According to the prosecution, one Tarachand Bhadani had a cloth shop at Mathabhanga in the district of Cooch Bihar. He was joint in business and mess with his two sons, Prithiraj and the deceased Malchand. The annual turn over of the shop was between Rs. 50,000 to Rs. 60,000. On December 18, 1956, Tarachand had gone to Rajasthan and Prithiraj had gone to Falakata Hat. Accordingly at the shop on that day Malchand was the only person in charge of it. At about 8 30 p. m., after the close of the day 's business, Malchand was counting the cash in the iron safe in an ante room of the shop when the appellants with one Sanatan Das, who was acquitted at the trial, 1326 called at the shop. Malchand came out of the anteroom into the shop to attend to these late customers. He had left open the safe and one of its drawers on the floor. The appellants purported to make certain purchases and examined various pieces of cloth. After selection of the cloth they were put into packets. Cash memoes in duplicate were prepared and signed by Malcliand and the appellant Bishnu Charan Saha. The cash memoes had been completely filled in. Two of them had been separated from the cash memo book, but before the 3rd cash memo could be detached from the book, Malchand was struck down by the appellants with a heavy cutting instrument which they had carried. The neck was so severely cut that the head was nearly severed from the trunk. Just about then, a neighbour called out to Malchand by way of casual enquiry before retiring for the night. This so frightened the miscreants that they fled. The money in the open safe was left untouched. The motive for the murder was to steal the money from the safe. On December 25, 1956, the police seized a sharp cutting weapon variously described as a sword or a dagger. It was found lying close to some shrubbery near Malchand 's shop. It was stained with human blood. It was a practice of the shop of Tarachand Bhadani to despatch from time to time, after obtaining Hundis, the accumulated proceeds of the business to Calcutta. On the morning of December 18, 1956, Prithiraj, before he went to Falakata Hat, had made enquiries from the firm of Bhairabhan Bhowrilal whether any Hundi was available. As Bhowrilal was not able to supply him the Hundi the cash remained in the shop. The contents of the safe showed that on December 18, 1956, before Malchand was murdered there was a sum of Rs. 3,913 in cash and 8 1/4 tolas of gold. There was, therefore, a substantial amount in the safe at the shop which would have been stolen were it not that the miscreants fled after murdering Malchand because of a neighbour calling out to him. The conviction of the appellants, as pointed out by the High Court, depended entirely on circumstantial 1327 evidence. The High Court did not rely upon the confessional statement made by the appellant Bishnu Charan Saha to a Magistrate, as, in its opinion, it was not a voluntary statement. Reference will be made to the circumstantial evidence, upon which the High Court relied, in due course. Before we deal with that aspect of the case it is necessary to refer to a submission made on behalf of the appellants concerning the tender of pardon under section 337 of the Code of Criminal Procedure to Bishnu Charan Saha and, the failure of the prosecution to comply with the provisions of section 339 of the Code of Criminal Procedure. It was urged that the provisions of section 339 of the Code not having been complied with the trial ",as vitiated as the appellant Bishnu Charan Saha could not be tried alongwith the appellant Bipin Behari Sarkar. In order to understand this submission it is necessary to state a few facts. Bishnu Charan Saha was arrested at about 3 p. m. on December 19, 1956. His confession was recorded by the Magistrate Mr. section C. Chaudhury on December 20, 1956. A charge sheet against the appellants and Sanatan Das was submitted by the police on June 20, 1957. On June 22, 1957, a prayer was made to the Sub divisional Magistrate on behalf of the prosecution that Bishnu Charan Saba may be tendered a pardon under section 337 of the Code of Criminal Procedure and the Magistrate recorded an order to the effect that this appellant was tendered pardon under section 337 of the Code of Criminal Procedure on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof. The Sub divisional Magistrate bad already reported on June 20, 1957, to the District Magistrate that both he and the other Magistrate of Mathabhanga should not hold the commitment proceedings as they had had something to do with the investigation. On August 1, 1957, the Magistrate Mr. Sinha, to whom the case had been ultimately transferred, recorded an order to the effect that the three accused had been produced before him and that he had seen the Court 1328 Inspector 's petition praying that the accused Bishnu be made an approver in the case under section 337 of the Code of Criminal Procedure. This accused had, however, stated that he made the confessional statement before the Magistrate at Mathabhanga as he had been assaulted by the police and that he did not wish to become an approver. After the completion of the enquiry before commitment, the appellants and Sanatan Das were committed to the Court of Session to stand their trial for the murder of Malchand. Section 339(1) of the Code provides that " where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which lie appears to have been guilty in connection with the same matter ". The proviso to this sub section prohibits the trial of such person jointly with any of the other accused and that such person shall be entitled to plead at such trial that he had complied with the condition upon which such tender was made. The provisions of this section clearly pre suppose that the pardon which had been tendered to a person had been accepted by him and that thereafter that person had wilfully concealed anything essential or had given false evidence and therefore bad not complied with the condition on which the tender was made to him. Section 337 of the Code, under which a pardon is tendered, shows that such tender is made on the condition that the person to whom it is tendered makes a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as a principal or an abettor to the commission thereof. Sub section (2) of this section requires that every person who has accepted a tender shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. 1329 It is clear, therefore, that a mere tender of pardon does not attract the provisions of section 339. There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness. It is ' only thereafter that the provisions of section 339 come into play and the person who accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion he has, either wilfully concealed anything essential or had given false evidence and had not complied with the condition on which the tender was made. In the present case, there is nothing on the record to show that on July 22, 1957, although Bishnu Charan Saha had been tendered a pardon, he had accepted the tender. Indeed, the order sheet of the Sub divisional Magistrate of that date does not even disclose that Bishnu Charan Saha had been produced before him. On the other hand, when Bishnu Charan Saha and his co accused were produced before the Magistrate Mr. Sinha, to whom the case had been transferred, the prosecution made a prayer to the Magistrate that Bishnu Charan Saha may be made an approver in the case under section 337 of the Code of Criminal Procedure. This would show that upto that time Bishnu Charan Saha had not accepted the tender of pardon made to him by the Sub divisional Magis trate on June 22,1957. On the prayer of the Prosecutor made to Mr. Sinha on August 1, 1957, Bishnu Charan Saba flatly denied that he wished to be an approver and had stated that the confessional statement made by him to Mr. Chaudhury was not a voluntary one. On the facts of the present case, therefore, all that is proved is that at one stage of the proceedings a tender of pardon had been made to Bishnu Charan Saba. There was, however, no proof that that tender had been accepted by him. Such being the situation it could not be said that there was in existence an effective pardon under section 337 and that its provisions applied to the facts of the present case. Consequently, no question arises about the applicability of section 339 to the proceedings before the Magistrate holding an enquiry before commitment or to the trial of the appellants, because the 1330 provisions of section 339 can only come into operation if there is in existence an effective pardon under section 337 of the Code. In our opinion, on the facts of the present case, there is no foundation for the submission which had been made. Coming now to the circumstantial evidence in the case upon which the High Court relied for upholding the conviction of the appellants, which may be summed up as follows: (1) The evidence clearly established that the appellants were local men who lived or worked not far from Malchand 's shop. They accordingly had the means and the opportunity of knowing the state of things obtaining at his shop at a particular date. (2) The association of the appellants and Sanatan Das immediately prior to the murder. (3) The evidence of their movements towards the direction of Malchand 's shop. (4) The evidence concerning their presence in the shop of Malchand shortly before the latter was murdered. (5) The evidence concerning the appellant Bipin Bihari Sarkar hurrying away from the direction of Malchand 's shop closely followed by the appellant Bishnu Charan Saha. (6) The evidence of injuries on the palms or fingers of the appellants found at the time of their arrest which took place within 24 hours, or shortly thereafter, of the murder. (7) The evidence of the presence of human bloodstains on the shirt of Bishnu Charan Saha and bloodstains on the wrapper of Bipin Behari Sarkar with burnt holes at places where the stains were found. (8) The cash memoes with the signatures of the appellant Bishnu Charan Saha. (9) In the opinion of the doctor the nature of the injuries on Malchand showed that probably he was overpowered by someone first and then another person pressed the weapon against his neck. The matter for consideration is whether the circumstantial evidence, as stated above, is sufficient to prove 1331 that the appellants had participated in the murder of Malchand. Two findings of the High Court may be stated at, this stage before the circumstantial evidence is referred to. One concerned the cash memoes signed by Bishnu Charan Saha and the other concerned the colour of the wrapper worn by Bipin Behari Sarkar when he was seen by Kali Mohan Sarkar, P. W. 7 going away from a place near the shop of Malchand after the murder. The cash memoes bore the date 11 12 56 and not 18 12 56. The High Court gave good reasons for holding that the date 11 12 56 was wrongly entered in these cash memoes after examining the account books of Malchand 's shop and the other circumstances in the case as well as the admission of Bishnu Charan Saha that on December 18, 1956, between 1 30 and 2 p. m. be had caused three cash memoes to be issued in the shop of Malchand. We find ourselves in complete agreement with the findings of the High Court in this respect. The wrapper worn by Bipin Behari Sarkar at the time he was seen by Kali Mohan Sarkar was described by the witness as blue in colour whereas, in fact, the recovered wrapper from the house of this appellant was green in colour. The High Court thought and, in our opinion, rightly that what was in fact green in colour might have appeared to be blue to a witness when seen at night by him. A mistake in describing the colour accurately in the circumstances of the present case did not materially affect the evidence that Bipin Behari Sarkar was wearing a wrapper at the time he was seen at a spot near Malchand 's shop after the murder. Further reference to the wrapper will be made when we consider the case of this appellant. Mohan Lal Sarma, P. W. 4 had stated that at about 8 p.m. on December 18, 1956, he had seen the appellants and Sanatan Das sitting in the latter 's shop. Bishnu Charan Saha was the first to leave the shop. 10 or 15 minutes later, Bipin Behari Sarkar and Sanatan Das left after padlocking Sanatan 's shop. The evidence of this witness had been fully accepted 169 169 1332 by the High Court. Sudhir Ranjan De, P. W. 8 deposed that in the evening of December 18, 1956, at about 7 30 p.m. he had seen Bishnu Charan Saha passing in front of Gostha 's shop which was nearly opposite Malchand 's shop. He had on his body a Sujni Chaddar. 4 or 5 minutes later, Bipin Behari Sarkar and Sanatan Das were seen going in the same direction. The High Court believed the evidence of this witness. It came to the conclusion that on the evidence of Mohan Lal Sarma and Sudhir Ranjan De it was established that at about 8 p.m. the appellants and Sanatan Das were moving towards Malchand 's shop. There was no doubt some discrepancy about the timing but, as was pointed out by the High Court, the witnesses were giving the time approximately and did not purport to give the exact time. Kumud Lal Saha, P. W. 2 deposed that at about 8 30 p.m. on December 18,1956, he saw the appellants and Sanatan sitting with Malchand in the latter 's shop. Malchand was at that time placing cloth for their inspection. The High Court referred to the various criticisms levelled against the testimony of this witness and after dealing with them came to the conclusion that the witness was a truthful witness and that his evi dence established that the appellants were at the shop of Malchand at about 8 30 p.m. and that Malchand was last seen alive with them. The evidence of Khum Chand Bothers, P.W. 3 proved that at about 8 30 p.m. on the night of Malchand 's murder he had called out "Malchand " " Malchand ", but had received no reply. Kali Mohan Sarkar, P. W. 7 proved that at about 8 p.m. on the night in question when he was going home he met the appellant Bipin Behari Sarkar who was going away hurriedly from the direction of the Bazar. On some enquiry made by the witness this appellant stated that he had been pressed by a call of nature. Thereafter, the appellant Bishnu Charan Saha was seen coming behind Bipin Behari Sarkar. Bipin Behari Sarkar had on his person a blue coloured wrapper. The spot at which he had met the appellant Bipin Behari Sarkar was at a distance of about 100 cubits to the south of the passage meant for sweepers 1333 of Malchand 's house. He had heard Bishnu Charan Saha calling out " Hei, Hei " to Bipin Behari Sarkar . The evidence of these witnesses, which had been accepted by the High Court, established that the appellants were seen going in the direction of Malchand 's shop. Thereafter, they were seen with Malchand at his shop. Subsequent to that, Bipin Behari Sarkar was seen going away hurriedly at a place not far from Malchand 's shop followed by Bishnu Charan Saha who was calling out to him " Hei, Hei ". The last time that Malchand was seen alive was in the company of the appellants. The existence of the cash memoes, which were stained with human blood, with the signatures of Bishnu Charan Saha clearly established that at least Bishnu Cliaran Saha must have been present at the time of the murder because the cash memoes were being made out for him and they were stained with human blood which shows that Malchand was murdered while he was handling the cash memoes. It had been further proved that Bishnu Charan Saha had on him certain injuries of which one was an incised injury. The evidence of the doctor was that this injury could have been caused by the same instrument with which the neck injury of Malchand had been caused. It had been further established that the shirt of Bishinu Charan Saha was stained with human blood. The explanation offered by Bishnu Charan Saba for the injuries on his person was not accepted by the High Court and, in our opinion, rightly. Bishnu Charan Saha had stated to the doctor at the time of his examination that injury No. 1 was caused as the result of contact with a grass cutting dao and injuries Nos. 2 and 3 by having drawn his hand over a rough piece of wood, but to the doctor this explanation was unacceptable inasmuch as this appellant was not a left handed person a fact which appeared clear from his formation and development. When examined under section 342 of the Code of Criminal Procedure Bishnu Charan Saha told the Court that 2 days prior to his examination by the doctor lie had been cutting straw for his cattle with his left hand when his daughter aged about 1334 4 came up from behind and pushed him which resulted in the injury to his finger by its contact with the dao and that he had also received injuries on the back of his finger by striking it against a piece of wood. So far as the shirt stained with human blood, which was found on his person at the time of his arrest, was concerned, Bishnu Charan Saha seriously disputed the identity of the shirt. The identity of the shirt, however, had been clearly established. His explanation to the Court was that some of the stains had been caused by betel spit and that one or two might have been caused by some drops of blood falling on the shirt at the time he had sustained his injuries. This explanation was also not accepted by the High Court and, we think, rightly. The evidence therefore established that so far as Bishnu Charan Saha was concerned he was seen in the company of Bipin Behari Sarkar and Sanatan Das near about 8 p. m. He was seen shortly thereafter, as were the other two, going in a direction which was towards the shop of Malchand. He was seen along with the other two persons at the shop of Malchand at about 8 30 p.m. Thereafter, he was seen not far from the shop of Malchand going in the same direction as Bipin Behari Sarkar and calling out to him. The cash memoes at Malchand 's shop had been signed by him. He had injuries on his person consistent with their having been caused while the murder of the deceased took place. The shirt that he was wearing at the time of his arrest was stained with human blood for which he gave no reasonable explanation. In our opinion, the sum total of the evidence against Bishnu Charan Saha established beyond any reasonable doubt that he had participated in the murder of Malchand. Coming now to the case of Bipin Behari Sarkar the evidence against him is the same as against Bishnu Charan Saha about the movements towards the shop of Malchand, presence at the shop of Malchand and being seen going away at a place near the shop of Malchand and the existence of injuries on his person. In addition there was the evidence that a wrapper was seized the next morning after his arrest with marks of 1335 burning round which there were traces of blood. Unlike the case of Bishnu Charan Saba no signatures of his were found on the cash memoes. It is a matter for consideration whether in the case of this appellant ' any reasonable doubt could arise as to his guilt. It was urged that mere movements towards the shop of Malchand, his presence at the shop of Malchand and his being seen going away at a place near the shop of Malchand would not be sufficient circumstantial evidence to convict him. So far as the injuries were concerned the doctor had admitted that they could have been caused by a split bamboo. The doctor had at no time stated that they could have been caused by the same weapon which caused injuries to the neck of Malchand. The existence of the injuries, therefore, was no additional incriminating circumstance from which any conclusion could be drawn against this appellant. So far as the wrapper was concerned, there was no evidence that the burnt marks found on it were not there before December 18, 1956. Although blood stains had been found on this wrapper it had not been established that they were human blood stains. The wrapper was also, therefore, n0 additional incriminating circumstance against this appellant. It is, however, to be remembered that this appellant was with Bishnu Charan Saha and that Malchand was last seen alive in the company of the appellants. The murder of Malchand had already taken place when this appellant followed by Bishnu Charan Saha was seen going away hurriedly at a spot near the shop of Malchand and Bishnu Charan Saha was calling out " Hei, Hei " to him. It is remarkable that this appellant was seen not only at the shop of Malchand but near that shop after he bad been murdered and that he was found to have injuries oil his person when he was arrested at 10 30 p.m. on December 19, 1956. It would be a remarkable coincidence that both he and Bishnu Charan Saha should have injuries on their persons so shortly after the murder. Bipin Behari Sarkar denied ownership of the wrapper. His explanation was not that the burnt marks on the wrapper were there before December 18. 1336 This wrapper had blood stains. They were too small in quantity to enable a Serologist to determine their origin, but it is remarkable that wherever the bloodstains were found on the wrapper an attempt had been made to burn out those marks. Unfortunately, for the appellant, his attempt to burn out the bloodstains on the wrapper was not entirely successful. This was in our opinion, an incriminating circumstance against this appellant. The circumstantial evidence taken as a whole leaves no room for a reasonable doubt in our minds about the guilt of this appellant. In our opinion, the High Court rightly found the appellants guilty under section 302/34 of the Indian Penal Code. It could not be said that the sentence of death for a murder of the kind proved in this case was unduly severe. The appeals are accordingly dismissed. Appeals dismissed.

The appellant who was engaged in the manufacture of paper and paper boards which were assessable under Tariff Item No. 17 of the First Schedule to the . engaged several dealers referred to as Indentors, with a view to promote its sales. In the fixation of the normal price of these items under section 4 of the Act for the purpose of levy of excise duty, the appellant claimed deduction on account of 'service charge discount ' paid to the Indentors, in addition to the 'trade discount ' paid to the purchasers. Having failed before the assessing authority and the Central Excise and Gold (Control) Appellate Tribunal in respect of the deduction claimed on account of 'service charge discount ' the appellant appealed to this court. It was contended on behalf of the appellant that al though in some of the sales the discount allowed to the Indentors might have been described as 'service charges discount ', that name could not govern the real nature of the transaction and the discount was really a 'trade discount '. It was further contended that in several cases the indentors were really the purchasers themselves and hence, the normal trade discount paid to them should have been allowed as a deduction. Dismissing the appeal, this Court, HELD: (1) The trade discount was discount paid to the purchaser in accordance with the normal practice of the trade. In the determination of the normal price for the purposes of levy of excise duty, it is only a normal trade discount which is paid to the purchaser which can be allowed as a deduction and commission paid to selling agents for services rendered by them as agents cannot be regarded as a 321 trade discount qualifying for deduction. [323B C] Union of India & Ors. vs Bombay Tyres International Pvt. Ltd., [1984] 17 E.L.T. 329 (S.C.) and Coromandel Ferti lizers Limited vs Union of India & Ors., [1984] 17 E.L.T. 607 (S.C.), referred to, (2) If in any case the purchaser named in the invoice 18 the same as the Indentor, normal trade discount given to the Indentor will be allowed as a deduction in the determi nation of the normal price for the levy of the excise duty subject to other relevant considerations. [324B C]

ivil Appeal Nos. 953 954 (NT)/ 1975. From the Judgment and order dated the 15th February 1974 of the High Court of Allahabad in Civil Misc. Writ Petitions Nos. 6904 and 6906 of 1973. S.C. Manchanda and A.K. Srivastava for the Appellants. Harish N. Salve, Mrs. A.K. Verma, J. Peres and D.N. Mishra for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. These are two appeals by certificate from the common order. dated 15.2.74, of the Allahabad High Court in Civil Miscellaneous Petition Nos. 6904 and 6906 of 1973. They can be disposed of together since the question raised is the same. This common question arises out of the assessment to central sales tax of the respondent, oriental Coal Corporation of Moradabad (hereinafter referred to as the assessee), for the assessment year 1967 68 and 196869. The relevant facts bearing on the controversy may be briefly stated. The assessee is a firm of coal merchants with its place of business in Jharia (Bihar State) and an office at Moradabad (in U.P.). It is not registered either under the Central or the State Sales Tax Act. According to the assessee it places orders for coal on the collieries at Jharia on behalf of constituents in Uttar Pradesh, realises the sale proceeds and remits the same to Jharia. The Sales Tax officer assessed the assessee to sales tax in respect of the turnover of the coal thus 565 supplied by the assessee. The assessee filed two writ petitions alleging that the assessment orders were without jurisdiction on several grounds. The High Court allowed the writ petitions on one of these grounds and hence did not go into the other contentions. It referred to section 9 of the , as it stood at the relevant time, and held that the provision cast a liability to tax only on a registered dealer and not an unregistered dealer like the assessee. It is the correctness of this decision that is challenged in the present appeals. Section 9 relied upon by the High Court, reads thus: 3. "9.(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter state trade or commerce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of subsection (2), in the State from which the movement of the goods commenced. Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within subsection (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form prescribed for the purpose of clause (a) of subsection (4) of section 8 in connection with the purchase of such goods. (2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re assess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the Provisions of such law, including provi 566 sions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of or successor to such business transfer of liability of any fir n or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appe als, reviews, revisions, references, 3(refunds, rebates, penal ties) compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub section. " The High Court pointed out that, under the terms of the section, tax on sales of goods effected by a dealer in the course of inter state trade or commerce shall be levied in the State from which the movement of the goods commenced: in this case, the State of Bihar. The proviso, however, carves out an exception. It provides that, if there is a subseq uent sale of the same goods in the course of their movement from one State to another and such sale is effected by a registered dealer, tax can be levied and collected in the State from which such dealer obtained or could have obtained the forms prescribed under section 8(4)(a) (popularly known as 'the Form '): in this case, the State of Uttar Pradesh. But, the High Court pointed out, the assessee was not a registered dealer and so there was no scope for his being taxed in the State of U.P. The High Court accordingly quashed the assessments in question and hence these appeals by the State. We may at once say that the conclusion of the High Court is unassailable in view of the decision of this Court in State vs Kasturi Lal Harlal, 3 S.C. 234 affirming the view taken on this issue by the Allahabad High Court in an earlier case Kasturilal Harlal vs State, [1972] 29 STC 495. Shri Manchanda, however, submits that this view can no longer hold the field in view of a retrospective amendment of the by the Central Sales Tax (Amendment) Act No. 103 of 1976. Two provisions of this Amendment Act may be extracted: "6. Amendment of section 9. In section 9 of the Principal Act (a) in sub section (1) for proviso, the following pro 567 viso shall be substituted, namely. A "Provided that, in the case of sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods and being also a sale which does not fall within sub section (2) of section 6, the tax shall be levied and collected (a) where such subsequent sale has been effected by a registered dealer, in the State from which the registered dealer obtained or, as the case may be could have obtained, the form prescribed for the purposes of clause (a) of subsection (4) of section 8 in connection with the purchase of such goods, and (b) where such subsequent sale has been effected by an unregistered dealer in the State from which such subsequent sale has been effected." (b) in sub section (2), before the words "compounding of offences", the words "charging or payment of interest", shall be inserted and shall be deemed always to have been inserted . (c) after sub section (2), the following sub section shall be inserted, namely: (2A) All the provisions relating to offences and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and lOA) of the general sales tax law of each State shall, with necessary modifications, apply in relation to the assessment, reassessment, collection and the enforcement, of payment of any tax required to be collected under this Act in such State or in relation to any process connected with such assessment, re assessment, collection or enforcement of payment as if the tax under this Act were a tax under such sales tax law. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 568 9. Validation ( 1) The provisions of section 9 of the principal Act shall have effect and shall be deemed always to have had effect in relation to the period commencing on the 5th day of January, 1957, and ending with the date immediately preceding the date of commencement of this Act as if that section also provided (a) that all the provisions relating to penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment on conviction for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A of the principal Act and the provisions relating to offences) of the general sales tax law of each State shall, with necessary modifications, apply in relation to (i) the assessment, re assessment, collection and enforcement or payment of any tax required to be collected under the principal Act in such State; and (ii) any process connected with such assessment, re assessment, collection or enforcement of payment, and (b) that for the purpose of the application of the provisions of such law, the tax under the principal Act shall be deemed to be tax under such law. (2) Notwithstanding anything contained in any judgment, decree or order of any court or tribunal or other authority, all penalties under the general sales tax law of any State imposed or purporting to have been imposed in pursuance of the provisions of section 9 of the principal Act, and all proceedings, acts or things taken or done for the purpose of, or in relation to, the imposition or collection of such penalties, before the commencement of this Act shall, for all purposes be deemed to be and to have always been imposed, taken or done as validly and effectively as if the provisions of sub section (1) had been in force when such penalties were imposed or proceedings or acts or things were taken or done and accordingly, (a) no suit or other proceedings shall be maintained or continued in or before any court or any tribunal or other 569 authority for the refund of any amount received or realised by way of such penalty; (b) no court, tribunal or other authority shall enforce any decree or order directing the refund of any amount received or realised by way of such penalty; (c) where any amount which had been received or realised by way of such penalty had been refunded before the commencement of this Act and such refund would not have been allowed if the provisions of sub section (1) had been in force or the date on which the order for such refund was passed, the amount so refunded may be recovered as an arrear of tax under the principal Act; (d) any proceeding, act or thing which could have been validly taken, continued or done for the imposition of such penalty at any time before the commencement of this Act if the provisions of sub section (1) had then been in force but which had not been taken continued or done, may after such commencement be taken, continued or done. (3) Nothing in sub section (2) shall be construed as preventing any Person (a) from questioning the imposition or collection of any penalty or any proceedings, act or thing in connection, therewith or (b) from claiming any refund, in accordance with the provisions of the principal Act read with sub section(1). " Shri Manchanda contends that, by virtue of section 9 of the Amendment Act, clause (b) of the proviso to section 9 (1) of the is deemed to have been in force since 5.1.1957. The position according to him, therefore, is as if the Act had always imposed a liability to pay tax even on unregistered dealers just as it had originally done on registered dealers. We may mention that, while deciding section T. O. vs Coal & Coke Supplies Corporation, JT , we had assumed the correctness of the contention of Sri Manchanda as, in that case, the above argument that the amendment was retrospective was uncontroverted. 570 Sri Harish Salve, appearing for the assessee in this case, however, contests the correctness of Sri Manchanda 's contention. We have therefore considered this aspect and reached the conclusion that Sri Salve is right and that no retrospective operation to clause (b) of section 9(1) can be spelt out as suggested by counsel for the appellant. received the assent of the President on 7.9.1976 which is, apparently, what is referred to as the date of its commencement in section 9(1) of the said Act. The Act amended several sections of the and it did not when its words when it desired to give any degree of retrospective effect to any particular amendment. The amendments to sections 3 and 4 of the Principal Act thus are clearly retrospective: the provisions added thereto, it is declared, "shall be inserted and shall always be deemed to have been inserted w.e.f. 1.4.1964. " The amendments to Sections 2, 7, 14 and IS of the Principal Act are obviously intended to be only prospective. The amendment to section 9 of the Principal Act, with which we are at present concerned, presents an amalgam. section 6 of the Amending Act makes three amendments in section 9 of the Principal Act by its three clauses (a), (b) and (c). In clause (a), there is no hint of any retrospectivity whereas the amendment by clause (b) is expressed to be fully retrospective from 1956. The amendment by clause (b) attracts the penal provisions (including offences) of the relevant State Law and can, in view of Article 20 of the Constitution, only be prospective. However, it appears that, even under the statute as originally framed, such penal provisions had been enforced in several cases and this action needed retrospective validation (in so far as penalties, other than offences were concerned) in view of the decision of this Court in Khemka vs State, ; This was the raison d 'etre of section 9 of the Amendment Act which has been extracted above: (see Shiv Dutt Rai vs Union, [ ; This is also clear from paragraph 3 of the Statement of objects and Reasons of the Amendment Act, which reads: "Sub section (2) of section 9 of the empowers the State sales tax authorities to assess, re assess collect and enforce payment of Central sales tax. The sub section also authorises the authorities under the State sales tax laws to exercise all the powers which they have under those laws (including inter alia the power to impose penalties) for the purposes of the also. In Khemka & Co. (Agencies) Private Ltd. vs State of Maharashtra, 35 S.T.C. 57 1, the Supreme Court, by a ma 571 jority of 3:2, held that the provisions of the State sales tax laws as to penalties do not apply for purposes of the Central Sales Tax. In view of this judgment, the State Governments are faced with the problem of having to refund the amounts collected in the past by way of penalties. The judgment has also resulted in a vacuum being created in regard to levy of penalties, it is, therefore, necessary to amend section 9 of the to provide expressly that the provisions relating to offences and penalties under the general sales tax law of each State shall. with necessary modifications, apply in relation to the assessment, re assessment collection and the enforcement of tax under the . It is also necessary to validate the penalties which have been levied in the past. for the purposes of the , on the basis of the provisions of the State sales tax laws. " Where the statute thus, on its face, clearly indicates retrospective effect where intended, there can be no justification to read retrospectivity into the amendment made by clause (a) of section 6 of the amending Act which does not contain any words to that effect. Counsel for the appellant, however, relied on two circunstances to say that such retrospective effect must necessarily have been intended. Firstly, he placed emphasis (a) on the fact that section 9( l) of the Amendment Act refers to section 9 of the principal Act and not merely to section 9(2) and (b) on the use of the words"as if that section also provided." He submitted that this language can only mean that the legislature intended retrospective effect also to the amendment effected in section 9 by section 6 of the Validation Act. Secondly, he submitted that under section 6 of the Central Sales Act, all dealers registered or unregistered, are liable to pay tax on sales effected by them in the course of inter state trade or commerce. section 9(1) imposes the liability on the dealer in the State from which the movement of the goods commences but this is without prejudice to the liability of dealers who make subsequent sales during the course of such movement. Such subsequent sale may be by a registered dealer or an unregistered dealer. It may be to a registered or an unregistered dealer. If the sale is to a registered dealer it is exempt under section 6(2), whether it is by a registered dealer or an unregistered dealer. Under the proviso to section 9(1), as it originally stood, if the sale was by registered dealer to an unregistered dealer, it would be taxed in the State from which the registered dealer obtained or could have obtained the Forms. When 572 even a sale by a registered dealer is thus made liable, counsel argues, it A could not have been the intention of the State to exempt from liability a sale by an unregistered dealer. The amendment only clarifies this position. It imposes no fresh substantive liability. It is only an amendment of a procedural nature shifting chargeability, in such cases, from the State from which the goods moves, to the State in which the subsequent sale takes place. In this view of the matter, counsel contends the amendment only affects the venue of taxation and, being procedural in nature, requires to be construed retrospectively. We are unable to accept these contentions. So far as the first point is concerned, the language of the validation section clearly concerns only penalties which are dealt with under section 9(2). The amending Act refers to section 9 in general and not to section 9(2) only perhaps because section 9( l) also contains a reference to sub section (2). From this circumstance alone, it cannot be inferred that retrospectivity to the amendment of section 9(1) also is intended. The use of the word 'also ' does not also have the result suggested by counsel. All that the provision requires is that, for the period 5.1.57 to 7.9.1976, the section is to be read as if it also included the additional substantive provisions referred to therein. It was earlier not clear whether all these provisions could be read into the section before 7.9.1976, the date when the Amendment Act came into force. So the validation section declares that the section should be read, even earlier, as if it comprehended also these substantive provisions. It is in this context that the word "also" is used. The employment of this word cannot therefore be treated as an indication of intention by the legislature that the amendment ot section 9(1) by section 6 of the amending Act was to be effective from 5.1.1957. If the Legislature had intended it, the intention could and would have been expressed clearly in clause (a) of section 6 itself as it had been in the other clauses . and in the other sections. If section 9(1) of the Amendment Act had been inserted as clause (d) in section 6 thereof, it could not have changed the prospective effect of clause (a). The position is not different merely because this provision is contained in section 9 and not section 6 of the Amendment Act. section 9(1) of the Amendment Act talks only of reading these extra words into section 9(1) of the principal Act between 5.1.57 and 7.9.76. It does not contain any operative words that require section 9(1) of the Principal Act being read in the form in which it has been amended by section 6 during that earlier period. We, therefore, do not see in section 9 of the Amending Act any support to the contention of the counsel for the appellant. The contention that the amendment is purely procedural is 573 also misconceived. Assuming the correctness of the contention that a A purely procedural amendment should ordinarily be construed to be retrospective, we are unable to agree that the present amendment is of such nature. The decision of this Court in Kasturi Lal 's case, 4JT had held that an unregistered dealer is not taxable under the proviso. The amendment changes this position and imposes a substantive liability on such a dealer. It is also one which confers jurisdiction on an officer in a particular State to levy a tax which he otherwise cannot. It is thus a substantive provision. That apart, even the question whether a charge to tax can be imposed in one State or another is not a mere question of venue. It may have an impact on the rate of tax in certain cases and it also regulates the rights inter se of States to levy taxes on such inter state sales. It is, therefore, difficult to accept the contention that the amendment should be treated as purely procedural and hence necessarily retrospective. In the result, we are of opinion that clause (b) of section 9(1) of the is operative only from 7.9.1976. The present case is, therefore, governed by the earlier provision and the decision of this Court in Kasturi Lal 's case, (supra). The appeals therefore, fail and are dismissed. We, however, make no order as to costs. N.P.V. Appeals dismissed.

% Rules of Procedure and Conduct of Business in Lok Sabha: Rules 260, 379 and 382 Non publication of resolutions Whether resolutions ineffective Publication in Parliamentary Debates even after delay Adequate publication. House of the People (Extension of Duration) Act, 1976: Whether ultra vires. Finance Act, 1976: Validity of. : section 57 Proceedings of Parliament Court to take judicial notice. The petitioner, an assessee under the Income Tax Act and Wealth Tax Act during the assessment year 1976 77 and liable to pay income tax and wealth tax in accordance with the rates prescribed by the Finance Act, 1976, which was passed by the Lok Sabha during its extended period under the provisions of the House of the People (Extension of duration) Act, 1976, filed a writ petition before this Court, challenging the vires of the two Proclamations of Emergency issued by the President on 3.12.1971 and 26.6.1975 and also of the House of the People (Extension of Duration) Act, 1976 and the Finance Act, 1976 contending that the duration of the House of People would have been validly extended only when a Proclamation of Emergency was in force under the proviso to cl. (2) of article 83 of the Constitution and since the two Proclamations of Emergency in question were either ultra vires the Constitution or had ceased to be in operation by the time the House of the People (Extension of Duration) Act, 1976 was passed by Parliament, that Act had no effect and, consequently all Acts passed by the House of the People during the extended period, including the Finance Act, 1976 432 were ultra vires the Constitution, and that even though the said proclamations had been validly issued, the proclamation dated 3rd December, 1971 and 25th June, 1975 had ceased to be in operation on 3rd February, 1972 and 26th August, 1975 respectively because the Resolutions passed by the two Houses of Parliament approving the said Proclamations of Emergency as required by cl. (2) of article 352 of the Constitutions it stood during the relevant time had not been published in the official Gazette of the Government of India. The petition was opposed by the respondent Union of India contending that the two Proclamations had been duly issued by the President and approved by the Resolutions of the two Houses of Parliament as required by law and that actually the Proclamations of 3rd December 1971 and June 25, 1975 had been revoked by the Vice President acting as the President by the Proclamations dated 27th March, 1977 and 21st March, 1977 respectively, that in the month of February, 1976 when the House of the People (Extension of Duration) Act, 1976 was passed by Parliament both the Proclamations of emergency were in force and, therefore, Parliament was entitled to extend the period of the House of the People for a period not exceeding one year at a time, that the Finance Act, 1976 passed duly in the period so extended had been, therefore, validly passed and that publication of the Resolutions was not necessary and, in any event, since they had been published in the Lok Sabha and Rajya Sabha Debates which were published under the authority of the Speaker of the House of the People and the Chairman of the Rajya Sabha respectively, the Proclamations of Emergency remained in force until they were duly revoked. Dismissing the writ petition, ^ HELD: 1. The two Proclamations of Emergency were kept in force by virtue of the resolutions passed by the Houses of Parliament until they were duly revoked by the two Proclamations which were issued by the Vice President acting as President of India in the year 1977. Since the two Proclamations of Emergency were in force when the House of the People (Extension of Duration) Act, 1976 was passed, its validity cannot be questioned. [455D E] The Lok Sabha passed the Finance Act, 1976 during the extended period of its duration and, therefore, the validity of Finance Act, 1976 also cannot be questioned. [455E] 2. Article 352 of the Constitution does not prescribe that a 433 Proclamation of Emergency should be published in the official Gazette. A Wherever the Constitution expressly requires a certain notification to be published in the official Gazette, it has stated that the said notification shall be published in the form of a public notification. [444H; 445C] A Proclamation of Emergency, being a very important event affecting public life, has also to be published in any manner known to modern world and the publication in the official Gazette is one such mode. If the Constitution requires that a particular mode of publication is necessary then such mode must be followed, but if there is no mode of publication prescribed by the Constitution, then it must be considered that the Constitution has left the method of publication to the authority issuing the proclamation in order t., make it known to the members of the public. [445G H; 446A B] 3.1 In the instant case, the Proclamations of Emergency have been published in the official Gazette.[446B] In the Constitution and in the Rules of Procedure of the Houses of Parliament and of the State Legislatures there are several provisions which provide for resolutions being passed by the Houses of Parliament or the Houses of State legislatures. They are not required to be published in the official Gazette, even though in some cases they are published, say, where a certain law is adopted under article 252 or a member is removed on the ground of privilege etc. They would not be treated as ineffective merely because they are not published in the official Gazette. They are all, however, published in the Reports of the Houses of Parliament and of the Houses of the State Legislature within a reasonable time. [446C; 447B C] 3.2 The Lok Sabha Debates and the Rajya Sabha Debates are the journals or the reports of the two Houses of Parliament which are printed and published by them. The Court has to take judicial notice of the proceedings of both the Houses of Parliament under section 57 of the Indian evidence Act, 1872 and it is expected to treat the proceedings of the two Houses of Parliament as proved on the production of the copies of the journals or the reports containing the proceedings of the two Houses of Parliament which are published by them.[450E F ] 3.3 What is essential is that the resolutions approving the Proclamation of Emergency should be passed within the period of two months. A little delay in publishing the proceedings would not affect the validity of there solutions. [454B C] 434 3.4 The reports of the proceedings of Parliament and the State Legislatures are widely circulated. The newspapers, radio and the television are also the other modern means which give publicity to all Acts and Resolutions of Parliament and the Legislatures of the States. The publication in the Parliamentary Debates, though after some short delay is adequate publication of the resolutions of Parliament as there is no rule which requires that the resolutions should be published in the official Gazette. Hence, mere non publication of the resolutions approving the Proclamations of Emergency in the offlcial Gazette did not make them ineffective. [454G H; 455A B] In the instant case, the resolutions of the Lok Sabha, and the Rajya Sabha approving the two resolutions have been duly published in the official reports of the two Houses. [455B C] Waman Rao & Ors. vs Union of India & Ors. , ; ; Harla vs The State of Rajasthan, ; ; State of Punjab vs Sat Pal Dang & Ors., ; and Mharendu Dutt Majumdar vs The King Emperor, , referred to.

Appeal No. 1575 of 1969. Appeal by special leave from the judgment and order dated March 18, 1969 and May 8, 1969 of the Punjab and Haryana High Court in Civil Revision No. 1014 of 1968 and C.M. No. 1863 of 1969. S.V. Gupte and Ravinder Narain, for the appellant. K.R. Chaudhuri, for the respondents. The Judgment of the Court was delivered by Dua, J. By means of an agreement dated August 9, 1963, the appellant company agreed to purchase from the respondents, land measuring 264 kanals and 12 marlas. A sum of Rs. 1,87,000 was. paid as earnest money. The sale deed was to be registered by April 30, 1964. As it was not so registered, both parties blamed each other for the breach. In May, 1966 the Government issued a notification under section 4 of the Land Acquisition Act which was followed by a notification under section 6 in September 1966 acquiring 104 kanals and 18 marlas of land out of the land agreed to be sold. The Collector made an award of the compensation for the acquired land, against which a reference 370 was made to the Court of the District Judge. In May, 1968 the compensation was enhanced to a sum over Rs. 2 lakhs. In the mean time on April 15, 1967, the appellant,company instituted a suit for specific performance of the agreement dated August 9, 1968. This suit was dismissed by the Court of the Senior Subordinate Judge, Gurgaon on August 13, 1968. A Regular First Appeal (No. 216 of 1968) against the dismissal of the suit is pending in the Punjab and Haryana High Court. It appears that the dispute as to apportionment of compensation under section 30 of the Land Acquisition Act was also referred to the Court. In view of the institution of the suit for specific performance, an application was apparently made in the Court of the learned Additional District Judge dealing with the reference under the Land Acquisition Act to stay those proceedings pending the decision of the suit by the learned Senior Subordinate Judge. On February 28, 1968 the learned Additional District Judge took the view that the entire matter in his Court was covered by the civil suit, it being further observed in the order that even the question of the jurisdiction of the Senior Subordinate Judge to determine the amount of compensation was to be first decided by the civil court. On this view, the reference proceedings were stayed pending the decision of the civil court. After the dismissal of the suit, the respondents applied to the Court of the learned Additional District Judge for continuing the proceedings and for making an order of payment of compensation in their favour. This prayer was Contested by the appellant company on the ground that an appeal against the decree dismissing the suit had already been presented in the High Court and that the proceedings for payment of compensation should continue to remain stayed pending the disposal of the appeal. The learned Additional District Judge after hearing both sides decided on August 30, 1969 to continue the order of stay pending the decision of the appeal by the High Court. According to him, the question whether the original agreement had become frustrated or was alive and deserved to be specifically enforced, would have an important bearing on the question of apportionment of compensation. The respondents preferred a revision to the High Court against this order and a learned Single Judge on March 18, 1969 reversed the order continuing stay of the proceedings under section 30 and further directed payment of Rs. 1,78,000 to the respondents. The order of payment of this amount was framed in the following words : "I do feel that in view of the fact that the suit filed by the respondent company has been dismissed, prima facie, it is reasonable that the proceedings under section 30 of the Act should continue, but the petitioners may 371 not be allowed actual payment of more than Rs. 1,78,000. The balance of the amount due in respect of the land of the petitioners shall be kept with the Government to be disbursed in accordance with the decision in the regular first appeal. This will, however, be subject to the further condition that the petitioners will file an undertaking in this Court that they shall not dispose of or otherwise transfer any interest by creating any encumbrance over the balance of the land which was the subject matter of the agreement dated the 9th of August, 1963, without the permission of the Court. Learned counsel for the petitioners appearing before me have agreed to this condition being imposed. " The concluding portion of that order may also be reproduced: ". . . . I accept this revision petition and direct that the proceedings under section 30 of the Act be continued, but the petitioners will not be paid more than Rs. 1,78,000 and the balance will remain undisbursed till the decision of the regular first appeal If the appeal is accepted, this amount shall be treated as part of the consideration that has to be paid by the respondent company. Till the decision of the appeal or till further orders of this Court, the petitioners will not dispose of the balance of the land, which is the subject matter of the agreement, without the permission of the Court. " Before the learned Additional District Judge, the question arose as to whether under the order of the High Court dated March 18, 1969, the sum of Rs. 1,78,000 was to be paid immediately or after the decision of the reference under section 30. The parties apparently desired the learned Additional Judge to decide this question judicially on a consideration of the circumstances of the case. Both parties were accordingly heard and the learned Additional District Judge in a detailed order dated April 19, 1969 expressed his conclusion thus : "To my mind it seems that the decision of the reference under section 30, is to take place first and it is thereafter that the applicants shall be paid amount upto Rs. 1,78,000. In these circumstances, it is ordered that the proceedings u/s 30 be restored and should continue. The cheque will be given only after the decision of the reference u/s 30. The revision before the Hon 'ble Judge was only against the order staying the proceedings and there was no revision regarding the non payment of the amount as that was not the question before this court and no orders were passed by this court in that connec 372 tion. As such, the intention of the Hon 'ble Judge in passing the orders Seems to be that the amount may not be paid to any of the parties now but after the decision of the reference u/s 30. I order accordingly. " The learned Additional District Judge. also fixed May 21, 1969 .,for the evidence of the parties. It appears that instead of challenging on merits the order dated April 19, 1969 in the High Court by way of revision, the respondents filed in that Court on May 6, 1969, an application under sections 151/141 C.P.C. for clarification of its order dated March 18, 1969. This application was placed before the High Court for preliminary hearing on May 8, 1969 and the learned Single Judge recorded the following order without giving notice to the appellant : "My orders are clear that the amount of Rs. 1,78,000 may be paid to the petitioners. The order further directs the petitioners not tO dispose any part of the land which was the subject matter of the agreement. With these observations, this petition is filed. " It is against these two orders that the present appeal by special leave has been presented and the short argument pressed by Shri Gupte was that the order of the High Court dated March 18, 1969 is unsustainable because there was no jurisdictional infirmity made out in the order of the learned Additional District Judge dated August 30, 1968, which would justify interference on revision under section 115 C.P.C. In regard to the order dated May 8, 1969, it was further complained that this order was made ex parte without notice to the appellant. It was contended by Shri Gupte that in face of the judicial order dated April 19, 1969 made by the learned Additional District Judge after hearing both sides at 'length, it was not open to the High Court to record the ex parte .order dated May 18, 1969 without affording to the appellant an opportunity for supporting the view. taken by the learned Additional District Judge. The submissions made by Shri Gupte, in our opinion, possess merit. The revisional jurisdiction has been conferred on the High Court by section 115, C.P.C. in these terms : "115. The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears (a) to have exercised a jurisdiction not. vested in it by law or (b) to have failed to exercise a jurisdiction so vested. or 373 (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. " The mass or reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1894 in Rajah Amir Hassan Khan vs Sheo Baksh Singh(1). The Privy Council again pointed out in Balakrishna Udayar vs Vasudeva Aiyar(2) that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. This view was approved by this Court in Keshav Deo vs Radha Kissan(3) and has since been reaffirmed in numerous decisions. The position thus seems to. be firmly established that while exercising the jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to. errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under section 115 of the Code when there. was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. (1) 11 Indian Appeals 237. (2) 44 Indian Appeals 261. L2 Sup. CI/70 12 (3) ; 374 The respondents submission that the order made by the High Court on March 18, 1969 was a consent order, is unsustainable. The agreement mentioned in that order is obviously the agreement by the respondents (petitioners in the High Court) to the condition imposed on them, to file an undertaking in that Court not to. dispose of or ,otherwise transfer any interest by creating encumbrance over the remaining land which, was the subject matter of the agreement dated August 9, 1968, without the previous permission of the Court. There is nothing in the order of the High Court or on the record to which our attention was drawn, showing or even suggesting that the appellant had agreed to the revision being allowed. The order of the High Court dated March 18, 1969 must, therefore, be set aside. The ex parte order dated May 8, 1969 is equally difficult to sustain. In para 5 of the respondents application dated May 6, 1969 under section 151/141 Civil P.C. presented in the High Court, a reference was clearly made to the order passed by the learned Additional District Judge on April 19, 1969. It was averred in this paragraph : "That the learned District Judge by his order dated 19 4 69, has interpreted the High Court 's order wrongly and has held that the intention of the Hon 'ble Judge in passing the order dated 18 3 69, seemed to be that the amount may not be paid to any of the parties now but only after the decision of the reference under Section 30 of the Land Acquisition Act. Thus he has fixed the case under Section 30 of the Act for evidence on 21 5 69. " It seems that at the stage of preliminary hearing the attention of the High Court was not drawn to this fact and that Court proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional District Judge in favour of the appellant. This could more appropriately be done only on appeal or revision from the order dated April 19, 1969 after notice to the party affected and not on an application under sections 151/141 Civil P.C. Such an application in the circumstances was misconceived. The ex parte order is thus unsustainable and must be set aside. This appeal accordingly succeeds and the impugned orders are set aside with costs. We would like to make it clear that it will be open to the parties, if so advised, to approach the High Court by appropriate proceedings for the speedy disposal of the appeal. R.K.P.S. Appeal allowed.

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

ICTION: Criminal Appeal No. 778 of 1979. From the Judgment and Order dated 21.6.1979 of the Punjab and Haryana High Court in Crl. A. Nos. 120 and 163 of 1977. Frank Anthony and Sushil Kumar for the Appellants. R.S. Suri for the Respondent. The Judgment of the Court was delivered by AHMADI, J. Harnam Singh, Sarpanch of Village Naushera, was murdered on the night between 6th June, 1976 while he was sleeping at his tubewell to guard the wheat bags stacked in his filed. PW 1 Dr. Malhotra who conducted the autopsy at about 4.15 p.m. on 7th June, 1976 found four injuries on the person of the deceased, namely, (i) a lacerated penetrating circular would, 1/4 ' ' in diameter, with black margins inverted on right middle back, 3 ' 'from mid line and 9 ' ' from iliac crest, (ii) a vertical bruise 6 ' ' X 1/2 ' ' on the front of right forearm running downwards and outwards, (iii) beuises in the area of 5 ' ' X 1 ' ' on the front and inner aspect of right upper arm above the elbow joint, running forwards, outwards and downwards and (iv) an abrasion 5 ' ' X 1 ' ' on the right side of the chest, 5 ' ' from mid line and 3 ' ' from the clavicle running downward and inward. On opening the first would it was found that the 8th and 9th ribs were fractured posteriorly; the diaphram and superior surface on the left lobe of the liver were lacerated; the heart was lacerated into pieces and the third, fourth, fifth, sixth and seventh ribs of the left side were broken anteriorly. The exit wound was 8 ' ' X 4 ' ' on the left upper chest just 969 above the nipple. Death was on account of shock and haemorrhage resulting from the bullet injury. This injury No. 1 was stated to be sufficient in the ordinary course of nature to cause death. The other injuries were possible by a hard and blunt weapon and were simple in nature. Death was instantaneous. Both the Courts below, therefore, rightly concluded that death was homicidal. The prosecution case, briefly stated, was that the appellant and the deceased who were neighbours in the village had quarrelled over the passage of sullage water a few months before the incident. The appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort. On account of this obstruction the sullage water collected in a pool near the house of the appellants which infuriated them. On account of this incident as well as past election rivalries the relations between the appellants and the deceased were so soured that on the night of the incident the three appellants went armed with weapons to the tubewell of the deceased where the latter was sleeping to guard his wheat stacked in bags. Gurmej Singh was armed with a rifle, Gian Singh was armed with Gandasi and Bur Singh carried a Dang. The prosecution alleged that Gurmej Singh had concealed the rifle in the Chadar wrapped around him and on reaching the place where the deceased was sleeping on a cot he threw off the chadar and shot the deceased at point blank range. The incident was witnessed by three persons. PW2 Swaran Singh, nephew of the deceased, PW3 Fauja Singh, a close relative of the deceased and one Narain Singh (not examined) who too were sleeping in the field. Actually Narain Singh was sleeping near the deceased whereas PWs 2 and 3 were sleeping at a distance of approximately 10/15 karams therefrom. the prosecution did not examine Narain Singh on the plea that he was won over. The evidence of PWs 2 and 3 shows that they got up on hearing some movement in the filed and they saw the three appellants near the cot of the deceased. They were able to identify them because of the existence of an electric light at the tubewell. According to them on reaching near the cot of the deceased Gurmej Singh fired a shot from close range at the deceased who was still sleeping in his cot. Thereafter Gian Singh struck a Gandasi blow on the chest of the deceased followed by a Dang blow on the right arm by Bur Singh. Gurmej Singh is stated to have warned others not to get up unless they wanted to be killed. On account of this warning PWs 2 and 3 did not run to the rescue of the deceased for fear of being killed. After making sure that their victim was dead, the appellants fled away. PW 2 Swaran Singh then went to the house of his father PW4 Waryam Singh and narrated the incident. PW2 accom 970 panied by Gurdas Singh, Lambardar, then went to the Police Station at about 8.30 a.m. on 7th June, 1976 and lodged the first information report. PW8 Sub Inspector Kartar Chand Singh then reached the place of occurence, held an inquest on the dead body of the deceased, lifted the blood stained earth from the place of occurrence and then recorded the statements of PW3 Fauja Singh, Narain Singh and others. Gian Singh and Bur Singh were arrested on 2nd July, 1976 while Gurmej Singh was arrested on 7th July, 1976. It appears that two more persons, namely, Sucha Singh and Santokh Singh (original accused Nos. 1 and 4, respectively) were also shown as arrested for the commission of this crime on 2nd July. 1976 although their names were not disclosed in the first information report. The allegation of the prosecution witnesses PWs 2, 3 and 4 is that these two persons were falsely involved as PW8 Sub Inspector Kartar Chand Singh wanted to save his skin as he was found to have illegally and wrongly detained them at the police station. We will deal with this aspect later but suffice it to say that both the courts below have come to the conclusion that they were falsely involved in the commission of this crime by fabricating statements of PWs 2 and 3 under Section 161 of Criminal Procedure Code (`the Code ' for short). In view of this conclusion reached by both the courts, the said two persons were acquitted. No appeal was preferred challenging their acquittal. The Trial Court convicted Gurmej Singh under section 302 IPC and the other two under Section 302/34 IPC and sentenced all the three to imprisonment for life and also imposed token fines. Against their conviction the present three appellants filed an appeal which was dismissed by a Division Bench of the High Court on 21st June, 1979. It is against this finding of guilt recorded by both the courts below that the present three appellants have preferred this appeal by special leave. Mr. Frank Anthony, counsel for the appellants, submitted that there were three eye witnesses to the incident even according to the prosecution case and out of them Narain Singh was nearest to the deceased when the incident occurred on that dark night in the field. This Narain Singh alone was an independent witness and yet the prosecution did not examine him on the specious plea that he was won over. The other two eye witnesses. PWs 2 and 3, are admittedly close relatives of the deceased and out of them the presence of PW3 is extremely doubtful being a resident of a nearby village. At any rate he can be termed as a chance witness and in all probability he came to the filed from his village after learning about the incident. Besides, since the incident occurred on a dark night and the evidence that the electric light at the tubewell was on at that hour is extremely doubtful, it is 971 difficult to believe that PWs 2 and 3 saw the actual incident from a distance of 10/15 karams and were able to identify the assailants. Said counsel, the conduct of both these eye witnesses is not normal since they did not raise an alarm even though they depose to have woken up on hearing some movement in the field. They could have cautioned the deceased and Narain Singh about the entry of third parties in the field since they were there precisely for that purpose. They have tried to explain their unnatural conduct on the plea that the appellant Gurmej Singh had raised a `lalkara ' that anyone trying to come near the deceased would be killed. But this `lalkara ' was after the event and not before, while the conduct of the eye witnesses before the in incident is unnatural if they had actually got up on hearing some movement of third parties in the field. Else it must be accepted that they got up on hearing the gun fire and before they could go near the deceased, the assailants had fled away. In this situation the evidence of Narain Singh assumes importance as he was most competent to unfold the true version regarding the incident, being just by the side of the deceased at the time of the incident. The failure to call him to the witness stand was, counsel submitted, unfair to the defence as it deprived the defence of the opportunity to elicit the true version regarding the offence. Lastly he submitted that the prosecution has not place any material on record nor has it stated any reason in its written report in support of its conclusion that he had been won over. In any event, it is hazardous to base a conviction on the highly interested testimony of PWs 2 and 3, particularly when the motive alleged by the prosecution for implicating the appellants is very weak. Besides the evidence of PWs2 and 3 suffers from several infirmities. Counsel for the State submitted that this Court should not disturb the concurrent findings of fact recorded by the two courts and the reliance placed by them on the two eye witnesses whose evidence is corroborated by PW4. He pointed out that both the courts below had recorded a positive finding that the electric light was on at the tubewell which provided sufficient light to enable PWs 2 and 3 to identify the assailants even from a distance of 10/15 karams. The assailants were not strangers to PWs 2 and 3 and, therefore, their evidence on the question of identity cannot be doubted. The prosecution had stated the reason for not examining Narain Singh and if the defence had any doubt in that behalf it could have requested the court to examine the said witness as a court witness rather than keeping silent and then raising a belated grievance. In short he supported the line of reasoning adopted by the two courts below. 972 It must be conceded at the outset that the prosecution se hinges on the credibility of PWs2 and 3. PW2 is the nephew of the deceased. PW3 is the maternal cousin of PW2 and ws closely related to the deceased as the latter 's daughter Piari was his younger brother 's wife. PW3 is a resident of a neighbouring village lying at a distance of three miles from the village of the deceased. Ordinarily, therefore, PW3 would not be expected to be present at the scene of occurrence but according to him he had gone to see P.W. 2 and after having his meals both he and PW 2 had gone to the tubewell of the deceased. PW 3 claims that he woke up at about 3.00 a.m. as he was to return to his village when he saw the three persons and identified them as the appellants. He does not speak of any `lalkara ' or to have got up on hearing footsteps as desposed by PW2 but he too did not raise any alarm or try to caution the deceased and Narain Singh who were sleeping 10/15 karams away. After the incident he went to the village to inform his younger brother 's wife about the death of her father and returned with her to the village by which time the police has arrived. In these circumstances the question is whether absolute reliance can be placed on PWs 2 and 3 regarding the involvement of the appellants? Mr. Frank Anthony, the learned counsel for the appellants, firstly submitted that the incident occurred on a dark night in an open field at about 3.00 a.m. when as shown by the defence through the evidence of two independent witnesses DW 1 and DW 2 the electricity had tripped and, therefore, the prosecution witnesses could not have seen the assailants from a distance of about 10/15 karams. He, therefore, submitted that the claim of the prosecution witnesses that they had identified the assailants on account of the presence of electric light at the tubewell is clearly belied by the evidence of DWs 1 and 2. DW 1 Kewal Krishan. Sub Station Attendant, Punjab State Electricity Board, Gurdaspur, stated that on 7th June, 1976 the electric current had broken down at about 2.35 a.m. and was not restored till 5.50 a.m. In support of this statement he produced certain entries from the register but on cross examination he admitted that the log sheets were not available and it was noticed that the register was not properly bound and the threads of the previous binding were broken and fresh binding was done raising a suspicion about the register having been tampered with. DW2 Inder Pal Singh, SDO, Subarban Gurdaspur, merely reiterated what DW1 had stated. The courts below suspected the correctness of the entry in the register. But that apart, the High Court was right in saying that the time of 3.00 a.m. was a mere estimate of eye witnesses PWs 2 and 3 and neither of them had verified the time with any wrist watch so as to vouch for its accuracy. PW 2 had 973 categorically stated that a 200 watt bulb was on at the time when the incident in question occurred. He does not depose to have checked the time with his wrist watch or with the wrist watch of PW3. Infact PW3 has deposed that he was not wearing a wrist watch at the time of the incident. Therefore, the estimate of time given by PWs 2 and 3 cannot be taken as accurate and it is quite possible that the incident occurred before the tripping of supply of electric energy took place. We are, therefore, not impressed by the contention of Mr. Anthony that the evidence of DWs 1 and 2 belies the version of PWs 2 and 3 that they were able to identify the appellants because of existence electric light at the tubewell. Besides, it must be remembered that the appellants were no strangers to these prosecution witnesses to make their identification by them difficult. It was next submitted by Mr. Anthony that Narain Singh, an independent witness, was deliberately dropped for fear that he would reveal the truth and expose the falsehood of PWs 2 and 3. He submitted, relying on the decision of this Court in Sahaj Ram vs State of UP, that the prosecution should, in fairness, have produced this witness since he was one who would have unfolded the true version regarding the incident as he was in the vicinity of the deceased. The presence of blood at the scene of occurrence establishes, beyond any manner of doubt that the incident occurred at the place pointed out by PWs 2 and 3. It is true that Narain Singh was sleeping near the deceased when the latter was shot at. Narain Singh was indeed a witness to the occurrence and ordinarily we would have expected the prosecution to examine him. Dropping a witness on the specious plea that he won over without laying the foundation therefore is generally to be frowned upon. Counsel for the appellants, therefore, submitted that an adverse inference should be drawn against the prosecution for its deliberate failure to examine Narain Singh. But it must be remembered that the investigating office had recorded the further statement of Narain Singh under section 161 of the Code for involving the two acquitted persons who were nowhere in the picture. Narain Singh was, therefore, not likely to support the prosecution version. The defence at no point of time questioned the prosecution statement that Narain Singh was won over. The courts below accepted the prosecution statement in this behalf. The judgment of both the courts reveal that no submission was made before them regarding the non examination of this witness. If an objection was raised at the earliest point of time, the prosecution may have called him to the witness stand. His presence was not required to unfold the prosecution story. That had been done by PWs 2 and 3. Therefore, the non 974 examination of Narain Singh cannot reflect on the credibility of PWs 2 and 3. Counsel for the appellants next submitted that according to the prosecution applellant Gian Singh was armed with a Gandasi and he is alleged to have given a blow therewith on the chest of the deceased. Ordinarily a Gandasi blow would cause an incised wound whereas the deceased had an abrasion 5 ' ' X 1 ' ' on the chest caused by a hard and blunt substance. According to counsel normally when a witness deposes to the use of a particular weapon there is no warrant for supposing that the blunt side of the weapon was used by the assailant. In support of this contention counsel invited our attention to two decisions, namely, Hallu & Ors. vs State of MP, ; and Nachhattar Singh & Ors vs The State of Punjab, In his submission, therefore, the injury found on the chest could not be attributed to Gian Singh who is stated to have used the Gandasi. We see no merit in this contention for the simple reason that the prosecution witnesses have categorically stated that Gian Singh used the blunt side of the Gandasi. If the prosecution witnesses were silent in this behalf the submission of counsel would have carried weight. But where the prosecution witnesses categorically state that the blunt side of the weapon was used there is no room for believing that the sharp side of the weapon which would be normally used had in fact been used. The observations in the aforesaid two judgments do not lay down to the contrary. In fact in the first mentioned case it is clearly stated that if the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference. Counsel, however, made a grievance that the prosecution had not tried to elicit the opinion of PW 1 Dr. Malhotra on the question whether such an abrasion was possible by a Gandasi blow. According to him, as held by this Court in Kartarey vs State of U.P., and Ishwar Singh vs State of UP, , it was the duty of the prosecution to elicit the opinion of the medical man in this behalf. PW1 clearly stated in the course of his examination in chief that injuries Nos. 2, 3 and 4 were caused by a blunt weapon. It is true that he was not specifically asked if the chest injury could have been caused by the blunt side of the Gandasi. It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness. In fact the Presiding Officer should himself have elicited the opinion. However, in this case it should not make much difference because the evidence of PWs 2 and 3 is acceptable and is corroborated by the first information report as well 975 as PW 3. If the medical witness had also so opined it would have lent further corroboration. But the omission to elicit his opinion cannot render the direct testimony of PWs 2 and 3 doubtful or weak. We, therefore, do not see any merit in this submission. In fact if we turn to the cross examination of PW1 we find that the defence case was that these three injuries were caused by the rubbing of the body against a hard surface, a version which has to be stated to be rejected. It was next contended that PWs 2 and 3 being close relatives of the deceased could not be relied upon particularly because their version regarding the incident is not corroborated by independent evidence and it is extremely doubtful if they could have identified the assailants from a distance of about 10/15 karams. We have already dealt with the latter part of this submission. We have no hesitation in agreeing with the two courts below that they could have identified the assailants who were no strangers to them from that distance of 10/15 karams since the electric light at the tubewell was switched on. Once the evidence of the prosecution witnesses regarding existence of light is accepted, there is no difficulty in accepting their evidence regarding identification. The presence of PW 2 at the tubewell cannot be doubted as it was he who went to PW 4 in the early hours and then travelled a distance of about 12 km. to the police station where he lodged his complaint. Since PW3 was visiting PW2 it was natural for him to accompany the latter to the field. Both the courts accepted their evidence and we see no reason to discard the same on the specious ground that they are interested witnesses. Their evidence has been subjected to close scrutiny but nothing adverse is found to doubt their credibility. The next submission of counsel for the appellants is that the evidence regarding motive is weak and, therefore, it is not possible to believe that the appellants would kill the deceased on account of a minor quarrel regarding the passage of sullage water which had taken place a few months back. In this connection he invited our attention to the decisions of this Court in A.N. Rao vs Public Prosecutor, Andhra Pradesh, and State of UP vs Hari Prasad & Ors., ; This submission cuts both ways. It the evidence regarding motive is not sufficiently strong as argued by the counsel for the appellants, it is difficult to believe that PWs 2 and 3 would go out of their way to falsely involve the appellants. But it must be realised that there were election disputes and the deceased had successfully contested the election against Dalbeer Singh who was the candidate of Gian Singh, Bur Singh and others. This old enmity coupled with the incident regarding the passage of sullage water in regard to which 976 proceedings under section 107/151 of the Code were pending is the motive alleged by the prosecution and we do not think it is so weak that it would not prompt the appellants to kill their rival. The decisions on which counsel places reliance can, therefore, have no application in the special facts and circumstances of the present case. Counsel for the appellants then submitted that the evidence of PWs 2 and 3 which is corroborated by the evidence of PW4 to whom the incident was narrated by PW2 cannot be believed in view of the contradictions brought on record from their statements recorded under section 161 of the Code. As stated earlier both the Courts have come to the conclusion that these statements are a fabrication. Both the courts below have given cogent reasons for reaching this conclusion. In particular the High Court has after examining the record of the habeas corpus petition shown beyond any manner of doubt that PW8 had intentionally prepared false statements of all these eye witnesses for falsely involving Sucha Singh and Santokh Singh since they were wrongly and illegally detained by him in the police station, a fact which was noticed by the Court 's Warrant Officer who had visited the police station on 2nd July, 1976 at about 5.15 p.m. He was initially told that no such person or persons had been detained inthe police station. The Warrant Officer, however, searched the police station and noticed the presence of these two and other persons. It, therefore, became necessary for PW 8 to explain their presence in the police station since it was alleged in the habeas corpus petition filed on 30th June, 1976 that they were illegally detained. The Court had appointed the Warrant Officer to verify this allegation. PW8 had, therefore, to cover up the illegal detention of these two persons. So he substituted statements purported to have been made by PWs 2 and 3 under section 161 of the Code involving the said two persons in the commission of the crime although their names did not figure in the first information report. The courts below, therefore, rightly came to the conclusion that the contradictions brought on record on the basis of these statements cannot shake the credibility of the two eye witnesses to the occurrance. It must be realised that immediately after two of the appellants were arrested on 2nd July, 1976, PW2, Swaran Singh had gone to the police station and had informed PW8 that the said two persons, namely, Sucha Singh and Santokh Singh were wrongly detained. PW2 lost no time and followed it up by filing an affidavit in the trial court on 3rd July, 1976 alleging that the investigating agency was trying to favour Gurmej Singh and had for that purpose fabricated his statement as also the statements of other witnesses under section 161 of the Code. In his evidence before the court also PW2 stated that 977 he had informed the police officials that Sucha Singh and Santokh Singh were in no way concerned with the crime and had been wrongly named by the police to bail out Gurmej Singh. It is also difficult to believe that PW 2 would give a total go by to his immediate version in the first information report while making his statement under section 161 of the Code. We are, therefore, of the opinion that both the courts were right in coming to the conclusion that the contradictions brought on record from such statements of PWs 2 and 3 can have no evidentiary value. Counsel, however, submitted that the inference drawn by the two courts below is falsified by the fact that DSP Oujla had verified the investigation papers on 10th June, 1976 and had given a direction that Gurmej Singh should be shown in column No. 2 There is, however, nothing on record to show that Oujla had counter signed these two statements which are used for contradicting the two eye witnesses. Therefore, the mere fact that Oujla had verified the investigation record on 10th June, 1976 cannot come to the rescue of the appellants. There is, therefore, no substance in the criticism levelled by the learned counsel for the appellants that the prosecution had shifted its case at the trial from the one narrated to the police in the course of investigation. The prosecution version is that immediately after the incident PW2 went to the residence of his father PW4 and informed him about the incident. This conduct of PW2 is quite natural. The evidence of PW2 stands corroborated by the evidence of PW4. PW2 thereafter hired a tempo and left for the police station and promptly lodged the first information report. It must be realised that PW2 had no time for manipulation as he had reached the Police Station, which was at a distance of 12 Km. before 8.30 a.m. He would not have named the assailants if he had not seen them. There was no reason for him to falsely implicate the appellants since he bore no grudge against them; it was just the reverse. A copy of this report had reached the concerned Magistrate by about 11.15.a.m. This first information report also lends corroboration to his testimony. The medical evidence tendered by PW1 also corroborates the version of PWs 2 and 3. We, therefore, do no see any infirmity in the approach of the two courts below in convicting the appellants. For the above reasons we see no merit in this appeal and dismiss the same. The appellants who are on bail will surrender to their bail forthwith. Y.Lal. Appeal dismissed.

The appellants and the deceased Harnam Singh, were neighbours and had strained relations on account of passage of sullage water and elections. According to the prosecution, they had quarrelled over the passage of sullage water a few months before the incident; the appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort, with the result the water collected in a pool near the house of the appellants which infuriated them. The appellants attacked and murdered Harnam Singh on the night between 6th and 7th June, while he was sleeping at his tubewell alongwith P.Ws 2 and 3 and one Narain Singh (not examined); P. Ws 2 and 3 were sleeping at a distance of about 15 karams while Narain Singh was sleeping near the deceased. The prosecution alleged that Gurmej Singh fired a shot from close range at the deceased while he was asleep; Gian Singh struck a Gandasi blow on the chest and Bur Singh gave a Dang blow on the arm. After making sure that the victim had died, the appellants fled away. P. Ws 2 and 3 did not raise any alarm as they were threatened by the appellants that they would be killed in case they made any hue and cry. P. W. 2 lodged the F.I.R. and disclosed therein the names of the appellants only as assailants. Two other persons Sucha Singh and Santokh Singh were also shown as arrested for the commission of this crime though their names did not figure in the F.I.R. According to the prosecution witnesses, these persons were falsely implicated by P.W. 8 Sub Inspector. The appellants alongwith these two persons were put up for trial. The trial Judge acquitted these persons as having been falsely involved and no appeal against their acquittal was preferred. However the Trial Court relying on the evidence of P.Ws, convicted Gurmej Singh under Section 302, I.P.C. and the other two under Section 302/34 I.P.C. and sentenced all 967 the three to imprisonment for life and also imposed token fines. The appellants appealed against their conviction before the High Court but the Division Bench of the High Court dismissed their appeal. They have now filed this appeal against their conviction and sentence, after obtaining special leave. Dismissing the appeal, this Court HELD: It is true that Narain Singh was sleeping near the deceased when the latter was shot at Narain Singh was indeed a witness to the occurrence and ordinarily we would have expected the prosecution to examine him. Dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon. [973E] The defence at no point of time questioned the prosecution statement that Narain Singh was won over. The courts below accepted the prosecution statement in this behalf. The judgment of both the courts reveal that no submission was made before them regarding the non examination of this witness. If an objection was raised at the earliest point of time, the prosecution may have called him to the witness stand. His presence was not required to unfold the prosecution story. That had been done by P.Ws. 2 and 3. Therefore, the non examination of Narain Singh cannot reflect on the credibility of P.Ws. 2 and 3. [973G 974A] Both the courts were right in coming to the conclusion that the contradictions brought on record from the statement of PWs 2 and 3 can have no evidentiary value. [977B] There is no substance in the criticism levelled by the learned Counsel for the appellants that the prosecution had shifted its case at the trial from the one narrated to the police in the course of investigation. The prosecution version is that immediately after the incident PW2 went to the residence of his father P.W. 4 and informed him about the incident. This conduct of P.W. 2 is quite natural. The evidence of P.W. 2 stands corroborated by the evidence of P.W. 4 P.W. 2 therefore hired a tempo and left for the police station and promptly lodged the first information report. It must be realised that P.W. 2 had no time for manipulation as he had reached the Police Station, which was at a distance of 12 Km. before 8.30 a.m. He would not have named the assailants if he had not seen them. There was no reason for him to falsely implicate the appellants since he bore no grudge against them; it was just the reverse. A copy of this report had reached the concerned 968 Magistrate by about 11.15. a.m. This first information report also lends corroboration to his testimony. The medical evidence tendered by P.W. 1 also corroborates the version of P.Ws. 2 and 3. There is, therefore, no infirmity in the approach of the two courts below in convicting the appellants. [977D G] Sahaj Ram vs State of U.P., ; Hallu Singh & Ors. vs State of Punjab, ; Kartarey vs State of U.P., ; Ishwar Singh vs State of U.P., ; A.N. Rao vs Public Prosecutor, Andhra Pradesh, and State of U.P. vs Hari Prasad & Ors., {1974} 3 S.C.C. 673, referred to.

ivil Appeal No. 140 of 1990. From the Judgment and Order dated 8.2.89 of the Madras High Court in L.P.A. No. 131 of 1987. A.K. Sen, N.D.B. Raju, K. Rajeshwaran and N, Ganapathy for the Appellants. K.R. Choudhary and V. Balachandran for the Respondents. The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. Special Leave is granted. This appeal is from a decision of the Madras High Court which denied the appellants claim for setting aside a judi cial sale. The facts giving rise to the appeal, as found by the Courts, may be summarised as follows. Arumugham respondent 1 obtained money decree on the basis of a promissory note from the Subordinate Judge, Salem, in O.S. No. 388/1968. Sethuramalingam the judgment debtor appealed to the High Court but could not get the decree stayed. He could not furnish security for the decre tal amount which was a condition for stay. The decree was put into execution notwithstanding the pendency of the appeal. In February 1973, his two items of properties; (i) three houses and (ii) 10.93 acres of land were brought to court sale. They were purchased by Kuppa Goundar, respondent No. 2 for Rs.7550 and Rs.15,050 respectively. In October 1975, the High Court allowed the appeal on merits. The promissory note which was the basis of the suit was disbe lieved and rejected. The trial court judgment was set aside and the plaintiff was non suited. Thereupon the judgment debtor moved the executing court for setting aside the sale. He has alleged inter alia, that the sale 81 was vitiated by material irregularities and properties were deliberately sold for under value. The sale was collusive between decree holder and the auction purchaser. The latter was sambandhi of the former and just a name lender. It was also his contention that since the decree has been reversed, the sale should be nullified and restitution should be ordered. The Court rejected all the contentions relating to material irregularities for want of satisfactory evidence. The Court also held that subsequent reversal of the decree could not be depended upon since the sale has been confirmed in favour of the auction purchaser who was a stranger to the litigation. The judgment debtor appealed to the High Court and succeeded at first instance, before learned single Judge. The learned Judge found in effect that (a) the sale was vitiated by material irregularities resulting in fetch ing a low price to properties; (b) the decree holder and auction purchaser are close relatives and the sale seems to be collusive; and (c) after the Court sale they seemed to have entered into an agreement for selling the second item of properties for Rs.96,000. With these conclusions the sale was set aside. But on appeal, the Division Bench of the High Court has expressed contrary views on all those points and reversed the decision of learned single Judge. 'the judgment debtor died during the pendency of the appeal before the High Court. His legal representatives have now appealed. Mr. A.K. Sen, learned counsel for the appellants raised a number of questions. The important and central issue, however, relates to the underlying jurisdiction of the Court to set aside the confirmed sale upon subsequent reversal or modification of the decree. The question is whether the auction purchaser 's interest should be protected as against the judgment debtor who has since succeeded in getting rid off the decree against him. There are two authorities of this Court bearing on the question: (i) Janak Raj vs Gurdial Singh and Anr., ; and (ii) Sardar Govindrao Mahadik and Anr. vs Devi Sahai & Ors. , ; In Janak Raj case, the appellant was a stranger to the suit in which there was an ex parte money decree. In the execution of the decree, the immovable property of the judgment debtor was brought to sale in which the appellant became the high est bidder. The judgment debtor filed an application for setting aside the ex parte decree and the court allowed it before confirming the sale. Thereupon the judgment debtor objected to the confirmation of sale on the ground that the auctionpurchaser was in conspiracy and collusion with the decree holder and as such not entitled to have the sale confirmed. The execution court, 82 however, overruled the objection and confirmed the sale, Mitter, J., agreed with that view and observed (at 79): "The result is that the purchaser 's title relates back to the date of sale and not the confirmation of sale. There is no provision in the Code of Civil Procedure of 1908 either under O. XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgmentdebtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed. 'The question is, whether the same result ought to follow when the reversal of the decree takes place before the confirma tion of sale. There does not seems to be any valid reason for making a distinction between the two cases. It is certainly hard on the defendant judgment debtor to have to lose his property on the basis of a sale held in execution of a decree which is "not ultimately upheld. Once however, it is held that he cannot complain after confirmation of sale, there seems to be no reason why he should be allowed to do so because the decree was reversed before such confirmation. The Code of Civil Procedure of 1908 contains elaborate provisions which have to be followed in cases of sales of property in execu tion of a decree. It also lays down how and in what manner such sales may be set aside. Ordinarily, if no application for setting aside a sale is made under any of the provisions of rr. 89 to 91 of O. XXI, or when any application under any of these rules is made and disallowed, the court has no choice in the matter of confirming the sale and the sale must be made absolute. If it was the intention of the Legis lature that the sale was not to be made absolute because the decree had ceased to exist, we should have expected a provi sion to that effect either in O. XXI or in Part II of the Code of Civil Procedure of 1908 which contains sections 36 to 74 (inclusive) . . " Finally, the learned judge rounded off the judgment thus (at 86): " . . The policy of the Legislature seems to be that 83 unless a stranger auction purchaser is protected against the viccissitudes of the fortunes of the suit, sales in execu tion would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The Code of Civil Procedure of 1908 makes ample provision for the pro tection of the interest of the judgment debtor who feels that the decree ought not to have been passed against him. ' ' In Sardar Govindrao Mahadik, D.A. Desai, J., while referring to the principle in Janak Raj case said (at 224): "Ordinarily, if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside. This proceeds on the footing that the equity in favour of the stranger should be protected and the situa tion is occasionally reached on account of default on the part of the judgment debtor not obtaining stay of the execu tion of the decree during the pendency of the appeal. " The learned Judge further said: "But what happens if the auction purchaser is the decree holder himself? In our opinion, the situation would materi ally alter and this decree holder auction purchaser should not be entitled to any protection. At any rate, when he proceeds with the execution he is aware of the fact that an appeal against the original decree is pending. He is aware of the fact that the resultant situation may emerge where the appeal may be allowed and the decree which he seeks to execute may be set aside. He cannot force the pace by exe cuting the decree taking advantage of the economic disabili ty of a judgment debtor in a money decree and made the situation irreversible to the utter disadvantage of the judgment debtor who wins the battle and loses the war. Therefore, where the auction purchaser is none other than 84 the decree holder who by pointing out that there is no bidder at the auction, for a nominal sum purchases the property, to wit, in this case for a final decree for Rs.500, Motilal purchased the property for Rs.300, atrocious situation, and yet by a technicality he wants to protect himself. To such an auction purchaser who is not a stranger and who is none other than the decree holder, the court should not lend its assistance." In Janak Raj case, a stranger auction purchaser was protected against vicissitudes of fortunes of the litiga tion. In S.G. Mahadik case such protection was not afforded to auction purchaser who happens to be the decree holder himself. The reason seems to be that the decree holder is not a stranger to the suit. Indeed, he is not since he is eonomine party to the appeal against the decree which he seeks to execute. He is aware of the fact that due to eco nomic hardship the judgment debtor was unable to have the decree stayed. He however, does not wait for final outcome of the litigation which he has initiated. He exploits the helpless situation of the judgment debtor and hastens the execution of the decree. The Court, therefore, should not lend its assistance to him to retain the property purchased if the decree is subsequently reversed. 'There is thus a distinction maintained between the decree holder who purchases the property in execution of his own decree which is afterwards modified or reversed, and an auction purchaser who is not party to the decree. Where the purchaser is the decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser. The latter remains unaf fected and does not lose title to the property by subsequent reversal or modification of the decree. 'The Courts have held that he could retain the property since he is a bona fide purchaser. 'This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed. He is thus distin guished from an eonomine party to the litigation. 'There cannot be any dispute on this proposition and it is indeed based on a fair and proper classification. 'The innocent purchaser whether in voluntary transfer or judicial sale by or in execution of a decree or order would not be penalised. The property bona fide purchased ignorant of the litigation should be protected. 'The judicial sales in particular would not be robbed off all their sanctity. It is a sound rule based on legal and equitable considerations. But it is 85 difficult to appreciate why such protection should be ex tended to a purchaser who knows about the pending litigation relating to the decree. If a person ventures to purchase the property being fully aware of the controversy between the decree holder and judgment debtor, it is difficult to regard him as a bona fide purchaser. The true question in each case, therefore, is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution. If the evidence indicates that he had no such knowledge he would be entitled to retain the property purchased being a bona fide purchaser and his title to the property remains unaffected by subsequent reversal of the decree. 'The Court by all means should protect his purchase. But if it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser. In such a case the Court also cannot assume that he was a bona fide or innocent purchaser for giving him protection against restitution. No assumption could be made contrary to the facts and circumstances of the case and any such assumption would be wrong and uncalled for. 'The Patna High Court in Chhota Nagpur Banking Associa tion vs C.T.M. Smith & Anr., [1943] Patna 325 expressed a similar view. Fazl Ali, CJ., as he then was, said (at 327) that where there is clear and cogent evidence that a strang er purchaser was fully aware of the merits of the controver sy in regard to the property purchased by him and was also aware that the validity of the decree was under challenge, there is no room for presumption that he was a bona fide purchaser. Reference may also be made to the decision of the Sind Judicial Commissioner 's Court in Jamnomal Gurdinornal vs Gopaldas and Anr., AIR 1924 Sind 101 where similar com ment was made. 'The Madras High Court in R. Raghavachari v.M.A.Pakkiri Mahorned Rowther and Ors., AIR 19 has however, taken a contrary view. It was held that restitution under Section 144 CPC cannot be demanded as against a bona fide purchaser who was not a party to the decree. 'The High Court also remarked that the reversal of the decree by the appel late Court or the knowledge of the purchaser about the pendency of the appeal makes no material difference to the operation of that rule. This proposition, we are, however, unable to accept. In our opinion, the person who purchases the property in court auction with the knowledge of the pending appeal against the decree cannot resist restitution. His knowledge about the pending litigation would make all 86 the difference in the case. He may be a stranger to the suit, but he must be held to have taken calculated risk in purchasing the property. Indeed, he is evidently a specula tive purchaser and in that respect he is in no better posi tion than the decree holder purchaser. The need to protect him against restitution therefore, seems to be unjustified. Similarly the auction purchaser who was a name lender to the decree holder or who has colluded with the decree holder to purchase the property could not also protected to retain the property if the decree is subsequently reversed. There is one other aspect which is more important than what we have discussed hitherto. It was emphasized by Lord Cairns in Rodger vs The Comptoir D ' Escompte De Paris, [1869 71] LR 3 P.C. 465 at 475: ". that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression "the act of the Court", is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expres sion, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court. " This is also the principle underlying Section 144 of the Code of Civil Procedure. It is the duty of all the Courts as observed by the Privy Council "as aggregate of those tribu nals" to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the Court. The above passage was quoted in the majority judgment of this Court in A.R. Antulay vs R.S. Nayak and Ors. , ; at 672. Mukherjee, J., as he then was, after referring to the said observation of Lord Cairns, said (at 672): "No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. " 87 It is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. 'he laws of procedure should be so construed as to render justice wherever reasonably possi ble. It is in our opinion, not unreasonable to demand resti tution from a person who has purchased the property in court auction being aware of the pending appeal against the de cree. We have carefully considered the evidence in the case. The judgment debtor who has been examined in the case has stated that the auction purchaser is a sambandhi of the decree holder. 'the decree holder 's daughter has been given in marriage to the son of auction purchaser. That evidence remains unchallenged. The evidence further indicates that after the purchase both of them have entered into an agree ment with a third party for sale of the second item of properties for Rs.96,000 and a case seems to be pending on the basis of that agreement. The evidence also discloses that the auction purchaser had no money of his own to pur chase the property. These circumstances are sufficient to hold that the auction purchaser was not a bona fide purchas er. The auction sale in his favour must, therefore, fall for restitution. 'he Court cannot lend assistance for him to retain the property of the judgment debtor who has since succeeded in getting rid of the unjust decree. In the result the appeal is allowed, the judgment of the Division Bench of the High Court is reversed and that of learned single Judge is restored. The appellants, however, must pay the costs of this appeal to the auction purchaser which we quantify at Rs.5,000. R.S.S. Appeal allowed.

Under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance, 1950 the District Court is empowered to entertain an appeal from a decree of the value of only upto Rs.10,000. Appeals in other cases lie only to the High Court. In the instant case, a joint family house was brought to auction in satisfaction of an ex parte money decree to recover Rs.5,557.10. The respondent coparceners filed objec tions under Order 21 Rule 58 CPC, which were rejected. The sale was confirmed in 1958 and the sale certificate issued. They, thereupon, filed a suit under Order 21 Rule 63 CPC to set aside the sale, in which the valuation of the property sold in execution was put at Rs.15,000. The trial court dismissed the suit. The District Court, however, allowed the appeal and decreed the suit for resti tution of the property since possession had in the meantime been taken. The appellant auctionpurchaser raised objections to the execution on the ground that the said decree was a nullity as the District Court lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit valued at Rs.15,000 under Section 21(1)(a) of the Ordinance, and that the decree being a declaratory one was incapable of execution. The executing court dismissed the objection petition but on appeal the order was reversed. On further appeal, the High Court set aside the appellate order. Allowing the appeal in part, the Court, HELD: The value of the amount of decree would be the value for the purpose of the suit under Order 21 Rule 63 CPC. In the instant case, the suit was laid to set aside the sale by declaring the decree of 26 Rs.5,557.10 to be invalid. Merely because the valuation of the property sold in execution had been put at Rs.15,000 the valuation of the suit under Order 21 Rule 63 CPC could not be treated to be that valuation. Accordingly, Section 21(1)(a) of the Ordinance was attracted. It could not, therefore, be said that the decree passed by the District Court for restitution of the property was a nullity. Since, it was not a mere declaratory decree but coupled with a decree for restitution of the property, the plaintiff was entitled to execution. [27G 28A, 28C] Radha Kunwar vs Reoti Singh, AIR 1916 PC 18 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC, referred to. However, in view of the fact that litigation was pending for a long period, it would be equitable if the appellant is permitted to pay the proper value of the house. The District Court is directed to assess the prevailing market value of the house and the site as on date. The appellant to pay the value thereof within a time fixed by the District Court. [28D, F]

Case No. 351 of 1951. Appeal under article 132 of the Constitution from the Judg ment and Order of the High Court of Judicature at Madras (Subba Rao and Venkatarama Ayyar JJ.) dated 11th December, 1951, in Writ Petition No. 746 of 1951. The facts of the case and arguments of the counsel are set out in detail in the judgment. N. Rajagopal Iyengar, for the appellant. R. Ganapathi Iyer, for the 1st respondent. M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the Union of India. K.A. Chitale, Advocate General of Madhya Bharat (G. N. Joshi, with him) for the State of Madhya Bharat. January 21. Fazl Ali J. delivered Judgment as follows. Patanjali Sastri C.J., Mahajan, Mukherjea, Das and Chandrasekhara Aiyar JJ. agreed with Fazl Ali 5. 221 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 nomination 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 constituency took up for scrutiny the nomination papers filed by the various candidates and on the same day he rejected the appellant 's nomination paper on certain grounds which need not be set out as they are not material to the point raised in this appeal. The appellant thereupon moved the High Court under article 226 of the Constitution praying for a writ of of certiorari to quash the order of the Re turning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published. The High Court dismissed the appellant 's application on the ground that it had no jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of article 329(b) of the Constitution. The appellant 's contention in this appeal is that the view expressed by the High Court is not correct, that the jurisdiction of the High Court is not affected by article 329 (b) of the Constitution and that he was enti tled 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 conclusion arrived at by the High Court does not 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 Constitu tion; and (2) that the anomalies which will arise if the construc tion put by the High Court on article 329 (b) is accepted, are so startling that the courts should lean in favour of the construction put forward on behalf of the appellant. 29 222 The first argument which turns on the construction of article 329 (b) requires serious consideration, but I think the second argument can be disposed of briefly at the out set. 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 Wallace J. in Sarvothama Rao vs Chairman, Municipal Council, Saidapet (1) 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, now published be stayed, until it can be held with himself as a candidate. It is no conso lation to tell him that he can stand for some other elec tion. It is no remedy 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 conditions and may bring forward an array of fresh candidates. The petitioner can only have his proper relief if the proposed election without him is stayed until his rejected nomination is restored, and hence an injunction staying this election was absolutely neces sary, unless the relief asked for was to be denied him altogether in limine. In most cases of this kind no doubt there will be difficulty for the aggrieved party to get in his suit in time before the threatened wrong is committed; 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 consummated 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 vs Chinnasami Chettiar(2)] in the following passage : "The petitioner is not without his remedy. His remedy lies in an election petition which we understand he has already put in. It is argued for him (1) mad. 585 at 600. (2) at 1272. that that remedy which merely allows him to have set aside an election once held is not as efficacious as the one which would enable him to stop the election altogether;and certain observations at p. 600 of Sarvothama Rao vs Chairman, Munic ipal Council, Saidapet(1) are quoted. In the first place, we do not 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 confer on him any right to obtain a writ. In the second place, these observations were directed to the consideration of the propriety of an injunction in a civil suit, a matter with which we are not here concerned. And finally it may. be observed that these remarks were made some years ago when the practice of individuals coming forward to stop elections in order that their own individual interest may be safe guarded was not so common. It is clear that there is anoth er side of the question to be considered, namely, the incon venience 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 nominated fraction of its total strength; and this state of affairs the peti tioner proposes to have continued until his own personal grievance is satisfied." These observations which were made in regard to elec tions to Local Boards will apply with greater force to elections to legislatures, because it does not require much argument to show that in a country with a democratic consti tution in which the legislatures have to play a very impor tant role, it will lead to serious consequences, if the elections are unduly proracted or obstructed. To this aspect of the matter I shall have to advert later. but it is suffi cient for the present purpose (1) Mad, 585 at 600. 224 to state firstly that in England the hardship and inconven ience which may be suffered by an individual candidate has not been regarded as of sufficient weight to induce Parlia ment to make provision for immediate relief and the ag grieved candidate has to wait until after the election to challenge the validity of the rejection of his nomina tion paper, and secondly, that the question of hardship or inconvenience is after all only a secondary question, be cause if the construction put by the High Court on article 329 (b) of the Constitution is found to be correct, the fact that such construction will lead to hardship and inconven ience 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 constituencies or the allotment of seats to such constit uencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court; (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by, or under any law made by the appropriate Legislature. " In construing this article, reference was made by both parties in the course of their arguments to the other arti cles in the same Part, namely, articles 324, 325, 326, 327 and 328. Article 324 provides for the constitution and appointment of an Election Commissioner to superintend, direct and control ejections 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 connection with, elections to the legislatures, subject 225 to the provisions of the Constitution; and article 328 is a complementary article giving power to the State Legislature to make provision with respect to all matters relating to, or in connection with, elections to the State Legislature. A notable difference in the language used in articles 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 "notwithstanding anything in this Constitution. " It was conceded 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 Legislatures under article 328, cannot exclude the jurisdic tion of the High Court under article 226 of the Constitu tion, that jurisdiction is excluded in regard to matters provided for in article 329. Now, the main controversy in this appeal centres round the meaning of the words "no election 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 nomination paper can be said to be comprehended within the words, "no election shall be called in question. " The appellant 's case is that questioning something which has happened before a candidate is declared elected is not the same thing as questioning an election, and the arguments advanced on his behalf in support of this construction were these: (1) That the word "election" as used in article 329 (b) means what it normally and etymologically means, namely, the result of polling or the final selection of a candidate; (2) 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 normally called in question by such petition is the final result, bears out the conten tion that the word "election "can have no other meaning in article (b) than the result of polling or the final selec tion of a candidate; 226 (3) That the words "arising out of or in connection with" which are used in article 324 (1) and the words "with respect to all matters relating to, or in connection with" which are used in articles 327 and s28, show that the fram ers 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 nomina tion paper within the ambit of the prohibition contained in article S29 (b) they would have used similar language in that article and (4) That the action of the Returning Officer in reject ing a nomination paper can be questioned before the High Court under article 226 of the Constitution for the follow ing reason: Scrutiny of nomination papers and their rejec tion are provided for in section 36 of the Representation of the People Act, 1951. Parliament has made this provision in exercise of the powers conferred on it by article 327 of the Constitution which is "subject to the provisions of the Constitution". Therefore, the action of the Returning Offi cer is subject to the extraordinary jurisdiction of the High Court under article 226. These arguments appear at first sight to be quite im pressive, but in my opinion there are weightier and basical ly more important arguments in support of the view taken by the High Court. As we have seen, the most important ques tion for determination is the meaning to be given to the word "election" in article 329 (b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, 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 em brace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared 227 elected. In Srinivasalu vs Kuppuswami(1), 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 not it be found necessary to take a poll. With this view, my brother, Maimjan J. expressed his agreement in Sat Narain vs Hanuman Prasad (2); 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 connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also be read consistently 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 country, 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 concisely in Halsbury 's Laws of England in the following passage(s) under the heading" Commencement of the Election ": "Although the first formal step in every election is the issue of the writ, the election is considered 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 concerned responsible for breaches of election law, the test being whether the contest is "reason ably imminent". Neither the issue of the writ nor the publi cation of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be care (1) at 255. (2) (3) See page 237 of Halsbury 's Laws of England, 2nd edition, Volume 12. 228 fully distinguished from that as to when "the conduct and management of" an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered 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 consists 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 considered is what is meant by the words "no election shall be called in ques tion". A reference to any treatise on elections in England will show that an election proceeding in that country is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The law with which we are concerned is not materially different, and we find that in section 100 of the Representation of the People Act, 1951, one of the grounds for declaring an elec tion to be void is the improper rejection of a nomination paper. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected 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 courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, 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 appropri ate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only signifi cance which the rejection of 229 a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Arti cle 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 could 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 court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning 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 could not have contemplat ed, one of them being that conflicting views may be ex pressed 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 construction I have suggested is the correct one. Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require 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 connection with, elections, and it should be decided as to how these laws and rules are to be made;(2) there should be an execu tive charged with the duty of securing the due conduct of elections; and (3)there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. Articles 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, viz, articles 325 and 326, deal with two matters of princi ple to which the Constitution framers have attached much importance. They 30 230 are : (1) prohibition against discrimination in the prepa ration 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 code in itself providing the entire ground work for enacting appropriate laws and setting up suitable ma chinery for the conduct 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 connected with elections to the various legislatures in this country. That Act is divided into II parts, and it is interesting to see the wide variety of subjects they deal with. Part Il deals with "the qualifications and disquali fications for membership", Part III deals with the notifica tion of General Elections, Part IV provides for the adminis trative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination pa pers. requirements of a valid nomination, scrutiny of nomi nations, etc., and procedure for polling and counting of votes. Part VI deals with disputes regarding elections and provides for the manner of presentation of election peti tions, the constitution of election tribunals and the trial of election petitions. Part VII outlines the various cor rupt and illegal practices which may affect the elections, and electoral offences. Obviously, the Act is a self contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, 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 provi sions of Chapter II of Part IV dealing with the form of election petitions, their contents 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 "no election shall be called in question except by an election 231 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 nomination paper. Section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive". Section 170 provides that "no civil court 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 connection with an elec tion. " These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for en forcing 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. vs Hawkes ford(1) 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 common law and that li ability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law;there, unless the statute contains words which expressly or by necessary implication exclude the common 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 suemerely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common 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 not (1) ; , 356. 232 competent to the party to pursue the course 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 vs London Express Newspaper Limit ed(1) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago vs Gordon Grant & Co.(2) and Secretary of State vs Mask & Co.(a); and it has also been held to be equally applicable to enforcement of rights: see Hurdutrai vs Official Assignee of Calcutta(4). 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 no remedy 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 writs under article 226 of the Constitution. This argument however is completely shut out by reading the Act along with article 329 (b). It will be noticed 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 "notwithstanding 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 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 no return to Parliament shall be questioned except by a petition complaining of an undue election or undue return (hereinafter referred to as a parliamentary election petition) presented in accordance with this Part of this Act. " (1) (3) (2) [1935] A.C. 532. (4) , 349. 233 It appears that similar language was used in the earlier statutes, and it is noteworthy that it has never been held in England that the improper rejection of a nomination paper can be the subject of a writ of certiorari or mandamus. On the other hand, it was conceded at the bar that the ques tion of improper rejection of a nomination paper has always been brought up in that country before the appropriate tribunal by means of an election petition after the conclu sion of the election. It is true that there is no direct decision holding that the words used in the relevant provi sions exclude the jurisdiction of the High Court to issue appropriate prerogative writs at an intermediate stage 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 Parliamen tary Elections Rules of 1949, providing that the decision of the Returning Officer disallowing an objection to a nomina tion 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 not affect the main argument. I think it can be legitimately stated that if words similar to those used in article 329 (b) have been consistently treated in England as words apt to exclude the jurisdiction of the courts including the High Court, the same consequence must follow from the words used in article 329 (b) of the Constitution. The words "notwithstanding anything in this Constitution" give to that article the same wide and binding effect as a statute passed by a sover eign legislature like the English Parliament. It may be pointed out that article 329 (b) must be read as complimentary to clause (a) of that article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made under articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. It was conceded before us that article 329 (b) ousts the jurisdiction of the courts with regard to matters 234 arising between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under article 226 of the Constitution. If Part XV of the Constitution is a code by itself, i. e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections The more reasonable view seems to be that article 329 covers all "electoral matters". The conclusions which I have arrived at may be summed up briefly as follows : (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme the elec tion law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are commit ted while it is in progress and they belong to the category or class which, under the law by which elections are gov erned, 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 not be made the subject of a dis pute before any court while the election is in progress. It will be useful at this stage to refer to the deci sion the Privy Council in Theberge vs Laudry(1). The (1) 235 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 after wards, on petition, declared null and void by judgment of the Superior Court, under the Quebec Controverted Elections Act, 1875, and himself declared guilty of corrupt 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 construction 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 not 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 not 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 Acts of 1872 and 1875, are Acts peculiar in their character. They are not Acts constituting 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 partic ular Court. for the purpose of taking out, with its own consent, 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 decid ing 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 consequences 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 conclusive; and enable the constitution of the Legislative Assembly to be distinctly and speedily known. " 236 After dealing with certain other matters, the Lord ChanCellor proceeded to make the following further observa tions : "Now, the subject matter, as has been said, of the legislation is extremely peculiar. It concerns the rights and privileges of the electors and of the Legislative Assem bly to which they elect members. Those rights and privi leges have always in every colony, following the example of the mother country, been jealously maintained and guarded by the Legislative Assembly. Above all, they have been looked upon as rights and privileges which pertain to the Legisla tive Assembly, in complete independence of the Crown, so far as they properly exist. And it would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legis lative Assembly, no longer 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 Assem bly, or of that Court which the Legislative Assembly had substituted in its place. " The points which emerge from this decision may be stated as follows : (1) The right to vote or stand as a candidate for elec tion is not a civil right but is a creature of statute or special law and must be subject to the limitations emposed by it. (2) 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 tribu nal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. 237 It should be mentioned here that the question as to what the powers of the High Court under articles 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 occasion. 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 connection with the election of a President or Vice President shall be inquired into and decided by the Supreme Court whose deci sion shall be final. " The argument was as follows. There is a marked contrast 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 could not have been intended to have the same meaning and scope as regards matters to be brought up before the tribunals they respec tively deal with. If the framers of the Constitution, who apparently knew how to express themselves, intended to include within the ambit of article 329 (b) all possible disputes connected with elections to legislatures, includ ing disputes as to nominations, they would have used similar words as are to be found in article 71 (1). It is true that it is not necessary to use identical language in every provision, but one can conceive of various alternative ways of expression which would convey more clearly and properly what article 329 (b) is said to convey. It seems to me that once it is admitted that the same idea can be expressed in different ways and the same phrase ology need not 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 Govern ment 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 329 (b). The 21 238 corresponding 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 provi sions of this Part. " It should be noted 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 counsel for the appellant argued, ought 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 contained in "The Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936", dated the 3rd July, 1936. In that Order, the rule corre sponding 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 provi sions 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 disqualification for corrupt practices. " The rules to which I have referred were apparently framed on the pattern of the corresponding provisions of the British Acts of 1868 and 1872, and they must have been intended to cover the same ground as the provisions in England have been understood to cover in that country for so many years. If the language used in article 329 (b) is considered against this historical background, it should not be difficult to see why the framers of the Constitution framed that provision in its present form and chose the language which had been consistently used in certain earlier legislative provisions and which had stood the test of time. 239 And now a word as to why negative language was used in article 829 (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 an affirmative form, because it confers special jurisdiction on the Supreme Court which that Court could not have exercised but for this article. Arti cle 329 (b), on the other hand, was primarily intended to exclude or oust the jurisdiction of all courts in regard to electoral matters and to lay down the only mode in which an election could be challenged. The negative form was there fore more appropriate, and, that being so, it is not sur prising that it was decided to follow the preexisting pat tern in which also the negative language had been adopted. Before concluding, I should refer to an argument which was strenuously pressed by the learned counsel for the appellant and which has been reproduced by one of the learned Judges of the High Court in these words: "It was next contended that if nomination is part election, a dis pute as to the validity of nomination 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 no juris diction to decide that matter and it was further argued that section 36 of Act XLIII of 1981 would be ultra vires inasmuch as it confers on the Returning Officer a jurisdic tion which, article 329 (b) confers on a Tribunal to be appointed in accordance with the article. " This argument displays great dialectical ingenuity, but it has no bearing 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 nomination papers to ensure that they comply with the requirements of the Act and decide all objections which be made to any nomination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without comply ing with the provisions of the Act and a great deal of 240 confusion may ensue. In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the elec tion. 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 not on the construction of the single word "election", but on the construction of the compendious expression "no election shall be called in question" in its context 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 no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method. We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under article 226 of the Constitution to enter tain petitions regarding improper rejection of nomination papers. This view is in my opinion correct 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 no order to costs. PATANJALI SASTRI C.J. I agree. MEHR CHAND MAHAJAN J. I agree. MUKHERJEA J. I agree. DAS J. I agree. CHANDRASEKHARA AIYAR J. I agree. Appeal dismissed. Agent for the 1st respondent: P.A. Mehta. Agent for the Union of India and the State of Madhya Bharat: P.A. Mehta.

Sub section (1) of section 33 of the Income Tax Act, 1961 provid es that subject to the provisions of section 34 thereof developme nt rebate may be claimed as a deduction in respect of a n ew machinery or plant. Clause (a) of sub section (3) of section 34 stip u lates that the said deduction shall not be allowed unless an amount equal to 75 per cent of the development rebate is debited to the profit and loss account of the releva nt previous year and credited to a reserve account; and t he Explanation thereto provides that the deduction shall not be denied by reason only that the amount so credited to t he reserve account exceeded the amount of the profit of su ch previous year. The appellant assessee which had a textile mill claim ed a sum as development rebate for the assessment year 1962 6 3. The Income Tax Officer rejected the claim on the ground th at the assessee had not created a reserve as contemplated by sub section (3) of section 34 and his order, on appeal, was upheld by the Assistant Commissioner. In second appeal, the claim by the assessee found favour with the Appellate Tribunal; b ut on a reference made by it at the instance of the Revenu e, the High Court held that the assessee had failed to comp ly with the conditions of sub section (3) of section 34. The appella nt contended that the view taken by the High Court was erron e ous and that it was not necessary that a reserve should ha ve been created in the previous year. Dismissing the appeal, HELD: In order to claim the deduction on account of development rebate under sub section (1) of section 33 it is obligat o ry that the debit entries in the profit and loss account a nd the credit entry in a reserve account should be made in t he relevant previous year in which the 87 machinery or plant is installed or first put to use. T he development rebate contemplated by sub section (1) of section 33 cannot be allowed as a deduction unless a reserve accou nt has been created in the previous year in which the install a tion or first use occurs. Any doubt in so reading the prov i sions because of a want or insufficiency of profit in su ch previous year has been removed by the Explanation to clau se (a) of sub section (3) of section 34. [91D E] What is contemplated is the creation of a Reserve Fu nd in the relevant previous year irrespective of the result of the profit and loss account disclosed by the books of t he assessee. Mere book entries will suffice for creating such a Reserve Fund. The debit entries and the entries relating to the Reserve Fund have to be made before the profit and lo ss account is finally drawn up. That is a condition for secu r ing the benefit of development rebate. [89E F] West Laikdihi Coal Co. Ltd., Calcutta vs Commissioner of Income tax, West Bengal 11, ; Commission er of Income tax, Delhi Central vs Modi Spinning & Weavi ng Mills Co. Ltd., and Indian Overseas Ba nk Ltd. vs Commissioner of Income tax, Madras, , distinguished. Additional Commissioner of income tax vs Vishnu Indu s trial Enterprises, and Commissioner of Income tax vs U.P. Hotel and Restaurants Ltd., [1984] 1 , overruled. Dodballapur Spinning Mills Ltd. vs Commissioner of Incometax, Karnataka 2 and Anr., a nd Indian Oil Corporation Ltd. vs section Rajagopalan, Income T ax Officer, Companies Circle H(I) Bombay and Others, , referred to.

Appeal No. 556 of 1964. Appeal from the judgment and order dated March, 24, 1961 of the Assam and Nagaland High Court in M. A. (F) No. 29 of 1956. B. Sen and D. N. Mukherjee for the appellant. section G. Patwardhan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Assam High Court and arises in the following circums tances. The appellant had obtained a money decree against Thakur Prosad Joyaswal and others in 1947. As the decree remained unsatisfied it was transferred from Calcutta to Gauhati for execution. On May 2, 1953, an application was made for execution in the court at Gauhati by attachment under 0. XXI, r. 46 of the Code of Civil Procedure of certain movable property of the judgment debtors which was said to be in the possession of the Sub Divisional Officer, Military Engineering Service, Pandu. Consequently an order was issued under O.XXI r. 46 (1)(c)(iii) prohibiting the Sub Divisional Officer from parting with 208 the property of the judgment debtors. It may be mentioned that the Sub Divisional Officer is subordinate to the Garrison Engineer, Shillong. Though certain applications were put in on behalf of the Sub Divisional Officer before the court, it was only on February 1, 1954 that the Acting Garrison Engineer, Shillong stated before the court that the movable property in question (i.e. 41 R.S. joists) had been sold and delivered as far back as November 22, 1951 to Messrs. Ghunilal Kanhaiyalal of Palasbari. This objection was considered by the execution court and it held on September 25, 1964 that this belated statement that the property in question had been sold as far back as November 22, 1951 could not be believed. The execution court therefore dismissed the objection and ordered execution to proceed. Thereafter orders were issued for the production of the joists but they were not produced. Thereupon the appellant applied that the Union of India should be considered to be the principal judgment debtor and execution should be levied against the Union of India. The Union of India objected to this and on April 21, 1956 the objection of the Union of India was dismissed and the execution court held that the Union of India be treated as the principal judgment debtor and be made liable to the extent of the proceeds of the attached joists. Later on the same day, a further legal argument was raised on behalf of the Union of India to the effect that as there was no surety bond the Union of India could not be treated as the principal judgment debtor. This objection was heard and finally the court ordered on April 28, 1956 that even though there was no surety bond executed on behalf of the Union ,of India it was liable as a surety. Thereupon the Union of India appealed to the High Court against the order of April 28, 1956. The High Court allowed the appeal and set aside the order ,of the execution court holding that no action could be taken against the Union of India under section 145 of the Code of Civil Procedure upon which the execution court had apparently relied. Thereupon the appellant asked for and obtained a certificate from the High Court, and that is how the matter has come before us. We are of opinion that there is no force in this appeal. Order XXI r. 46(i) provides that in the case of other movable property not in the possession of the judgment debtor, except property deposited in or in the custody of any court, the attachment shall be made by a written order prohibiting the person in possession of the same from giving it over to the judgment debtor. The necessary prohibitory order had been issued by the execution court in this case with respect to 41 joists and had been received by the Sub Divisional Officer. Such a prohibitory order is sufficient for the purpose of attachment, though the 20 9 property mentioned therein is not actually taken in possession by the Court. After attachment has been made in the manner provided by r. 46 the next step that the court has to take is to order sale of the property attached. Then comes O.XXI r. 79 which provides that where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser [see r. 79(1)]. But where the property sold is movable property in the possession of some person other than the judgment debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser [see r. 79 (2)]. In the present case there was no actual seizure of the property but attachment had been made under O.XXI r. 46 (1). The proper procedure for the court to follow was to sell the property under O.XXI r. 64 and then pass an order under O.XXI r. 79 (2) for its delivery in the manner provided therein. The court however went on asking the Sub Divisional Officer to produce the property and when it was not produced it proceeded under section 145 of the Code. We agree with the High Court that section 145 has no application in the present case. Section 145 runs thus : "Where any person has become liable as surety (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable in the manner therein provided for the execution of the decrees and such person shall, for the purposes of appeal be deemed a party within the meaning of section 47: Provided that such notice as the court in each case thinks sufficient has been given to the surety. " A bare perusal of section 145 shows that it applies when a person has become liable as surety. Now the mere fact that an attachment was made of 41 joists said to be lying with the Sub Divisional Officer by the issue of the prohibitory order under O.XXI r. 46 does not make the Sub Divisional Officer or the Union of India a surety for the performance of the decree which was in execution. There was no surety bond taken from the Sub Divisional Officer and the joists 2 1 0 were not actually seized by the court and handed over to the Sub Divisional Officer as suparddar on the basis of a surety bond. If that had been done some question may have arisen whether the Sub Divisional Officer did become a surety for the performance of the decree or part thereof. But where merely a prohibitory order is issued under 0. XXI r. 46(1) and attachment is made in that manner, there can be no question of the person to whom the prohibitory order is issued becoming a surety for the performance of the decree. We therefore agree with the High Court that section 145 of the Code was not applicable to this case and the execution court was completely wrong in holding that the Sub Divisional Officer became a surety simply because attachment had been made in the manner provided in O.XXI r. 46 (1),. The appeal fails and is hereby dismissed with costs to the Union of India. V.P.S. Appeal dismissed.

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

Appeal No. 1000 of 1965. Appeal from the judgment and decree, dated December 13, 1962 of the Bombay High Court in Appeal No. 688 of 1959 from original Decree. C.K. Daphtary, Attorney General, M.S.K. Sastri and S.P. Nayar, for the appellant. H.R. Gokhale, Y.S. Chitale and K. Rajendra Chaudhuri, for the respondent. 661 The Judgment of the Court was delivered by Sikri, J. This appeal, by certificate granted by the"High Court of Judicature at ' Bombay is directed ' against its judgment and decree, dated December 30, 1962, whereby it seaside the order made by the, Assistant Charity Commissioner, dated. August 19, 1955, 'as confirmed by the Deputy Charity Commissioner and by the District Judge, Nasik. The High Court held that the Nasik Math is not 'liable to be registered under the BOmbay Public Trusts Act, 1950. ' The High Court found the following facts relating to the Nasik Math: "The principal Math is situated in the State of Mysore and as His Holiness is a Sanyasi he generally names the house properties. with temples as 'Maths '. The properties at Nasik, Panchavati, are known as properties of Shringeri Math. The Samadhis have been constructed to look like ' temple, there is Sabha Mandap in which an ,image of; Adya Shankaracharya is installed. All the expenses have been incurred by His Holiness from the income of the Shringeri Math and some money was borrowed from. Nasik creditors. Here religious instructions are not imparted and no spiritual service is rendered to any body of disciples. Some times people come there and if they are given admission they stay there for a short time. There being "Samadhis" in these premises, there are some idols and occasional festivals but it is not a temple for purpose of public worship. No member of the public is allowed to enter the place of worship but 'it is ' carried out by the Pujaris according to Vedic usage. This property is being maintained by the Principal Math from the very beginning. The income consists. (1 ) rent earned by letting the property; (2) offerings made before 'the Samadhis; (3) grant from Nasik Treasury of Rs. ' 289 'per year and. ( 4 ) yearly grant of Rs. 460 1,0 from village Pimpalgaon Funji in Ahmednagar District. " The High Court further observed: "One of the Sanads regarding the income of Pimpalgaon village is on record ' and it shows that the grant of the income 'of the village is made to Shri Shankaracharya clearly mentioning it to be for the expenses of the 'Sansthan ' but the tenor of the documents shows that the offering iS made to the Shankaracharya himself. " 662 The relevant provisions of the Bombay Public Trust Act, 1950 ,(Bombay Act XXXIX of 1950) hereinafter referred to as the Act are as follows: The preamble of ' the Act reads: "An Act to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. " It would be noticed that the intention is only to deal with the trusts which are in the State of Bombay;it is not the idea to regulate or make better provision for the administration of trusts outside the State of Bombay; and one of the questions which we have to answer is whether Nasik Math can be said to be in the State of Bombay. The word "math" is defined in section 2( 9 ) of the Act to mean "an institution for the promotion of Hindu religion presided over by a person whose duty it is to engage himself in imparting religions instructions or rendering spiritual services to a body of disciples or who exercises or claims to exercise head ship over such a body and includes places of religious worship or instruction which are appurtenant to the. institution." "Public trust" is defined in section 2( 13 )to mean "an express or constructive. trust for either a public religions or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the . " The definition of "temple" may also be noted. "Temple" means "a place by whatever ,designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof, as a place of public religious worship. Is. 2(17)]. " Section 18 of the Act provides for registration of public trusts and makes it the duty of the Trustees of a public trust to which the Act applies to make an application for the registration of the public trust. It is under this section that an 'application was made, under protest, by one Y.M. Krishnamurthy, Revenue Officer and Incharge Officer, Shri Shringeri Mutt and its properties. The Assistant Charity Commissioner held an enquiry under section 19 of the Act and came to the conclusion that a trust existed and it is a public trust and is liable to be registered under the Act. An appeal was taken to the Charity Commissioner. The Deputy Charity Commissioner, exercising appellate powers, confirmed the findings and order of the Assistant Charity Commissioner. An application was then made under section 72 of the Act to the District Judge to set aside the decision and order of the Deputy Charity Commissioner, but the District Judge confirmed 663 the order and dismissed the petition. He held that "this institution must be considered as a Branch Mutt even though its origin may be the Samadhis or tombs of the Shankaracharya of the name Abhinava Sachhidanand Bharati." He further came to the conclusion that "the evidence on the record shows that this Institution at Nasik is a place of religious worship within the meaning of the definition in section 2(9) of the Act." He observed; "There is no dispute that there are idols of Shri Adya Shankaracharya and Shri Dattaraya in this institution and worship of those idols is carried on there. The festivals which are held and which are attended by the public who are invited on such occasions are the Jayantis of Shri Shankaracharya and the deity of Shri Dattatraya. In this behalf, the printed invitations (Exhibits 12/29, 12/30 and 12/31) may be perused. There is also day to day worship of these deities which is carried on by the pujaris." He further observed: "Considering from this point of view, this place would be a place of religious worship and there is no dispute that at any rate it is appurtenant to the main institution or the Muth at Shringeri." He further held that "this institution or Foundation at Nasik is admittedly a Branch of the Muth at Shringeri which is founded by Adya Shankaracharya, and this Branch would partake of the nature of the main or principal Institution at Shringeri." He accordingly held that it would be idle to contend that this institution at Nasik would not come within even what is called the 'inclusive portion ' of the definition of 'Muth ' enacted in Section 2(9) of the Act. The learned counsel for the appellant contends that the Nasik Math is an independent Math within section 2(9) of the Act and, therefore, covered by the provisions of the Act; at any rate, even if the Nasik Math is an adjunct of or dependent upon the principal math at Shringeri, it is covered by the Act. In Maharajkumari Umeshwari Kuer vs The State of Bihar(1), while considering the provisions of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act 1 of 1951), Gajendragadkar, J., as he then was, speaking for the Court, observed: "On behalf of the petitioner the learned Attorney General has contended that as a result of our decisions in the group of cases to which we have already referred it is now established that before the Act can apply two (1) petition No. 405 of 1955 decided on December 15, 1960. 664 conditions must be satisfied; first, that the religious trust or the institution itself must be in Bihar, and second, part of its property must be situated in the State of Bihar. Since the first of these two conditions is not satisfied in the present case the Act cannot apply. In our opinion this contention is well rounded and must be upheld. " The facts in that case were that "a temple (was) situated at Vrmdavan Dham in the District of Mathra in Uttar Pradesh. In this temple were installed the family idol of Shri Radha Gopalji as well as the idol of Radhendra Kishorji in 1872 and 1877 respectively by Maharani Inderjit Kuer of Tikari. The said Maharani created a waqf of certain properties known as Balkbar Mahal in the District of Gaya by a registered deed of endowment on July 25, 1872, for the purpose of meeting the expenses relating to food, offering, prayers and worship in the said temple. The Trust owns properties also in Bihar." ' This Court repelled the contention that since the Trustees reside in Bihar and the Trust is substantially administered in Bihar the provisions of the Bihar Act would be applicable, and observed: "It is the situs of the trust of the principal institution or temple with which the trust is integrally connected that determines the applicability of the Act. The properties in question which are situated partly in Uttar Pradesh and partly in Bihar belong to the temple and the deity is their owner. This deity is enshrined in the temple situated at Vrindavan Dham, and so it is common ground that the situs of the temple is outside Bihar. It is also admitted that part of the properties belonging to the trust are in Uttar Pradesh. Therefore the two tests laid down by this Court inevitably lead to the conclusion that the present trust is outside the purview of the Act. The fact that the trustees reside in Bihar or that the trust is partially administered in Bihar for charitable purposes can make no difference to this position. " In Mahant Ramswarup vs Motiram Khandu(1), a case governed by the Bombay Public Trusts Act, Shelat, J., observed: "There. is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three ' pieces of lands situate in the District of Dhulia, are all situate in the, Madhya Pradesh State. The fact that a part of its properties is situate in Maharashtra (1) [1968] Mh. L.J. 363. 665 State, though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts. " It seems to us that, in view of the above authorities, in order o determine the situs of the trust, which consists of a Math and subordinate so called math or maths, it is the situs of the principal math which will determine the applicability of the Act. We need not here decide the position of an independent real math bough connected with another math. The ' High Court has ound in this case that in the Nasik Math no religious instructions are imparted and no spiritual service is rendered to any body of disciples. Further no member of the public is allowed 0 enter the place of worship without permission although worship s carried out by the Pujaris according to vedic usage. In view these findings the Nasik Math cannot be held to be a real math or temple within the definitions set out above. In our opinion, the High Court was right in holding that the Nasik Math is not liable to be registered under the Act. The appeal accordingly fails and is dismissed with costs. R.K.P.S. Appeal dismissed.

The Assistant Charity Commissioner, Bombay, held an enquiry under section 19 of the Bombay Public Trusts Act, 1950 and came to the conclusion that the Nasik branch of the principal Shringeri Math situated in the State of Mysore was a public trust and liable to be registered under section 18 the Act. The Charity Commissioner in appeal confirmed this finding and an application under section 72 to the District Judge by the respondent was rejected on the view that the institution at Nasik was a place of religious worship within the meaning of the definition in section 2(9) of the Act. However, the High Court allowed an appeal and set aside the order of the Assistant Charity Commissioner. On appeal to this Court by a certificate, HELD: The High Court was right in holding that the Nasik Math was not liable to be registered under the Act. The High Court had found in the present case that in the Nasik Math no religious instructions were imparted and no spiritual service, was rendered to any body of disciples. Furthermore, no member of the public was allowed to enter the place of worship without permission although worship was carried on by the Pujaris according to Vedic usage. In view of these findings the Nasik Math could not be held to be a real Math or temple within the definition in section 2(9) of the Act. [665 B D] HELD also: In order to determine the situs of ' the trust which consists of a Math and a subordinate so called Math or Maths, it ' is the situs of the principal Math which will determine the, applicability of the Act. [665 B] Maharaikumari Umeshwari Kuer vs The State of Bihar, Petition No. 405 of 1955 decided on December 15, 1960; and Mahant Ramswarup vs Motiram Khandu, (1968) Mh. L.J. 363; referred to.

: Special Leave Peti tion (CRL.) No. 1370 of 1986. From the Judgment and Order dated 23.5. 1986 of the Bombay High Court in Crl. W.P. No. 385 of 1986. AND WRIT PETITION NO. 363 OF 1986. (Under Article 32 of the Constitution of India). G.L. Sanghi, D. Canteenwala, V.B. Agarwala, B.R. Agarwa la and Miss Vijay Lakshmi Mannen for the Petitioner. K. Parasaran, Attorney General, C.V. Subba Rao and A. Subba Rao for the Respondent. The following Judgment of the Court was delivered: This petition for special leave directed against the judgment and order of the Bombay High Court dated May 3, 1986, and the connected petition under article 32 of the Con stitution raise common questions and therefore they are disposed of by this common order. The petitioner by a peti tion under article 226 filed before the High Court prayed for the issuance of a writ of habeas corpus which is also the prayer before us, for the release of her husband Mohanlal Jatia, who has been detained by an order of the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue dated December 13, 1985 under sub section (1) of section 3 of the Conservation of Foreign Exchange & Pre vention of Smuggling Activities Act, 1974 on being satisfied that it was necessary to detain him with a view to prevent ing him from acting in any manner prejudicial to the augmen tation of foreign exchange. Intelligence gathered by the Directorate of Revenue Intelligence, Bombay was that one Subhash Gadia, the broth er in law of the detenu Mohanlal Jatia, a very rich and prosperous businessman of Bombay, was under invoicing the imports of yarn from Japan. On the 55 basis of the said information the officers of the Director ate of Revenue Intelligence and officers the Customs, Bombay searched his residential premises at A 121, Sea Lord Cuffe Parade, Colaba, Bombay under the on June 27, 1985 which resulted in seizure of certain documents. As the seized documents not only revealed violation of the provisions of the but also indicated certain payments and transactions in violation of the Foreign Ex change Regulation Act, 1973, the matter was referred to the office of the Enforcement Directorate for purposes of inves tigation from the angle of the Foreign Exchange Regulation Act on October 24, 1985. The aforesaid Subhash Gadia was summoned under section 40 of the Foreign Exchange Regulation Act and his statement was recorded by R.C. Singh, an officer of the Enforcement Directorate, Bombay on November 5, 1985. In his statement of even date, Subhash Gadia stated that he went to Japan in 1970 seeking employment with a proprietory concern known as Messrs Greenland Corporation, Tolo Build ing, Osaka, Japan owned by a Nepali national and was engaged in exporting yarn, fibre, fabrics, chemicals etc. to India and Middle East countries. Messrs J.M. Trading Corporation, 701, Tulsiani Chambers, 212 Nariman Point, Bombay (of which Mohanlal Jatia is a partner). are the sole selling agents of Messrs Greenland Corporation for yarn and fibre. He further revealed that Satyanarayan Jatia, the eider brother of Mohanlal Jatia who is the partner of Messrs J.M. Trading Corporation, Bombay had been staying in Japan for some 35 years and was the sole representative of Messrs Greenland Corporation in Japan. While explaining the entries in the seized documents from his residence on June 27, 1985, Sub hash Gadia admitted that the bunch marked S.G. 6 containing pages 1 to 94 are written by him in his own writing and that these contained accounts relating to his trade or business including imports and cash transactions and payments. He further confirmed that all the transactions reflected in these documents were his real business transaction dealings and some of which were not reflected in his regular account books. While explaining page 94 of the seized bunch S.G. 4. he stated that this page contained coded account in Indian rupees of his firm Messrs Piyush Corporation and that on the left side of this page credit entries were shown in Indian rupees with two zeros (00) missing and that while writing his account he had deleted two zeros in the credit side as well as debit side (right side) of the page. While decoding the codes he stated that the figure 8582/38 written on the right hand side was actually Rs.8,58,238 and this amount had been debited against A/S investment. Further, that A/S ' investment was his private investment abroad in US dollars which had been utilised by him for under invoicing of sever al imports etc. 56 Paragraph 44 of the grounds of detention revealed trans actions relating to the detenu Mohanlal Jatia and it is extracted: "44. When confronted with the documents seized from Subhash Gadia 's residence even though you have denied any connection in respect of various unauthorised transactions between you, Greenland Corporation. Japan and others abroad, but the following documents clearly revealed that you have been indulging in various unauthorised transactions in violations of provisions of Foreign Exchange Regulation Act. A. Page338 Trial Balance of Greenland S.G. 6 Corporation entries of ML, GN, RN, R.G.T. and Gadia admits before that they are Jatia 's account. B. " M.L. Jatia 's i.e. your account maintained in Japan, how ever. you admit receipt of Gifts by your children such as T.V., Video and M.V.Parts. C. Page215 Keeping U.S. $ 2 lakhs in S.G. 6 fixed deposit on 2.6.83 in Kamal Account, also inclu ding 20 lakhs $ (dollars). D. Page335 American dollar account as S.G. 6 on 31.1. E. Page318 Account in Japanese Yen Final posi S.G. 6 total of 141147.27. tion of Bombay. F.D.R. amount of Japanese Yen 1093 1471.16 to be equally divided between Yen. GN, SN and Laxmiji account/ Capital account. 57 F. Page 214 15 U.S. $ 78000/ converted S.G. 6 into Rs.9, 16,500/ commiss ion of." The Additional Secretary to the Government of India, Ministry of Finance, in exercise of his powers conferred by sub section (1) of section 3 of the ( 'COFEP OSA ') ordered the detention of the aforesaid Mohanlal Jatia by an order dated December 13, 1985 on being ' satisfied that it was necessary to detain him "with a view to preventing him from acting in any manner prejudicial to the augmenta tion of foreign exchange". The petitioner thrice approached the High Court with petitions under article 226 of the Consti tution seeking to challenge the impugned order of detention. Immediately after the passing of the impugned order i.e. on December 16, 1985, she moved the first of these petitions being W.P. No. 2530/85 for an appropriate writ or direction to quash the impugned order of detention and applied for stay. The Writ Petition was admitted but stay was refused. On appeal, a Division Bench in Writ Appeal No. 1162/85 granted interim stay till the disposal of the appeal. On February 28, 1986 the Division Bench dismissed the appeal as well as the Writ Petition. By its subsequent order dated March 4, 1986 the Division Bench granted stay of execution upto April 4, 1986 on certain terms and conditions. The petitioner filed a petition under article 136 in this Court for grant of special leave being SLP No. 3742/86. The Court by its order dated April 3, 1986 dismissed the petition and ordered the detenu to appear before the Commissioner of Police, Bombay on the next day i.e. on April 4, 1986 when the impugned order of detention was to be served upon him and directed that the impugned order was to become effec tive. The further direction made by this Court was that the detenu should immediately be released on parole for a period of 10 days subject to certain terms and conditions. On April 4, 1986 the detenu appeared before the Commissioner of Police, Bombay when he was served with the impugned order of detention together with the grounds of detention and the relevant documents. In compliance with the direction of this Court. the detenu was released on parole. On April 7, 1986 the petitioner filed second petition under article 226 of the Constitution being WP No. 385/86 for quashing the impugned order of detention along with an application for extending the period of parole. On April,14,1986 the parole period having expired, the detenu was taken into custody and lodged in the Central Prison, Bombay. The Writ Petition came up for hearing before the High Court on April 18, 1986 and admitted but the application for extending the period of parole was 58 rejected. Aggrieved by the refusal of interim relief, the petitioner again moved this Court under article 136 of the Constitution which was dismissed as withdrawn. It appears that the impugned order of detention was mainly challenged on two grounds, namely: (1) There was no material on which the satisfaction of the detaining authori ty could be reached that the detention of the detenu was necessary under section 3(1) of the COFEPOSA with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. And (2) There was total non application of mind on the part of the detaining author ity to the material on record, and in particular to the factual misstatements contained in paragraph 44 of the grounds of detention as detailed in entries 'A to F '. The Division Bench of the High Court did not feel impressed with any of these submissions and by its judgment and order dated May 2/3, 1986 dismissed the Writ Petition. Thereafter, on May 6, 1986 the petitioner filed the present petition under article 136 of the Constitution. On July 11, 1986 she also filed a petition under article 32 challenging the continued detention of her husband. On July 18, 1986 the Court issued notice both on the Special Leave Petition as well as the Writ Petition and in the meanwhile directed that the peti tioner 's husband be released on parole for a week. The Court by its subsequent order dated July 25, 1986 extended the period of parole till August 20, 1986. The Writ Petition filed in this Court on July 11, 1986 is principally based on the ground that there was failure on the part of the detaining authority to consider the alleged representation dated April 11, 1986 made by the detenu against the impugned order of detention addressed to the President of India which was presented through one Ashok Jain at the President 's Secretariat on April 15, 1986 and there had thus been an infraction of the constitutional safeguards enshrined in article 22(5) and section 11 of the COFEPOSA which rendered the continued detention of the detenu without the due process of law and thus illegal, unconstitutional and void. The other substantial question raised is that R.C. Singh was not a gazetted officer of Enforcement within the meaning of section 40 of the Act and therefore the statements recorded by him could not be regarded as valid statements under section 40 and thus did not form the basis upon which the satisfaction of the detaining authority could be reached. The respondents have filed a counter affidavit sworn by S.K. Chaudhary, Under Secretary to the Government of India, Ministry of 59 Finance, Department of Revenue controverting the allegation that the detenu addressed any such representation to the President of India or that the alleged representation was received at the President 's Secretariat. It has been averred that the President 's Secretariat has informed the Ministry of Finance, Department of Revenue that no such representa tion was received from the detenu. Along with the counter affidavit, the respondents have filed copies of the letter of the Under Secretary to the Government of India, Ministry of Finance, Department of Revenue dated August 4, 1986 addressed to the Under Secretary, President 's Secretariat and of the reply of even date sent by the Under Secretary, President 's Secretariat to him which shows that no such representation had been received in the President 's Secre tariat, as alleged. They have also filed a note explaining the manner in which the dak is acknowledged at the Presi dent 's Secretariat. There is a further affidavit filed by K.C. Singh, Deputy Secretary to the President of India explaining the manner of handling the dak at the Rashtrapati Bhawan. The petitioner has filed an affidavit of Ashok Jain claiming to be a friend of the Jatia family supporting the assertion that he handed over the representation in person at the Rashtrapati Bhawan on April 15, 1986. During the pendency of the proceedings, the Union Gov ernment has made an application under section 340 of the Code of Criminal Procedure, 1973 for prosecution of the persons responsible for forging the document purporting to be the alleged representation made by the detenu under section 8(b) of the COFEPOSA on April 15, 1986 as, in fact, no such repre sentation was ever made, and for making certain interpola tions in the dak register kept at the President 's Secretari at. They have produced in a sealed envelope the original dak register maintained at the Rashtrapati Bhawan in which the alleged interpolations have been made. We are informed that the matter has been handed over to the Central Bureau of Investigation for investigation. We shall deal with the application under section 340 of the Code later. In support of these petitions, learned counsel has mainly advanced the following contentions, namely: (1) As is evident from the grounds of detention, the detaining author ity relied upon the statements recorded by R.C. Singh on the assumption that they were valid statements under section 40 of the Act although they were in reality not so, inasmuch as R.C. Singh was not a 'gazetted officer of Enforcement ' within the meaning of section 40 and therefore there was no material on which the satisfaction of the detaining authori ty could be reached. (2) In a habeas corpus petition, the burden was entirely upon the respon 60 dents to produce the relevant records and to substantiate that the detention was strictly according to law. The fail ure on the part of the respondents to produce the relevant notification showing that R.C. Singh was a gazetted officer of Enforcement within section 40 of the FERA when he recorded the statements in question must necessarily lead to the infer ence that he was not a gazetted officer of Enforcement. (3) The impugned order of detention was void ab initio and it could not be sustained by recourse to the de facto doctrine or any assumption that R.C. Singh was acting under the colour o[ his office as a gazetted officer of Enforcement or in treating the statements to be valid being relatable to section 39(b) of the FERA. (4) It is not possible to predicate to what extent, and in what manner, the mind of the detaining authority was influenced by his wrongful assumption that the statements recorded by R.C. Singh who was not a gazetted officer of Enforcement, were statements made under section 40 of the FERA, and even assuming that the statements recorded by R.C. Singh could be treated to be statements relatable to section 39(b) of the FERA, it is not possible to say whether the detaining authority would have based his satisfaction upon such material. (5) There was non application of mind on the part of the detaining authority as the grounds of detention are based on several factual misstatements. According to the learned counsel, the factual errors were self evident as the entries relied upon in paragraph 4 of the grounds of deten tion, do not find place in the account books of Messrs Greenland Corporation. The failure of the Central Government to place before the detaining authority, the original ac count books of Messrs Greenland Corporation, deprived the detaining authority to apply his mind to the correctness or otherwise of the facts stated therein. (6) There was infrac tion of the constitutional safeguards enshrined in article 22(5) inasmuch as there was failure on the part of the detaining authority to consider the representation filed by the detenu under section 8(b) of the COFEPOSA through one Ashok Jain and received at the President 's Secretariat on April 15, 1986 and therefore the impugned order of detention was vitiated and the continued detention of the detenu was rendered illegal and void. Other subsidiary questions were also raised. Having given the matter our anxious considera tion, we are of the considered opinion that none of the contentions can prevail. In order to deal with the rival contentions advanced, it is necessary to set out the relevant provisions of the Foreign Exchange Regulation Act, 1973. The Foreign Exchange Regulation Act, 1973 is an Act, as reflected in the long title. to consolidate and amend economic development of the country. The legislation has been brought in to 61 implement the Government policy for conservation of foreign exchange and for removing the difficulties in implementing the same. The provisions of sections 3, 4 and 5 deal with (i) classes of officers of Enforcement; (ii) appointment and powers of officers of Enforcement and (iii) entrustment of functions of Director or other officer of Enforcement. These provisions provide as follows: "3. Classes of officers of Enforcement There shall be the following classes of officers of Enforcement, namely: (a) Directors of Enforcement; (b) Additional Directors of Enforcement; (c) Deputy Directors of Enforcement; (d) Assistant Directors of Enforcement; and (e) Such other class of officers of Enforcement as may be appointed for the pur poses of this Act." "4. Appointment and powers of officers of Enforcement.: (1)The Central Government may appoint such persons as it thinks fit to be officers of Enforcement. (2) Without prejudice to the provisions of sub section (1), the Central Government may authorise a Director of Enforcement or an Additional Director of Enforcement or a Deputy Director of Enforcement or an Assistant Direc tor of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement. (3) Subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may exercise the powers and discharge the duties conferred or imposed on him under this Act." "5. Entrustment of functions of Director of other officer of Enforcement: The Central Government may, by order and subject to such conditions and limitations as it thinks fit to impose, authorise any officer of customs or any Central Excise Officer or any police officer or any other officer of the Central Government or a State Government to exercise such of the powers and discharge such of the duties of the Director of Enforcement or any other officer of Enforce 62 ment under this Act as may be specified in the order. section 39 deals with the power of the Director of any other officer of Enforcement to examine persons and provides: "39. Power to examine persons The Director of Enforcement or any other officer of Enforce ment authorised in this behalf by the Central Government, by general or special order, may, during the course of any investigation or pro ceeding under this Act , (a) require any person to produce or deliver any document relevant to the investigation or proceeding; (b) examine any person acquainted with the facts and circumstances of the case. " Sub section (1) ors '. 40 reads as follows: "40. Power to summon persons to give evidence and produce documents (1) Any gazetted offi cer of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to pro duce a document during the course of any investigation or proceeding under this Act. " The main thrust of the argument of Shri G.L. Sanghi, learned counsel appearing for the petitioner revolves around mainly three aspects: (1) R.C. Singh was not a Gazetted Officer of Enforcement and therefore statements recorded by him had no evidentiary value and thus they could not form the basis upon which the satisfaction of the detaining authority could be reached. (2) There was total nonapplica tion of mind by the detaining authority to several factual misstatements as detailed in entries 'A to F ' in the grounds of detention which vitiated the impugned order of detention. And (3) The failure of the Sponsoring authority to forward the account books seized during the course of search at the residential premises of Subhash Gadia shows that the detain ing authority proceeded to make the impugned order of deten tion without due application of mind. According to the learned counsel, if there is one principle more firmly settled than any other in this field of jurisprudence relat ing to preventive detention, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non existent or misconceived 63 or irrelevant, the order of detention would be invalid since it is not possible to predicate as to whether the detaining authority would have made all order for detention even in the absence of non existent or irrelevant ground. His con tention is that the principle enunciated by this Court some 30 years ago in Shibban Lal Saksena vs The State of Uttar Pradesh & Ors., ; and in Dr. Ram Manonar Lohia vs State of Bihar & Ors., ; which it reiter ated later m Pushkar Mukherjee & Ors. vs The State of West Bengal, ; still holds good despite the change in the law brought about by the introduction of section 5A of the Act that though one or more of the grounds of detention were found to be vague, non existent, not relevant, not connect ed, irrational or invalid for any other reason whatsoever, the detention could be sustained on the remaining grounds. He seeks to draw sustenance from the decision of the Consti tution Bench of this Court in Mohd. Shakeel Wahid Ahmed vs State of Maharashtra & Ors., ; We are afraid, the contention cannot prevail. The decision in Mohd. Shakeel 's case is clearly distinguishable. In Mohd. Shakeel 's case, three of the four grounds of deten tion on which the appellant was detained were held by the High Court to be bad for one reason or another but it held that the remaining ground did not suffer from any defect and was enough to sustain the order of detention. On appeal, Shri Jethmalani, learned counsel for the detenu, sought to challenge the constitutional validity of section 5A of the Act and the case was therefore referred to a Constitution Bench. At the hearing, Shri Jethmalani confined his submission to an altogether different point which ultimately prevailed, namely, that the remaining ground of detention was also bad for the reason that there was failure on the part of the State Government to place before the detaining authority the opinion which the Advisory Board had recorded in favour of another detenu Shamsi who was also detained for his involve ment in the same transaction on an identical ground based on similar 'and identical facts. It was held that although the opinion of the Advisory Board that there was no sufficient cause for Shamsi 's detention may not have been binding on the detaining authority which ordered the detention of the detenu, but the opinion of the Advisory Board in Shamsi case was an important consideration which should and ought to have been taken into account by the detaining authority before passing the order of detention in that case. It was observed that the Court could not exclude a reasonable probability that since the Advisory Board had not sustained Shamsi 's detention on a ground which was common to him and the detenu, the detaining authority would have. if at all, passed the order of detention against the detenu 64 on the three remaining grounds which had been held to be bad. The decision is Shamsi 's case turned on its own facts and certainly is not an authority for the proposition con tended for. So also in Ashadevi vs K. Shiveraj, Addl. Chief Secretary to the Government of Gujarat & Anr., 15 on which reliance was placed there was failure on the part of the State Government to apprise the detaining au thority of the fact that the detenu 's request to have the presence of and consultation with his counsel had been refused, and that the confessional statement upon which the detaining authority had relied, had been retracted while he was in judicial custody, rendered the impugned order of detention invalid and illegal because there was complete non application of mind by the detaining authority to the most material and vital facts. The other decision in Kurjib hai,Dhanjibhai Patel vs State of Gujarat & Ors., is also distinguishable. In that case, there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority, namely, the reply of the detenu to the show cause notice issued in the adjudication proceedings undertaken by the Customs authorities which was held to be the most relevant material which ought to have been placed before it. It was held that the question was not whether the material which was withheld from the detaining authority formed part of any separate or independent proceedings like the adjudication proceedings as held by the High Court, but the real question was whether the material was relevant and would have influ enced the mind of the detaining authority. In the counter affidavit filed by the Under Secretary to the Government of India, Ministry of Finance it had been averred that the representation of the detenu along with his reply to the show cause had been considered by the Advisory Board and after considering all the facts it was of the opinion that there was sufficient cause for detention. It was held that such ex post facto consideration of the detenu 's reply to the show cause could not fill up the lacuna of non consider ation thereof by the detaining authority before passing the order of detention. Both these decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed, it would vitiate its subjective satisfaction rendering the detention order ille gal. We fail to see the relevance of these decisions to the present case. Before touching upon the merits, we wish to make a few observations. It is not suggested at the bar that the grounds for detention do not set out the facts with suffi cient degree of particularity or that they do not furnish sufficient nexus for forming the subjective satisfaction 65 of the detaining authority. ]he impugned order of detention was therefore not challenged on the ground that the grounds furnished were not adequate or sufficient for the satisfac tion of the detaining authority or for the making of an effective representation. Sufficiency of grounds is not for the Court but for the detaining authority for the formation of his subjective satisfaction that the detention of a person under section 3(1) of the Act is necessary with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange. In Mangalbhai Motiram Patel vs State of Maharashtra & Ors., ; , it was observed at p. 477 of the Report: "The Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 is enacted to serve a laudable object. It is a measure to prevent smuggling of goods into or out of India and to check diversion of foreign exchange by immobilising the persons engaged in smuggling, foreign exchange racketeering and related activities by preventive detention of such persons. Violations of foreign ex change regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State. Such economic offences disrupt the economic life of the community as a whole. It is neces sary to protect the basic economic order of the nation. Nevertheless, the Act is a law relating to preventive detention. That being so, the power of detention exercisable under sub section (1) of section 3 of the Act is subject to the limitations imposed by the Constitution. As observed by this Court in Narendra Pursho tam Umrao vs B.B. Gujral, 15, when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and prevention of Smuggling Activities Act or any other law providing for preventive deten tion," "it is the bounden duty of the court to satis fy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is deprived of his personal liberty otherwise than in accordance with law." Nevertheless, as observed by the Court in Mangalbhai Motiram Patel 's case: 66 "The community has a vital interest in the proper enforcement of its laws, particularly in an area such as conservation of foreign exchange and prevention of smuggling activi ties in dealing effectively with persons engaged in such smuggling and foreign exchange rackteering by ordering their preventive detention and at the same time, assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. " The Government must therefore ensure that the constitutional safeguards of article 22(5) read with sub section (1) of section 3 of the Act are fully complied with. In the instant case, however, there was no infraction of the constitutional safeguards contained in article 22(5). We are satisfied that there was no failure on the part of the Government to discharge its obligation under article 22(5). The relevant records of the Enforcement Directorate have been placed before us. They clearly show that there was sufficient material for the formation of the subjective satisfaction of the detaining authority under sub section (1) of section 3 of the Act. They also show that the detenu was afforded a reasonable opportunity for making an effective representation against his deten tion. It has long been established that the subjective satis faction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made i.e. the grounds of detention constitutes the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds substitute its own opinion for that of the authority. But this does not imply that the subjective satisfaction of the detaining authority is wholly immune from the power of judicial review. It inferentially follows that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfac tion was arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. The simplest case is where the authority has not applied its mind at all; in such a case, the authority could not possi bly be satisfied as regards the fact in respect of which it is required to be satisfied. See: Khudi Ram Das vs State of West Bengal & Ors., ; , following the case of Emperor vs Shibnath Banerjee & Ors., AIR (1943) FC 75. 67 The substantive contention of learned counsel for the petitioner has therefore been that there was non application of mind on the part of the detaining authority to the grounds of detention and that there was violation of the constitutional safeguards contained in article 22(5). In es sence, three questions arise, namely: (1) Whether the im pugned order of detention was based on no material inasmuch as R.C. Singh was not a gazetted officer of Enforcement and therefore the statements recorded by him had no evidentiary value and thus could not form the basis upon which his subjective satisfaction could be reached; and if not, wheth er the statements recorded by him could be treated to be statements relatable to section 39(b) of the FERA and could still form the basis for such satisfaction. (2) Whether there was non application of mind on the part of the detaining author ity and therefore the impugned order of detention was bad as there were factual mis statements detailed in items A to F of the grounds of the grounds of detention. And (3) Whether there was infraction of the constitutional safeguards con tained in article 22(5) due to the failure on the part of the Central Government to consider the representation filed by the detenu under section 8(b) read with section 11 of the Act, alleged to have been presented through one Ashok Jain and received at the President 's Secretariat on April 15, 1986 and there fore the continued detention of the petitioner was rendered invalid and unconstitutional. We wish to deal with these contentions in seriatim in the order in which they have been advanced. On the first of these questions, we have no hesitation in repelling the contention that there was no material on which the detaining authority could have based the subjec tive satisfaction under sub section (1) of section 3 of the Act. The argument of the learned counsel stems from the hypothesis that R.C. Singh was not a gazetted officer of Enforcement within the meaning of section 40 of the FERA when he issued summons and recorded the statements and that even assuming that the statements recorded by R.C. Singh could be treated to be statements failing under section 39(b) of the Act, it is not possible to say whether the detaining authority would have based his satisfaction upon such material. The learned counsel places emphasis on the word 'gazetted ' in section 40(1) and contends that R.C. Singh for the first time became a gazetted officer of Enforcement on January 13, 1986 when his appointment as such was notified. According to him, the detaining authority has relied upon the statements purport ing to be under section 40(1) though in reality they were not so. According to the learned counsel, there is a sanctity at tached to statements recorded under section 40(1) of the FERA. That is so, because every person summoned by a gazetted officer of Enforcement to make a statement under sub section (1) of section 40 is under a compulsion to state the 68 truth on the pain of facing prosecution under sub section (3) thereof. Further, sub section (4) provides that every such inves tigation or proceeding as aforesaid, shall be deemed to be judicial proceeding within the meaning of sections 193 and 224 of the Indian Penal Code, 1860. Such being the legal position, the learned counsel contends that while a statement recorded by a gazetted Enforcement Officer under section 40( 1 ) can furnish sufficient and adequate material on the basis of which the detaining authority can form his opinion, it may not be so with regard to statements recorded by an officer of Enforcement authorised in that behalf under section 39(b) of the FERA. On the other hand, learned counsel for the respondents contends that there is no basis for the assertion that there was no material on which the detaining authority could have formed the subjective satisfaction under sub section (1) of section 3 of the Act or that there was any factual mis statement in the grounds which showed that there was non application of mind on his part. We may briefly summarise his submission. Factually, the statements were there and the detaining authority was entitled to act upon the statements. The question whether the statements could be acted upon or not is not for the Court. A person summoned to make a statement under section 40(1) has the right to object to the power and authority of the officer issuing the summons. It must there fore logically follow that when the persons summoned like Subhash Gadia and Mohanlal Jatia were examined by R.C. Singh it was not open to others to raise objection that R.C. Singh was competent to record the statements under section 40(1). The statements made by them were not hit by section 25 of the Evi dence Act, 1872 and could be used against the detenu. There is no substance in the contention that R.C. Singh was not a gazetted officer of Enforcement. The word 'gazetted ' does not imply that the appointment of such officer should be published in the official Gazette. All that is required by section 40(1) of the FERA that such officer recording the state ment must be holding a gazetted post of an officer of En forcement, in contradistinction to that of an Assistant Officer of Enforcement which is a nongazetted post. It cannot be disputed that R.C. Singh had been appointed as Enforcement Officer on an ad hoc basis on November 24, 1982 and he continued to function as such at the time when he recorded the statement under section 40(1). The subsequent noti fication issued by the Enforcement Directorate on January 13, 1986 was for his appointment on a regular basis. What is of significance, it is said. is that at the time when R.C. Singh recorded the statements he was holding the gazetted post of an Enforcement Officer and discharging 69 the functions attached to the post. There is, in our opin ion, consideration force in these submissions. In any event, the learned counsel further contends that R.C. Singh was clothed with the insignia of office and he was purporting to exercise the functions and duties of a gazetted officer of Enforcement under section 40(1) of the FERA and therefore the de facto doctrine was attracted. He relies upon the decision of this Court in Gokaraju Rangaraju vs State of Andhra Pradesh; , enunciating the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. In other words, he contends that where an officer acts under the law, it matters not how the appointment of the incumbent is made so far as the validity of his acts are concerned. We are inclined to the view that in this jurisdiction there is a presumption of regularity in the acts of offi cials and that the evidential burden is upon him who asserts to the contrary. The contention that R.C. Singh was not a gazetted officer of Enforcement within the meaning of section 40(1) of the FERA appears to be wholly misconceived besides being an afterthought. The validity of appointment of R.C. Singh to be an officer of Enforcement under this Act cannot be questioned. The Directorate of Enforcement have along with the counter affidavit placed on record Establishment Order No. 87/82 dated November 24, 1982 which shows that R.C. Singh along with 25 others was appointed by the Direc tor to be an officer of Enforcement on an ad hoc basis against 30 per cent deputation quota. The subsequent Estab lishment Order No. 84/86 dated January 13, 1986 relied upon by the petitioner shows that R.C. Singh along with 29 others was appointed as an officer of Enforcement on an officiating basis. It is not suggested that these officers were not authorised by the Central Government to discharge the func tions and duties of an officer of Enforcement. Under the scheme of the Foreign Exchange Regulation Act, the Director ate of Enforcement is primarily charged with the duty of administering the Act. section 3 defines different classes of officers of Enforcement. The expression 'officers of En forcement ' as defined in section 3 embraces within itself not only (a) a Director (b) Additional Director (c) Deputy Director and (d) Assistant Director of Enforcement but also (e) such other class of officers of Enforcement as may be appointed for the purpose of the Act. Obviously, R.C. Singh who was Assistant Enforcement Officer having been appointed as an officer of Enforcement on an ad hoc basis in 1982 fell within the category 'such other class of officers ' covered by section 3(e). Sub S.(1) of section 4 provides that the 70 Central Government may appoint such persons, as it thinks fit, to be officers of Enforcement. Sub section (2) thereof provides for delegation of such power of appointment by the Central Government to a Director of Enforcement or an Addi tional Director of Enforcement etc. to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement. Sub section (3) of section 4 of the FERA provides that subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may exer cise the powers and discharge the duties conferred or im posed on him under the Act. Undoubtedly R.C. Singh was discharging his duties and functions as a gazetted officer of Enforcement under section 40(1) of the FERA when he recorded the statements in question. In our opinion, the expression 'gazetted officer of Enforcement ' appearing in section 40(1) must take its colour from the context in which it appears and it means any person appointed to be an officer of Enforcement under section 4 holding a gazetted post. There is no denying the fact that R.C. Singh answered that description. The conten tion that there was no material on the basis of which the detaining authority could have based his subjective satis faction on the ground that R.C. Singh was not a gazetted officer of Enforcement within the meaning of section 40(1) of the FERA cannot prevail. Even if the contention that R.C. Singh was not a gazet ted officer of Enforcement within the meaning of section 40(1) of the FERA were to prevail, it would be of little consequence. In this case during the investigation statements were re corded by B .T. Gurnsawhney, Assistant Director of Enforce ment and R.C. Singh. There is no dispute regarding the competence of B.T. Gurusawhney to record statements under section 40(1) of the FERA and the only question is as to whether the statements recorded by R.C. Singh under section 40(1) could be acted upon. If evidence is relevant the Court is not concerned with the method by which it was obtained. In Barindra Kumar Ghose & Ors. vs Emperor, ILR (1910) 37 Cal. 467 Sir Lawrence Jenkins repelling the contention that the Court must exclude relevant evidence on the ground that it was obtained by illegal search or seizure, said at p. 500 of the Report: "Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disre garded. On the assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrel evant because it was discovered 71 in the course of a search in which those provisions were disregarded". The question arose before the Judicial Commit tee of the Privy Council in the well known case of Kuruma vs Reginam, In dealing with the question Lord Goddard, CJ. delivering the judgment of the Privy Council said: "The test to be applied. both in civil and in criminal cases, in considering whether evi dence is admissible, is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained. " The learned CJ. further observed: "In their Lordships ' opinion, when it is a question of the admission of evidence strictly it is not whether the method by which it was obtained is tortuous but excusable, but whether what has been obtained is relevant to the issue being tried. " Again, the House of Lords in R.V. Sang; , reiterated the same principle that if evidence was admissi ble it matters not, how it was obtained. Lord Diplock after considering various decisions on the point observed that however much the judge may dislike the way in which a par ticular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused 's guilt 'it is no part of his judicial function to exclude it for this reason ' and added: "He has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. There is a long line of authority to support the opinion that the Court is not concerned with how evidence is ob tained. The rule is however subject to an exception. The Judge has a discretion to exclude evidence procured. after the commencement of the alleged offence, which although technically admissible appears to the Judge to be unfair. The classical example of such a case is where the prejudi cial effect of such evidence would be out of proportion to its evidential value. Coming nearer home. this Court in Magraj Patodia vs R.K. Birla & Ors., ; held that the fact that a document which was procured by improper or even illegal means could not bar its admissibility 72 provided its relevance and genuineness were proved. In R.M. Malkani vs State of Maharashtra, ; the Court applying this principle allowed the tape recorded conversa tion to be used as evidence in proof of a criminal charge. In Pooran Mal etc. vs Director of Inspection (Investigation) of Income Tax Mayur Bhavan, New Delhi & Ors. , ; the Court held that the income tax authorities can use as evidence any information gathered from the search and seizure of documents and accounts and articles seized. This being the substantive law, it follows that the detaining authority was entitled to rely upon the statements recorded by R.C. Singh under section 40(1) of the FERA. Even if R.C. Singh was not competent to record such statements under section 40(1) of the FERA, the statements were clearly relatable to section 39(b) of the Act. It cannot therefore be said that there was no material on which the detaining authority could have based his subjective satisfaction under sub section (1) of section 3 of the Act. We are unable to accept the submission of the learned counsel for another reason. Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of its acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. In Gokaraju Ranga raju 's case, supra, Chinnappa Reddy, J. explained that this doctrine was engrafted as a matter of policy and necessity to protect the interest of the public. He quoted the follow ing passage from the judgment of Sir Ashutosh Mukerjee J. in Pulin Behari vs King Emperor, 17 at p. 574: "The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large." The learned Judge also relied upon the following passage from the judgment of P. Govindan Nair, J. in P.S. Menon vs State of Kerala & Ors., AIR (1970) Kerala 165 at p. 170; "This doctrine was engrafted as a matter of policy and 73 necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, infact, whose acts, public policy requires should be considered valid. " The next substantive contention of learned counsel for the petitioner is that the so called factual mis statements which occur in paragraph 44 of the grounds of detention show that there was nonapplication of mind on the part of the detaining authority and he relies on the observations made in Khudiram Das ' case that the subjective satisfaction of the detaining authority is not wholly immune from the judi cial review and the Court can always examine whether the requisite satisfaction was arrived at by the authority; if it is not, the condition precedent to the exercise of the power would be bad. According to the rule laid down in Khudiram Das ' case which proceeds on well settled princi ples, the simplest case is whether the authority has not applied its mind and that is sufficient to vitiate the order of detention. It is submitted that this was a case of mis taken identity and there was no material before the detain ing authority to show that the initials 'ML ' in the various entries in the accounts of Messrs Greenland Corporation, Japan and the relative telex messages related to the detenu Mohanlal Jatia and not to the other ML meaning ML Kedia, the brother in law of Subhash Gadia. We are afraid, we cannot accept this line of argument. There is no warrant for the submission that the initials 'ML ' refer to ML Kedia and not the detenu Mohanlal Jatia or that a wrong person has been placed under detention. There is no dispute whatever that the initials 'ML ' refer to the detenu Mohanlal Jatia. When confronted during the interrogation with the initials 'ML ' in the books of Messrs Greenland Corporation and the telex messages, the detenu admitted that the initials 'ML ' or 'MLJi ' in the various entries as well as the telex messages stand for himself i.e. Mohanlal Jatia. As to the co called factual mis statements, the argument proceeds on the wrongful assumption that the facts stated in paragraph 44 of the grounds of detention are the 'grounds ' when they are in reality nothing but 'facts '. The High Court has rightly observed that the facts stated in paragraph 44 of the grounds cannot be read in isolation and the grounds of detention have to be read as a whole with the accompanying documents and material. As is quite apparent, the ground of deten 74 tion was only one viz. that the detenu was engaged in activ ities prejudicial to the augmentation of foreign exchange and therefore it became necessary in the public interest to place him under detention. Sufficiency of grounds is not for the Court but for the detaining authority for the perform ance of his subjective satisfaction that the detention of the detenu Mohanlal Jatia under section 3(1) of the Act was necessary. It was a matter of legal inference to be drawn from several facts which appear in the grounds and the facts are not merely in paragraph 44 but also in other paragraphs. It will be seen that paragraph 44 merely recites that when the detenu was confronted with the documents recovered from a search of Subhash Gadia 's residential premises and else where, he denied the various transactions entered into between him and Messrs Greenland Corporation, Japan and others abroad. It then goes on to state that the documents clearly revealed that he had been engaged in various unau thorised transactions in violation of the provisions of the Foreign Exchange Regulation Act. According to the learned counsel, the mistakes which crept in the proposal made by the initiating authority for the detention of the detenu recur in paragraph 44 of the grounds and it shows the casualness with which the grounds of detention were drawn which indicate nonapplication of mind. Although the argument at first blush appears to be attractive, but on deeper consideration does not stand to scrutiny. We wish to enumerate the so called factual mis statements listed as Items A to F in paragraph 44 of the grounds and deal with them in seriatim. Item A at p. 338 of the seized bunch SG 6 is the trial balance sheet of Messrs Greenland Corporation, Japan. On that page, there are var ious entries of ML, GN, RN and RG Jatia. It is mentioned by the detaining authority in paragraph 44 underneath Item A that Gadia 'admits ' that they are Jatia 's account. During interrogation Subhash Gadia stated that bunch of documents SG 6 relates to Messrs Greenland Corporation, Japan and that these entries 'may be related to the Jatia family '. The detaining authority was not wrong in treating the words 'may be ' in the context in which they appear as being an admis sion of fact made by the detenu. The detaining authority was entitled to make use of the decoding formula revealed by Subhash Gadia to connect the detenu Mohanlal Jatia with the initials 'ML ' appearing in various transactions, more so because the relative telex messages sent by Messrs Greenland Corporation were seized from the office premises of Messrs J.M. Trading Corporation, J.M. Textile Pvt. Ltd., Ramgopal Textile Pvt. Ltd., Ram Gopal & Sons, Ram Gopal Synthetics Pvt. Ltd., Kamal Trading Corporation. Kalpana Trading Corpo ratoin, Sudhir Trading Corporation, all situate at 701, Tulsiani cham 75 bers, 212, Nariman Point, Bombay and the detenu admittedly is closely connected with these concerns being Director or shareholder or a partner. The said documents disclose that the detenu Mohanlal Jatia with the initials 'ML ' and his brothers GN, SN and RN, namely. Ganesh Narayan Jatia, Satya Narayan Jatia and Ram Niranjan Jatia are maintaining secret accounts with Messrs Greenland Corporation, Japan. They also clearly indicate that the detenu and his brothers were found to be engaged in transferring funds from or to India in an unauthorised manner on a very large scale. Subhash Gadia in his statement revealed that pp. 316, 317 and 318 of the seized document SG 6 are written in his handwriting and the account is in Yen. He further revealed that the said ac counts relate to Satya Narayan Jatia, Ganesh Narayan Jatia and Mohanlal Jatia. The detenu was furnished a copy of the statement made by Subhash Gadia. As hereinbefore adumbrated, the detenu when confronted denied to have entered into the transaction. However. when confronted with the various entries appearing in the seized document SG 6 the detenu admitted that the initials 'MI. ' or 'MLJi ' relate to him both in the accounts as well as in the telex messages. The various entries show transactions involving foreign exchange to the tune of several crores of rupees. For instance, at p. 318 of SG 6appear the details of FDR account standing in the name of Satya Narayan, Ganesh Narayna and Mohanlal Jatia to be divided equally and the sum total of the amount shown is 1,09,37,471.16 Yen. The said figure also finds place at p. 278 of the file SG 6 which gives details how the figure 1,09,37,471.16 has been arrived at. In the telex message appearing at pp. 35 and 36 in the bunch of seized document SG 6 arc given the details of the FDR account with instruc tions to work out the average rate of interest between the three brothers Satya Narayan, Ganesh Naryana and Mohanlal payable on the FDR for 1,09,37,471.16 Yen. Similarly, Laxmi Ji account with Messrs Greenland Corporation, Japan is a capital account of Satya Narayan, Ganesh Narayan and Mohan lal showing a capital investment of 48,62,96,325 Yen. We need not go into further details. The entries show the magnitude of the operation in foreign exchange carried on by the detenu. We do not see any mistake of fact in Item B which re lates to purchase of a TV 27" and a VCR. There is an entry at p. 338 of SG 6 showing that the detenu 's account was debited with these items although the detenu in his state ment asserted that they were gifted by his brother. That takes us to the effect of the mistake occurring in Item C at p.215 of the seized documents that there is an entry showing that the detenu had a fixed deposit of US $ 2 lakhs. The entry reads: "ML 2 76 lakhs A/S 11.75 dated 2.6.83". Even assuming that it was a mistake to have introduced the words "also including 20 lakhs $ (dollars)" in paragraph 44 of the grounds that would not by itself without more, vitiate the impugned order of detention or necessarily show nonapplication of mind. Even so, the detaining authority was entitled to act upon the entry. relating to US $ 2 lakhs for the formation of his subjective satisfaction. Significance of these entries shows that the detenu was maintaining the secret account and had large sums of money in fixed deposits abroad. The detaining authority has charged the detenu with keeping US $ 2 lakhs in fixed deposit in Kamal Account which is the capital account of the detenu and his brothers Messrs Greenland Corporation, Japan. The words "also including 20 lakhs $ (dollars)" are no doubt not there in the books of accounts but they crept in the proposal and have been reproduced in paragraph 44 of the grounds. It is somewhat strange that these words should be introduced when they were not there in the books of accounts but the fact remains that there is a typographical error. The High Court rightly observes that a single typographical mistake about making a reference to US $ 20 lakhs would not necessarily show the non application of mind when the entry of US $ 2 lakhs (dollars) is reflected in various places in the account such as ML Ji Khata P. 175 and Kamal Account P. 226, copies of which were furnished to the detenu. Even assuming that the words "also including 20 lakhs $ (dollars)" were introduced in paragraph 44 of the grounds that would not be a factor vitiating the impugned order of detention. The detaining authority was still enti tled to act upon the entry relating to fixed deposit of US $ 2 lakhs (dollars) for the formation of his subjective satis faction. As regards Items D and E, the contention of the peti tioner is that reference to American Dollar account as on January 31, 1984 as per p. 335 of SG 6 and Japanese Yen account: Final position at Bombay of 141147.27 set out at p. 318 thereof was totally unintelligible and was unconnected with the detenu nor had any relevance The respondents have controverted this in the counter affidavit filed by M.I,. Wadhawan, Additional Secretary to the Government of India, Ministry of Finance. It is asserted that the aforesaid abstracts clearly indicate that the detenu Mohanlal Jatia and his brothers were found to be engaged in transferring funds from or to India in an unauthorised manner on a very large scale. According to the statement of Subhash Gadia the American Dollar account is as per p. 335 of SG 6, the de tails whereof are given at p. 3 18 and the said amount is credited in the name of SN. GN and ML to be divided equally. The sum total of the amount shown to be divided was 10937,471.16 Yen. This figure also appears at p. 278 77 of file SG 6 giving details as to how this figure 10937,471.16 Yen has been worked out. At p. 318 of SG 6 under the heading Laxmi Ji account. the sum total in Japa nese Yen shown is 48,62,96,325 to be equally divided amongst SN, GN and ML. According to the statement of Subhash Gadia, the Laxmi Ji account was a capital account of SN, GN and ML with Messrs Greenland Corporation, Japan. The amount of 141147.27 apparently shown in Item E represents the detenu 's share. However, the detenu expressed his inability to ex plain the said two accounts American Dollar account and Laxmi Ji account and the telex messages. It appears that imports of yarn in India from Messrs Greenland Corporation, Japan were effected through Messrs J.M. Trading Company of which the detenu is a partner and there was either over pricing of the goods in the invoices or some portion of commission was secretly kept with Messrs Greenland Corpora tion and was being utilised for differential treatment. It can hardly be asserted in view of the facts revealed in the counter affidavit of the Additional Secretary, Ministry of Finance that the detenu was transferring funds either from or to India in a clandastine manner on a very large scale. The remaining Item F at p. 315 of the bunch of documents marked SG 6 is a coded account maintained by the detenu under the name Kamal Account representing the capital in vestment of SN, GN and ML with Messrs Greenland Corporation. It relates to the entry "US $ 78,000 converted into Rs.9,16,500 commission of". At every place in the bunch of seized document SG 6 such as on the reverse of p. 215 there is an entry to the effect that US $ 78,000 were converted into Indian rupees @ Rs. 11.75 equivalent to 9, 16,500 and that the said amount was capitalised on 19.7. 1983 in the name of GN. Paragraph 33 of the grounds involves the com plicity of the detenu by making reference to a secret ac count maintained by SN, GN and ML to the effect: was found that all of you are engaged in transferring funds from or to India on a very large scale. " In this coded account, the modus operandi adopted at every place is to delete two zeros from the converted Indian currency. Learned counsel for the petitioner tried to spell out an argument that the use of the word 'or ' shows that the ground was vague or indefinite. According to the learned counsel, it is quite apparent that the detaining authority was not definite as to the nature of payment i.e. whether the con version of foreign exchange into rupees represented payments made or amounts received. Nothing really turns on this. The fact remains that the detneu had been admittedly keeping a secret account of foreign currency abroad without the per mission of the Reserve Bank of India. 78 It is quite apparent that the so called factual mis statements are not mis statements at all. The High Court rightly held that the alleged mistakes or infirmities point ed out were not so material or serious in nature as to vitiate the impugned order of detention. As already indicat ed, sufficiency of the grounds is for the detaining authori ty and not for the Court. It cannot be said on a perusal of the grounds that there was no material on which the detain ing authority could have acted. There still remains the further question whether the period of parole should be treated as part of the detention period itself. This question has been elaborately considered by this Court in Smt. Poonam Lata vs M.L. Wadhawan & Ors., (J.T. to which one of us (Sen, J.) was a party and it was held therein "that the period of parole has to be excluded in reckoning the period of detention under sub section (1) of Section 3 of the Act" (Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974). addition to the reasons given therein we may add the following by way of supplementary material. Though the element of detention is a common factor in cases of preven tive detention as well as punitive detention, there is a vast difference in their objective. Punitive detention follows a sentence awarded to an offender for proven charges in a trial by way of punishment and has in it the elements of retribution, deferrence, correctional factor and institu tional treatment in varying degrees. On the contrary preven tive detention is an extraordinary measure resorted to by the State on account of compulsive factors pertaining to maintenance of public order, safety of public life and the welfare of the economy of the country. The need for this extraordinary measure i.e. detention without trial was realised by the rounding fathers of the Constitution as an inevitable necessity for safeguarding the interests of the public and the country and hence a specific provision has been made in clause (3) of Article 22 providing for preven tive detention being imposed in appropriate cases notwith standing the fundamental right of freedom and liberty gua ranteed to the citizens by the Constitution. The entire scheme of preventive detention is based on the bounden duty of the State to safeguard the interests of the country and the welfare of the people from the canker of anti national activities by anti social elements affecting the maintenance of public order or the economic welfare of the country. Placing the interests of the nation above the individual liberty of the anti social and dangerous elements who con stitute a grave menace to society by their unlawful acts, the preventive detention laws have been made for effectively keeping out of circulation the detenus during a prescribed 79 period by means of preventive detention. The objective underlying preventive detention cannot be achieved or ful filled if the detenu is granted parole and brought out of detention. Even if any conditions are imposed with a view to restrict the movements of the detenu while on parole, the observance of those conditions can never lead to an equation of the period of parole with the period of detention. One need not look far off to see the reason because the observ ance of the conditions of parole, wherever imposed, such as reporting daily or periodically before a designated authori ty, residing in a particular town or city, traveling within prescribed limits alone and not going beyond etc. will not prevent the detenu from moving and acting as a free agent during the rest of the time or within the circumscribed limits of travel and having full scope and opportunity to meet people of his choice and have dealings with them, to correspond with one and all and to have easy and effective communication with whomsoever he likes through telephone, telex etc. Due to the spectacular achievements in modern communication system, a detenu, while on parole, can sit in a room in a house or hotel and have contacts with all his relations, friends and confederates in any part of the country or even any part of the world and thereby pursue his unlawful activities if so inclined. It will, therefore, be futile to contend that the period of parole of a detenu has all the trappings of actual detention in prison and as such both the periods should find a natural merger and they stand denuded of their distinctive characteristics. Any view to the contrary would not only be opposed to realities but would defeat the very purpose of preventive detention and would also lead to making a mockery of the preventive deten tion laws enacted by the Centre or the States. It will not be out of place to point out here that in spite of the Criminal Procedure Code providing for release of the con victed offenders on probation of good conduct, it expressly provides, when it comes to a question of giving set off to a convicted person in the period of sentence, that only the actual pre trial detention period should count for set off and not the period of bail even if bail had been granted subject to stringent conditions. In contrast, in so far as preventive detentions under the , are concerned, the Act, specifically lays down that a person against whom an order of detention has been passed shall not be released on bail or bail bond or otherwise (vide Section 12 (6) of the Act) and that any revocation or modification of the order of detention can be made only by the Government in exercise of its powers under Section 11. Incidentally. it may be pointed out that by reason of sub section (6) of section 12 of the Act placing an embargo on the grant of bail to a detenu there was no 80 necessity for the Legislature to make a provision similar to sub section (4) of Section 389 of the Code of Criminal Procedure, 1973 (corresponding to sub section (3) of Section 426 of the old Code) for excluding the period of bail from the term of detention period. For these reasons the plea for treating the period of parole as part of the detention period has to necessarily fail. One last point remains. Besides refuting the contention of the petitioner that the detenu had made a written repre sentation addressed to the President of India on April 15, 1986 and that there has been an infraction of the Constitu tional safeguard embodied in Article 22(5" of the Constitu tion and Section 11 of the Act due to the failure of the Central Government to consider the said Representation, the respondents have preferred an application under Section 340 of the Code of Criminal Procedure, 1973 for prosecution of the persons responsible for forging the document purporting to be the alleged Representation made by the detenu under Section 8(4" of the Act and for making certain interpola tions in the Dak Register kept at the Rashtrapati Bhavan. The respondents have placed sufficient material before the Court to show that the alleged Representation addressed to the President of India was neither filed by the detenu nor was it received at the President 's Secretariat on April, 15, 1986. The respondent have placed on record the correspond ence that passed between the Ministry of Finance, Department of Revenue and the President 's Secretariat. They have also produced for our perusal the original Dak Register kept at the Rashtrapati Bhawan. On a careful scrutiny of the corre spondence and the entries in the Dak Register we are more than satisfied that no such Representation was ever made by the detenu and that the attempt to assail the order of detention on the ground of violation of the constitutional safeguard enshrined in Article 22(5) and the violation of Section 11 of the Act by the Central Government is a well planned and ingenuous move on the part of the detenu. We are not only deeply shocked by the daring attempt of the detenu to fabricate a document styled as a representation addressed to the President of India but feel much more perturbed and even alarmed that there should have been willing hands at the President 's Secretariat to lend their services to the alleged agent of the detenu to give a colour of truth and reality to the nefarious scheme. We may now set out the highlights of the disquieting features noticed by us in the case set up by the detenu about a representation being delivered at the President 's Secretariat on 15.4. Before enumerating the suspicious features it has to be borne in mind that the 81 detenu is not a rustic or an uneducated person or a man of no means. On the other hand he is a man of great affluence, having dealings in this country as well as in countries overseas and, therefore, having the means to secure the services of astute and enlightened counsel in the country. He cannot, therefore, take umbrage for his actions on grounds such as lack of knowledge or want of funds or igno rance of law. Now coming to the details. The representation said to have been made was not addressed to the Government of India which is the authority to consider the representa tion but to the President. Be that as it may, the represen tation signed in Bombay could have been sent by registered post/acknowledgement due to the President 's Secretariat but instead it is said to have been brought by a messenger from Bombay to New Delhi. The said messenger does not present the representation at the President 's Secretariat but he is said to have handed it over to one Ashok Jain and the said Ashok Jain is said to have delivered the representation at the President 's Secretariat. As per the affidavit filed by Shri K.C. Singh, Deputy Secretary to the President, President 's Secretariat, a visitor coming with a petition to the Rash trapati Bhavan has first to approach the Reception and then he is given a printed pass and sent with an escort to the Central Registry and after he delivers the letter he will be escorted back to the Reception to return his pass and then leave the building. Ashok Jain in his affidavit has categor ically stated that he went to the Rashtrapati Bhavan at "roughly about 6.00 P.M." and a person at the Reception directed a peon to show him the Central Registry, that no one enquired him about his name or issued him any pass and that he went to the Central Registry as pointed out by the peon and delivered a sealed envelope and obtained an en dorsement of acknowledgement on the Xerox copy of the repre sentation. In view of the conflicting affidavit, there is room for inference that either Ashok Jain did not personally go and deliver the sealed envelope at the President 's Secre tariat or that he was able to wield influence to such an extent as to be taken to the Central Registry without the procedural requirement of every visitor being issued a pass being observed in his case. It also surpasses our comprehen sion how an endorsement of acknowledgement could have been made on a Xerox copy of the alleged representation when the original of the representation is said to have been given in a sealed envelope. There are several other intrinsic fea tures in the endorsement itself evoking grave suspicion. The rubber stamp seal affixed on the Xerox copy does not corre spond to the facsimiles of the two rubber stamps used in the President 's Secretariat as described by Shri K.C. Singh, Deputy Secretary in his affidavit. 'I he endorsement of acknowledgement does not contain the signature or 82 initials of the Receiving Officer. but strangely it contains a Dak Number, "Dy. No. 20 date 15.4.1986". Shri K.C. Singh has set out in his affidavit the procedure to be followed when letters and open petitions are received at the Presi dent 's Secretariat but the procedure set out therein has not been followed in this case. Over and above all these things, a scrutiny of the relevant page in the Dak Register kept in the President 's Secretariat, which was produced before us in a sealed cover, contains tell tale features of a startling nature revealing a planned attempt, but very clumsily exe cuted, to somehow interpolate an entry in the Dak Register to make it appear that an envelope containing the alleged representation had been presented at the President 's Secre tariat. For our present purposes, it is not necessary to give a graphic account of the manipulations made in the Register and it will suffice if we refer only to the broad features. The bottom portion of the page has been torn off, obviously with a view to obliterate some entry made therein. The entry relating to the alleged representation of the detenu has been interpolated between one entry dated 15.4 and another entry dated 16.4. but in order to fit in the serial number, the entry relating to the representation has first been noted as 20(A), then the letter A has been smudged and the entry dated 16.4 has been made 20(A) instead of 20. The entry pertaining to the representation is in different handwriting and ink. Shri K.C.Singh in his affida vit has stated that "this office is enquiring into the circumstances under which the entry came to be inserted in the Dak Register meant only for unopened letters addressed to the President by name. " All these things not only warrant an inference that the detenu and his associates have gone to deplorable lengths to create evidence favourable to the detenu but arouse convul sive thoughts in our minds about the efficiency and integri ty of the concerned sections of the President 's Secretariat. We are constrained to give expression to our feelings of anguish by means of these observations because at the level of the President 's Secretariat every section of the Secre tariat is expected to observe the highest standards of morality, integrity and efficiency. The ease with which and the facile manner in which the detenu 's agent Ashok Jain claims to have entered the President 's Secretariat and delivered the Dak and obtained an endorsement of acknowl edgement in a copy of the representation and the length to which the concerned Secretariat staff have gone to give credence to the version of Ashok Jain not only reveals the deep fall in standards but also the lack of security and vigilance. We feel fully persuaded to hold that this is a fit case in which the 83 detenu, his wife (petitioner herein), Ashok Jain and all other persons responsible for the fabrication of false evidence should be prosecuted for the offences committed by them. Nevertheless we wish to defer the passing of final orders on the.application made under Section 340 of the Code of Criminal Procedure, 1973 by the Union of India at this stage because of the fact the Central Bureau of Investiga tion is said to be engaged in making a thorough investiga tion of the matter so that suitable action could be taken against all the perpetrators of the fraudulent acts and the offences. As such the launching of any. prosecution against the detenu and his set of people at this stage forthwith may lead to a premature closure of the investigation resulting in the Central Bureau of Investigation being unable to unearth the full extent of the conspiracy. Such a situation should not come to pass because the manipulations of the detenu and his agents on the one hand and the connivance of staff in the President 's Secretariat on the other cannot be treated as innocuous features ' or mere coincidence and cannot therefore, be taken lightly or viewed leniently. On the contrary they are matters which have to be taken serious note of and dealt with a high degree of vigilance, cate and concern: Consequently, while making known our opinion of the matter for action being taken under Section 340 of the Code of the Criminal Procedure we defer the passing of final orders on the application under Section 340 till the inves tigation by the Central Bureau Of Investigation is complet ed. The respondents are permitted to move the Court for final orders in accordance with our directions. Accordingly, the special leave petition and the writ petition are dismissed with costs. H.L.C. Petitions dis missed.

Sub section (1) of section 5 of the Orissa Forest Produce (Control of Trade) Act, 1981 provides that on the issue of a notification under sub section (3) of section 1 in respect of an area (a) all contracts for the purchase, sale, gathering or collection of specified forest produce shall stand rescind ed, and (b) no person other than the State Government or its officers or agents shall purchase or transport any specified forest produce in the said area. Explanation II thereto provides that purchase of specified forest produce from the State Government or its officers or agents is not to be deemed to be a purchase in contravention of the provisions of the Act. The appellant company was granted a licence for collec tion, sale and purchase of sal seeds from Government forests on the stipulation that it would establish solvent extrac tion units in backward areas. The appellant company was to supply sal seeds to these extraction plants. The agreement was renewed for a further period of ten years from October 1, 1979. The State Government by a notification dated Decem ber 9, 1982 issued under sub section (3) of section 1 brought the Act into force immediately in the whole of the State in relation to sal seeds. Thereafter it refused to accept royalty from the appellant on the ground that the notification had the effect of rescinding the contract between the company and the Government. 318 A writ petition filed by the company for a declaration that the abovesaid notification did not have the effect of rescinding their contract with the State Government, was dismissed by the High Court. In the appeals to this Court it was contended for the appellants that the Act had no application to the produce grown in Government forests, that the Act was aimed at creating a monopoly in forest produce in the Government by vesting in it the exclusive right to purchase forest produce grown in private holdings, and that even otherwise Explana tion II to section 5(1) saved such contracts for the purchase of specified forest produce from Government lands also. On behalf of the respondents it was contended that the very wide language of section 5(1)(a) made it applicable to all forest produce whether grown in private holdings or Government forests, and that the contract being for collection and not for purchase of forest produce it was not saved by the Explanation II to section 5(1). Allowing the appeals, the Court, HELD: 1. The Orissa Forest Produce (Control of Trade) Act, 1981 and the notification issued under it do not apply to the forest produce grown in Government forests. It was not, therefore, open to the Government to treat the con tracts with the appellants as rescinded. [333C] 2. The scheme of the Act is fully in tune with the object set out in the Statement of Objects and Reasons and in the Preamble, namely, that of creating a monopoly in forest produce by making the Government the exclusive pur chaser of forest produce grown in private holdings. Sections 4, 5(1)(b), 5(3), 7, 8 and 9 deal with purchase of forest produce by the State Government. This can only be of forest produce grown in private holdings and not in Government forests since there can be no question of or providing for the purchase by the Government of forest produce grown on Government lands. The only provision in the Act which ex pressly deals with sale of forest produce by the State Government is section 12, and that again is confined to the sale of specified forest produce purchased by the State Govern ment. The Act, therefore, cannot to said to have any appli cation to produce grown in Government forests. [331H 332A, 331FG, EF, CD, F, 323E] 3.1 The safest guide to the interpretation of a statute is the reason for it, which can he discovered through exter nal and internal aids. The external aids are Statement of Objects and Reasons when the Bill is 319 presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Commit tees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the Preamble, the scheme and the provisions of the Act. [328EF[ 3.2. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and pat tern are important. Parliament does not waste its breath unnecessarily. It is neither expected to use unnecessary expressions, 'nor to express itself unnecessarily. While the words of an enactment are important, the context is no less important. The fact that general words are used in a statute is not in itself a conclusive reason why every case failing literally within them should be governed by that statute. The context of an Act may well indicate that wide or general words should be given a restrictive meaning. [328F 329B] Attorney General vs H.R.H. Prince Augustus, ; Chertsey, U.D.C.v. Mixnam 's Properties, , Empress Mills vs Municipal Committee, Wardha, ; and Maunsell vs Olins, , referred to. 4.1 It is not permissible to the Court to construe the wide and general words of section 5(1)(a) in their literal sense as that would not be in consonance with the scheme of the Act. The proper way to construe that provision is to give a restricted meaning to the wide language there used so as to fit into the general scheme of the Act. [332B D] 4.2 Section 5(1)(a) and 5(1)(b) are connected by the conjunction 'and ', and having regard to the circumstances leading to the enactment and the policy and design of the Act, cls.(a) and (b) must be construed in such a way as to reflect each other. Viewing section 5(1)(a) and 5(1)(b) together and in the light of the Preamble and the Statement of Ob jects and Reasons and against the decor of the remaining provisions of the Act, it is apparent that section 5(1), like the rest of the provisions, applied to forest produce grown in private holdings and not to forest produce grown in Govern ment lands. [332D, F G] 5. The contracts relating to specified forest produce which, therefore, stood rescinded were contracts in relation to forest produce grown in private holdings only. Since the very object to the Act was to create a monopoly in forest produce in the Government so as to enable the Government, among other things, to enter into contracts and since 320 section 5(1) does not bar any future contracts by the Government in respect of the forest produce, there was no justification in rescinding contracts solemnly entered into by the Govern ment for the avowed purpose of encouraging the setting up of certain industries in the State. [332E, 334A] 6. The object of the Act was to prevent smuggling of those varieties of forest produce as were grown both in Government forests and private lands. It was expressly mentioned in the Statement of Objects and Reasons that such varieties of forest produce were unlike sal seeds which were grown only in Government forests. Even so the only notifica tion ever issued under the Act was in respect of sal seeds and no other forest produce. The mere inclusion of 'sal seeds ' in the definition of 'forest produce ' cannot in the teeth of the several provisions of the Act lead to the inference that forest produce grown in Government lands was also meant to be dealt with by the Act. Several species of forest produce were included in the definition of forest produce and among them 'sal seeds ' were also included so as to eliminate even the remote possibility of the existence of some stray private holdings in which sal seeds may have been grown. [324G 325A, 333AB] 7. The circumstance that 'grower of forest produce ' is defined so as to include the Government is of no consequence in determining whether the Act is applicable to forest produce grown on Government lands. The expression 'grower of forest produce ' is not found in any other provision except section 5(2)(a) and section 10. Section 5(2)(a) provides for the transport of forest produce by the grower from a place within one unit to another place within the unit. Section 10 requires every grower of specified forest produce to get himself registered in the prescribed manner. Neither section 5(2)(a) nor section 10 has, therefore, any application to the Government lands. [331B, A] 8. It is not necessary to consider the submission that Explanation II to section 5(1) saves the present contract or that Explanation I1 is an explanation only to section 5(1)(a) and not to section 5(1)(b). [333B] [It is not permissible for the Court to extend the period of lease of the appellants by way of relief for the business lost. The parties to work out their rights in the light of the various interim orders and the declaration granted by the Court. ] [333E]

minal Appeal No. 228 of 1970. Appeal by special leave from the judgment and Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in Criminal Revision No. 90 of 1970. D. N. Nijhawan, Urmila Kapoor and Kamlesh Bansal, for the appellant. Sardar Bahadur Saharya, for the respondents. Respondent No. 1, Kamla Devi was married to the appellant Bhagwan Dutt on January 22, 1957 according to Hindu rites. out of this wedlock a daughter, Respondent No. 2, was born on November 22, 1957. On October 18, 1966, Respondent No. 1 filed a petition against the appellant for judicial separation on the ground of desertion and cruelty. During the pendency of that petition, she filed all application under section 488 of the Code of Criminal Procedure, 1898, in the court of the Magistrate, 1st Class, Delhi, claiming maintenance for herself and for her minor daughter, on the ground that the appellant had neglected and refused to maintain them. At the date of the application Respondent No. 1 was employed as a stenographer on a monthly salary of Rs. 600/ . The appellant was at that time earning about Rs. 800/ per month. However, later on when the case was in the Sessions Court in revision, the monthly income of each of them had increased by Rs. 1501 , approximately. By his order dated June 6,1969 the Magistrate directed the husband to pay Rs. 250/ per month i.e. Rs. 175/ for the wife and Rs. 75/ for the child for their maintenance. While fixing the amount of maintenance for the wife, the Magistrate did not take into consideration her own independent income. Against the order of the Magistrate, the husband went in revision to the Court of Session. The Additional Sessions Judge was of the view that since the income of the wife was "substantial" and enough to maintain herself". she was not entitled to any maintenance. He was further of the opinion that Rs. 75/ p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/ p.m. for the period of the pendency of the application in the trial court and thereafter to Rs. 150/ p.m. He referred the case to the High Court under section 438 of the Code with a recommendation that the order of the Magistrate to the extent it allowed maintenance to the wife, be quashed, but the allowance of the child be enhanced as aforesaid. 485 A learned single Judge of the High Court who heard the reference held that in "making an order for maintenance in favour of a wife under section 488 of the Code of Criminal Procedure the court has not to take into consideration the personal income of the wife as section 488 does not contemplate such a thing". He therefore declined the refe rence pro tanto, but accepted the same in regard to the enhancement of the allowance of the child. Aggrieved by the judgment of the High Court, the husband has now come in appeal before us. The material part of Section 488 of the Criminal Procedure Code is in these terms: "(1) if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. (2) to (5). " The corresponding part of Section 125 in the new Criminal Procedure Code, 1973, which came into force on 1 st April 1974, reads: "125. (1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority , where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself. a Magistrate of the first class may, upon proof of a such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife, such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. " A comparative study of the provisions set out above would show that while in Section 488 the condition "unable to maintain itself" 486 apparently attached only to the child and not to the wife, in Section 125, this condition has been expressly made applicable to the case of wife. Does this recasting of the old provision signify ally fundamental change in the law? Or, has this been done merely to clarify and make explicit what was formerly implict ? Section 488 does not confer an absolute right on a neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances. The use of the word "may" in Section 488(1) indicates that the power conferred on the Magistrate is discretionary. A neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband. of course, the Magistrate has to exercise his discretion in a judicial manner consistently with the language of the statute with the regard to other relevant circumstances of the case. Nevertheless, the Magistrate has to exercise his discretion primarily towards the end which the Legislature had in view in enacting the provision. Sections, 488, 489 and 490 constitute one family. They have been grouped together in Ch. XXXVI of the Code of 1898 under the caption, "of the maintenance of wives and children". This Chapter, in the words of Sir James Fitzstephen, provides " a mode of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil a social purpose. Their object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, S section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the Section on the Magistrate is more in the nature of a preventive, rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson 's case(1) "the scope of the Chapter XXXVI is limited and the Magistrate cannot, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts". Sub section (2) of section 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights. The stage is now set for appreciating the contentions canvassed by the learned Counsel for the parties. Mr. Nijhawan, learned Counsel for the appellant contends that if section 488(1) is construed in the light of its primary object and. the nature of the jurisdiction conferred by it, together with section 489(1), it would be amoly clear that in determining the wife 's claim to maintenance and its quantum, her independent income is a relevant consideration. in support of this contention, Counsel has referred to Mohd. Ali vs Mt. (1) 6 N.W.P. 205. 487 Sakina Begum(1) Narasimha Ayyar vs Rangathayammal(2); Ploonnabalam vs Saraswathi(3); Ahmed Ali Saheb vs Sarfara linisa Begum (4) and P. T. Ramankutty A chan vs Kalyanikutty(5). As against the above, Mr. Sardar Bahadur Saharya maintains that the very fact that the Section does not make the inability of a wife to maintain herself, a condition precedent to the grant of maintenanceas it does in the case of child shows that the intention of the Legislature was that the wife 's own income or means should not be taken into account either for determining her right to maintenance or for fixing its amount. It is further urged that the language of section 489 cannot be called in aid to construe section 488 (1). Reliance for the main argument has been placed on Major Joginder Singh vs Bibi Raj Mohinder Kaur.(6) In Major Joginder Singh 'section case (supra), the wife had claimed maintenance under section 488, Cr. P. C. both for herself and her minor son. The husband was a Major in the army, getting Rs. 1070/ p.m. It is not very clear from the Report as to whether the wife was having any substantial income of her own. However, an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance. The learned Judge who decided the case, negatived the contention, thus : "It is obvious from the language of the section that in order to enable a child to claim maintenance it has to be proved that the child is unable to maintain itself '. No such condition has been imposed in the case of a wife. Cases in which maintenance was refused to the wife merely on the ground that she was in a position to maintain herself have, in my view, omitted to consider the implication of this distinction while construing the scope and effect of section 488. In my opinion, the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section, if she is otherwise found entitled to it. " Commenting on the cases cited before him, the learned Judge further observed : "But if those authorities intend to lay down any rigid rule of law that the only right which a wife possesses under section 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that also only if she has no other means or source, then I must with respect, record my emphatic dissent. " It may be noted that the above principle spelled out from the interpretation of section 488(1) in Major Joginder Singh 's case (supra), (1) A.I.R. 1944 Lah. (3) A.I.R. 1957 Mad. 693. (5) A.I.R. 1971 Kerala 22. (2) A.I.R. 1947 Mad. (4) A.I.R. 1952 Hyd. 76 (6) A.I.R. 1960 Punjab 249. 488 was carried a step further by the Division Bench in Nanak Chand Banarsi Dass and ors. vs Cliander Kishore and Ors.(1) to deduce the proposition that the wife 's right to receive maintenance under section 488, Criminal Procedure Code is an absolute right. In our opinion, one wrong assumption has led to another false deduction. The mere fact that the language of section 488(1) does not expressly make the inability of a wife to maintain herself a condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife 's own separate income or means of support. There is a clear distinction between a wife 's locus standi, to file a petition under section 488 and her being entitled, on merits, to a particular amount of maintenance thereunder. This distinction appears to have been overlooked in Major Joginder Singh 's case (supra). Proof of the preliminary condition attached to a neglected child will establish only his competence to file the petition but his entitlement to maintenance, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in a just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband. The object of those provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments. There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration. Rather, there is a definite indication in the language of the associate section 489(1) that the financial resources of the wife are also a relevant consideration in making such a determination. Section 489(1) provides inter alia, that "on proof of a change in the circumstances of any person receiving under section 488 a monthly allowance, the Magistrate, may make such alteration in the allowance as he thinks fit". The "circumstances" contemplated by section 489(1) must include financial circumstances and in that view,the inquiry as to the change in the circumstances must extend to a change in the financial circumstances of the wife. Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under section 488(1), the Magistrate is competent to take into consideration the separate income and means of the wife. (1) A.I.R. 1969 Delhi 235. 489 We do not wish to burden this judgment with discussion of all the decisions that have been cited at the Bar. It will suffice to notice one of them rendered by the Kerala High Court in which Major Joginder Singh 's case (supra) was explained and distinguished. That case in P. T. Ramankutti vs Kalyankutty (supra) therein, the husband was getting a net salary of Rs. 240/ , while the monthly salary. of the wife was (after deductions) Rs. 210/ . The question, was whether the wife in such a financial position had a right to claim maintenance under s.488, Criminal Procedure Code. after referring to the observations of Dua, J. in Major Joginder Singh 's case (supra) and surveying the case law on the subject, the learned single Judge of the Kerala High Court correctly summed up the position thus ; "To take the view that in granting maintenance under Section 488 to a wife her personal income also can be considered may Prima facie appear to be against the language of the section because the condition "unable to maintain itself" appearing therein attaches itself only to child and not to wife. But that condition has application only in considering the maintainability of a petition filed under s.488. A wife can file a petition under that section irrespective of the question whether she is able or unable to maintain herself. But on her application at the time of the granting of monthly allowance to her there is nothing prohibiting the Court from considering whether she can maintain her self with her own income and if she can, granting her nothing by way of allowance. " Any other construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as a punitive weapon against their husbands. It is next contended on behalf of the appellant that section 488 must be deemed to have been partially repealed and modified by section 23 of the (for short, called the Act) which provides that in determining the amount of maintenance, the Court shall have, inter alia, regard "to the value of the wife 's property and any income derived from such property or from the claimant 's own earning or from other sources". Clause (b) of s.4 of that Act provides "Save as otherwise expressly provided in this Act (a) x x x (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. " The question therefore resolves itself into the issue : whether there is any thing in s.488 which is in consistent withs .23 or any other provisions of the act. This matter is no longer resititegra. In Nanak Chand vs Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78 of 1956 and section 488, Criminal Procedure (1) ; 490 Code. Both could stand together. The Act of 1956 is an Act to amend and codify the law relating to adoption and maintenance among Hindus. The law was substantially similar before when it was never suggested that there was any inconsistency with section 488, Cr. P. C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. We have said and it needs to be said again, that section 488 is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution become a hazard to the well being of orderly society. As against this, section 23 and other provi sions of the Act relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives or dependents under their personal law. This contention therefore is meritless and we negative the same. For the reasons aforesaid, we allow the appeal, set aside the judgment of the High Court and send the case back to the trial Magistrate to refix the amounts of maintenance. In the case of the wife, he shall together with other relevant circumstances, take into account her income also. In the case of the daughter, he shall afford opportunity to the parties to lead fresh evidence and then refix her allowance. V.P.S. Appeal allowed.

The appellants who owned Dumpers, Rockers and Tractors claimed that these machines were not liable for registration under section 22 of the Indian and as such were not taxable under section 6 of the Bihar and Orissa Motor Vehicles Taxation Act, 1930. The trial court held that the machinery were motor vehicles within the meaning of section 2(18) of the and were therefore liable for registration under that Act and so to payment of tax under the Taxation Act. The High Court held that unless it was shown that the vehicles were of a special type adapted for use only in factories or enclosed premises and incapable of running on any other type of roads or public roads the vehicles were motor vehicles and that the three types not being motor vehicles were not liable for registration under section 22 of the Act nor were they subject to payment of tax under the Taxation Act. Section 2(c) of ' the Taxation Act adopted the definition of motor vehicle contained in the Motor Vehicles Act, 1914. The Motor Vehicles Act, 1914 was repealed and replaced by the . The definition of motor vehicle in section 2(18) of the having been redefined the Taxation Act, by the Orissa Amendment Act 2 of 1940 adopted that definition for the purpose of taxation. The Orissa Amendment Act, 1943 reenacted provisions of sections 2 to 8 of the Taxation Act as the Amendment Act 2 of 1940 was due to expire. Section 2(18) of the was amended by Act 100 of 1956. But there was no corresponding amendment in the definition of section 2(c) of the Taxation Act. It was contended in this Court that under the definition of motor vehicle as it existed prior to amendment or subsequent thereto dumpers, rockers and tractors were not motor vehicles because they were not adapted to use on the road and (2) the definition of motor vehicle in section 2(c) of the Taxation Act is not a definition by incorporation but only a definition by reference and as such the meaning of motor vehicle for the purpose of section 2(c) of the Taxation Act would be the same as defined from time to time under sections 8(2) to 18 of the . HELD : Dumpers and rockers though registrable under the are not taxable under the Taxation Act as long as they are working solely within the premises of the respective owners. So far as the tractairs are concerned they are neither registrable under the nor taxable under the Taxation Act. [160 F] A motor vehicle which is not "adapted for use" upon roads to which public have no right of access is not a motor vehicle within the meaning of section 2(18) of the Act. The words "is adapted for use" have the same connotation as "is suitable" or "is fit" for use on the roads. The meaning of the word adopted" in section 2(18) of the Act is itself indicated in entry 57 of List If of the 7th Schedule to the Constitution which confers powers on the State to tax vehicles whether propelled mechanically or not and uses the words "suitable" in relation to its use on the roads. The words "adapted for use" must. therefore, be constructed as "suitable for use". The words "adapted for use" 139 cannot be larger in their import by including vehicles which are not "suitable for use" on roads. A perusal of the provisions of the Act would justify the conclusion that it is not necessary for other vehicles registered under the Act to, be also liable for payment of tax under the Taxation Act. [153 G A; 151 F G] Daley and others vs Hargreaves , MacDonald vs Carmichael , Maddox vs Storer and Burns vs Currell , referred to. (2) The power of taxation under Entry 57 List II cannot exceed the compensatory nature which must have some nexus with the vehicles using the public roads. If the vehicles do not use roads notwithstanding that they are registered under the Act they cannot be taxed. If this be the Purpose and object of the Taxation Act, when the motor vehicle is defined under section 2(c) of the Taxation Act as having the same meaning as in the then the intention of the legislature could not have been anything but to incorporate only the definition in the as it existed in 1943, as if that definition was bodily written into section 2(c) of the Taxation Act. If the subsequent Orissa Motor Vehicle Taxation (Amendment) Act 1943 incorpo rating the definition of "motor vehicle" referred to the definition of "motor vehicle" under the Act as then existing the effect of this regulative method would amount to an incorporation by reference to the provisions of section 2(18) of the Act in section 2(c) of the Taxation Act. Any subsequent amendment in the Act or a total repeal of the Act under a fresh legislation on that topic would 'not affect the definition of "motor vehicle" in section 2(c) of the Taxation Act. [155 B; D E] The use of the word 'has ' in the expression "has the same meaning as in the Motor Vehicle Act, 1939" in section 2(c) of the Act would justify the assumption that the legislature had intended to incorporate the definition under the Act as it then existed and not as it may exist from time to time, [155 F] In re. Woa 's Estate (1886)31 Ch. D.607, Clarke vs Bradlaugh (1888)8 Q.B.D. 63, Secretary of State for India in Council vs Hindusthan Co operative Insurances Society Ltd. L.R. 58 I.A. 259, State of Bihar vs section K. Ray [1966] Supp. S.C.R. 259 and Ram Sarup vs Munshi and Others ; , referred to. The definition of motor vehicle as existing prior to the 1956 amendment of the would alone be applicable as being incorporated in the Taxation Act. The intention of Parliament for modifying the has no relevance in determining the intention of the Orissa Legislature in enacting the Taxation Act. The power of taxation is not in the concurrent List but in List It and construed as a taxation measure the ambit of it cannot be extended by mere implication. It is possible for both the Acts to Co exist even after the definition of "motor vehicle" in the Act has been amended. [159 B; 158 H] In the instant case there is evidence to show that the dumpers, rockers and tractairs are exclusively used on the premises of the owners. [159 E] The machines which are the subject matter of these appeals must be working in their respective mining areas. The mere fact that them is no fence or barbed wire around the leasehold premises is not conclusive. There is evidence to show that the public are not allowed to go inside without prior permission, there are gates and a check on ingress and egress is kept by guards who also ensure that no unauthorised persons have access to the mining area. [160 DE]

Special Leave Petition (Civil) No.9887 of1987. From the Judgment and order dated 20.8. 1987 of the Bombay High Court in L.P.A. No. 77 of 1987. K.K. Venugopal, A.K. Sen, M.K. Nesari, P.H. Parekh and R.K. Dhillon for the petitioners. F.S. Nariman, U.J.Maskeja, B.S. Basaniaum, J. Peres, A.K. Verma and D.N. MiShra for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition is for leave to appeal against the judgment and order of the Division Bench of the 485 Bombay High Court dismissing Letters Patent Appeal from the order of the learned Single Judge. The 1st respondents being the trustees for the Port of Bombay are the owners of plot of land bearing Plot No. 62 admeasuring 576 sq. yards Lying and situate in Pooria Street, Elphinstone Estate, Bombay 3. In or about 1945 the trustees of the Port of Bombay granted lease of the said plot of land to one Mustafa Husein for the purpose of erecting a godown for carrying on commercial activities at a monthly rent of Rs. 925 which later on was increased to Rs.1,465. In or about 1946 Mustafa Husein being the lessee of the 1st Respondent erected a permanent godown of brick, mortar and cement. The said Mustafa Husein in 1958 granted lease of the said godown to the petitioners; the area of the godown is about 3,000 sq. It is alleged that petitioners have since been carrying on their business in the said godown The Trustees of the Port of Bombay filed suit against the heirs of Mustafa Husein for eviction from the lease granted to Mustafa Husein for termination of the tenancy. The ground for eviction was termination of tenancy. The Trustees of the Port of Bombay in July, 1977 obtained a decree on admission against the heirs of Mustafa Husein in the said suit. In or about May, 1985 warrant of possession in execution of decree dated 20th of July, 1977 was sought to be executed against the petitioners. The petitioners obstructed the execution of the decree. Thereupon in or about June, 1985, the Trustees of the Port of Bombay took out a Chamber Summons in the High Court of Bombay for removal of obstruction under order 21 Rules 97 to 101 of the Code of Civil Procedure. Petitioners contended that they were lessees under the said Mustafa Husein and as such they were entitled to the protection of the Bombay Rent, Hotel and Lodging Houses Rates (Control) Act, 1947, hereinafter called the Bombay Rent Act, as the Bombay Rent Act applied to the building erected by a lessee from the local authority and as such the petitioners right of possession was protected under the provisions of the Bombay Rent Act. The Trial Court allowed the Chamber Summons and rejected the petitioner 's contentions. He observed that it was not necessary to record evidence in this case. The petitioners being aggrieved preferred a first appeal. The learned single judge of the High Court dismissed the first appeal holding that the petitioners were not entitled to the benefit of the Bombay Rent Act and negatived the contentions arising out of the Easement Act and also arising out of the alleged acquiescence of the Trustees of the Port of Bombay. The petitioners preferred Letters Patent Appeal which was also dismissed by the Division Bench of the Bombay High Court. The High Court observed that if the contentions of the petitioners were accepted then the provisions of Section 4(1)(a) of the Bombay Rent Act would become nugatory. Being aggrieved 486 therefrom the petitioners seek leave to appeal to this Court under A Article 136 of the Constitution. The question, is, whether the petitioners are entitled to protection under section 4(1)(a) of the Bombay Rent Act. The answer will depend upon the question whether there was any building lease granted to the original tenant Mustafa Husein. There was none, at least no such evidence was adduced before the learned Trial Judge or before the Division Bench of the High Court. When the matter came before this Court for admission by our order dated 17th of September, 1987 as the question involved was whether there was any agreement or lease with the lessor that they will have to construct building on the land demised to them, but as no such lease had been produced so far, time was granted for production of such evidence. Pursuant to the same today we have been shown two letters, one dated 16th of April, 1951 written by the Architect of the lessor forwarding the plants in triplicate to the Bombay Port Trust for approval, and the other letter dated 14th of June, 1951 written by the Manager, Land and Bunders to the architect of the lessor on the following subject: "Elphinstone State Reconstruction of a Shed on Monthly Tenancy Plot at Poona Street. " The petitioners were informed that the plan was approved subject to the compliance of the Municipal Regulations. This question arose in the Bombay High Court in Ram Bhagwandas vs Municipal Corporation of the City of Bombay, There interpreting the Bombay Rent Act and section 4(1) and 4(a) thereof Chief Justice Chagla speaking for the Division Bench held that the proper interpretation to put upon section 4(4)(a) was that "under an agreement, lease or grant" must qualify both "building erected" and "land held". In other words, the building must be erected by the lessee pursuant to the agreement, lease or grant given to the person who held the land under that agreement, lease or grant. Therefore, where a building was erected by the lessee not pursuant to any agreement with the lessor or not under any agreement with the lessor then the case did not fall under section 4( l)(a). What section 4(1) does is to give immunity to the local authority in respect of the land which it has let out to the lessee and that immu 487 nity cannot be taken away merely because the lessee on his own volition and without being under any obligation under any agreement choses to put up structures on that land. Section 4 deals with exemptions and sub section (1) provides as follows: "This Act shall not apply to any premises 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 on lease or requisitioned by the Government: but it shall apply in respect of premises let to the Government or a local authority". Therefore, if we have premises which belong to Government or a local authority, then the Act would not apply. The land here belongs to the local authority but the structures were put on by the lessees of the Port not under any building lease, and such protection can not be claimed in respect of these premises. Sub section (4)(a) of section 4 is also relevant. It was held "The expression 'premises belonging to the Government or local authority ' in sub section (1) shall, notwithstanding anything contained in the said sub section or in any judgment decree or order of a Court not include a building erected on any land held by any person from the Government or a local authority under an agreement, lease or other grant, although having regard to the provisions of such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be". Chief Justice Chagla considered the historical background under which Section 4(a) was enacted by the Bombay Act of 1953. This decision was approved by this Court in Kanji Manji vs The Trustees of the Port of Bombay [1962] Suppl. 3 S.C.R. 461. Sub section (4)(a) and (b) read as follows: "(4)(a). The expression "premises belonging to the Government or a local authority" in sub section (1) shall, notwithstanding anything contained in the said sub section or in any judgment, decree or order of a Court, not include a building erected on any land held by any person from the Government or a local authority under an agreement, lease or other grant, although having regard to the provisions of 488 such agreement, lease or grant the building so erected may belong or continue to belong to the Government or the local authority, as the case may be; and (b) notwithstanding anything contained in section 15, such person shall be entitled to create a tenancy in respect of such building or a part thereof." This Court observed at page 471 of the report that this was introduced by amendment and the purpose of the amendment was as follows: "The amendment achieved two different things. It enabled the lessee of the particular kind of building described in cl.(a) to create sub tenancies in spite of the ban against sub tenancies contained in section 15. It also excluded from the operation of sub section (1) the buildings specified in cl. (a) of the sub section. The amendment said nothing about the relationship of the Government or the local authority, on the one hand, and the lessee, on the other, in respect of the land. The word "premises" in sub section (1) could mean the land or the buildings or both. Sub section (4)(a) dealt only with the buildings, and did not deal with the land, because it used the word "buildings" and not the more general word "premises". The import of sub section (4)(a) of section 4 was thus limited to buildings, and did not extent to land. The sub section, however, was drafted somewhat in artistically, and the obscurity of the language presents some difficulty. The Trial Judge followed a decision of the Bombay High Court reported in Ram Bhagwandas vs Bombay Corporation In that case, one Khudabaksh Irani had taken lease of certain plots some 30 years back, and constructed some structures upon the open plot, and rented them out as tenements. In 1947, Irani sold them to one Tyaballi. In 1951, the Municipal Corporation filed a suit to eject Tyaballi from the plots, and by a consent decree, Tyaballi agreed to deliver up vacant and peaceful possession of the plots clear of all structures. Tyaballi failed to remove the structures, and the Municipal Corporation sought to execute the decree. The tenants thereupon filed a suit under 0.21, r. 103 of the Civil Procedure Code against Municipal Corporation, but the h suit was dismissed. In the appeal which was filed in the 489 High Court, it was conceded that the Municipal Corporation was the owners of the plots in question, but protection was claimed on the basis of sub section (4)(a) of section 4 of the Rent Control Act. Chagla, C.J. in dealing with the history of the amending Act, pointed out that the legislature was seeking to protect by that sub section tenants who occupied buildings put upon land belonging to a local authority, if the buildings occupied by them were constructed under an agreement under which the lessee was under an obligation to construct buildings. He pointed out that the protection of sub section (4)(a) was to buildings and not to land, and that the phrase "under an agreement, lease or other grant" modified not only "held by any person from Government or local authority" but also "erected on any land". therefore, held that the words "erected on any land held by any person form a local authority" were descriptive of the building and did not emphasise the point of time when the building was erected. By that phrase, what was emphasised was "that the nature of the building must be such as to satisfy the test that it was erected on land held by a person from a local authority and the test must be applied at the time when the protection is sought." In that case, it was contended before this Court, as it was contended in the Bombay High Court, that so long as a building was erected under an agreement with Government or a local authority, the benefit of sub section (4)(a) of section 4 would be available, no matter how many hands the property might have changed. This Court accepted the interpretation of the High Court in the aforesaid decision. In our opinion, in the instant case, in view of the fact that the original lease was only a monthly tenancy and not a building lease, the High Court was right in dismissing the objections on behalf of the petitioners. We find no reason, therefore, to interfere with the order of the High Court. The special leave petition therefore, fails and is accordingly dismissed without any order as to costs. Since, the petitioners have been in possession of the premises for some time, in the interest of justice it is desirable, in our opinion, that the petitioners should have time to vacate the premises in question. In the premises, we allow the petitioners to continue to remain in the premises upto 15th of September, 1988 provided they file the usual undertaking in this Court within four weeks. N.P.V. Petition dismissed.

The appellant, who had passed B.Sc. Examination with Botany. Chemistry and zoology securing 54.7% marks in the aggregate, and, who had passed earlier the P.U.C. examination with Physics, Chemistry and Biology securing 43.1% marks in the aggregate, joined a private medical college after its principal had confirmed in writing that she was eligible for admission to the M.B.B.S. Course. After six months in the college, she was informed by the principal that her admission had not been approved by the University as she had secured only 43% marks in the P.U.C. examination while the required minimum was 50% according to the Regulations framed by the University. The appellant 's writ petition challenging the validity of the cancellation of her admission to the medical college having been dismissed by a Single Judge and her appeal against the same having been rejected by the Division Bench of the High Court, she approached the Court by special leave. Counsel for the appellant contended inter alia that she was eligible for admission in terms of the Karnataka Medical Colleges (Selection of Candidates for Admission to M.B.B.S.) Rules, 1985, and that in any case, since the appellant had completed the first year M.B.B.S. Course by virtue of interim orders passed by the High Court and this Court, she should be allowed to continue her studies in the M.B.B.S. Course. Allowing the appeal, ^ HELD: Under Regulation l(a) of the Regulations of the University regarding admission to M.B.B.S. Course for the Academic year 198586, a candidate after passing B.Sc. Examination and seeking admission in the seats reserved for B.Sc. candidates should have secured 50% of the total marks in Physics, Chemistry and Biology in the P.U.C. Exami 369 nation. It is true that the appellant has obtained 54% marks in the B.Sc. Examination, but she had failed to obtain 50% marks in the aggregate in the PUC Examination in Physics, Chemistry and Biology. In the circumstances, she was not eligible for admission in the First Year MBBS Course. [372H; 373A B] There is no substance in the contention made on behalf of the appellant that the Karnataka Medical Colleges (Selection of Candidates for admission to I MBBS) Rules, 1985 would also be applicable to the appellant. Even assuming that the said Rules are applicable to the case of the appellant, still the appellant will not be eligible for admission in the First Year M.B.B.S. Course in view of sub r. (5) of r. 3 of the said Rules, which provides, inter alia, that a person who does not belong to any of the Scheduled Castes or Scheduled Tribes, has to obtain 50% of marks in P.U.C. Or equivalent examination in Physics, Chemistry and Biology as optional subjects. Thus, the appellant was not eligible for admission. [373H; 374A B] On the appellant 's query, the Principal of the Institute by his letter dated February 26, 1986 informed her that she was eligible for admission in the First Year M.B.B.S. Course. lt was, inter alia, stated in the letter that the candidate should have obtained 50% marks in the optional subjects in the B.Sc. Examination. There is no dispute that the appellant had obtained 54% marks in those subjects in the B.Sc. Examination. The appellant was, therefore, quite innocent and she was quite justified in relying upon the information supplied to her by none else than the Principal of the Institute. In the circumstances, we do not think that we shall be justified in penalising the appellant by not allowing her to continue her studies in the M.B.B.S. Course. Prima facie it was the fault of the Principal of the Institute but, in our view, the statement that was made by him in his said letter to the appellant as to the eligibility of the appellant for admission in the M.B.B.S. Course, was on a bona fide interpretation of the Regulations framed by the University, which to some extent suffer from ambiguity. The Regulations should have been more clear and specific. [377C F] A.P. Christians Medical Education Society vs Government of Andhra Pradesh, [19861 2 S.C.C. 667, distinguished. G Rajendra Prasad Mathur vs Karnataka University, A.I.R. , relied on.

Civil Appeal No. 5653 1983. From the Judgment and Order dated 31.8.1979 of the Allahabad High Court in Misc. Writ Petition No. 4994 of 1975 E.C. Agarwal for the Appellant. Manoj Swarup and Ashok K. Srivastava for the Respondent. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal by special leave is direct ed against the judgment of the High Court of Judicature at Allahabad dated August 31, 1979 in Civil Misc. Writ Petition No. 4994 of 1975 filed by the appellant. The said writ petition related to proceedings for determination of surplus land under the U.P. Imposition of Ceiling on Land Holdings Act. 1960 (hereinafter referred to as 'the Act '). The Act has been enacted by the U.P. State legislature to provide for the imposition of ceiling on land holdings in Uttar pradesh and certain other matters connected therewith. In Section 4 of the Act provision is made for calculation of ceiling area. Section 5 provides for imposition of ceiling on existing holdings. Sections 6 to 8 provide for exemption of certain lands from the imposition of ceiling. Section 9 provides for issue of a general notice by the Prescribed Authority calling upon every tenure holder holding land in excess of the ceiling area to submit to him a statement in respect of all his holdings. Section 10 days down that in every case where a tenure holder fails to submit a statement or submits an incorrect statement the Prescribed Authority shall. after making such enquiry as he may consider neces sary cause to be prepared a statement indicating the plot or plots proposed to be declared as surplus land and thereupon cause to be served on every such tenure holder a notice together with a copy of the statement thus prepared calling upon him to show cause. within a period specified in the notice. why the statement be not taken as correct. Section 11 provides for determination of surplus land by the Pre scribed Authority in cases where no objection is filed within the period specified in the notice. issued under Section 10. Section 12 provides for determination of surplus land by the Prescribed Authority in cases where an objection has been filed. Section 13 makes provision for appeal against the order passed by the Prescribed Authority under Section 11 or Section 12. 121 In 1972 it was decided to lower the ceiling limit and to make further provisions with regard to transfers in antici pation of the imposition of ceiling. The U.P. State legisla ture enacted the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. U.P. Act 18 of 1973 (hereinafter referred to as 'the 1973 Act ') which came into force on June 8, 1973. By the 1973 Act Sections 3 to 8 were substituted and other amendments were made in the Act. Certain further amendments were made in the Act by the U.P. Act 2 of 1975. Among the amendments introduced by the Amendment Act of 1975 was insertion of Explanation I and Explanation II after sub section (1) of Section 5 as substituted by the 1973 Act. U.P. Act 2 of 1975 was brought into force with effect from June 8, 1973. A notice under Section 10(2) of the Act was issued to the appellant and he filed objections wherein it was submit ted that Chhiddu Singh. the father of the appellant, had executed a registered gift deed dated October 13, 1971 in respect of Plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur in favour of his wife, Smt. Roshan Kumari, Smt. Premwati, wife of the appellant, and Virendera Bahadur Singh and Tej Vir Singh, sons of the appellant. It was also stated that Chhiddu Singh died on April 28, 1973. The submission of the appellant was that the said land which was gifted by his father Chhiddu Singh was not inherited by the appellant and it could not be treated as part of the holding of the appel lant for the purpose of imposition of ceiling. The Pre scribed Authority overruled the said objection of the appel lant and ignoring the gift made by Chhiddu Singh, included the said land as part of the holding of the appellant and declared the surplus land of the appellant to the extent of 49 Bighas and 17 Biswas. The appellant filed an appeal which was partly allowed by the First Additional Civil Judge. Aligarh, by his judgment dated January 31. 1975, whereby the area of surplus land was reduced to 42 Bighas, 13 Biswas and 6 Dhur. The appellant filed a writ petition in the High Court which was dismissed by the High Court by judgment dated August 31, 1979. Feeling aggrieved by the said judg ment of the High Court the appellant has filed this appeal after obtaining special leave to appeal. The expression 'holding ' is defined in clause (9) of Section 3 as under: "(9) 'holding ' means the land or lands held by a person as a bhumidhar, sirdar, asami of Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as a tenant 122 under the UP. Tenancy Act, 1939, other than a sub tenant, or as a Government lessee or as a sub lessee of a Government lessee, where the period of sub lease is co extensive with the period of the lease;" The expression 'tenure holder ' is defined in clause (17) of Section 3 as under: "(17) 'tenure holder ' means a person who is the holder of a holding, but does not include (a) a woman whose husband is a tenure holder; (b) a minor child whose father or mother is a tenure holder. " The relevant provisions of Section 5 are: "5 Imposition of ceiling (1) On and from the commencement of the Uttar Pradesh Imposition of Ceiling of Land Holdings (Amendment) Act, 1972, no tenure holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of the ceiling area applicable to him. Explanation I In determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensible in the name of any other person, shall be taken into account. Explanation II (If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date) either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to held the land and that it is so held by him ostensibly in the name of the second mentioned person. " "(6) In determining the ceiling area applicable to a tenure 123 holder, any transfer of land made after the twenty fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account; Provided that nothing in this sub section shall apply (a) a transfer in favour of any person (including Govern ment) referred to in sub section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for the immediate or deferred benefit of the tenure holder or other members of his family. Explanation The burden of proving that a case falls within clause (b) of the proviso shall rest with the part.x, ' claiming its benefit. " Shri Agarwal has urged that the amendments that were introduced in the Act by U.P. Act 18 of 1973 are not retro spective in nature and that the said amendments are opera tive with effect from June 1973, and that surplus land has to be determined with reference to June 8, 1973, the date of coming into force of the 1973 Act. The submission of Shri Agarwal is that on June 8. 1973 the land covered by Plot No. 111 measuring 63 Bighas, 12 Biswas and 17 Dhur could not be included in the holding of the appellant and the appellant was not the tenure holder in respect of the said land. Shri Agarwal has contended that in view of the gift deed dated October 13, 1971, executed by Chhiddu Singh, the father of the appellant, the land covered by the gift deed had vested in the donees and the appellant did not inherit the said land on the death of Chhiddu Singh on 28th April, 1973. Laying stress on the definition of expression holding ' contained in clause (9) of Section 3 and the expression 'tenure holder ' contained in clause 117) of Section 3, Shri Agarwal has submitted that on June 8, 1973 the land that was gifted by Chhiddu Singh was not held by the appellant and it was not part of appellant 's holding and the appellant was not the tenure holder in respect of the same. find no merit in this contention. The Act postulates that the ceiling area of a tenure holder has to be deter mined in accordance with the provisions contained in Section 5. Alongwith such determina 124 tion of ceiling area there has to Be determination of the surplus land held in excess of the ceiling area which is to be acquired by the Stale. For the purpose of determination of the ceiling area provision has been made in sub section (6) of Section 5 that any transfer of land, which but for the transfer would have been declared surplus land under the Act. if made after January 24, 1971, shall be ignored and not taken into account. Transfers falling within the ambit of clauses (a) and (b) of the proviso to sub section (6) are. however, excluded and such transfers even though made after January 24, 1971 have to be taken into account. The gift made under the gift deed dated October 13, 1971 executed by Chhiddu Singh was a transfer of land. It was made after January 24, 1971. It was in respect of land which but for the transfer would have been declared surplus land under the Act. The said transfer did not fall within the ambit of clauses (a) and (b) of the proviso to sub section (6) of Section 5. In view of sub section (6) of Section 5 the said gift was, therefore, liable to be ignored for the purpose of determining the ceiling area applicable to the appellant. Shri Agarwal has urged that sub section (6) of Section 5 cannot be applied to the present case inasmuch as it postu lates a transfer by the tenure holder whose ceiling area is to be determined under the Act and that in the present case the gift was not made by the appellant but by his father and. therefore. the said gift cannot be ignored on the basis of the provisions of Sub section (6) of Section 5. We are unable to agree. Sub section (6) of Section 5 does not speak of a transfer by the tenure holder. It speaks of any trans fer of land made after January 24, 1971 which but for the transfer would have been declared surplus land under the Act. It is not the requirement of sub section (6) of Section 5 that the transfer should be by the tenure holder whose ceiling area is to be determined. We cannot read this re quirement in it. While construing sub section (6) of Section 5 it has to be borne in mind that this provision has been made with the object of preventing evasion of the ceiling law by owners of large holdings making transfers in antici pation of the imposition of the lower limit on the ceiling area, Such a provision must be so interpreted as to curb the mischief find advance the remedy. A construction which will cut down the scope of this provision cannot be adopted. In our opinion, therefore, sub section (6) of Section 5 is applicable to a transfer made by the predecssor ininterest of the tenure holder whose ceiling area is to be determined in cases where such predecessor died before June 8, 1973 and the tenure holder whose ceiling area is to be determined inherited the lands of 125 such predecessor prior to June 8, 1973. In the instant case the land which was transferred by Chhiddu Singh under gift deed dated October 13, 1971 was land which but for the said transfer would have been declared surplus under the Act. Once the gift made by Chhiddu Singh is ignored the land so gifted should be treated to have continued to vest in Chhiddu Singh at the time of his death on April 28, 1973 and on the death of Chhiddu Singh the appellant inherited the same. The said land has to be treated as part of the holding of the appellant on June 8, 1973 and he was the tenure holder in respect of the same on that date. The said land was required to be taken into consideration for determining the surplus land held by him. Shri Agarwal has relied upon the decision of this Court in Arjan Singh and Another vs The State of Punjab and Oth ers; , This case turns on the interpreta tion of the expression 'this Act ' in Section 7 of the Pepsu Tenancy and Agricultural Lands (Amendment and Validation) Act, 1962 whereby Section 32KK was introduced in the Pepsu Tenancy and Agricultural Lands Act, 1955 with effect from October 30, 1956. By Section 32KK it was provided that land owned by a Hindu undivided family would be deemed to be land of one land owner and partition of land owned by such a family shall be deemed to be a disposition of land for the purposes of Section 32FF and the question was whether a partition effected by a registered partition deed dated September 6, 1956 was covered by the said provision. It would have been so covered if the expression 'this Act ' was construed to mean the principal Act of 1955. This Court, however, held that in view of the various provisions con tained in the Amendment Act of 1962 the expression 'this Act ' meant the Amendment Act of 1962 and not the principal Act. This decision, therefore, turns on the interpretation of the particular provision of the Amendment Act of 1962 and it has no bearing on the present case. therefore, find no merit in the appeal and it is accordingly dismissed. No order as to costs. S.Bali Appeal dismissed.

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

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. 891 Ganpat Rai, for the respondent. S.M. Sikri, Advocate General for Punjab, Jindra Lal and R. H. Dhebar, for the Intervener (State of Punjab). October 23. The Judgment of the Court was delivered by section 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 no right to the trees nor 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 appellant 's 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 892 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 not 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 come 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 893 pondents have not contested before us the correctness of the finding of two of the Courts below that the suits were not barred by time; therefore, the question of limitation is no longer a live question and need not 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 course 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 not 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 conquest 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 894 trees had been "vouchsafed" by the entries made in the Wajib ul arz and recognised in several judicial decisions. The Courts below considered the claim of the appellant on the aforesaid three grounds, and we propose to consider these grounds in the order in which we have stated them. It is now necessary to advert to the history of the creation of Nadaun Jagir so far as it is relevant for considering the claim of the appellant on the first two grounds. Admittedly, the suit lands lie in Badhog and Jasai tappas comprised 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 conquest by the Sikhs under Maharaja Ranjit Singh has been traced in the Kangra District Gazetteer (1924 25) at pp. 52 to 76. We are not concerned 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 895 in reality he regarded the alliance as an insult to his family honour; because by immemorial custom a Katoch Raja 's daughter may not 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 compromise 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 country 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 896 remained conspicuous 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 copy of that Sanad was not available, but a copy 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 now proceed to consider 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 could not 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 could not 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 concerned) 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 convincing 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 come 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 nor 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 897 ernment. The precise terms of the grant made by Maharaja Ranjit Singh are not 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 appellant 's 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 counsel for the appellant has also relied. The observations are taken from Mr. Lyall 's 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, not 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 Raja 's 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 117 898 most called his interest a 'warisi ' or inheritance not 'maliki ' or lordship". Mr. Lyall further observed that "all rights were supposed to come from the Raja; several rights, such as holdings of land, etc., from his grant; others, such as rights of common, from his sufferance". At p. 377 of the Gazetteer a summary is given of the conditions of land tenure under the rule of the Katoch Rajas. It is stated that there were two rights in the soil recognised under the Raja 's 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 common 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 not 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 continued and revised the earlier settlement work of Mr. Barnes. It is worthy of note that neither Mr. Barnes nor Mr. Lyall undertook any actual settlement operations in Nadaun, though Mr. Lyall gathered very valuable historical data regarding the conditions 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 continued 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 899 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 vs 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 not how the acquisition has been brought about. It may be by conquest, 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 courts 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 nothing". 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 country did not 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. 900 That brings us to the second ground and to a consideration 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 country together with the Doaba tract had come 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 commencement 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 not 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, communicated in writing in English bearing the signature of Mr. 'Edward, Deputy Chief Secretary to His Excellency, in reply to the Commissioner 's report No. 147, dated July 24, 1847, and also as contemplated in the previous order of the Nawab Governor General, dated August 7, 1846, subject to the following conditions: 1. In no way shall criminal jurisdiction in respect of the said Ilaqa vest in the Raja Sahib. The entire administration and power of hearing every sort of complaint between the Riaya (subjects) and the said Raja shall remain in the hands of the British Government 's officers. The Raja Sahib shall not be at liberty to receive on any pretext Mahsul for any commodity from any I Mahajan and trader or from the Riaya 901 (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 Government 's rules of practice. In case of contravention 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 not devolve on his descendants from a slave girl. It shall be essential for the Raja Sahib to construct 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 not 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 conditions 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 comprised within the Jagir of Nadaun. The list also mentioned in the third column the amount of Jama for each tappa. The question now 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 902 pine trees which is the particular right under consideration 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 not apply to grants made by the sovereign authority; and grants made by the Sovereign are to be construed 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 con 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 notwithstanding qualifications in the recitals. In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign; and where two constructions 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 Sovereign 's profit (see para 670 at p. 315 of Halsbury 's Laws of England, Vol. VII, section 12, Simonds Ed.). It is worthy of note that so far as the lands in possession of tenants or subjects were concerned, the Sanad did not grant any right other than the right to receive revenue; condition 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 Government 's rules of practice, and that the grantee was not at liberty to receive on any pretext "mahsul" for any commodity 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 condition 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 903 the correct Jama was found to be Rs. 26,270 10 3. The Sanad concluded 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. conditions, etc. " In the recital portion of the Sanad also it was stated that the Jagir of certain tappas, together with the number of villages comprised 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 no sovereign 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 said"Out 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 collection at Rs. 30,000 only, exclusive of Khalsa tikas". The 'aforesaid remarks, made not 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 not within the grant. We agree therefore with the High Court that on a true and proper construction 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 now 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 (exhibit P 5), 1899 1900 (exhibit P 6) and 1910 1915 (exhibit P 4) and other connected documents. This part of the claim of the appellant has been the most controversial and difficult to determine. The learned Subordinate Judge expressed the view that the aforesaid entries did not help the appellant, because they related to pine trees standing either on 904 uncultivated waste lands or nautor (recently reclaimed) lands and not to such trees on proprietary and cultivated lands. The learned District Judge held on appeal that in the Wajib ul arz of 1892 93 (exhibit 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 (exhibit 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 not 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 considered a long string Of quotations from many documents and then came to the conclusion 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 not clearly find however if the entries related to waste and re claimed lands only. Learned counsel for the appellant has very strongly submitted before its that the view of the learned District Judge was correct and should have been accepted by the High Court; learned counsel for the respondents has argued, on the contrary, 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 not go behind that finding. We do not think that these appeals can be disposed of on the short ground that this Court does not normally go behind a concurrent finding of fact. Indeed, in respect of the Wajib ul arze entries, there is no concurrent 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 not a pure question of fact, depending as it does on the 905 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 considering their true scope and legal effect. We have already referred to Mr. Barnes ' Settlement (1850 52) and pointed out that he did not 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 not undertake any settlement of Nadaun. 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. O 'Brien 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 notifications 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 O 'Brien 's Settlement (1892 93), Anderson 's 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 course of this litigation. What do those expressions mean? In Mr. Douie 's Punjab Settlement Manual (1930 edition) it is stated 118 906 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 concerned, appears from para 105 at p. 60 of Mr. Anderson 's 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 not in their actual occupancy, but over which they were accustomed to graze and to do certain other acts. Mr. O 'Brien decided that the Raja was superior proprietor or Talukdar of all lands in his Jagir, and the occupants were constituted inferior proprietors of their own holdings and of the waste land comprised within their holdings as will be shown hereafter; be never fully considered the rights in waste outside holdings. The general grounds fir the decision may be gathered from Mr. Lyall 's Settlement Report and from the orders on the Siba Summary Settlement Report, but I quote at length the principles on which Mr. O 'Brien determined the status of occupants of land, not 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. O 'Brien 's 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 Raja 's title to proprietorship during the preparation and attestation of the Jamabandis, they were 907 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 now to examine the actual entries made in the Wajib ul arz of 1892 93 (exhibit P 5), of 1899 1900 (exhibit P 6) and of 1910 15 (exhibit P 4). In exhibit P 5 the relevant entry in para 11 was: "The owners shall, however, have no right to pine trees. They can neither cut them nor 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 exhibit 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 exhibit 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 Tika 's 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 908 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 not concerned with trees on public waste lands, nor with forest trees; and as the High Court has pointed out, we do not 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 not disputed that under section 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 section 44). The Wajib ul arz or village administration paper is a record of existing customs regarding rights and liabilities in the estate; it is not 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 contained instructions with regard to the Wajib ul arz and instruction No. 2 states: "The statement shall not contain entries relating to matters regulated by law, nor shall customs contrary to justice, equity or good conscience, or which have been declared to be void by any competent authority, be entered in it. Subject to these restrictions, the statement should contain information on so many of the following matters as are pertinent to the estate: . . . . . . . . . . (h)The rights of cultivators of all classes not expressly provided for by law (for instance, rights to 909 trees or manure, and the right to plant trees) and their customary liabilities other than rent. . . . . . . . . (j)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. . . . . . . . . . . (1) Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property". In the cases before us, the appellant did not 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 not get the sovereign right of the independent Katoch rulers; nor did the grant made in 1848 give him any right to the royal trees. The entry in the Wajib ul arz of 1892 93 (exhibit P 5) is not really in his favour; it states that trees of every kind shall be considered to be the property of the owners (adna maliks), but the owners shall have no right to pine trees; for this last part of the entry which is somewhat contradictory of the earlier part, a reference is made to para 78 of Anderson 's 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. Anderson 's report, and so far as the right to pine trees on proprietary and cultivated lands was concerned, the statement made a confusion between Government jungles, recently reclaimed land and proprietary land, On its own showing, the entry was 910 not 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 construction of a grant or the intention of Government in respect of a grant, do not conclude the matter or bind the civil Courts. (See Rajah Venkata Narasimha Appa Row Bahadur vs Rajah Narayya Appa Row Bahadur(1)). The same comments apply to the Wajib ul arz of 1899 1900 (exhibit P 6) and of 1910 15 (exhibit P 4). They no doubt say that the pine trees on the lands comprised 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. 911 would further expect the same to be mentioned in the Jamabandis (Exs. D 7 and D 8) of the adna maliks. The Jamabandis do not, 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 (exhibit 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 compensate 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 not be specifically mentioned in para 12 of the Wajib ul arz, which dealt particularly with the rights of ala and adna maliks. Learned counsel for the appellant drew our attention to exhibit D 6, an extract of para 11 of the Wajib ul arz, of 1914 15, at the bottom of which there is a note that the Zamindars (adna maliks) were present and every paragraph had been read out to them and the same were correct. The argument before us is that the adna maliks ad mitted the Wajib ul arz of 1914 15 to be correct. We cannot accept that argument; firstly, we do not think that the endorsement at the bottom of exhibit D 6 is an admission by adna maliks of the correctness of the entries made in other paragraphs of the Wajib ul arz, as for example, para 10 (exhibit 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 contended for by learned counsel for the appellant, we do not think that it is conclusive or decisive of the right which the appellant is claiming. exhibit P 2 dated May 27,1886, showed that even so far back as at that date, sonic of the adnamaliks had complained that the Raja 's men had cut and taken away some chil trees on their lands. It is quite improbable that after such a complaint the adna maliks would admit the right of the ala malik 912 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 not 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 not know their customs very well, and when they put their seals to the paper, no doubt they thought it very grand, though they did not know what it was about, as they could 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 confused by the long code of rules, and merely say 'yes, yes ' and put their seals to. the paper, hoping it is nothing 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 considered, have been cited before us. In some of them, entries in the Wajib ul arz were accepted as correct and in others they were not so accepted, notwithstanding the statutory presumption attaching to the entries under section 44 of the Punjab Land Revenue Act, 1887. We do not 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 vs Ghulam Kasim Khan(1), the Wajib ul arz, though it does not 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 not drawn up in respect of individual villages (Gurbakhsh Singh vs Mst. Partapo(1)). Whether the statutory presumption (1) A.I.R. 1918 P.C. 4. (2) Lah. 913 attaching to an entry in the Wajib ul arz has been properly displaced or not must depend on the facts of each case. In the cases under our consideration, 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 not and cannot show any existing custom of the village, the right being a sovereign right; nor 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 (exhibit P 6) there was a reference to certain orders contained 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 note that the amendment was cancelled on January 23, 1917. In the High Court judgment there is a reference to the notes mentioned above and the learned Judge who gave the leading judgment observed that the aforesaid notes showed that the state of affairs prevailing at that time was some what confused 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 not a party to this litigation, we heard the learned Advocate General for the State. 914 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 come to the conclusion that the entries in the Wajib ul arz do not establish the claim of the appellant that there was a surrender or relinquishment of a sovereign right in favour of his predecessor. It remains now to notice ' some other evidence on the record. Learned counsel for the appellant has referred us to several judgments, Exs. P 9, P 7, P 8 and P 4 (wrongly marked as exhibit P 6). Referring to these judgments, the learned trial Judge said that it was not 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 not 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 considered at great length. Admittedly, no plea 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, none of the Courts below placed any great reliance on it. The learned Subordinate Judge did not 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 could not accept that evidence in preference to the overwhelming historical and documentary evidence led by the appellant. With regard to the appellant 's witnesses he seemed to think that some of them at least were reliable. The learned Judges of the High Court did not refer to the oral evidence except for a slight reference to the state 915 ment of Salig Ram, the Raja 's attorney, who appears to have stated that the Raja got his rights in 1893 94; how the Raja got his rights then was not explained. Learned counsel 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 no knowledge of the trees in suit nor did he know on which lands the trees were standing. He admitted that he knew nothing 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 not prove the case of the appellant. Had the Raja been in possession of the pine trees for such a long time as he now 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 correct. 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 no order for costs either in the High Court or in the Courts below. We think that that order was correct, and we also pass no order as to costs of the hearing in this Court. Appeals dismissed.

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

Civil Appeal No. 1897 of 1978. From the Judgment and Order dated 19 9 1977 of the Andhra Pradesh High Court Tax Revision Petition No. 66/76. section T. Desai, T. A. Ramachandran, Mrs. J. Ramachandran and M. N. Tandon for the Appellant. T. section Krishnamoorthy Iyer, and B. Parthasarshi for the Respondent. The Judgment of the Court was delivered by KOSHAL, J. The question which falls for determination in the appeal by certificate granted by the High Court of Andhra Pradesh against its judgment dated the 19th September, 1977 is whether the appellant which is a limited company is not liable to make good to the State Sales Tax authorities the amount of sales tax leviable under section 6 of the Andhra Pradesh General Sales Tax Act (hereinafter referred to as the A. P. Act) in respect of the turn over covering the purchase by the petitioner of cotton during the period 1 4 1969 to 8 6 1969, which turn over had been exempted from sales tax by 1030 the Commercial Tax Officer, No. II, Guntur (C.T.O. for short) in his assessment order dated the 30th of April, 1971. Two assessment orders were passed by the C.T.O. on the date last mentioned. One of them covered the turn over of the appellant liable to tax under the Central Sales Tax Act (hereinafter referred to as the Central Act). That turn over included a sum of Rs. 26,61,166 which represented the price realised on account of inter state sale during the period 1 4 1969 to 9 6 1969. In respect of this amount the order made by the C.T.O. was: "The dealers have not charged and collected Central sales Tax for the period from 1 4 69 to 9 6 69. The turnover of Rs. 26,61,166.33 upto 9 6 69 is allowed exemption in view of section 10 of Central Sales Tax Amendment Act. " The second assessment order was passed under the A.P. Act and therein the C.T.O., while considering a sum of Rs. 54,87,879/ being the purchase value of cotton sold during the year through inter state sale, remarked that the appellant was entitled to 'exemption ' under the proviso to section 6 of the A. P. Act in respect thereof. He finalised the assessment accordingly. In the year 1972, clause (b) of section 15 of the Central Act was amended retrospectively so as to be effective from 1st October, 1958. Two years later, section 6 of the A.P. Act was also amended and made effective from the same date. On the 21st of August, 1974, the Deputy Commissioner (Commercial Taxes) hereinafter called the D.C.C.T.) issued a notice to the appellant calling upon it to show cause why the 'exemption ' granted to it by the C.T.O. should not be cancelled. After receiving the appellant 's reply, the D.C.C.T. revised the assessment order dated 30th of April, 1971, passed under the A.P. Act and held that in view of the provisions of section 6 thereof as amended in 1974 the appellant was not entitled to any 'exemption ' in respect of the purchase price (amounting to Rs. 23,00,057/ ) of cotton sold by it in the course of interstate trade for Rs. 26,61,166/ during the period 1 4 1969 to 8 6 1969. The order of the D.C.C.T. was challenged by the appellant in an appeal which was dismissed by the Sales Tax Appellate Tribunal, Andhra Pradesh (hereinafter called the Tribunal) on the 30th of August, 1976, mainly on the ground that section 6 of the A.P. Act did not talk of any 'exemption ' either before or after its amendment in 1974. The appellant sought a revision of the Tribunal 's order by the High Court under section 22(1) of the A.P. Act but remained unsuccessful as the High Court was of the opinion (for 1031 which it relied upon Vadivelu Chetty vs Commercial Tax Officer, Tirupathi(1) and Daita Suryanarayana and Company vs State of Andhra Pradesh(2) that the exemption granted by the C.T.O. was 'patently wrong '. The High Court however granted a certificate declaring the case to be a fit one for appeal to the Supreme Court under article 133(1)(c) of the Constitution of India read with section 109 of the Code of Civil Procedure. In order to appreciate the contentions raised on behalf of the appellant it is necessary to examine the various relevant legislative provisions which are set out below: Section 10 of the Central Sales Tax (Amendment) Act, 1969 (hereinafter referred to as the 1969 Act). Exemption from liability to pay tax in certain cases. (1) Where any sale of goods in the course of inter state trade or commerce has been effected during the period between the 10th day of November, 1961, and the 9th day of June, 1969, and the dealer effecting such sale has not collected any tax under the principal Act on the ground that no such tax could have been levied or collected in respect of such sale or any portion of the turn over relating to such sale and no such tax could have been levied or collected if the amendments made in the principal Act by this Act had not been made, then, notwithstanding anything contained in section 9 on the said amendments, the dealer shall not be liable to pay any tax under the principal Act, as amended by this Act, in respect of such sale or such part of the turn over relating to such sale. (2) For the purposes of sub section(1), the burden of proving that no tax was collected under the principal Act in respect of any sale referred to in sub section (1) or in respect of any portion of the turn over relating to such sale shall be on the dealer effecting such sale. " Section 6 of the A. P. Act as on 30 4 1971 "6. Tax in respect of declared goods Notwithstanding anything contained in section 5, the sale or purchase of declared goods by a dealer shall be liable to tax at the rate, and only at the point of sale or purchase, specified against 1032 each in the Third Schedule, on his turn over of such sales or purchases for each year irrespective of the quantum of his turn over in such goods; and the tax shall be assessed, levied and collected in such manner as may be prescribed: Provided that where any such goods on which tax has been so levied are sold in the course of inter state trade or commerce, the tax so levied shall be refunded to such person, in such manner and subject to such conditions as may be prescribed. " The proviso to section 6 of the A. P. Act as amended in 1974 retrospectively with effect from 1 10 1958. 'Provided that where any such goods on which a tax has been so levied are sold in the course of inter state trade or commerce and tax has been paid under the . in respect of the sale of such goods in the course of inter state trade or commerce the tax so levied shall be reimbursed to the person making such sale in the course of inter state trade or commerce, in such manner and subject to such conditions as may be prescribed. " Sub rule (1) of rule 27 A of the Rules framed under the A.P. Act as on 30 4 1971 "Where any tax has been levied and collected under section 6 in respect of the sale or purchase inside the State of any declared goods and such goods are subsequently sold in the course of inter state trade or commerce, the tax so levied and collected shall be refunded to the person in the manner and subject to the conditions specified in sub rules (2) to (4). " Sub rule (1) of the said rule 27A After its amendment 1 8 1974 "Where any tax has been levied and collected under section 6 in respect of the sale or purchase inside the State of any declared goods and such goods are subsequently sold in the course of inter state trade or commerce, the tax so levied and collected shall be reimbursed to the person in the manner and subject to the conditions specified in sub rules (2) to (4): Provided that the refund shall not be made unless the tax payable under the is paid." 1033 Clauses (a) and (b) of section 15 of the Central Act as in force on 30 4 1971 "15. Restrictions and conditions in regard to tax on sale or purchase of declared goods within a State Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely: (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall be levied only in respect of the last sale or purchase inside the State and shall not exceed two per cent of the sale or purchase price. (b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter state trade or commerce, the tax so levied shall be refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State." Clause (b) of section 15 of the Central Act as amended in 1972 retrospectively with effect from 1 10 1958 "(b) where a tax has been levied under that law in respect of the sale or purchase inside the State of any declared goods and such goods are sold in the course of inter State trade or commerce, and tax has been paid under this Act in respect of the sale of such goods in the course of inter state trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter state trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State. Section 10 of the 1969 Act makes no reference at all to any tax leviable under the State Act. It concerns itself only with the tax payable under the Central Act which it calls the 'Principal Act ' and says that a dealer shall not be liable to pay any such tax for the period between 10 11 1964 and 9 6 1969 if certain conditions are satisfied. Much reliance has been placed by learned counsel for the appellant on this section which, in our opinion, however, is of no assistance to him. It may be taken for granted that the appellant did not collect any tax under the Central Act on the sale of goods effected by it in 1034 the course of inter state trade during the period 1 4 1969 to 9 6 1969 on the ground that no such tax could have been levied or collected in respect of such sale, so that it becomes fully entitled to the benefit of the exemption enacted by the section; but that would only mean that Central sales tax cannot be charged from it in respect of such sale. As it is, no demand has been made from it for any tax leviable under the Central Act in respect of such sale and we do not see how the appellant could benefit from the said section 10 in the matter of its assessment for the period in question under the A.P. Act. All that we are concerned with is the liability of the appellant to pay tax on the purchase of cotton which it sold during that period in the course of inter state trade and that is a matter which has to be decided with reference to section 6 of the A.P. Act, rule 27 A extracted above and section 15 of the Central Act. As on 30 4 1971 the provisions of section 6 of the A.P. Act laid down that if goods were sold in the course of inter state trade or commerce and tax had been levied on the sale or purchase there of under that Act, the dealer concerned would be entitled to refund of such tax. As on the date of assessment therefore the appellant was within its rights to claim refund of any tax that it was liable to pay on the purchase of cotton later sold by it in the course of inter state trade; and although the section did not talk of any 'exemption ', all that the C.T.O. could have meant by granting the appellant 'exemption from the tax was that it became liable to pay a tax under the opening para of the section but as it was also entitled to a refund of such tax, the same was taken to have been paid by and refunded to it. As the section then stood therefore the assessment order was unexceptionable. This was also the position under clause (b) of section 15 of the Central Act the language of which is practically the same as of the proviso to section 6 of the A.P. Act. The matter however does not end there as the amendment of section 15 of the Central Act in 1972 and that of section 6 of the A.P. Act in 1974 made a real difference which appears to us to be an insurmountable hurdle in the way of the appellant 's stand being accepted. As already stated, both the amendments were retrospective so as to be effective from the 1st of October, 1958. That means that the law to be applied to the assessment finalised through the two orders dated 30th of April, 1971, by the C.T.O. was that as modified by the two amendments. Of course we are here concerned only with the order of assessment made under the A.P. Act. That order would be good if it is in conformity with the provisions of the amended section 6 of the A.P. Act but not otherwise. Under the amended section the liability to tax 1035 remained unchanged but the entitlement to refund was abolished and was substituted by a right to reimbursement of the tax which arose only if the concerned goods were later on sold in the course of inter state trade or commerce under the Central Act and tax under that Act was paid in respect thereof. Such reimbursement would not be avaialable merely because the goods in question had been sold in the course of inter state trade or commerce when they were not subjected to tax under the Central Act. Admittedly no such tax was paid by the appellant in the course of inter trade on goods regarding the purchase of which reimbursement of the tax leviable under the A.P. Act is claimed. The proviso to section 6 as amended in 1974 therefore is of no assistance to it. Nor does the amended clause (b) of section 15 of the Central Act come to the appellant 's aid, as the language used therein, for all practical purposes, is the same as that of the amended proviso to section 6 of the A.P. Act and clearly means that the tax under the A.P. Act would be reimbursible only to a dealer who has paid tax under the Central Act in respect of the sale of the goods in question in the course of inter state trade or commerce. Faced with the above situation, Mr. Desai, Learned counsel for the appellant, pressed into service a novel contention to the effect that the appellant was not asking for any reimbursement or refund, that it was the D.C.C.T. who had cancelled the order of refund (inherent in the 'exemption ' granted by the C.T.O.) and that there was no provision authorising the D.C.C.T. to force the appellant to return any amount paid to it as a refund. The argument is obviously fallacious. The D.C.C.T. has done nothing more than to revise an order of the C.T.O. which has been varied only in so far as it was not in conformity with the law deemed to have been prevailing on the date of the assessment by virtue of the retrospective amendment of section 6 of the A.P. Act. It is conceded by Mr. Desai that the 'exemption ' has to be regarded as a composite order of levy plus refund. That part of it which granted a refund was illegal under the amended proviso to section 6 of the A.P. Act inasmuch as no reimbursement was due in respect of goods on which tax under the Central Act had not been paid. The D.C.C.T. therefore had not only the power but was duty bound to strike down the order of refund as being illegal. The order of the C.T.O. as revised by the D.C.C.T. thus is reduced to an order merely of levy of the tax due under the opening paragraph of section 6 of the A.P. Act so that the appellant becomes liable to pay such tax. The only other argument put forward by Mr. Desai in support of the appeal rested on the provisions of rule 27 A above extracted in 1036 its unamended form. The rule can obviously be of no help to him inasmuch as even if it can be construed as laying down something in favour of the appellant it cannot override the provisions of the Act under which it is framed. No amount of argument would make a rule over ride or control the legislative enactment under the authority of which it comes into being and that is why the rule was amended in 1974 so as to conform to the parent statute. It may be stated that at one stage of the argument Mr. Desai drew our attention to the fact that by reason of the amendments made in the statute law and the consequent demand by the D.C.C.T. for the refunded amount the appellant had been placed under a burden which did not fall on those who collected the Central sales tax from the purchasers and paid it to the Government because they were held entitled to refund of the tax under the A.P. Act even though they had not paid anything out of their own pocket as tax under the Central Act. However, as he did not challenge the constitutional validity of any of the amended sections he did not pursue the matter further and we need take no further notice of it. We might mention here that Daita Suryanarayana and Company 's case (supra) on which the High Court relied in support of the impugned judgment takes a view of the law which is in conformity with the opinion expressed above by us and we unreservedly approve of the same. In the result the appeal fails and is dismissed but with no order as to costs. P.B.R. Appeal dismissed.

The petitioner was acquitted by the High Court in appeal, of charges under sections 302 and 148 I.P.C., but the brother of the deceased not the State nor even the first informant, petitioned this Court under Article 136 of the Constitution for special leave to appeal against acquittal, got leave, had his appeal heard, which was ultimately allowed the court setting aside the judgment of the High Court, and restoring the conviction and sentence imposed by the trial court under section 302 I.P.C. (Arunachalam vs section R. Sadhananthan ; The petitioner filed the writ petition under Article 32 of the Constitution, contending: (1) that Article 136 did not empower the grant of special leave to the brother of the deceased and the grant of special leave by the Court and its entertaining the appeal violated Article 21 of the Constitution, and (2) before the Court may grant special leave under Article 136 there must be an antecedent right of appeal absent which the question of leave by the Court does not arise. Dismissing the petition, ^ HELD: (per Krishna Iyer, Murtaza Fazal Ali and Desai, JJ). Justice is functionally outraged not only when an innocent person is punished but also when a guilty criminal gets away with it stultifying the legal system. [877H, 878A] 2. An insightful understanding of the sweep, scope and character of article 136 will easily dispel the dichotomy between an antecedent right of appeal and a subsequent grant of leave. [878D] 3. The jural reach and plural range of the judicial process to remove injustice in a given society is a sure index of the versatile genius of law in action as a delivery system of social justice. Our constitutional order vests in the summit court a jurisdiction to do justice, at once omnipresent and omnipotent but controlled and guided by that refined yet flexible censor called judicial discretion. This nidus of power and process, which master minds the broad observance throughout the Republic of justice according to law, is article 136. [878E F] 874 4. In express terms, article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction. It is residuary power; it is extra ordinary in its amplitude, its limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from article 136. [878G H, 879A] 5. There is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that article 136 confers jurisdiction on the highest court. The founding fathers unarguably intended in the very terms of article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. Judicial discretion is canalised authority, not arbitrary eccentricity. [879A C] 6. It is manifest that article 136 is of composite structure, is power cum procedure power in that it vests jurisdiction in the Supreme Court, and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process. In short, there is an in built prescription of power and procedure in terms of article 136 which meets the demand of article 21. [879E F] 7. If article 21 is telescoped into article 136, it follows that fair procedure is imprinted on the special leave that the court may grant or refuse. With a motion is made for leave to appeal against an acquittal, this Court appreciates the gravity of the peril to personal liberty involved in that proceeding. While considering the petition under article 136 the court will pay attention to the question of liberty, the person who seeks such leave from the court, his motive and his locus standi and the weighty factors which persuade the court to grant special leave. [879F G] 8. 'The wider the discretionary power the more sparing its exercise. The Court may not, save in special situations, grant leave to one who is not eo nomine a party on the record. [880C D] 9. Sometimes indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under article 136 even though the justice of the lis may well justify it. In the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression 'standing ' is necessary for article 136 to further its mission. There are jurisdictions in which private individuals not the State alone may institute criminal proceedings. [880G H, 881A] 10. The narrow limits set, into the concept of 'person aggrieved ' and 'standing ' needs liberalisation. [881E] Baker vs Carr ; , Attorney General of the Gambia vs Pierra Sarr N 'Jie, , Bar Council of Maharashtra vs M. V. Dabholkar, [1975] 2 SCC 702 referred to. (Per Pathak and Koshal, JJ concurring). Article 136 seeks to confer on the Supreme Court the widest conceivable range of judicial power, making it perhaps among the most powerful courts in the world. The judicial power reaches out to every judgment, decree, determi 875 nation, sentence or order affecting the rights and obligations of persons in civil matters, of life and liberty in criminal matters as well as matters touching the Revenues of the State. It is an attempt to ensure that the foundations of the Indian Republic, which have been laid on the bed rock of justice, are not undermined by justice anywhere in the land. [884CE] Bharat Bank Ltd. vs Employees of the Bharat Bank Ltd. ; , 474, Durga Shankar Mehta vs Thakur Raghuraj Singh and Others, [1955] 1 S.C.R. 267, 272, referred to. Article 136 vests in the Supreme Court, a plenary jurisdiction in the matter of entertaining and hearing appeals by grant of special leave. However, a limitation is inbuilt into the jurisdiction of the Court and it flows from the nature and character of the case intended to be brought before the Court, and it requires compliance despite the apparent plenitude of power vested in the Court. When a petition is presented to the Court under Article 136, the Court will have due regard to the nature and character of the cause sought to be brought before it when entertaining and disposing of the petition. [884E G] 3. A crime is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim 's family. Those who commit such acts are proceeded against by the State in order that, if convicted, they may be punished. No private person has a direct interest in a criminal proceeding although exception may be made by the Statute in certain cases. [885C F] Kenny 's Outlines of Criminal Law, 16th Edn., p. 2 para 3 Blackstones Commentaries, III p. 2, Mogul Steamship Co. vs Mc Greger Gew & Co. ; referred to. The notion of crime as a threat to the whole community is the material counter part of the formal rule that the State alone is master of a criminal prosecution. In a criminal proceeding, the State stands forward as prosecutor on public grounds. No private person has a direct interest in a criminal proceeding, although exception may be made by the statute in certain cases. A criminal prosecution is not intended for the private satisfaction of a personal vendetta or revenge. In India, the criminal law envisages the State as the prosecutor. [885E F] Salmond on Jurisprudence, 12th Edn. p. 92 para 14 and Current Legal Problems, 1955; Glanville Williams, "The Definition of Crime", p. 107 at p. 122; referred to. Under the Code of Criminal Procedure 1973, section 378, the right of appeal vested in the State has now been made subject to leave being granted to the State by the High Court. The complainant continues to be subject to the prerequisite condition that he must obtain special leave to appeal. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [886B C] 876 Law Commission of India 48th Report 1972 pp. 17 21 referred to. What follows from the grant of special leave is an appeal, and the jurisdiction must, therefore, be invoked by a petitioner possessing a locus standi recognised in law. [887F G] 7. Access to the jurisdiction under Article 136 cannot be permitted to a private party who seeks to employ the judicial process for the satisfaction of private revenge or personal vendetta. Nor can it be permitted as an instrument of coercion where a civil action would lie. In every case, the Court is bound to consider what is the interest which brings the petitioner to court and whether the interest of the public community will benefit by the grant of special leave. [887B C] 8. The Court should entertain a special leave petition filed by a private party, other than the complainant, in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning for special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bona fide and other extraneous considerations. [887E F] 9. The procedure followed by this Court in disposing of a petition under Article 136 is consistent with the procedure contemplated by Article 21 for the Court in exercising its jurisdiction will do so as a court of law following the well known norms of procedure which have been recognised for long as governing and informing the proceedings of all courts. Article 21 is, therefore, not violated. [887G H, 888A]

Appeals Nos. 174 and 175 of 1967. Appeals by special leave from the judgment and order dated June 16, 1966 of the Mysore High Court in exhibit Regular Appeals Nos. 33 34 of 1961. V.S. Desai, Naunit Lal and Swaranjit Sodhi, for the appellant (in both the appeals). D.V. Patel, O. P. Malhotra, P. C. Bhartari, for the respondent (in both the appeals). The Judgment of the Court was delivered by Mathew, J. These two appeals, by special leave, are from the common judgment passed by High Court of Mysore on 16 6 1966 confirming the order of the District Court, Bangalore, allowing an application for execution of the compromise decree passed on 24 6 1959 in appeal from the decree in O.S. 85 of 1949 50 of that court. The appellant was the defendant in the suit and the respon dent the plaintiff. As matter in controversy between the parties in the appeal turns upon the construction of the compromise decree, it is necessary to set out its terms : (i) The defendant agrees to receive from the plaintiff a lakh of rupees paid as consideration for the sale of the property No. 44, Mahatma Gandhi Road, Bangalore, together with stamp charges of Rs. 3,300/ (rupees three thousand 517 and three hundred only) with interest at six per cent per annum of the above two sums from 16 3 1947 up to date together with Rs. 7,000/ (rupees seven thousand only) deducted by the Corporation minus the rent received viz., Rs. 22,500/ (rupees twenty two thousand and five hundred only) and give up all rights to the said property. The plaintiff will be entitled to the materials lying on the premises. (ii)The period of time fixed for the payment by the plaintiff to the defendant of this amount stated above is till 1 1 1960. (iii)The plaintiff agrees to deposit the amount in court for payment to the defendant. (iv)On failure of the plaintiff to deposit the amount in court by 1 1 1960 his suit now in appeal will be dismissed with costs throughout. (v) It is agreed by the parties that time is the essence of the contract and no further extension of time would be allowed and the dismissal of the suit with costs would be automatic. The respondent applied for challan on 22 12 1959 to deposit the amount and a challan was issued to him on 24 12 1959, the last working day before the court closed for Christmas holidays. December 31, 1959 and January 1, 1960, were holidays. Neither the lower courts nor the banks were open on these days. The respondent made the deposit on 2 1 1960 and sought to enforce his right under the decree by compelling the appellant to execute the conveyance in terms of the compromise decree by filing execution case No.25/1960. The appellant also filed execution case No. 45 of 1960 for cost on the basis that the suit stood dismissed as per the provision in the decree on the failure of the respondent to deposit the amount by 1 1 1960, These two petitions were heard together, and the court passed an order holding that the respondent had made the deposit in substantial compliance with the decree and allowing execution case No. 25 of 1960 and dismissing execution case No. 45 of 1960. Against this order, the appellant filed appeals 33 and 34 of 1960 before the High Court of Mysore. A Division Bench of the High Court, by its judgment dated 16 6 1966, dismissed the appeals with costs. The short question for consideration in these appeals is whether the deposit made by the respondent on 2 1 1960 was within the time specified in the compromise decree and would 518 enable him to compel the appellant to execute the sale deed in accordance with the provisions of the compromise decree. It was argued on behalf of the appellant that the respondent had practically six month 's time to deposit the amount, that he should not have waited for the last day of the period allowed to him by the decree to deposit the amount and if he was not diligent to deposit the amount earlier, he must suffer the consequences if the court happened to be closed on the last. day on which he should have made the deposit. Counsel said that there is a distinction between a case where under a decree an act has to be performed by a party on a day certain and a ease where the party has the liberty to perform the act within a certain time a certain day . that in the former case, if the act cannot be pet formed by reason of circumstances beyond his control, he will be relieved against the consequences of his default by reason of the maxim Lexnon cogit ad impossibility (the law does not cornpel a man to do that which he cannot possibly perform) if he performs the act at the next available opportunity, but where he has to per form an act within a certain period or by a certain date, as in this case, the law will not take notice of the circumstance that the act became incapable of performance by reason of circumstances beyond his control on the last day of the period. Whether there is any logical or reasonable basis for making the distinction, we clear that in this case the respondent had the right or, perhaps, more accurately, the liberty to deposit the amount in court till and including 1 1 196O. In Halsbury 's Laws of England vol. 37, 3rd Edition, page 96, :it is observed "Subject to certain exceptions, the general rule is that, when an ,let may be done or a benefit enjoyed benefit enjoyed upto the last moment of the last of that period. " if the respondent had the right or liberty to deposit the amount III court on 1 1 1960 under the compromise decree the fact that he did not choose 'Lo make the deposit earlier would not affect his right or liberty to deposit the amount in court on 1 1 1960. In Fateh Khan and another vs Chhajju and others(1), an argument similar to the one addressed by counsel for the appellant was advanced but was not countenanced by the court. That was a case where a pre emptor was unable to deposit the purchase money in court on the last day of the period allowed by the decree; the period expired when the court was closed for the vacation and he deposited the amount on the reopening day. It was argued that the decree allowed the preemptor a period of time within which to deposit the amount, that he could have deposited (1) A.I.R. 1931 Lahore 386. 519 the amount earlier, that he should not have waited till the last day of the period and that if the last day happened to be a holiday, he can take no advantage of that circumstance. The court repelled the argument by saying that if the argument is accepted it will have the effect of curtailing the days allowed to him by the decree without any reason. It was next contended for the appellant that it was open to the respondent to pay the amount to the appellant either on December 31, 1959, or January 1, 1960, and that he should not have waited till the 2nd to deposit the amount in court. Counsel submitted that under Order XXI Rule 1, the respondent could have paid the amount to the appellant on January 1, 1960, or earlier, that he should not have waited till the 2nd to deposit the amount in court and if the last day of the period happened to be a day on which the court was closed, that is not a circumstance which would relieve the respondent from his obligation to pay the amount within the time specified. In support of this argument counsel referred to Kunj Bihari and others vs Bindeshri Prasad and others(1), Roshan Lal vs Ganpat Lal (2), Indal vs Chaudhary Ram Nidh(3), and Ram Kinkar Singh and another vs Smt. Kamal Basini Devi(4), Kunj Behari and others vs Bindeshri Prasad and others(1) was a case where an installment decree provided that the first installment was payable on a certain date; the date specified expired during the vacation of the court and the amount was deposited in court on the re opening day. It was held that the judgment debtors had the power to make the payment direct to the decree holder, that depositing in court was not the only course open to them and so they could not take advantage of the fact that the court was closed on the specified date and the payment made by them was not made in time. The other cases cited are to the, same effect. The Principle underlying these decisions is that when the judgment debtor has the option to pay the decree amount to the decree holder or to deposit it in court, he cannot choose one of them and act in a manner so as to prejudice the rights of the other party. Although under Order XXI, Rule 1. it is open to a judgment debtor to pay the amount direct to the decree holder or to deposit in court, he cannot choose the alternative when that will prejudice the decree holder. Even here there is a conflict of opinion among the High Courts. In Chatlapali Suryaprakasa Rao vs Polisetti Venkataratnam and others(5), the compromise decree there in question provided that the decretal amount should be paid in certain yearly (1) I.L.R. Vol. 51, 1929 Allahabad 527. (2) A.I,R, 1938 Allahabad 199 (3) A.I.R. (33) 1946 Oudh 156. (4) A.I.R. 1938 Patna 451. (5) A.I.R. 1938 Madras 523. 520 instalment on certain fixed date in each year. The decree further provided that in case of default of two successive instalments the whole amount would be recovered. The decree however did not provide to whom the money was to be paid. The judgment debtor failed to pay the first instalment. On a day previous to that on which the second instalment was due he obtained a challan. The day on which the instalment was due being a holiday, he paid the instalment next day in the Bank. It was held by the Madras High Court that the judgment debtor did not commit default in payment of the second instalment and consequently there was no default of two successive instalments. This is also the view that was taken in Premchand Bhikabhai vs Ramdeo Sukdeo Marwadi(1). It is not necessary to resolve the conflict of opinion on this aspect; as we are concerned with a decree which specifically provided that the respondent should deposit the amount in court. He had, therefore, no option to pay the same to the appellant and the appellant, perhaps, would have been within his right if he refused a tender of the amount to him. Ile parties, for obvious reasons, agreed that the amount should be deposited in court and that was made a rule of the court and, therefore, the principle of the decision in Kunj Behari and others vs Bindeshri Prasad and others and the other cases cannot be applied here. The question then arises as to what is the principle which should be applied in a case where a party to a consent decree is given time to do an act within a specified day or by a specified (lay and fails to do it on the ground of impossibility of performance on the last day specified but does it on the next practicable day. This question arose for consideration in Muhammad Jan vs Chiam Lal(2). There a decree in a pre emption suit gave the plaintiff a period of one month within which to deposit the purchase money in order to obtain the benefit of the decree in his favour, and the period expired on a date on which the court Was closed for the vacation and the plaintiff made the deposit on the day on which the court re opened. Piggott, Lindsay and Sulaiman, JJ. held that the deposit was in time under the terms of the decree. They said that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by an act of their own but by the court itself, are entitled to do it at the first subsequent opportunity. The court quoted with approval the decision in Shooshee Bhusan Rudro and another vs Gobind Chunder Roy(3) where it was observed that the broad principle is that although the parties themselves cannot extend the time for doing an act in court, yet (1) A.I.R. (36) 1949 Nagpur 141. (2) I.L.R. Allahabad Series, Vol. XLVI, 1924, p. 328. (3) I.L.R. Calcutta, Vol. XVIII (1891) p. 231. 521 If the delay is caused not by any act of their own, but by some act of the court itself such as the fact of the court being closed they are entitled to do the act on the first opening day. In Satnbasiva Chari vs Ramasami Reddi(1), the Madras High Court held that there is a generally recognised principle of law under which parties who are prevented from doing a thing in court on a particular day, not by any act of their own, but by the court itself, are entitled to do it at the first subsequent opportunity. We have already referred to Fateh Khan and another vs Chhajju and others where the Lahore High Court applied this principle to a pre emption decree. Mayor vs Harding(2) is a case in point. In that case the appellant had applied to justices to state a case under the Summary Jurisdiction Act, 1857. He received the case from them on Good Friday, and transmitted it to the proper court on the following Wednesday. It was held that he had complied sufficiently with the requirement of the Act directing him to transmit the case within three days after receiving it, as it was impossible for him to transmit the case earlier than he did because of the closure of the offices of the court from Friday till Wednesday. Mellor, J., dealt with the matter as follows : "Here it was impossible for the appellant to lodge his case within three days after he received it. As regards the conduct of the parties themselves, it is a condition precedent. But this term is sometimes used rather loosely. I think it cannot be considered strictly a condition precedent where it is impossible of performance in consequence of the offices of the court being closed, and there being no one to receive the case. The appellant lodge the case on Wednesday, that is, he did all that it was practicable for him to do." In Halsbury 's Laws of England, Vol. 37, 3rd Edition, page 97, para 172, it is observed : "172. The fact that the last day of a prescribed period is a Sunday or other non juridical day does not as a general rule give the person who is called upon to Act an extra day; it is no excuse for his omission to do the act on some prior day. This general rule does not hold good where the effect of it would be +Lo render performance of the act impossible. This would be the case if the whole of the prescribed period consisted of holidays, in Which case the act may lawfully be done on the next possible day. (1) I.L.R. 22 Madras (1899) p. 179 (2) 522 Again the general rule does not hold good where the last day is a Sunday and the act be done is one the performance of which on a Sunday is prohibited by the Sunday Observance Act, 1677, or where the act has to be done, not by the party only, but by the court or by the party in conjunction with the court. In such cases the act may, when the last day limited for the performance of it happens to be a day when the court or its office is closed, be done on the next practicable day. " We think that the second exception to the general rule stated in the passage and in effect followed in the rulings cited above must apply to the facts here. But counsel for the appellant argued that the compromise decree provided that on default of the respondent to deposit the amount in court on 1 1 1960, there was to be an automatic dismissal of the suit by virtue of clause (v) thereof and the execution court had no right to alter or modify the terms of the decree and hold that the deposit made on 2 1 1960 shall be deemed to be a deposit made on 1 1 1960, and order the execution of the decree on that basis. A court executing the decree shall execute it as it stands. It cannot modify or vary the terms of the decree. No exception can be taken to that general principle. But the execution court has the right to construe a decree in the light of the applicable provisions of law and if in this case on a construction of the decree in the light of the applicable provision of law, it found that the deposit made by the respondent on 2 1 1960 was according to law a deposit in compliance with the terms of the decree, then the execution court was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law. Counsel then contended that a compromise decree is none the less a contract, notwithstanding the fact that an order of court is super added to it and, a provision in a contract that an act shall be done within a certain period or by a particular day by a party is absolute. In other words counsel said that duties are either imposed by law or undertaken by contract and the ordinary rule of law is that when the law creates a duty and a party is disabled from performing it without any default of his own, the law excuses him, but when a party by his own contract imposes a duty upon himself, he is bound to make it good not withstanding any accident by inevitable necessity . Counsel in this connection referred to the passage in Halsbury 's Law, , of England Volume XIV, page 622, para 151, which reads as under 523 " 1151. Where under a contract, conveyance, or will a beneficial right is to arise upon the performance by the beneficiary of some act in a stated manner, or a stated time, the act must be performed accordingly in order to obtain the enjoyment of the right, and in the absence of fraud, accident or surprise, equity will not ,relieve against a breach of the terms". Although a contract is not the less a contract because it is embodied in a judge 's order, or, as said by Parke J. in Went worth vs Bullen(1) B. & C. 840, 850 "the contract of the parties is not the less a contract, and subject to the incidents of a contract. because there is super added the command of a judge". still we think it is something more than a contract. The Judicial Committee of the Privy Council in Charles Hubert Kinch vs Edward Keith Walcott and others (2) observed " 'An order by consent, not discharged by mutual agreement and remaining unreduced is as effective as an order of the court made otherwise than by consent and not discharged on appeal. A party bound by a consent order must when once it has been completed, obey it, unless and until he can get it set aside in proceedings duly constituted for the purpose. The only difference in this respect between an order made by consent and one not so made is that the first stands unless and until it is discharged by mutual agreement or is s et aside by another order of the court : the second stands unless and until it is discharged on appeal. " In Govind Waman vs Murlidhar Shrinivas and others(3), the Bombay High Court held that a consent decree passed by a court of competent jurisdiction cannot be treated on the same footing as a contract between the parties, that although it is true that before a court passes a consent decree, it can and should examine the lawfulness and validity of the terms of the proposed compromise, but when once that stage is passed and a decree follows, different considerations arise and therefore, where I compromise decree contains a term against alienating certain property and gives the other party right to its possession on such alienation, the decree is not a nullity in spite of the fact that the term is opposed to section 10, T.P. Act. And the fact that it is contrary to law would not affect its binding character, unless it is set aside by taking proper proceedings. That different conside (1) English Law Reports, (2) A.I.R. 1929 journal & Privy Council, P. 289. (3) A.I.R. 1953 Bombay 412. 524 ration would apply when a contract is embodied in a judge 's order is also clear from Morris vs Barret(1). In that case by a consent order it was provided that, upon payment of 341. , the debt and costs as agreed, in installments on the 28th of May, on the 25th of June and on the 25th of every succeeding month until the whole is paid, all further proceedings in the cause be stayed. The order further provided that, in case default be made in any payment as aforesaid, the plaintiff be at liberty to sign final judgment for the said sum of 341., and issue execution for the amount unpaid. The first and two following installments were duly paid. The 25th of October, the day on which the fourth installment became payable, being a Sunday, the defendant called at the office of the planitiff 's attorney on Monday the 26th, and offered to pay it, but was told he was too late, and that judgment had been signed. No judgment, however, was signed until the following morning. The defendant took out a summons to set aside the judgment, on the round that under the circumstances he had the whole of Monday to pay the money, and that the judgment signed after the money was offered was irregular. The court held that the defendant had the whole of Monday to pay the money. One of the arguments advanced in that case was that as the judge 's order was a consent order, the principle governing contract must regulate the rights of parties and therefore the defendant was not excused from performing the contract by the accident of the day being a Sunday. In repelling this contention Erle, C.J. said : "I desire not to be understood as giving any decision as to the rights of parties under a contract : but, in arriving at the conclusion I come to, I seek only to give effect to the duty which the law imposes upon a party who is directed by a judge 's order to pay money. The defendant was ready and offered to pay it on Monday; but the plaintiff, conceiving that the offer came too late. declined to receive it, and on the following day signed the judgment for the balance due. Confining myself to the judge 's order and the remedy and duty thereon and to what ought to be the fair meaning and understanding of the instrument, I find no authority for saying that the defendant was bound to search for his creditor and pay him the money on the Sunday. " Crowder, J. said : "This is not like the case of an ordinary contract; and I de sire not to be understood as at all interfering (1) English Law Reports 141, p. 768. 525 with any of the cases which have been referred to with reference to contracts. The cases upon the construction of statutes are also founded upon an entirely different consideration. " We may also state that there is no evidence in this case that at the time when the compromise was entered into, either of the parties knew that the 31st of December, 1959 and the 1st of January, 1960, would be holidays. In these circumstances we think that the deposit made by the respondent on 2 1 1960 was in substance and in effect a deposit made in terms of the compromise decree and that the High Court was right in its conclusion. We dismiss the appeals but in the circumstances without any order as to costs. K.B.N. Appeals dismissed.

While a reference was pending before the Labour Court the respondent workmen went on strike because some workmen were suspended. The Labour Officer as well as the management tried to persuade the workers to rejoin duty, but the respondents, made it a condition of their joining duty that the suspended workmen should also be taken back. The management thereafter gave the respondents notices on different dates asking them to join duty by a date specified in the notices and subsequently, by another letter, called upon them to justify their absence, failing which. the respondents were informed, that their names would be struck off from the muster roll. Notwithstanding those notices and the willingness of management to take them back the respondents gave no reply but continued the strike and they were informed by letters that their names were removed from the muster roll. No domestic inquiry however, was held into the misconduct of the respondents. The Labour Court, to which the dispute was referred directed reinstatement of the respondents. In appeal to this Court, on the: question whether the termination of the employment of the respondents, in the circumstances of the case, without an inquiry, was justified. HELD : (1) It is an accepted principle of industrial adjudication that workmen can resort to strike in order to press for their demands without snapping the relationship of employer and employee. , Equally, the management have the right to carry on work, in furtherance of which, they could employ other workmen and justify their action on merits in any adjudication of the dispute arising therefrom. [497 C E] (2) Merely because workmen go on strike, even where the strike is illegal, it does not justify the management in terminating their services without a domestic inquiry. [497 C] (3) In the case of a domestic inquiry where misconduct is held to he proved, the industrial tribunal or labour court can only interfere with that order if there is mala fide, or want of good faith or there was victimisation or unfair labour practice or the management has been guilty of basic errors or violation of principles of natural justice or if on the materials, the finding is completely baseless or perverse. If, however, the management does not hold an inquiry, or the inquiry is, due to some omission or defi ciency, not valid, the management can nonetheless support the order of discharge, termination or dismissal when the matter is referred for industrial adjudication by producing satisfactory evidence and proving misconduct of the concerned workmen. The evidence to substantiate and justify the action taken against the workmen is not as stringent as that 491 which is required in a court of law, but should be such as would satisfy the tribunal that the order of termination was proper. In such a case, there is no difference between a reference under section 10 of the Industrial Disputes Act and a dispute raised under section 33A of the Act, and, no distinction can be made between cases where the domestic inquiry is invalid and those where no inquiry has, in fact, been ,held. That is, the management can justify and substantiate its action on evidence duty place before the Tribunal. [498 E G; 499 E F; 500 C D; 501 A B] (4) In the present case, there were no Standing Orders applicable to the appellant company. A domestic inquiry should have been held in order to entitle the management to dispense with the services of its workmen on the ground of misconduct. [498 A B] (5) But the management had proved before the Labour Court that there was persistent and obdurate refusal by the workmen to join duty notwithstanding the fact that the management had done everything possible to persuade them and gave them opportunities to come back to work; and that the respondents had, without any sufficient cause refused to do. The strike was illegal and it was not necessary for the management to prove that the respondents were guilty of overt acts of intimidation, incitement or violence. There, is nothing to justify the allegation that the management wanted to terminate to their services under some pretext with a view to recruit them afresh and deprive them of accrued benefits. , The notices clearly mentioned that the workmen would be free to join duty by a certain date, and it was only after that date the management was willing to entertain them only as new entrants. Therefore, though no domestic, inquiry was held, the management had proved the misconduct of the respondents before the Labour Court and hence the termination of their services was not improper, and there was no justification for directing their reinstatement. [501 C G] Express Newspapers (P) Ltd. vs Michael Mark & Anr., , India General Navigation & Railway Co. Ltd. vs Their Workmen; , , Punjab National Bank Ltd. vs Its Workmen ; , Workmen of Motipur Sugar Factory (P) . Ltd. vs Motipur Sugar Factory, ; and Hindustan General Electrical Corporation Ltd. vs Bishwanath Prasad & Anr. C.A. No. 2167/66 dt. 17 8 71, followed.

Appeal No. 421 of 1961. Appeal from the judgment and decree dated December 24, 1959 of the Calcutta High Court in Appeal from Original Decree No. 181 of 1956. M. C. Setalvad, section C. Ghose, J. B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant. 862 Bishan Narain and P. D, Xenon, for the respondent. April 5. The judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal arises out of a suit filed by the appellant, the New Marine Coal (Bengal) Private Ltd. against the respondent, the Union of India, on the original side of the Calcutta High Court to recover Rs. 20,343/8/ . The appellant 's case was that it had supplied coal to the Bengal Nagpur Railway Administration in the month of. June, 1949, and the amount claimed by it represented the price of the said coal and salestax thereon. The appellant also made an alternative case, because it was apprehended that the respondent may urge that the contract sued on was illegal and invalid since it did not comply with s.175 (3) of the Government of India Act, 1935. Under this alternative claim, the appellant alleged that the coal had been supplied by the appellant not intending so to do gratuitously, and the respondent had enjoyed the benefit thereof, and so, the respondent was bound to make compensation to the appellant in the form of the value of the said Coal under section 70 of the Indian Contract Act. The appellant 's case was that since the said amount had to be paid to it at its Esplanade office in Calcutta, the original side of the Calcutta High Court had jurisdiction to entertain the said suit. Since a part of the cause of action had accrued outside the limits of the original jurisdiction of the Calcutta High Court, the appellant obtained leave to see under cl. 12 of the Letters Patent. In its written statement, the respondent admitted the delivery of the coal to the Bengal Nagpur Railway Administration and did not dispute the appellant 's case that it had forwarded to the 863 respondent bills in regard to the amount alleged to be payable to the appellant for the said supply. The respondent, however, pleaded that the contract on which the suit was based was illegal inasmuch as it had been entered into in contravention of the provisions of section 175 (3) of ' the Government of India Act, 1935; and it was urged that section 70 of the Indian Contract Act had no application. Besides, the respondent alleged that following the usual practice and course of dealings between the parties, an intimation card was issued and sent to the appellant by the respondent requesting the appellant to obtain payment on presentation of a proper receipt and authority against its bills in question. Thereafter, the respondent, on receipt of the said intimation card and a proper receipt executed on behalf of the appellant, paid the amount covered by the said bills by an 'account payee ' cheque on the Reserve Bank of India drawn in favour of the appellant which was delivered to the person purporting to have authority to receive payment on behalf of the appellant. The respondent thus alternatively pleaded satisfaction of the claim, and so, urged that the appellant had no cause of action for the suit. On these pleadings, seven substantive issues were framed by the learned trial judge. Issues I & 2 which were framed in respect of the jurisdiction of the Court were not pressed by the respondent, and so, no findings were recorded on them. On issue No. 3 the learned trial judge found that the contract on which the appellant based his claim was invalid and unenforceable. Issue No. 4 in regard to the alleged payment of the bills was found against the respondent. On issue No. 5, the trial Court held that the respondent was bound to pay to the appellant the amount claimed by way of compensation. Issue No. 6 which was raised by the respon dent under section 80 of the Code of Civil Procedure was not pressed, and therefore, no finding was recorded 864 on it, Issue No. 7 which was framed on the appellant 's allegation that its claim had been admitted by the respondent was answered against the appellant. In the result, the main finding on issue No. 5 decided the fate of the suit and since the said finding was in favour of the appellant, a decree was passed directing the respondent to pay to the appellant Rs. 20,030/81 . This amount, according to the decree, had to carry interest at the rate of 6 Percent per annum. This decree was challenged by the respondent by an appeal before a Division Bench of the said High Court. The appeal was heard by P. B. Mukarji and Bose JJ. Both the learned judges agreed that the respondent 's appeal should be allowed and the appellant 's claim dismissed with costs, but their decision was based on different grounds. Bose J. held that the contract sued on was invalid and that the claim made by the appellant for compensation under section 70 of the Indian Contract Act was not sustainable. He also found that the appellant 's contention that the said contract which was initially invalid had been duly ratified, had not been proved. it is on these grounds that Bose J. came to the conclusion that the appellant 's claim could not be granted. Incidentally, it may be added that Bose J., was not prepared to consider the plea of negligence which was raised by the respondent for the first time in appeal. Mukarji, J., who delivered the principal judgment of the Appeal Court agreed with Bose J. in holding that the contract was invalid and section 70 was inapplicable. He, however, took the view that the said contract had been duly ratified and so, he proceeded to examine the question as to whether the appellant 's claim was justified on the merits. On this part of the case, the learned judge took the view that even if both the appellant and the respondent. dent were held to be innocent, since the respondent Appeal dismissed. 865 had actually parted with the money, the appellant was not entitled to require the respondent to pay over the said money again, because he thought that as held by Ashhurst J. in Lickbarrow vs Mason (1), it was a well recognised principle of law "that whenever one of two innocent per sons must suffer by the acts of a third, he who enables such third person to occasion the loss must sustain it. " In the opinion of the learned judge, the intimation card had been duly sent by post by the respondent to the appellant and the fact that the said intimation card went into unauthorised hands of dishonest persons who used it fraudulently for the purpose of obtaining a cheque for the amount in question from the respondent, showed that the appellant had by his negligence enabled the said fraudulent persons to secure the cheque, and so, it was not open to the appellant to claim the amount from the respondent. It is on these grounds that Mukharji, J., allowed the appeal and dismissed the appellant 's suit with costs. It is against this judgment and degree that the appellant has come to this Court with a certificate granted by the said High Court. In the courts below, elaborate arguments were urged by the a ties on the question as to whether the contract, the subject matter of the Suit, was invalid and if yes, whether a claim for compensation made by the appellant could be sustained under section 70 of the Indian Contract Act. Both these questions are concluded by a recent decision of this Court in the State of We, RI Bengal vs MIS. B. K. Mondal & Sons (2). As a result of this decision, there can be no doubt that the contract on which the suit is based is void and unenforceable, and this part of the decision is against the appellant. It is also clear under this decision that if in pursuance of the said void contract, the appellant has performed his part and the respondent has received the benefit of the performance of the contract by the appellant, (1) 2 T. R. 63, 70. (2) [1962] Supp. 1 S.C.R. 876. 866 section 70 would justify the claim made by the appellant against the respondent. This part of the decision is in favour of the appellant. It is therefore unnecessary to deal with this aspect of the matter at length. Assuming then that the appellant is entitled to claim the amount from the respondent, two questions still remain to be considered. The first question is whether the intimation card on the production of which the respondent always proceeded to ' issue a cheque against the bills received by it from the appellant, was received by the appellant or not, and if this question is answered in the affirmative, the other question which will call for our decision is whether by virtue of the fact that after the intimation card had been duly posted by the respondent to the appellant it fell into dishonest hands and was fraudulently used by some persons, that would create an impediment in the way of the appellant 's claim on the ground that the appellant was negligent and his negligence creates estoppel. Before addressing ourselves to these questions, it would be necessary to set out the material facts as to the dispatch of the intimation card and the fraudulent use which was made of it by persons in whose hands the said card appears to have fallen. It appears that according to the ordinary course of business, on receiving the bills from the appellant, the respondent used to send an intimation card to the appellant and the said card had to be sent back by the appellant with a person having the authority of the appellant to receive the payment and when it was so produced before the respondent, a cheque used to be issued. In the present case, it is common ground that a bill was sent by the appellant to the respondent making a total claim of Rs. 20,343/8/ on August 18, 1949. Thereafter, on October 10, 1949, the respondent sent the intimation card to the appellant addressed at its place of business 135, Canning Street, Calcutta. This card intimated to the appellant 867 that its claim for the amount specified in its bill would be paid on presentation of a proper receipt and authority between 11 A.M. to 3 P.M. on ordinary days and between 11 A.M. to 1 P. M. on Saturdays. Along with the card, a form of the receipt was sent and the appellant was asked to sign it. This intimation card was duly posted. Later, one Mr. B. L, Aggarwal produced the intimation card before the respondent. In doing so he produced an endrosement which purported to show that the appellant had authorised him to receive the payment on its behalf. When the intimation card with the appropriate authority was shown to the respondent, Mr. Aggarwal was asked to pass a receipt and when the receipt was passed in the usual form, an 'account payee ' cheque for the amount in question was given to him. Mr. Aggarwal took the cheque and left the respondent 's office. Meanwhile, it appears that some persons had entered into a conspiracy to make fraudulent use of the intimation card which had gone into their custody. In order to carry out this conspiracy, they purported to form a limited company bearing the same name as that of the appellant. A resolution purported to have been passed by the Directors of this fictitious company on October 17, 1949 authorised the opening of an account in favour of the Company in the United Commercial Bank Ltd., Calcutta. This resolution purported to be signed by the Chairman of the Board of Directors Mr. Abinash Chander Chatterji. Armed with this resolution an, application was made to open an account in the United Commercial Bank Ltd., and while doing so, the Articles of Association purporting to be the Articles of the said fictitious Company were produced and the account was opened with a cheque of Rs. 500/ on October 27, 1949. On October 26, 1919, the cheque received from the 868 respondent was credited in the said account, and as was to be expected, withdrawals from this account, began in quick succession, with the result that by November 1, 1949, only Rs. 68/ were left in this account. That, in brief, is the story of the fraud which has been committed in respect of the cheque issued by the respondent to the appellant for the bill dated August 18, 1949. In the Courts below, the appellant denied that it had received the intimation card from the respondent,and it was alleged on its behalf that in delivering the cheque to the person who presented the said card with the authority purporting to have been issued by the appellant, it cannot be said that the respondent bad given the cheque to any person authorised by the appellant, and so, the appellant was justified in saying that it had not received the payment for its bill. In support of its case, the appellant examined its Director., Mr. Parikh and its officer, Mr. Bhat. The respondent led no oral evidence; it, however, relied on the fact that the intimation card bore the postal mark which showed that it had been posted and it was urged that the said postal mark raised a presumption that the card which had been duly posted in the Post office must have, in ordinary course, reached the addressee. The trial Court noticed the fact that the intimiation card did not bear a corresponding delivery mark as it should have, and it took the view that the onus was on the respondent to show that the said card had in fact been delivered to the appellant. It then considered the oral evidence adduced by the appe llant and having regard to the fact that. no evidence had been led by the respondent, it came to the conclusion that the respondent had failed in showing that the intimation card had been duly delivered to the appellant. Substantially ' it is on the basis of this finding that the decree was passed by the trial Court in favour of the appellant. 869 In appeal, Mukarji, J. took the view, and we think. , rightly, that the posting of the card having been duly proved, a presumption arose that it must have been delivered to the addressee in ordinary course. He also considered the oral evidence given by Mr. Parikh and Mr. Bhat and was not satisfied that it was trustworthy. In particular, the learned judge was inclined to take the view that Mr. Parikh 's statement that his office did not employ any dispatch clerk and did not keep any Chiti note book like the Inward and Outward Register was unbelievably. In the result, he made a finding that the appellant was negligent in receiving, arranging, recording and dealing with letters addressed to it. The position of the evidence in respect of this point is no doubt unsatisfactory. It appears that Mr. Parikh who is the Director of the appellant Company since 1948 is also the Director of K. Wara Ltd. which manages eight collieries like that of the appellant. K. Wara Ltd., has its office at 135, Canning Street. The appellant Company also has one office at the said place. A Post Box in which letters addressed to the appellant and K. Wara Ltd. could be dropped has been kept on the ground floor of the building in which the said offices are situated. The said Post Box is locked and naturally the key is given to one or the other of the Peons to open the said Box and take out the letters and deliver them to Mr. Parikh Mr. Parikh 's evidence shows that his denial that be had received any intimation card could not be accepted at its face value for two reasons; the first was that even if the intimation card had been received by the Peon and had not been delivered by him to Mr. Parikh, Mr. Parikh would not know that the card had been received and though his statement that he did not get the card may be literally true,, it would not be true in the sense that the card had not been delivered to the 870 appellant Company. Besides., Mr. Parikh 's statement that he did not employ any dispatch clerk and kept no inward or outward register is prima facie unbelievable, and so, Mukarji J.was inclined to hold that the intimation card may have been received by the appellant Company. Having made this finding, Mukarji J. proceeded to examine the true legal position in regard to the appellant 's claim, and as we have already observed,he held that since the appellant was guilty of negligence which facilitated the commission of the offence by some strangers,it was precluded from making a claim against the respondent. As we have already seen, Bose, J. has put his decision on the narrow ground that the contract was invalid and section 7o did not help the appellant. That ground, however, cannot now sustain the final conclusion of Bose,J., in view of the recent decision of this Court in the case of M/s. B. K. Mondal & Son 's(1). Therefore, in dealing with the present appeal,we will assume that the finding recorded by Mukarji J., is correct and that the intimation card sent by the respondent to the appellant can be deemed to have been delivered to the appellant. The question which arises for our decision then is:if the intimation card was thereafter taken by somebody else and fraudulently used,does that create an estoppel against the appellant in regard to the claim made by it in the present case ? In dealing with this point, it is necessary to bear in mind that though the evidence given by Mr. Parikh may be unsatisfactory and may.justify the conclusion that despite his denial, the intimation card may have been delivered to Mr. Parikh, it is not the respondent 's case that Mr. Parikh deliberately allowed either one of his employees or somebody else to make fraudulent use of the said intimation card. In other words, we must deal with the point of law raised by the appellant on the basis that Mr. Parikh had no connection whatever with the (1) [1962] Supp. 1 S.C.R. 876. 871 fraud committed on the respondent and that whoever obtained the intimation card from Mr. Parikh 's office and used it for a fraudulent purpose acted on his own without the knowledge or consent of Mr. Parikh. The short question which falls to be considered is if the arrangement for keeping the intimation card in safe custody was not as good and effective as it should have been and somebody managed to pilfer the said card, does it justify the respondent 's case that the appellant was negligent and by virtue of its negligence, it is estopped from making the present claim ? In dealing with this question, it is necessary to remember that the plea of negligence on which estoppel was pleaded by the respondent against the appellant had not been alleged in the written statement. It is remarkable that the pleadings of both the parties completely ignored the fact known to both of them before the present suit was filed that a cheque had been issued by the respondent and had been fraudulently used by some strangers. The appellant in its plaint does not refer to the issue of the cheque and its fradulent use and makes a claim as though the respondent had not honoured the bill submitted to it by the appellant; whereas the respondent in its written statement ignores the fact that the cheque had not been received by the appellant but had been fraudulently obtained and encashed by some other persons. That being the nature of the pleadings filed by the parties in the Trial Court, neither party pleaded any negligence against the other. It is true that both the parties argued the point of negligence against each other in the appellate Court. The appellant urged that the respondent should not have delivered the cheque to the person who presented the bill and the intimation card because a stamped receipt had not been produced by the said person as it should have been; the appellant 's case was that it was usual that 872 a stamped receipt had to be produced alongwith the intimation card by a person duly authorised by the appellant before the cheque was delivered to him and since without a stamped receipt the cheque had been delivered, the respondent was guilty of negligence. This point has been rejected by Mukarji J., but that is another matter. On the other hand, the respondent pleaded that the appellant was negligent inasmuch as the intimation card which had been sent to it and which must be presumed to have been delivered to it fell into the hands of strangers owing to the negligent manner in which it was handled after it was delivered in the Letter Box of the appellant in 135, Canning Street, Calcutta. As we have already noticed, Bose, J., refused to entertain the plea of negligence urged by both the parties, whereas Mukarji J., considered it and made a finding in favour of the respondent and against the appellant. Mr. Setalvad contends that a plea of negligence should have been raised by the respondent in its pleadings and the appellate Court was, therefore, in error in allowing such a plea to be raised for the first time in appeal. In our opinion, there is some force in this contention. Negligence in popular language and in common sense means failure to exercise that care and diligence which the circumstances require. Naturally what amounts to negligence would always depend upon the circumstances and facts in any particular case. The nature of the contract, the circumstances in which the performance of the contract by one party or the other was expected, the degree of diligence, care and attention which, in ordinary course, was expected to be shown by the parties to the contract, the circumstances under which and the reason for which failure to show due diligence occurred are all facts which would be relevant before a judicial finding can be made on the plea 873 of negligence. Since a plea of negligence was not raised by the respondent in the trial Court, the appellant is entitled to contend that it had no opportunity to meet this plea and dealing with it in appeal has, therefore, been unfair to it. Apart. from this aspect of the matter, there is another serious objection which has been taken by Mr. Setalvad against the view which prevailed with Mukarji, J. He argues that when a plea of estoppel on the ground of negligence is raised, negligence to which reference is made in support of such a plea is not the negligence as is understood in popular language or in common sense ; it has a technical denotation. In support of a plea of estoppel on the ground of negligence, it must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea. just as estoppel can be pleaded on the ground of misrepresentation or act or omission, so can estoppel be pleaded on the ground of negligence ; but before such a plea can succeed, negligence must be established in this technical sense . As Halsbury has observed : "before anyone can be estopped by a representation inferred from negligent conduct, there must be a duty to use due care towards the party misled, or towards the general public of which he is one (1). " There is another requirement which has to be proved before a plea of estoppel on the ground of negligence can be upheld and that requirement is that "the negligence on which it is based should not be indirectly or remotely connected with the misleading effect assigned to it but must be the proximate or real cause of that result (2). " Negligence, according to Halsbury, which can sustain a plea of estoppel must be in the transaction itself and it should be so connected with the result to which it led that it is impossible to treat the two separately. This aspect of the matter has not been duly examined by Mukarji J. when he made his finding against the appellant. (1) Halsbury 's Laws of England Vol. 15, page 243. par& 451. (2) Halsbury 's Laws of England Vol. 15 page 245 para 453, 874 Mukarji, J. thought that the principle laid down by Ashhurst, J. in the case of Lackbarrow (1), was a broad and general principle which applied to the facts in the present case. It may be conceded that as it was expressed by Ashhurst, J., in the case of Lickbarrow, the proposition no doubt has been stated in a broad and general manner. Indeed, the same proposition has been affirmed in the same broad and general way by the Privy Council in Commonwealth Trust Ltd. vs Akotey (2). In that case, the respondent who was a grower of cocoa in the Gold Coast Colony, consigned by railway 1050 bags of cocoa to L., to whom he had previously sold cocoa. Before a difference as to the price had been settled L. sold the cocoa to the appellants and handed the consignment notes to their agent, who reconsigned the cocoa to the appellants. The appellants bought in good faith and for the full price. The respondent then sued the appellants for damages for conversion. It was held by the Privy Council that by his conduct the respondent was precluded from setting up his title against the appellants, and so his claim was rejected. In support of the view taken by the Privy Council, reliance was placed on the well known statement of Ashhurst, J., in the case of Lickbarrow) 1), and so, it may be conceded that the broad principle enunciated by Ashhurst,J., received approval from the Privy Council. Subsequently, however, this question has been elaborately examined by the Privy Council in Mercantile Bank of India Ltd. vs Central Bank of India Ltd., (1), and the validity of the broad and general proposition to which we have just referred has been seriously doubted by the Privy Council. Lord Wright who delivered the judgment of the Board, referred to the decision in the case of Lickbarrow (1), and observed " 'that it may well be that there were facts in that case not fully elucidated in the report which would justify the decision; but on the (1) 2 T.R. 63, 70. (2) (3) (1937) L.R. 65 I.A. 75, 86, 875 face of it their Lordships do not think that the case is one which it would be safe to follow. " Then reference was made to the opinion of Lord Sumner in the case of R . E. Jones Ltd. vs Waring & Gillow Ltd., (1) where the principle enunciated by Ashhurst J. was not accepted, because it was held that the principle of estoppel must ultimately depend upon a duty. Lord Lindley similarly in Farquharson Bros. & Co. vs King & Co. (2), pointed out that the dictum of Ashhurst J. was too wide. A similar comment has been made as to the said observation by other judges to which Lord Wright has referred in the course of his judgment. It would thus be seen that in the case of The Mercantile Bank of India Ltd. (3 ) the Privy Council has seriously doubted the correctness of the broad observations made by Ashhurst J, in the case of Lickbarrow (4), and has not followed the decision in the care of Commonwealth Trust Ltd. (5). Therefore, it must be held that the decision of Mukarji J, which proceeded on the basis of the broad and unqualified proposition enunciated by Ashhurst, J., in the case of Lickbarrow cannot be sustained as valid in law. There arc two other decisions to which reference may usefully be made in considering this point. In Arnold vs The Cheque Bank, (6), Lord Coleridge, C.J., in dealing with the question of negligence, observed that "no authority whatever had been cited before them for the contention that negligence in the custody of the draft will disentitle the owner of it to recover it or its proceeds from a person who has wrongfully obtained possession of it. In the case before them, there was nothing in the draft or the endorsement with which the plaintiff had anything to do, calculated in any way to mislead the defendants. It was regularly endorsed and was then enclosed in a letter to the plaintiffs correspondents, to be sent through the post. There could be no negligence in relying on the honesty of their (1) (2) (3) (1937) L.R, 65 I.A. 75, 86. (4) 2 T. If. 63, 70. (5) (6) , 588, 876 servants in the discharge of their ordinary duty, that of conveying letters to the post; nor can there be any duty to the general public to exercise the same care in transmission of the draft as if any or every servant employed were a notorious thief. " These observations illustrate how before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty. Similarly, in Baxendale vs Bennett, (1) Bramwell, L.J., had occasion to consider the same point. In that case, the defendant gave H. his blank acceptance on a stamped paper and authorised H. to fill in his name as drawer. H. returned the blank acceptance to the defendant in the same state in which he received it. The defendant put it into a drawer of his writing table at his chambers, which was unlocked, and it was lost or stolen. C. afterwards filled in his own name without the defendant 's authority, and an action was brought on it by the plaintiff as endorsee for value. The court of Appeal held that the defendant was not liable on the bill. Dealing with the question of negligence attributed to the defendant, Bramwell L.J. observed that "the defendant may have been negligent, that is to say, if he had the paper from a third person, as a bailee bound to keep it with ordinary care, he would not have kept it in a drawer unlocked. " But, said the learned judge, this negligence is not the proximate or effective cause of the fraud. A crime was necessary for its completion, and so, it was held that the defendant was not liable on the bill. This decision shows that negligence must be based on a duty owed by one party to the other and must, besides, be shown to have been the proximate or the immediate cause of the loss. It is in the light of this legal position that the question about estoppel raised by the respondent (1)) (1878) 3 Q,. B. D. 525, 530. 877 against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent ? As we have already observed, in dealing with the present dispute on the basis that the intimation card bad been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case, after Mr. Parikh got the said card, it had been removed from Mr. Parikh 's table by someone, either by one of the employees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the latter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have ? In our opinion, it would be difficult to answer this question in favour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the Peon to collect the letters after they are delivered by Postal Peons. This course 878 of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly. Similarly, in ordinary course of business, it would be assumed by a businessman that after letters are placed on the table or in a file which is kept at some other place, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukarji. J. was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under section 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal & Sons (1), in favour of the appellant, and so, it must be held that the Division Bench of the High Court erred in dismissing the appellant 's claim. The result is, the appeal is allowed. , the decree passed by the appellate Court is set aside and that of the trial Court restored with costs throughout. Appeal allowed. [1962] Supp. I. section R. 876 .

There was little internal demand for manganese ore and ' it was extracted mainly for exporting out of India. Though previously there was no restriction on the grant of export licences from 1956, the Central Government started controlling and restricting the export of manganese ore ' On May 26, 1958, the Central Government issued a notification which contained the policy statement for the period July 1938 to June 1959 under which export quotas were to be granted only to established shippers and mineowners who had exported from 1953 onwards and to the State Trading Corporation. Mine owners, like the ' appellant who did not have an) export performance in the earlier ),cars were excluded from the scheme. They could sell their ore only to the established shippers are to the Corporation which they could do only. at unremunerative prices. By subsequent policy statements the export was canalised entirely through the Corporation. Section 3 of the Imports and exports (Control) Act, 1947 empowered the Central Government to make orders restricting or controlling the imports and exports of goods. The Central Government made the Exports Control Order, 1958, cl. 6(h) of which empowered the Central Government and the licensing authority to refuse to grant a licence "if the licensing authority decides to canalise exports through special or specialized agencies or channels". The Notification of May 26, 1950, was issued under cl. 6(h). The appellants contended: (I) that the withholding of the right to engage in the export trade from a class of mineowners constituted an unreasonable restriction on their fundamental right guaranteed under Art, 19(1)(g), (II) that cl. 6 (h) of the order was ultra vires the Central Government as section 3 of the Act 74 permitted it to place restrictions only on goods and not on the persons who might participate in the export, and (iii) that the notification by which canalisation of exports was affected was outside the contemplation of" agency and channel under 1. 6 (h). Held (per Sinha, C.J., Ayyangar, Mudholkar and Aiyar, that the restrictions and control imposed on the export of manganese ore by the Central Government were legal and did not offend article 19(1) (g). The restriction or control in the form of channelling or canalising the trade was not outside the limitations which night be imposed on export trading by section 3 of the Act and consequently cl. 6 (h) of the Order permitting canalisation of exports was within the rule making power of the Central Government. The power to impose restrictions was not confined to goods but extended to persons also. The canalising of the exports through the established shippers and mineowners was unobjectionable; canalising through the State adding Corporation and the progressive increase through he corporation was a reasonable restriction in the interests of he general public. The object of these restrictions and control was to enable a regular supply of uniform quality of he ore to the foreign buyers so as to ensure the optimum earning of foreign exchange by the country, and this could rest be attained with the Corporation as the main agency engaged in the trade. The State Trading ' Corporation was a "special" agency or channel as contemplated by cl. (h) and the canalising could be done through it. A special agency is one which is more likely to achieve the object than other gencies or to achieve it in a larger 'measure than others. Canalising necessarily implied the exclusio n of some groups, and if the canalising was valid the appellant could not complain that he had been excluded from the export trade. Per Subba Rao, J. The Notifications and policy statements which destroyed the trade of mine owners like the appellant did not impose reasonable restrictions on their fundamental rights and violated article 19 (1) (g). The creation of a monopoly or near monopoly for the export of manganese ore in favour of the State Trading Corporation could only be achieved by a law made in conformity with article 19 (6) (ii) and not by administrative action like issuing of notifications and policy statement. The power conferred on the authorities under cl. 6 (h) of the Order to canalise exports through special or specialized agencies or channels was well within the power conferred on the Central Govern ment by section 3 of the Act. Further, the State Trading Corpo ration was a "special" agency within the meaning of cl. 6(h). 75 But the canalising had to be done in such manner that all persons engaged in the trade could participate in the export of the ore and no one was completely excluded.

t Petition (Civil) No. 1244 of 1986. (Under Article 32 of the Constitution of India). WITH S.L.P. (Civil) No. 8948 of 1986. From the Judgment and Order dated 1().4. i986 of the Delhi High Court in C.W.P. No. 795 of 1986. Jitender Sharma for the Petitioners. T.U. Mehta and G.K. Bansal for the Respondents. The Judgment of the Court was delivered by OZA, J. This special leave petition is filed against the judgment of the Delhi High Court rejecting a petition filed by the petitioners. A separate writ petition for the same relief is also filed in this Court. The two matters raise a simple question about the age of retirement of the employees in the Delhi Transport Corporation, who were originally employed in the erstwhile Gwalior and Northern India Transport Company ( 'GNIT Company ' for short) in 1946 or before that. PG NO 1005 It is not in dispute that before 1948 these petitioners were employed in the GNIT Company which was a company owned by the Rulers of Gwalior in the erstwhile native State of Gwalior. The said company was operating the transport services in Delhi and areas around upto 13th May, 1948. On 14th May, 1948 the transport services in Delhi were taken over by the Government of India, the Ministry of Transport and it was named as "Delhi Transport Service". The services of all the employees of the erstwhile GNIT company were taken over by the Government of India but they were continued to be governed by the rules which were in force before taking over. Subsequently it was taken over by the Delhi Municipal Corporation. Later on by the Delhi Transport Undertaking which came to be termed as Delhi Transport Corporation". Clause 7 of the agreement by which the GNIT services in Delhi were taken over by the Government of India provided that the services of the employees who were employed prior to 28th October, 1946 and were in continuous service till i4th May, 1948 shall not be taken over on the terms not less liberal than those they were governed and therefore the employees who were in employment prior to 28th October, 1946 were treated as protected employees. These facts are not in dispute. According to the petitioners, before they were taken over, the service conditions of the employees of GNIT Company were governed by the Gwalior State Civil Service Rules. But the respondent denied that and said that they were governed by the Madhya Bharat Civil Service Rules. Admittedly, Madhya Bharat came into existence in 1948 only. Before that there was no State of Madhya Bharat. Repeatedly opportunity was given to the respondent counsel to find out as to what rules were applicable to the employees of the GNIT company before Madhya Bharat was formed. Ultimately they pleaded their inability to place any rule. So far as Gwalior State Civil Service Rules are concerned, a copy of it in Hindi has been filed by the petitioners with the English translation thereof. It is not disputed that these were the rules governing the civil servants in the Gwalior State. It is also not disputed that GNIT Company was originally a Company incorporated in India where it was owned by the rules of the erstwhile Gwalior State. According to petitioners Civil Service Rules of Gwalior were made applicable to these people. In addition to what has been stated in the petition and which has not been controverted, they have also filed a judgment of the Industrial Court in Madhya Pradesh where this question about the conditions of service about retirement came into dispute after the formation of PG NO 1006 Madhya Bharat and the part of GNIT Company which was operating in the territories of the erstwhile State of Madhya Bharat was taken over by the State of Madhya Bharat Road Transport Corporation. There too, a similar agreement was reached and the question arose as to whether the persons who were in employment before the taking over, were governed by the Rules of the Gwalior State Civil servants. It was held that those were the rules and in those rules the normal age of retirement was 60 years. In view of these circumstances it appears beyond doubt that these people who were employed in the GNIT Company before taking over in Delhi by the Government of India were governed by the Gwalior State Civil Service Rules. The Gwalior Civil Service Rules provided: "CHAPTER l A 7(a)(1) Every employee has a right to seek retirement from service after attaining the age of 55 years. (2) The Government also has authority not to allow any employee to continue in employment after attaining the age of 55 years and order his retirement. (3) In case an employee does not seek retirement from service after attaining the age of 55 years of the government also does not order his retirement form service, than he shall continue in service till he attains the age of 60 years. (4) Every employee shall compulsory retire after attaining the age of 60 years provided his services are not ordered to be terminated earlier. (5) An employee who retires under these rules shall be entitled for pension or Gratuity to which he is entitled according to the rules. Note (1): These Rules will not apply to the Police Personnels. Note (2): The concerned Departments shall initiate retirement proceeding against those employees who have PG NO 1007 attained the age of 60 years at the time of enforcement of the rules but immediate action shall be taken for release of Pension or Gratuity in case of those who have become entitled for Gratuity or Pension and till pension or gratuity is not sanctioned they shall not be retired. In future this procedure shall be followed that action for pension or Gratuity shall be initiated one year in advance to which he is entitled at the age of 60 years in case of an employee who retire at the age of 60 years so that there shall be no delay in retiring him after attaining the age of 60 years. " The above rules it indicates clearly an employee who does not seek retirement from service after attaining the age of 55 years or if the Government does not order his retirement at that age, shall continue in service till he attains the age of 60 years. It is also indicated with unmistakably terms that every employee shall compulsorily retire after attaining the age of 60 years provided his services are not ordered to be terminated earlier. In other words the age of retirement was 60 years. Option however was there for the employee to seek voluntary retirement at 55 years and for the Government to compulsorily retire him at 55. Counsel for the respondent does not dispute the above provisions. He, however, argued that the age of 55 years at which an employee could be asked to retire has been retired by the corporation from 55 to 58 and if an employee has been retired at 58 it was not prejudicial to him since he could have been retired at in his erstwhile. company only at 55. Our attention was invited to Service Regulation of the Corporation providing for these matters. The argument is attractive but on a deeper consideration we find little merit in it. If the Delhi Transport Corporation had exercised its right to retire the petitioners on attaining the age of 58 years, the argument would have been tenable. But that was not done by the Corporation. The Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years. It is so stated by the notice (Annex. E) dated January 2, 1986 issued by the Deputy Personnel Officer I to Hari Shankar Gaur petitioner in W.P. No. ]244/86. The notice reads: DELHI TRANSPORT CORPORATION A GOVERNMENT OF INDIA UNDERTAKING l. P. ESTATE: NEW DELHl No. PLD IX(PF)/85/128 Dt. 2.1.1986 PG NO 1008 Shri Hari Shankar Gaur s/o Shri M.L. Gaur, Office Supdt. will attain the age of superannuation i.e. 58 years on 31.1.1986. He shall, therefore, retire from the service of this Corporation with effect from 31.1.1986 in accordance with clause l0 of the D.R.T. Act (Conditions of AppointMent & Service) Regulations, 1952 read with office order No. PLD/2479 dated 7.3.1974. He may avail earned leave due to him prior to 31.1. 1986, if he so desires. " We are told similar notices were issued to other employees as well. l hat means the Corporation was under the impression that the petitioners have no right to continue beyond the age of 58 years. We are, therefore, of the opinion that the persons who originally were in the employment of GNIT and were employed prior to October 28, 1946 and who continued in service till May 14, 1948 and onwards will have the right to remain in service up to 60 years unless the option to retire was exercised by the person or by the Corporation at 55 years. In the result the writ petition and the SLP are allowed to the extent indicated above. No order as to costs. G.N. Petitions allowed.

The Gwalior and Northern India Transport Company (GNIT Company) was operating transport services in and around Delhi. It was taken over on May 14, 1948 by the Government of India, Ministry of Transport and named as Delhi Transport Service. The services of all employees of the (IT company were taken over by the Government of India, but they continued to be governed by the rules in force before the take over. Subsequently it was taken over by the Delhi Municipal Corporation and later on by the Delhi Transport Undertaking and came to be known as Delhi Transport Corporation. All employees of GNIT Company employed before 28.10.46 and were in continuous service at the time it was taken over by the Government of India were treated as protected employees as per clause 7 of the take over agreement. Prior to the take over they were governed by the Gwalior State Civil Service Rules which stipulate the age of retirement at 60. Option however was there for the employee to seek voluntary retirement at 55 years and for the Government to compulsorily retire an employee at 55. The Delhi Transport Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years. It was challenged in a writ petition before the Delhi High Court and the petitioners contended that option was there both for the Corporation as also the employees to retire at 55, but superannuation could be only on reaching 60, and not at 58 as claimed by the Corporation. The Delhi High Court rejected the petition. Against this, the petitioners have come to this Court by way of a special leave petition. A writ petition has also been filed claiming the same relief. Allowing the special leave petition as also the writ petition, this Court, PG NO 1003 PG NO 1004 HELD: The persons who were originally in the employment of GNIT Company and were employed prior to October 28, l946 and continued in service till May 14, l948 and onwards will have the right to remain in service upto 60 years unless the option to retire was exercised by the person or the Corporation at 55 years. The argument that the age of 55 years at which an employee could be asked to retire has been raised by the Corporation to 58 years and if an employee has been retired at 58, it was not prejudicial to him since he could have been retired in his erstwhile Company only at 55, has little merit in it. If the Delhi Transport Corporation had exercised its right to retire the petitioners on attaining the age of 58 years, the argument would have been tenable. But that was not done by the Corporation. The Corporation retired the petitioners on the ground that they attained the age of superannuation at 58 years. That meant the Corporation was under the wrong impression that the petitioners had no right to continue beyond the age of 58 years. [1008C D; 1007E G; 1008C]

Appeal No. 81 of 1954. Appeal from the judgment and order dated the 10th March 1953 of the Bombay High Court in Income tax Reference No. 35 of 1952. B. J. Kolah and I. N. Shroff for the appellant. G. N. Joshi, Porus A. Mehta and R. H. Dhebar for the respondent. May 10. The following Judgments were delivered. BHAGWATI J. Two questions were referred by the Income tax Appellate Tribunal to the High Court of Bombay under section 66(1) of the Indian Income tax Act. (1) Whether there is any material to justify the assessment of Rs. 30,000 (Rupees thirty thousand) from out of the sum of Rs. 61,000 (Rupees sixtyone thousand) (for Income tax and Excess Profits Tax and Business Profits Tax purposes) representing the value of high denomination notes which were encashed on the eighteenth day of January one thousand nine hundred and forty six, and (2) Whether in any event by reason of the orders of the Revenue Authorities not having found *at the alleged item was from alleged undisclosed business profits the assessment of Rs. 30,000 (Rupees thirty thousand) is in law justified for Excess Profits Tax and Business Profits Tax purposes? The High Court answered the first question in the affirmative but refused to answer the second question, being of the opinion that even though it had asked the Tribunal to refer that question under section 66 (2) of the Act, it had no jurisdiction to do so inasmuch as the appellants had not asked the Tribunal to refer 629 the second question and, therefore, no question arose of the Tribunal refusing to raise that question or to submit it for the decision of the High Court. The appellants area partnership firm doing business in Mill Stores at Ahmedabad. Their head office is in Ahmedabad and their branch office is in Bombay. The Governor General on 12th January 1946 promulgated the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 and High Denomination Bank Notes ceased to be legal tender on the expiry of 12th day of January 1946. Pursuant to clause 6 of the Ordinance the appellants on 18th January 1946 encashed high denomination notes of Rs. 1,000 each of the face value of Rs. 6 1,000. This was done in the calendar year 1946 being the account year corresponding with assessment year 1947 48. During the assessment proceedings for the year 1947 48 the Income tax Officer called upon the appellant to prove from whom and when the said high denomination notes of Rs. 61,000 were received by the appellants and also the bona fides of the previous owners thereof. After examining the entries in the books of account of the appellants and the position of the Cash Balances on various dates from 20th December 1945 to 18th January 1946 and the nature and extent of the receipts and payments during the relevant period, the Income tax Officer came to the conclusion that in order to sustain the contention of the appellants he would have to presume that there were 18 high denomination notes of Rs. 1,000 each in the Cash Balance on 1st January 1946 and that all cash receipts after 1st January 1946 and before 13th January 1946 were received in currency notes of Rs. 1,000 each, a presumption which he found impossible to make in the absence of any evidence. He, therefore, added the sum of Rs. 61,000 to the assessable income of the appellants from undisclosed sources. On appeal to the Appellate Assistant Commissioner the appellants produced before him affidavits of three persons to show that the appellants had received Rs. 20,000 in 1,000 rupees currency notes on 28th 630 December 1945, Rs. 15,000 in 1,000 rupees currency notes on 6th January 1946 and Rs. 8,500 in 1,000 rupees currency notes (making Rs. 8,000) on 8th January 1946, thus aggregating to Rs. 43,500 during the relevant period. The Appellate, Assistant Commissioner did not accept the statements contained in the said affidavits and dismissed the appeal and confirmed the order of the Income tax Officer. An appeal was taken by the appellants before the Income tax Appellate Tribunal. The Tribunal after taking into consideration all the materials which bad been placed before the Appellate Assistant Commissioner, including the said affidavits, was of the opinion that if it was to accept the appellants ' contention, it would mean that practically every payment above Rs. 1,000 was received by the appellants in high denomination notes, which was almost impossible. The Tribunal could not say that the appellants bad no high denomination notes with them. It accepted the books of account of the appellants but thought that the cash balance on 18th January 1946 could not have sixtyone high denomination notes. It came to the conclusion that the appellants appeared to have put in high denomination notes in the cash balance and taken the other notes away. It accepted the appellants ' explanation only in regard to 31 notes and directed that the appellants ' assessment for the year under reference be reduced by that amount and dismissed the rest of the appeal. The appellants applied to the Tribunal for stating a case and referring the first question of law to the High Court for its opinion under section 66(1) of the Act. The Tribunal rejected the said application holding that no question of law arose from its order. The appellants thereupon applied to the High Court under section 66(2) of the Act for an order directing the Tribunal to state a case and refer the questions set out in the application. The High Court directed the Tribunal to state a case and refer the two questions of law set out hereinabove to it for its decision under section 66(2) of the Act. In stating the case and referring the said questions of law to the High 631 Court, the Tribunal pointed out that the second question was not urged before the Tribunal at any stage and hence it was not dealt with by it in its original order. The reference was heard by the High Court and the High Court answered the first referred question in the affirmative, but did not answer the second referred question. The High Court held that there were materials before the Tribunal to hold that the sum of Rs. 30,000 represented the income of the appellants from undisclosed sources and that the finding of the Tribunal was a finding of fact based on materials before it and even if it was an inference drawn by the Tribunal, the inference was based on the facts and materials before the Tribunal. The High Court observed that it was impossible to say that the inference drawn by the Tribunal from the circumstances was an unreasonable inference or an arbitrary and capricious inference or an inference which no judicial tribunal could ever draw. It, therefore, answered the first referred question in the affirmative. As regards the second referred question, the High Court held that question was not raised by the appellants in their application for reference under section 66(1) of the Act and, therefore, it bad no jurisdiction to ask the Tribunal to state a case on a particular question of law, where the appellants themselves had never asked the Tribunal to refer such a question to the High Court and that even though it had directed the Tribunal under section 66(2) to refer the said question, as it had no jurisdiction to ask the Tribunal to refer the said question, it was not open to it to answer the second question which had been raised by the Tribunal at its instance and refused to answer it. On a petition made by the appellants for leave to appeal to this court, the High Court granted a certificate that this was a fit case for appeal to this court and hence this appeal. It may be mentioned at the outset that the assessment of the appellants by the Income tax Officer was under section 23(3) and section 26 A of the Act. The 632 books of account of the appellants were accepted by the Income tax Officer and the only scrutiny made by the Income tax Officer was whether at the relevant date, i.e. on 12th January 1946, the appellants had in their cash 61 notes of high denomination of Rs. 1,000 each. The cash book entries from 20th December 1945 up to 18th January 1946 were put in before the Income tax Officer and they showed that on 28th December 1945 Rs. 20,000 were received from the Anand Textiles, and there was an opening balance of Rs. 18,395 on 2nd January 1946. Rs. 15,000 were received by the appellants on 7th January 1946 from the Sushico Textiles and Rs. 8,500 were received by them on 8th January 1946 from Manihen, widow of Shah Maneklal Nihalchand. Various other sums were also received by the appellants from 2nd January 1946 up to and inclusive of 1 1 th January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000 and were thus capable of having been paid to the appellants in high denomination notes of Rs. 1,000. There was a cash balance of Rs. 69,891 2 6 with the appellants on 12th January 1946, when the High Denomination Bank Notes (Demonetisation) Ordinance 1946 was promulgated and it was the case of the appellants that they had then in their custody and possession 61 high denomination notes of Rs. 13000, which they encashed through the Eastern Bank, on 18th January 1946. The appellants further sought to support their contention by procuring before the Appellate Assistant Commissioner the affidavits of Kuthpady Shyama Shetty, General Manager of Messrs Shree Anand Textiles, in regard to payment to the appellant is of a sum of Rs. 20,000 in Rs. 1,000 currency notes on 28th December 1945, Govindprasad Ramjivan Nivetia, proprietor of Messrs Shusiko Textiles, in regard to payment to the appellants of a sum of Rs. 15,000 in Rs. 1,000 currency notes on 6th January 1946 and Bai Maniben, widow of Shah Maneklal Nihalchand, in regard to payment to the appellants of a sum of Rs. 8,500 (Rs. 8,000 thereout being in Rs. 1,000 currency notes) on 8th January 1946. The appellants were not in a position to give further 633 particulars of Rs. 1,000 currency notes received by them during the relevant period, as they were not in the habit of noting these particulars in their cash book and therefore relied upon the position as it could be spelt out of the entries in their cash book coupled with these affidavits in order to show that on 12th January 1946 they had in their cash balance of Rs. 69,891 2 6, the 61 high denomination currency notes of Rs. 1,000 each, which they encashed on 18th January 1946 through the Eastern Bank. Both the Income tax Officer and the Appellate Assistant Commissioner discounted this suggestion of the appellants by holding that it was impossible that the appellants had on hand on 12th January 1946, the 61 high denomination currency notes of Rs. 1,000 each, included in their cash balance of Rs. 69,891 2 6. The calculations. , which they made involved taking into account all payments received by the appellants from and after 2nd January 1946, which were either multiples of Rs. 1,000 or were over Rs. 1,000. There was a cash balance of Rs. 18,395 6 6 on band on 2nd January 1946, which could have accounted for 18 such notes. The appellants received thereafter as shown in their cash book several sums of monies aggregating to over Rs. 45,000 in multiples of Rs. 1,000 or sums over Rs. 1,000, which could account for 45 other notes of that high denomination, thus making up 63 currency notes of the high denomination of Rs. 1,000 and these 61 currency notes of Rs. 1,000 each, which the appellants encashed on 18th January 1946 could as well have been in their custody on 12th January 1946. This was, however, considered impossible by both the Income tax Officer and the Appellate Assistant Commissioner as they could not consider it within the bounds of possibility that each and every .payment received by the appellants after 2nd January 1946 in multiples of Rs. 1,000 or over Rs. 1,000 was received by the appellants in high denomination notes of Rs. 1,000 each. ' It was by reason of their visualisation of such an impossibility that they negatived the appellants ' contention. It has to be noted, however, that beyond there 82 634 calculations of figures, no further scrutiny was made by the Income tax Officer or the Appellate Assistant Commissioner of the entries in the cash book of the appellants. The cash book of the appellants was raccepted and the entries therein were not challenged. No further documents or vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party. The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Incometax Officer, who was present at the hearing of the appeal before the Appellate Assistant Commissioner, considered it necessary to call for them in order to cross examine them with reference to the statements made by them in their a affidavits. Under these circumstances it was not open to the Revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits. This being the position, the state of affairs, as it ob tained on 12th January 1946, had got to be appreciated, having, regard to those entries in the cash books and the affidavits filed before the Appellate Assistant Commissioner, taking them at their face value. The entries in the cash books disclosed that, taking the number of high denomination notes at 18 on 2nd January 1946, there came in the custody or possession of the appellants after 2nd January 1946 and up to 12th January 1946, 49 further notes of that high denomination, making 67 such notes in the aggregate, out of which 61 such notes could be encashed by the appellants on 18th January 1946 through the Eastern Bank. A mere calculation of the nature indulged in by the Income tax Officer or the Appellate Assistant Commissioner was not enough, without any further scrutiny, to dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put in by the appellants before the Appellate Assistant Commissioner. The Tribunal also fell into the same error. It could 635 not negative the possibility of the appellant being in possession of a substantial number of these high deno mination currency notes. It, however, considered that it was impossible for the appellants to have bad 61 such notes in the cash balance in their hands on 12th January 1946 and then it applied a rule of the thumb treating 31 out of such 61 notes as within the bounds of possibility, excluding 30 such notes as not covered by the explanation of the appellants. This was pure surmise and had no basis in the evidence, which was on the record of the proceedings. The High Court treated this finding of the Tribunal as a mere finding of fact. The position in regard to all such findings of fact, as to whether they can be questioned in appeal, is thus laid down by the House of Lords in Cameron vs Prendergast (Inspector of Taxes) (1): "Inferences from facts stated by the Commissioners are matters of law and can be questioned on appeal. The same remark is true as to the construction of documents. If the Commissioners state the evidence and hold upon that evidence that certain results follow, it is open to the Court to differ from such a holding". To the same effect are the observations of the House of Lords in Bomford vs Osborne (H. M. Inspector of Taxes) (2): "No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusions which are themselves conclusions of pure fact. But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioners ' conclusions". The latest pronouncement of the House of Lords on this question is to be found in Edwards (Inspector of Taxes) vs Bairstow and Another(3). Viscount Simonds observed at page 586: "For it is universally conceded that, though it is (1) [1940]8I.T.R.(Suppl.)75,81. (2) [1942] 10 I.T.R. (Suppl.) 27, 34. (3) 636 a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained". and Lord Radcliffe expressed himself as under at page 592: "If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene". It follows, therefore, that facts proved or admitted may provide evidence to support further conclusions to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law. The court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question. The High Court recognised this position in effect but went wrong in applying the true principles of interference with such findings of fact to the present case. The attempt which was made by the High Court to probe into the mind of the Tribunal by trying to discard the affidavit of Govindprasad Ramjivan Nivetia in regard to the payment of Rs. 15,000 to the appellants in 15 currency notes of Rs. 1,000 each on 6th January 1946 and thus reducing the aggre gate sum of Rs. 43,500 to Rs. 28,500 and justifying the figure of Rs. 31,000 arrived at by the Tribunal was really far fetched and contrary to the terms of 637 the tribunal ' s order itself,the Tribunal not having given any inkling, whatever, of what was at the back of its mind when it fixed upon the figure Rs. 31,000. Really speaking the Tribunal had not indicated upon what material it held that Rs. 30,000 should be treated as secret profit or profits from undisclosed sources and the order passed by it was bad. The appellants had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs. 61,000 and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs. 30,000. The case was analogous to the one before the Patna High Court in Chunilal Ticamchand Coal Co. Ltd. vs Commissioner of Income tax, Bihar and Orissa(1) and should have been similarly decided in favour of the appellants. For the reasons indicated above, we are of the opinion that the High Court was in error in answering the first referred question in the affirmative. It ought to have answered it in the negative and held that there were no materials to justify the assessment of Rs. 30,000 from out of the sum of Rs. 61,000, for Income tax and Excess Profits Tax and Business Profit Tax purposes representing the value of the high denomination notes which were encashed on 18th January 1946. In view of the above it is not necessary for us to go into the question whether the High Court ought to have answered the second referred question also. The answer to the first referred question being in the ' negative, the very basis for Excess Profits Tax and Business Profits Tax disappears and the second referred question becomes purely academical. The result, therefore, is that the appeal is allowed and the first referred question is answered in the negative. The appellants will have their costs here as well as in the High Court. VIMNKATARAMA AYYAR J. I agree to the order just proposed; but I prefer to rest my decision on the (1) 638 ground that the finding of the Tribunal that high denomination notes of the value of Rs. 30,000 represented the concealed* profits of the appellant is not supported by any evidence, and is, in consequence, erroneous in point of law and liable to be set aside. The evidence on record has been exhaustively reviewed in the judgment just delivered, and there is no need to traverse the same ground again. To put the matter in anut shell, the accounts of the appellant have been accepted by the Tribunal as genuine, and it is impossible to say, having regard to the cash balance as shown therein, that the notes in question could not have been included therein. The Tribunal observes that it is unlikely that so many high denomination notes would have been held as part of the cash on hand for such a large number of days. That, no doubt, is highly suspicious; but the decision of the Tribunal must rest not on suspicion but on legal testimony. For the respondent, Mr. Joshi con. tended that the cash balance shown in the books could not be accepted as true, because the appellant had ample time to rewrite the accounts, as the Ordinance was issued on 12th January 1946 and the year of account of the assessee was the Calendar year. Whether the accounts are genuine or not is a pure question of fact, and a finding on a question of fact is as much binding on the Revenue as on the subject.

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

Civil Appeal No. 420(N) of 1971 From the Judgment and order dated 23rd October 1969 of the Bombay High Court in Special Civil Application No. 1721 of 1966. R.N. Sachthey and Mr. R.N. Poddar for the Appellant U. R. Lalit, V. N. Ganpule and Mrs. Veena Devi Khanna for Respondents Nos. 1 to 5 section V. Tambewaker for Respondent No. 7 A.K. Sanghi for the intervener M. L. Heble, V. N. Ganpule and Mrs. Veena Devi Khanna for the intervener. 670 The Judgment of the Court was delivered by SEN, J. In this appeal, by special leave, the question for consideration is whether there was denial of "fair and equitable treatment" within the meaning of sub section (5) of section 115 of the (hereinafter called 'the Act ') in the matter of determination of relative seniority and equation of posts as between the Assistant Sales Tax officers (abbreviated as ASTOs) from the former States of Madhya Pradesh and Hyderabad and Sales Tax Inspectors (abbreviated as STIs) from the former State of Bombay, who were allocated to the new State of Bombay, and their right to promotion to the posts of Sales Tax officers (abbreviated as STOs) Grade III. The High Court by its judgment, on a writ petition filed by Respondents I to S, who were STIs of the State of Bombay and passed the prescribed departmental examination for promotion as STOs Gr. III, has struck down the various resolutions and orders passed by the State Government from time to time relating to integration of services of these officers under sub section (7) of section 115 of the Act, in compliance with the directives of the Central Government issued under sub section (5) of section 115 of the Act. The main question in the appeal is whether the High Court was right in doing so. To appreciate the points involved, it is necessary to set out a few facts. On November 16, 1957, the State Government by its Resolution purported to direct that the ASTOs from Madhya Pradesh and Hyderabad should continue in their respective pay scales until such of them were not appointed as STOs Gr. III under r. 7 of the Allocated Government Servants (Absorption, seniority, Pay and Allowances) Rules, 1957. Notes 3 and 6 appended to the said Resolution provided that for purposes of promotion, their inter se seniority shall be fixed on the basis of their service as STIs being counted together with their service as ASTOs in Madhya Pradesh and service as Accountants, if any, together with their service as ASTOs in Hyderabad. In accordance therewith, a provisional gradation list of those who were absorbed as STIs as on November 1, 1956 as also of those who continued as ASTOs in their respective posts with effect from that date was prepared and published by the State Government under r. 2 of the said Rules, on January 21, 1960 and objections thereto were invited within two months from the date of its publication. On February 3, 1960, the State Government substantially modified r. 7 and a new r. 7 was substituted which provided that generally the seniority of an allocated Government servant in the post or cadre of absorption shall, as 671 on November 1, 1956, be determined by the length of continuous service etc. On instructions from the Central Government and in further consultation with it. the State Government clarified that the provisional gradation list as published would not be finalised until representations, if any, of the Government servants were decided by the Government of India in consultation with the Advisory Committee. Since there were no comparable posts of ASTOs in the former State of Bombay, the Central Government directed that the ASTOs from Madhya Pradesh and Hyderabad should not be equated with the post of STIs, but should be continued in an isolated category and their seniority should be fixed above the persons in the next lower grade. In accordance with the directive of the Central Government under sub section (S) of section 115 of the Act, the State Government by its resolution dated September 10, 1960, modified Notes 3 and 6 referred to above and directed that the seniority as on November 1, 1956 of ASTOs from Madhya Pradesh and Hyderabad be fixed above all persons absorbed as STIs and that the inter se seniority of STOs from Madhya Pradesh and Hyderabad be fixed on the basis of their continuous service as ASTOs. It was further directed that the service rendered by the ASTOs from Madhya Pradesh as Excise Inspectors or Assistant District Excise officers in the Excise Department of that State be counted as equivalent to service as STOs. On August 17, 1962, the State Government accordingly prepared a fresh provisional gradation list of ASTOs and STIs and invited objections thereto afresh. It appears that none of the respondents raised any objection. To resume the narration. Between November 1, 1956 and August 8, 1960, promotions to the post of STO, Gr. III were made on the basis of separate departmental examinations held in accordance with the rules framed by the former State Governments concerned. Upto and until August 8, 1960, departmental examinations for promotion to the post of STOs were conducted under the three different sets of rules applicable to the former States of Bombay, Madhya Pradesh and Hyderabad. From August 8, 1960, the Bombay Departmental Examination Rules for STOs were made applicable to the ASTOs allocated from Madhya Pradesh and Hyderabad as well in as much as the Bombay Sales Tax Act, 1959 was made applicable to the whole of the State and the C.P. and Berar Sales Tax Act, 1947 and the Hyderabad General Sales Tax , were repealed. The ASTOs from Vidarbha and Marathwada regions of Madhya Pradesh and Hyderabad were called upon to appear at the examination prescribed for the STOs of the old Bombay region. Accordingly, promotions to the post of STO Gr. III were regulated under the Bombay Departmental Examination Rules and in consequence some of the ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr. III were reverted to the post of ASTO due to their failure to pass the said examination. In the meanwhile, the State Government, on January 20, 1961, amended r. I(b) (ii) of the Recruitment Rules for the Sales Tax Officers Grade III by the addition of the words "and also the Departmental Examination for Sales Tax Officers" after the words "time for promotion" which had the effect of making the passing of such an examination a condition precedent to promotion as STOs Gr. On representations made by the ex Hyderabad ASTOs, the Government by its Resolution dated June ]3, 1964, directed: Rules 2(d) of the Departmental Examination Rules of Sales Tax officers and Assistant Sales Tax officers issued by the Finance Department of the former Hyderabad Govt. under their Notification number 1118/3 section T. dated the 24th January, 1956 lays down that Inspecting officers, Sales Tax Officers (Class I and II) and Assistant Sales Tax Officers who are not confirmed in their respective posts, should pass the examination within the period specified in clause (c) of Rule 2 of the said Rules failing which they would be reverted to their substantive post. In accordance with this Rule Government have reverted some Sales Tax officers from the former Hyderabad State for not having passed the Departmental Examination within the prescribed time. The Government of Andhra Pradesh has brought to the notice of this Government the instructions contained in Ex Hyderabad, Finance Department, Letter No. 7851/ Admn. dated the 31st October 1956 according to which officers and the staff of the Sales Tax Department of the former Hyderabad State, even though they have not passed the prescribed Departmental Examination ate to be con firmed, if they are otherwise found deserving of confirmation on the basis of their confidential records, efficiency and seniority. The said letter dated 31st October 1955 of the Hyderabad Finance Department, also laid down that such 673 confirmed personnel should not be promoted to higher A posts until such times as they complete the prescribed Departmental Examination. The validity of the instructions issued in Ex Hyderabad Finance Department letter No. 7851/Admn. dated the 31st October, 1956 was under the consideration of Government for some time and it has now been decided to observe the instructions contained in the Finance Department letter of the Ex Hyderabad Slate, and is, therefore, pleased to order that the officers and staff of the Sales Tax Department of the former Hyderabad State, who were otherwise found deserving of confirmation on the basis of their confi dential records, efficiency and seniority may be confirmed in their respective posts held prior to 1st November 1956 against clear vacancies in terms of General Administration Department Circular No. 97 G.A.D. 12 SR 55 dated 10th September 1956 issued by the Ex Hyderabad Government. Such confirmed personnel should, however, not be promoted to higher posts until such times as they complete the prescribed Departmental Examination. (emphasis supplied) Similarly, on representations made by the ex Madhya Pradesh ASTOs, the State Government by its Memorandum dated November 21 ,1964, ordered: Recruitment Rules for the Sales Tax officers prescribed for the old Bombay State appearing in Government Resolution Finance Department No. STO 1654 dated 28th July 1954 as amended by the Government Resolution, Finance Department No. STE 1159/Ol81/61 XIII dated the 29th January 1961 lays down that a Sales Tax Inspector is not eligible for promotion of Sales Tax Officers without passing the examination prescribed for the Sales Tax officers. According to Govt. Circular, Political and Services Department No. STI 1080 D dated the 29th April 1960 pending unification of the Recruitment Rules sanctioned by the Government of the former State of Bombay, M.P. and Hyderabad Recruitment to the post and services in the various component parts of the State is to be regulated according to the rules framed by the former Govern 674 ments concerned and not according to the Bombay Civil Service Rules. In view of this, the recruitment rules of old M.P. and the exhibit Hyderabad State will be applicable to the allocated Government servants coming from those areas until such time as a unified set of recruitment rules is prescribed by Government. As there is no condition in the recruitment rules of the M.P. State or the exhibit Hyderabad State to the effect that persons should pass the Sales Tax Officers Examination before he is promoted as a Sales Tax Officer it would not be correct to ask the Assistant Sales Tax Officers and Sales Tax Inspectors allocated from the old M.P. State and Hyderabad State to pass the Sales Tax Officers examination before being considered for promotion. Government has, therefore decided that all Assistant S.T.Os and S.T.ls who have been allocated from the old M.P. and Hyderabad States should he considered eligible for promotion without passing the STOs examination if they are otherwise fit for the promotion. Such persons will have to pass STOs examination within such period as laid down in their respective departmental examination rules or recruitment rules as the ease may be. (emphasis added) On the representations made by the ASTOs from Madhya Pradesh and Hyderabad, the Government of India, on March 9, 1965, addressed a letter to the State Government to the effect: The specific approval of the Government of India under the proviso to section 115(7) of the S.R. Act is necessary not only for applying the amended rules to the erstwhile employees of Vidarbha and Marathwada but also for amending the rules to the disadvantage of the erstwhile Bombay employees. The 1954 rules of Bombay only provided that preference should be given to an Inspector who had passed the Departmental Examination of Sales Tax officers before he could be considered for promotion to the post of Sales Tax officer. But the amended rules now provide that passing this examination is a prerequisite for consideration for promotion to the post of Sales Tax officer. The Government of India have normally been accord ing approval under the section R. Act for prescribing such departmental tests subject to the following conditions: 675 1. Additional time which may be double that of the time that is ordinarily permissible for passing such tests be allowed to the employees from the integrating units in cases where tests of higher standard are prescribed, or where tests were not prescribed under the parent State Governments. Employees of the integrating unit should be promoted subject to their passing the test within the additional time referred to at item (i) above in other words promotions should not be withheld merely because the employees have not passed a Departmental test, and 3. Government Servants of the age of 45 years or more should be exempted from passing departmental test and when exempted, they should be eligible for pro motion equally with one who has passed the tests. I am to request that the State Government may examine the matter on the above lines and forward to the Government of India for approval their reconsidered proposals together with a draft of the amendment to the rules which the State Government may desire to make. I am also to request that relevant extract of the rules of the erstwhile Government of Hyderabad, Madhya Pradesh and Bombay which are to be affected by the proposed amendment may also be forwarded to this Ministry. (emphasis added) As the Central Government was of the opinion that the Bombay Departmental Examination Rules should not be made applicable to the allocated ASTOs from Madhya Pradesh and Hyderabad to their disadvantage, all the ASTOs from Madhya Pradesh and Hyderabad who were compelled earlier to appear for the said examination and who had failed to pass it were reinstated as STOs. As a direct consequence of this, the Respondents l and 2 who had been promoted to officiate as STO, Gr. III were reverted as STls by orders dated April 28, 1965 and June 30, 1965. Since the amendment made to rule I (b) (ii) on January 20, 1961 operated to the disadvantage of STIs from Bombay, the State Government by its orders dated October 1, 1965, suspended the said amendment to the Recruitment 676 Rules until further orders. In view of these changes, the State Government reviewed the cases of all the ASTOs and STIs from the three regions, and those who were otherwise found suitable were according to their seniority promoted to the post of STO Gr. III even though they had not passed the STO examination. On January 6, 1966, the State Government published a revised gradation list of ASTOs and STIs and invited objections thereto. None of the respondents except Respondent 4 filed any objection. That representation, on being forwarded by the State Government, was duly considered by the Government of India, who rejected the same. The decision of the Government of India is contained in the counter affidavit of Shri Shukla, Deputy Secretary, Ministry of Home Affairs, which reads: I say that the Government of India carefully considered the representation made inter alia by the 4th petitioner and the recommendations of the State Advisory Committee and rejected the said representations and upheld the said gradation list dated the 6th Jan. 1966 as there was no reason to alter the principles on which the same had been prepared. As stated hereinabove the Government of India was of the opinion that the decision of the State Government to treat Assistant Sales Tax Officers as an isolated category and to place The same above Sales Tax Inspec tors was just and fair. The Government of India also considered the alterations made by the State Government in the rules relating to the passing of a Departmental Examination before a Sales Tax Inspector could be promoted to the post of a Sales Tax officer Grade III. I say that different rules were prevalent in the different integrating areas regulating departmental promotions. The State Govt. decided that until unified recruitment rules were framed promotions might be given to all without their having to pass an examination i.e. without any discrimination. The Government of India who have examined the matter in consultation with the State Advisory Committee was of the view that the deletion of departmental examination altogether was fair and just because by doing so and discrimination between employees coming from different integrating areas was removed. (emphasis added) 677 It would appear that till 1973 there were no unified rules by which ASTOs from Madhya Pradesh and Hyderabad and STIs from Bombay were governed. The Maharashtra Sales Tax officers ' Rules, 1973, framed by the State Government in exercise of the powers under the Proviso to article 309 of the Constitution came into force on August 4, 1973. Rule 2 provides that the rules shall apply to Government servants serving in the Sales Tax Department including those of the former States of Bombay, Madhya Pradesh and Hyderabad who were allocated for service to the State of Bombay and subsequently to the State of Maharashtra. Rule 4 deals with direct recruits as well as promotees and makes the condition for passing of the departmental examination within two years from the date of promotion or two years from the date of promulgation of the Rules and by r. 4 (c) it is provided that in the event of failure to pass the examination in the prescribed time, they shall be liable to reversion to the posts held by them prior to their promotion. Looking to the lapse of time in framing the Rules, r. 8 provides that STOs who have already attained the age of 48 years on the date of promulgation of these rules shall be exempted from passing the Departmental Examination under the rules. It is necessary here to mention that the Maharashtra (Bombay Area) Sales Tax officers (Grade II and Grade III) Recruitment Rules, 1969 framed by the State Government under the Proviso to article 309 of the Constitution were struck down by the High Court as ultra vires being per se discriminatory and thus violative of article 14 of the Constitution. That was because r. 2 provided that nothing therein shall govern the ASTOs from Madhya Pradesh and Hyderabad. There is no need for us to enter into the question as to the validity or otherwise of the said Rules. since the Maharashtra Sales Tax officers ' Rules, 1973 now hold the field. The two questions canvassed in this appeal are: (l) whether the State Government could by an executive order without framing a rule under the Proviso to article 309 of the Constitution, alter the rules relating to departmental promotion of ASTOs from Madhya Pradesh and Hyderabad which constituted their conditions of service to the prejudice of the STIs of Bombay without the prior approval of the Central Government under the Provision to sub section (7) of section 115 of the Act, and (2) Whether the State Government while integrating the services could unilaterally alter the seniority list of the allocated ASTOs and STIs and place the ASTOs from Madhya Pradesh and Hyderabad in an isolated category over the STIs from Bombay while determining their inter se seniority. 678 Prior to the reoganisation of the States, a Conference of the Chief Secretaries of the States that were to be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 for the purpose of the formulation of the principles upon which integration of services was to be effected. The Government of India by their letter dated April 3, 1957 informed the State Government that the work of integration of services should be dealt with by them in the light of the general principles already settled at the Chief Secretaries Conference. This has been construed to be a valid delegation of powers to prepare the preliminary and final gradation lists under the direction and with the sanction of the Central Government. The Government of India by its Circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States ' representatives that it would not be appropriate to provide any protection in the matter of departmental promotion. This Circular has been interpreted as a prior approval of the Central Government in terms of the proviso to sub section (7) of section 115 of the Act in the matter of change in the conditions of service relating to departmental promotions. The following principles had been formulated for being observed as far as may be, in the integration of Government servants Allotted to the services of the new States: "In the matter of equation of posts: (i) Where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis; but (ii) Where, however, there were no such similar cadres the following factors will be taken into consideration in determining the equation of posts: (a) nature and duties of a post; (b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) the minimum qualifications, if any, prescribed for recruitment to the post. (d) the salary of the post. 679 It is well settled that these principles have a statutory force. There is a long line of decisions of this Court starting from the Union of India and Anr. vs P.K Roy and Ors. (l) laying down that the Central Government has been constituted to be the final authority in the matter of integration of services under sub section (S) of section 115 of the Act. The matter of equation of posts is purely an administrative function. It has been left entirely to the Central Government as to how it has to deal with these questions. The Central Government had established an Advisory Committee for the purpose of assisting in the proper consideration of the representations made to it. There is nothing in sections 115 to 117 of the Act prohibiting the Central Government in any way from taking the aid and assistance of the State Govt, in the matter of effecting the integration of services. As observed by this Court in Roy 's case the usual procedure followed by the Central Government in the matter of integration of services generally, is in order. It is not open to the Court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps, the only question the Court can enquire into is whether the four principles agreed upon at the Chief Secretaries Conference had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate. But where, as here, in the matter of equation of posts, the Central Government had properly taken into account all the four principles decided upon at the Chief Secretaries Conference, the decision cannot be assailed at all. In the present case, not only the Central Government had laid down the principles for integration, but also considered the representations and passed the final orders and the provisional gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. In accordance with the principles settled at the Chief Secretaries Conference, the Government of India, in consolation with the Central Advisory Committee, directed that the posts of ASTOs in the former States of Madhya Pradesh and Hyderabad should be continued in an isolated category, there being no corresponding post in the successor State of Bombay with which they could be equated. There were 19 ASTOs in the pay scale of Rs. l50 10 200 680 EB 15 250 from Madhya Pradesh and 23 ASTOs in the pay scale of Rs. 170 8 1/2 225 EB 13 320 from Hyderabad allocated to the new State of Bombay. In the former State of Bombay there was no similarly constituted cadre of ASTOs, but there were posts of STIs in the pay scale of Rs. 120 8 144 EB 8 200 10/2 250. It would have been inequitable and unfair to equate ASTOs from Madhya Pradesh and Hyderabad with STIs from Bombay, looking to the nature of their posts, the powers and responsibilities and the pay scales attached to the same. The ASTOs from Madhya Pradesh and Hyderabad were, in the first instance, superior to STIs in their respective States and the post of ASTO in those States was a promotion post. In addition, ASTOs in those States were assessing authorities and they enjoyed statutory powers of their own to assess tax and levy penalties, whereas the STIs in Bombay had no such powers to assess tax or levy penalty but had merely to scrutinise returns and generally act in a subordinate capacity to STOs. Evidently, the State Government was wrong in directing by its Resolution dated November 16, 1957 that the seniority of ASTOs from Madhya 1) Pradesh and Hyderabad and STIs from Bombay be fixed in the cadre of Ss in the reorganised State of Bombay on the basis of continuous service including that in the lower grade. The principle adopted by the State Government for determining their relative inter se seniority was obviously wrong, being contrary to the principles settled at the Chief Secretaries Conference. As already stated, the Government of India, on representation by the affected ASTOs from Madhya Pradesh and Hyderabad, in consultation with the Central Advisory Committee, directed that the inter se seniority should be fixed taking into account continuous service in the equated grade only subject to the inter se seniority of the officers coming from the several integrating regions. Upon that basis, the State Government by its Resolution dated September 10, 1960, rightly modified Notes 3 and 6 of its 1957 Resolution and directed that the seniority as on November l, 1966 of ASTOs from Madhya Pradesh and Hyderabad be fixed above the persons in the cadre of STIs and that the inter se seniority of ASTOs from Madhya Pradesh and Hyderabad be fixed on the basis of their continuous service as ASTOs in their respective States. The High Court, in dealing with the question of equation of posts, observed: On merits, if the duties of Assistant Sales Tax officers of those two States and those of Inspectors are compared 681 in the light of the minutes contained in Ex.2 (Memorandum of the Government of Maharashtra, Finance Department. dated November 21, 1964) the difference is not much. We enquired about the nature of work they are doing today and we are told on instructions by the State 's counsel that they are doing the work that the Sales Tax Inspectors are doing. (emphasis added) All that we need say is that the High Court, if we may say so, without meaning any disrespect, has viewed the question from a wrong perspective. The remaining question whether the State Government by its Resolution dated June 13, 1964 and Memorandum dated November 21, 1964, effected a change of recruitment rules by an executive order, in the conditions of service of the ASTOs from Madhya Pradesh and Hyderabad, contrary to the Proviso to sub section (5) of section 115 of the Act; and if so, whether such a change in the conditions of service could be brought about without framing a rule under the Proviso to article 309 of the Constitution. In our opinion, the question does not really arise. There can be no dispute with the proposition that a rule framed under the Proviso to article 309 of the Constitution cannot be modified by an executive order. But the question is whether that principle is attracted to the facts and circumstances of the present case. The Resolution and the Memorandum referred to above, undoubtedly do not have the status of a rule framed under the Proviso to article 309 of the Constitution. They merely conveyed the decision of the State Government that the allocated ASTOs from Madhya Pradesh and Hyderabad should be considered eligible for promotion to the post of STO, Gr. IlI without passing the departmental examination for STO, Gr. The State Government had not by its Resolution dated June 13, 1964, or by its Memorandum dated Nov. 21, 1964, brought about a change in the conditions of service by an executive order. All that was done was to rectify a mistake that had been committed in the past in subjecting the ASTOs from Madhya Pradesh and Hyderabad to the Departmental Examination Rules framed by the former State Government of Bombay i.e. to a rule which did not form part of conditions of their service and, therefore, was not applicable to them. We find no infirmity in these two documents. The decisions reached by the Government on the representations made by ASTos from Madhya Pradesh and 682 Hyderabad were strictly in conformity with the recruitment rules framed by the former State of Madhya Pradesh and Hyderabad under the Proviso to article 309 of the Constitution. It is quite obvious that STIs from Bombay were not entitled to the above concession, as the passing of the STOs examination had been made a condition precedent for their promotion as STO Gr. There was a marked distinction between the recruitment rules framed by the former State Governments of Bombay and Madhya Pradesh and Hyderabad for appointment as STOs. In the former State of Bombay, eligibility for the promotion of STIs to the post of STO Gr. III depended upon their passing the departmental examination for the non gazetted staff of the Sales Tax Department under r. 1(b) (ii) of the Recruitment Rules for the S.T.Os. Under r. 3, preference was to be given to an Inspector who had passed the departmental examination prescribed for STOs over those who had not. By the amendment of January 20, 1961 made by the State Government, the words "and also the departmental examination for STOs ' were added after the words "time for promotion". The effect of this amendment was to make the passing of the STO examination a condition precedent for promotion of STIs as STO Gr. Further, the amendment deleted r. 3 which laid down a rule of preference. In the former States of Madhya Pradesh and Hyderabad, neither such condition nor any rule of preference was there. Under r. 1 of the Rules for Departmental Examination framed by the former State Government of Madhya Pradesh, ASTOs who were promoted as STOs were required to pass the departmental examination within two years from the date of such promotion. Rule 4 provided that they would not be confirmed till they pass the said examination and on their failure to do so, they would be reverted to the substantive post of ASTOs. Similarly, under r. 2(c) of the Rules framed by the former Hyderabad State, ASTOs who were prompted as STOs were required to pass the departmental examination within three years from the date of commencement of the rules failing which their grade increment was to be withheld till they pass such examination. Rule 2 (d) provided that STOs Cl. 1 and II who had not been confirmed in their respective posts, were required to pass the said examination within the said period failing which they were to be reverted to their substantive posts. According to the general Circular issued by the State Government of the reorganised State of Bombay dated April 29, 1960, pending unification of the recruitment rules framed by the State Government of Bombay, Madhya Pradesh and Hyderabad, the 683 recruitment to the various posts and services was to be regulated A according to the rules framed by the State Governments and not according to the Bombay Civil Service (Classification and Recruitment) Rules. It is not disputed that the Departmental Examination Rules framed by the former State Governments of Madhya Pradesh and Hyderabad for promotion to the post of STOs formed part of the conditions of service of ASTOs from Madhya Pradesh and Hyderabad. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh. as amended on January 20, 1960, mere passing of the departmental examination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of merit cum seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs who had wrongly been promoted as STOs Gr. III had to be reverted and thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub section (7) of section 115 of the Act. We are unable to agree with the High Court in its opinion that ASTOs from Madhya Pradesh and Hyderabad on their allocation to the new State of Bombay, who had wrongly been put at par with STIs from Bombay, had to pass the departmental examination prescribed by the former State Government of Bombay, for promotion to the post of STO Gr. III before they could be actually so promoted. It is an incontrovertible fact that the departmental examination prescribed by the former State Governments of Madhya Pradesh and Hyderabad had not been held after August 8, 1960 i.e. for the last 20 years. Merely because the C.P. and Berar Sales Tax Act, 1947 684 and the Hyderabad General Sales Tax Act, 1950 stood repealed with effect from January 1, 1960, that hardly furnished a ground for not holding the examination. The State Government, in their affidavit before the High Court, tried to justify their action that the subjects under the ex Madhya Pradesh and Hyderabad Rules had become obsolete and, therefore, it was felt that no useful purpose would be served in holding these examinations. This was no justification at all, for even after the Bombay Sales Tax Act, 1959 had been extended throughout the State with effect from January 1, 1960, all pending assessments pertaining to the Vidarbha and Marathwada regions of the former States of Madhya Pradesh and Hyderabad had to be completed in accordance with the repealed Acts. In this context, the High Court observed that it examined the subjects prescribed for the three departmental examinations of Bombay, Madhya Pradesh and Hyderabad and found that "there was not much difference". It went on to say that "it could hardly be suggested by any one that prescribing a subject more or less for an examination would adversely affect conditions of service. The purpose of examination is to prepare the officer to be able to cope up with different kinds of problems that would confront him with reasonable efficiency. " To say the least, the observations made by the High Court are unwarranted. Be that as it may, the fact remains that the condition regarding the passing of the departmental examination became incapable of compliance in the case of ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr. They were entitled to such promotion without passing such examination. Under the relevant rules which regulated their conditions of service, there was only a possibility of reversion in the eventuality of their not passing the examination within the stipulated time. Since no examinations admittedly have been held, there is no question of their reversion as ASTOs. If the decision of the High Court were to be upheld, it would imply that many of the ASTO from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr III and during the past 20 years have reached the higher echelons of service, would now have to be put back as ASTOs, for no fault of their own. Many of them either have retired or are on the verge of retirement. There was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to r. 1(b) (ii) of the recruitment rules, by its order dated October 1, 685 1965, which made the passing of the STO examination a condition A precedent for promotion of STIs to STO Gr. There can be no doubt that the State Government 's Resolution dated June 13, 1964 and its Memorandum of November 21, 1964, clarifying that the ASTOs from Madhya Pradesh and Hyderabad were entitled for promotion to the post of STO Gr. III without passing the departmental examination, placed STIs from Bombay at a disadvantage. To ensure 'fair and equitable treatment ', the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STIs from the former State of Bombay. In the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with the best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub section (5) of section 115 of the Act speaks of "fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all. The result, therefore, is that the appeal succeeds. The judgment of the High Court of Bombay is set aside and the writ petition filed by Respondents 1 to 5 is dismissed. There shall be no order as to costs in the facts and circumstances of the case. N.V.K. Appeal allowed.

The respondent was detained by the appellant under sub section (I) of section 3 of the . The grounds for detention were that the respondent along with two others were members of the crew of a vessel that was engaged in smuggling of wrist watches and other contraband articles worth about Rs. 33 lakhs. The respondent moved the High Court which quashed the order of detention, holding that the order of detention clearly showed that the detaining athority had not applied his mind to the facts of the case and that the impugned order nowhere stated that the detaining authority on having received a proposal from the customs authorities, had applied his mind tc all the materials on record and had reached satisfaction that the facts of the case warranted detention. Allowing the State 's appeal to this Court, ^ HELD: 1, The order dated August 1, 1979 made under section S of the Act by the Government directed the detenu to be detained. On the same date another order was passed under sub section (1) of section 3 which in fact was the order of detention. It provided that the Government was satisfied that with a view to preventing the respondent from smuggling goods it was necessary to detain him. These two orders were accompanied by the grounds of detention which was also dated August 1,1979. A perusal of these three documents do not justify the finding of the High Court that the detaining authority had not applied its mind to the materials before it and that it had not "reached satisfaction that the facts of the case warranted the detention of the petitioner. " The finding of the High Court has been based on a presumption which is unjustified. [1016 F 1017 E] 1015 2. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on the materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the court cannot go further n examine whether the material was adequate or not which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in section 3 of the Act is the satisfaction of the detaining authority and not of the Court. [1017 F] State of Gujarat vs Adam Kasam Bhaya, [1982] 1 S.C.R. 740, referred to. Once the order quashing the order of detention of the detenu is set aside by this Court rendering the order of detention non est itself becomes non es and the order of detention gets life. [1018 C] 4. The relevant authorities that can pass order of detention are mentioned in sub section (1) of section 3 of the Act. The authorities are the Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government. [1018 E F] In the instant case the order having been taken in the name of the Governor and validly authenticated by the Deputy Secretary concerned, the order tentamounts to an order by the State Government. It, therefore, cannot be said that the order of detention was not passed by the competent authority. [1019 A]

Appeal No. 3 of 1958. Appeal from the judgment and decree dated October 8, 1956, of the Rajasthan High Court in Civil Regular Appeal No. 1 of 1953. section T. Desai and B. P. Maheshwari, for the appellants. N. C. Chatterjee and H. P. Wanchoo, for the respondent. April 25. The Judgment of the Court was delivered by SINHA, C. J. The substantial question for determination in this appeal is whether or not the two hundis sued upon were admissible in evidence. The learned Trial Judge held that they were, and in that view of the matter decreed the suit in full with costs and future interest, by his judgment and decree dated September 26, 1952. On appeal, the High Court of Rajasthan at Jodhpur, by its judgment and decree dated October 8, 1956 allowed the appeal and dismissed the plaintiffs ' suit. Each party was directed to bear its own costs throughout. The High Court granted the necessary certificate under article 133(1)(a) of the Constitution. That is how the appeal is before us. It is only necessary to state the following facts in order to appreciate the question of law that has to be determined in this appeal. The defendant respondent is said to have owed money to the plaintiffs, the appellants in this case, during the course of their business as commission agents for the defendant, at 335 Bombay. Towards the payment of those dues, the defendant drew two mudatti hundis in favour of the plaintiffs, for the sum of 35 thousand rupees, one for 20 thousand rupees payable 61 days after date, and the other for 15 thousand rupees payable 121 days after date. The plaintiffs endorsed the two hundis to G. Raghunathmal Bank and asked the Bank to credit their account with the amount on realisation. On the date of their maturity, the Bank presented those hundis to the defendant, who dishonored them. Thereupon the Bank returned the hundis to the plaintiffs. As the defendant did not pay the amount due under those documents on repeated demands by the plaintiffs, they instituted a suit for realisation of Rs. 39,615, principal with interest. On those allegations, the suit was instituted in the Court of District Judge, Jodhpur, on January 4, 1949. It is not necessary to set out the defendant 's written statement in detail. It is enough to state that the defendant admitted the execution of the hundis, but alleged that they had been drawn for purchasing gold in future and since the plaintiffs did not send the gold, the hundis were not honoured or accepted. It was denied that the defendant owed any amount to the plaintiffs or that the hundis were drawn in payment of any such debt. It was thus contended that the hundis were without consideration. The most impor tant plea raised by the defendant in bar of the suit was that the hundis were inadmissible in evidence because they had not been stamped according to the Stamp Law. On those pleadings, a number of issues were joined between the parties, but the only relevant issue was issue No. 2 in these terms: "Whether the two hundis, the basis of the suit, being unstamped, were inadmissible in evidence? (OD*)" (*which perhaps are meant to indicate that the onus was on the defendant in respect of this issue). It appears that the defendant led evidence first, in view of the fact that the onus lay on him. He was examined as D.W.5, and in his examination in chief he 336 stated, "I did not receive any gold towards, these hundis I asked them to return the hundis, but 'they did not return them. , I had ' drawn the two hundis marked exhibit P. ' I and exhibit P. 2. They are written in Roopchand 's hand. I did not receive any notice to honour these hundis. " His other witnesses, D.Ws. 1, 2 and 4 were examined and cross examined with reference to the terms of the hundis and as to who the author of the hundis was. All along during the course of the recording of the evidence on behalf of the parties, these hundis have been referred to as exhibit P. I. and exhibit P. 2. The conclusion of the learned Trial Judge on issue No. 2 was in these terms: "Therefore, in this case the plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the presiding officer of court and the same having thus been introduced in evidence and also referred to and read in evidence by the defendant 's learned counsel, the provisions of sec. 36 of the Stamp Act, which are mandatory, at once come into play and the disputed documents cannot be rejected and excluded from evidence and they shall accordingly properly form part of evidence on record. Issue No. 2 is thus decided against the defendant. " The suit was accordingly decreed with costs, as stated above. On appeal by the defendant to the High Court, the High Court also found that the hundis were marked as Exs. P. 1 and P. 2, with the endorsement "Admitted in evidence" and signed by the Judge. The High Court also noticed the fact that when the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of the Marwar Stamp Act, 1914, authorised the Court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence. Section 9 further provi ded that on the payment of proper stamp duty, and the required penalty, if any, the document shall be admissible in evidence. It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the hundis, acting upon the law, namely, the Marwar Stamp Act, 1914. 337 The High Court also pointed out that the ' documents appear to have been Admitted in evidence because the Trial court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914. The "new law was, in terms, similar to the Indian Stamp Act. The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of section 35, proviso (a) of the Act, even on payment of duty and penalty. With reference to the provisions of section 36 of the Stamp Act., the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis 'was a pure mistake '. Relying upon a previous decision of the Rajasthan High Court in Ratan Lal vs Dan Das (1), the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the Trial Court and correct the mistake made by that Court. In our opinion, the High Court misdirected itself, in its view of the provisions of section 36 of the Stamp Act. Section 36 is in these terms: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. " That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the (1) I.L.R. 338 document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence ' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. In our opinion, the High Court has erred in law in refusing to act upon those two hundis which had been properly proved if they required any proof, their execution having been admitted by the executant himself. As on the finding,% no other question arises, nor was any other question raised before us by the parties, we accordingly allow the appeal, set aside the judgment and decree passed by the High Court and restore those of the Trial Court, with costs throughout. Appeal allowed.

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

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

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

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

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

Civil Appeal No. 692 & 693 of 1981. From the Judgment and Order dated 19.5.1980 of the Delhi High Court in W.P. Nos. 883 of 1978 and 1079 of 1979. R.K. Habbu, R.B. Hathikhanwala and B.R. Aggarwala for the Appellants. Soli J. Sorabjee, Attorney General (NP), Kapil Sibal, Additional Solicitor General, Ms. Indu Malhotra, P. Parmeshwaran and C.V.Subba Rao for the Respondent. The Judgment of the Court was delivered by RANGANATHAN J. These two appeals involve a common question and can be disposed of by a common judgment. The question is whether the appellant companies (hereinafter referred to as the 'assessees ') are entitled to full "draw back ' of the customs duty which they had paid on the import of di methyl terephthalate (shortly referred to as 'DMT ') for manufacture of polyester staple fibre yarn. The assessees converted the DMT into polyester staple fibre in their factory at Thane and then sent it to Bhilwara in Rajasthan where the Rajasthan Spinning and Weaving Mills blended it with indigenous viscose staple fibre to spin out certain varieties of blended yarn. It is common ground that the product manufactured by this process was exported by the assessees to Imperial Chemical Industries Pvt. Ltd. Singapore, who had supplied the DMT free of charge to the assessees. The answer to the question revolves around the interpretation of Section 75 of the read with the Customs and Central Excise Duty Draw Back Rules, 1971. 291 Section 75 of the empowers the Central Government, by notification in the official gazette, to direct, in respect of goods of any class or description manufactured in India and exported to any place outside India, that draw back should be allowed of the duties of customs chargeable under the Act on any imported materials of a class or description used in the manufacture of such goods, in accordance with and subject to the rules framed under sub section (2) of the said section. Sub section 2, which confers a rule making power, enacts that such rules may, among other things, provide: "(a) for the payment of draw back equal to the amount of duty actually paid on the imported materials used in the manufacture of the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture of export goods of that class or description either by manufacturers generally or by any particular manufacturer;" There is a similar provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture. The Central Government framed the Customs and Central Excise Duties Drawback Rules, 1971 (hereinafter referred to as 'the rules '), in exercise of the powers conferred on it under these two statutes. These are composite rules under the above two provisions and enable drawback being availed of in relation to customs duty as well as in relation to duties of central excise. Some relevant provisions of these rules may be quoted here. Rule 3, in so far as it is relevant for our present purposes, reads as follows: Rule 3: Drawback: (1) Subject to the provisions of (a) the (52 of 1962) and the rules made thereunder. (b) the (1 of 1944) and the rules made thereunder, and (c) these rules, (a) drawback may be allowed on the export of goods specified in Schedule II at such amount, or at such rates, as 292 may be determined by the Central Government. xxx xxx xxx (2) In determining the amount or rate of drawback under this rule, the Central Government shall have regard to: (a) the average quantity or value of each class or description of the materials from which a particular class of goods is ordinarily produced or manufactured in India. (b) the average quantity or value of the imported materials or excisable materials used for production or manufacture in India of a particular class of goods. (c) the average amount of duties paid on imported materials or excisable materials used in the manufacture of semis, components, and intermediate products which are used in the manufacture of goods. (d) the average amount of duties paid on materials wasted in the process of manufacture and catalytic agents: Provided that if any such waste or catalytic agent is used in any process of manufacture or is sold, the average amount of duties on the waste or catalytic agent so used or sold shall also be deducted. (e) the average amount of duties paid on imported materials or excisable materials used for containing or packing the exported goods. (f) the average amount of duties of excise paid on the goods specified in Schedule 1: and (g) any other information which the Central Government may consider relevant or useful for the purpose. Rule 4. Revision of rates: The Central Government may revise the amounts or rates determined under rule 3. xxx xxx xxx 6. Cases where amount or rate of drawback has not been determined: 293 (1)(a) Where no amount or rate of drawback has been determined in respect of any goods, any manufacturer or exporter of such goods may, before exporting such goods, apply in writing to the Central Government for the determination of the amount or rate of drawback therefor stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods and the duties paid on such materials or components. (b) On receipt of an application under clause (a) the Central Government shall after making or causing to be made such inquiry as it deems fit, determine the amount or rate of drawback in respect of such goods. Cases where amount or rate of drawback determined is low (l) Where in respect of any such goods, the manufacturer or exporter finds that the amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4 for that class of goods is less than three fourths of the duties paid on the materials or components used in the production or manufacture of the said goods, he may make an application in writing to the Central Govermment for fixation of the appropriate amount or rate of drawback stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of the goods and the duties paid on such materials or components. (2) On receipt of the application referred to sub rule (1) the Central Government may, after making or causing to be made such inquiry as it deems fit, allow payment of drawback to such exporter at such amount or at such rate as may be determined to be appropriate if the amount or rate of drawback determined under rule 3 or, as the case may be, revised under rule 4, is in fact less than three fourth of such amount or rate determined under this sub rule. Schedule II to the notification by which the rules were promulgated listed the items the export of which entitles an assessee to avail of the drawback facility. Item 25 of the list reads thus: "Synthetic and regenerated fibre, textile yarn, thread, twines, cords and ropes 294 It is common ground that the goods exported by the assessees fall under item 25 above. There is also no controversy that the DMT imported by the assessees was used for the manufacture of the above commodity and that, on the import of the DMT, the assessees have paid customs duty. The rates of drawback available in respect of various goods were notified by the Central Government in due course. Against serial no 25, the notification set out the rates of drawback as follows: Serial Sub Si. Description of Rate of No. No. goods Drawback 25. SYNTHETIC AND REGENERATED FIBRES AND/TEXTILE YARN/ THREAD, TWINES, CORDS AND ROPES Brand rate to be 2501 Synthetic and regenerated fixed on an fibre and textile yarn, application from thread, twines, cords and the individual ropes not elsewhere manufacturer specified. exporter. 2502 (a) Yarn of above 21 BWS Counts or above 14 n.f. counts, spun wholly out of either viscose rayon fibre or acetate fibre or polyster fibre, polyamide fibre or acrylic fibre or wool, or from a combination of two and not more than two of the above mentioned fibres, or a combination of any one of the above mentioned fibres with either cotton or silk (but excluding yarn spun out of fibres obtained from fibre wastes, yarn waste or fabric wastes, by gernetting or by any other process: (a) Cellulosic fibre content: Rs. 1.80 (Rupees one and paise eighty only) per kg. 295 (b) Polyester fibre content: Rs.43.15 (Rupees forty three and paise fifteen only) per kg. (c) Acrylic fibre content: Rs.37.75 (Rupees thirty seven and paise seventy five only) per kg. (d) Polyamide fibre content: Rs. 16.40 (Rupees Sixteen and paise forty only) per kg. (e) Wool contents: (i) in the worsted yarn of Rs. 18.95 (Rupees Weaving quality made wool Eighteen and paise top. ninety five only) per kg. (ii) in the worsted yarn of Rs. 13.55 (Rupees weaving quality not made from Thirteen and paise fifty wool top. five only) per kg. (iii) in the worsted Hosiery Rs. 16.65 (Rupees Sixteen yarn and worsted hand knitting and paise sixty five yarn made from wool top. only) per kg. (iv) in the worsted hosiery yarn Rs.11.25 (Rupees Eleven and worsted hand knitting yarn and Paise twenty five not made from wool top. only) per kg. (v) Bye content if the yarn is Rs.0.85 (Eighty five dyed paise only) per kg. xxx xxx xxx It will be seen from the above table that the assessees are entitled to a drawback of Rs.43.15 per kg. of the polyester fibre content of the yarn exported by them. We are informed that this is the rate of central excise duty payable in respect of the manufacture of yarn having polyester fibre content. For reasons to be stated presently, the assessees had to pay no central excise duty for the manufacture and hence there was admittedly no question of the assessee getting a drawback to this extent. The point raised by the assessee is that, having paid customs duty on the DMT , it was entitled to a drawback in respect of the customs duty paid by it on the DMT. Since this was not included in the notification of the Central Government, the assessees made an application to the Ministry of Finance on 23.3.1977 requesting that drawback of the entire customs duty may be sanctioned. This request, 296 however, was rejected by the Central Government by a communication dated 12.3.1978. This communication was in the following terms: "Under Rule 3 of the Customs and Central Excise Duties Drawback Rules 1971, all industry rates of drawback on polyester viscose blended yarn have been determined and announced under serial No. 2502 of the Drawback Schedule. The said rates have been determined at the material time, after taking into consideration: (a) duty incidence of raw materials used in the manufacture of viscose fibre, plus the Central Excise duty on viscose fibre and (b) the Central Excise duty on polyester fibre in respect of polyester yarn. However, no raw material duty for manufacture of polyester yarn was taken into account, as the same (DMT) is available indigenously and is exempted from Central Excise Duty. For the rates determined effective from 18.8.1977 however the duty incidence on DMT has also been taken into consideration on the basis of weighted average of imported and indigenous material. " The assessees, dissatisfied with this decision of the Central Government, preferred a writ petition in the Delhi High Court, which was dismissed by the High Court on 19.5.80. Hence the present appeals. At this stage, it may be necessary to outline some facts which may be relevant for appreciating the background in which the assessees ' counsel urged strongly the equitable, if not also legal, claims of the appellant for the drawback of the customs duty. Counsel claims that the assessees were almost the first group of entrepreneurs in India to manufacture polyester fibre yarn. They had been fortunate enough to obtain a contract from the Imperial Chemical Industries, Singapore. By a letter dated 2.4.75 this concern agreed to supply free of cost the DMT required for the manufacture of blended yarn consisting of 67 per cent polyester and 33 per cent viscose fibre. The DMT was to be converted in polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka. Thereupon, on 2.6.75, the assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose staple fibre. Eventually, however, the viscose staple fibre was obtained indigenously and the import permit, to this extent, was not utilised by the assessee. At the 297 time of obtaining this permit, the assessees also obtained permission to convert the imported DMT into polyester fibre under customs bond. The condition attached to the Customs Clearance permit was in the following terms: "The firm will convert the imported DMT into polyester fibre under Customs bond. The firm will then move the polyester fibre so manufactured and the imported viscose staple fibre under bond to the bonded warehouse of Rajasthan Spinning and Weaving Mills, Bhilwara Messrs. Rajasthan Spinning and Weaving Mills will then manufacture under bond polyester viscose yarn on behalf of the firm. The polyester viscose fibre yarn will then be exported by the firm to the overseas buyers who have supplied the DMT and viscose staple fibre on CCP basis or their nominees. . If these conditions had been fulfilled the assessees would have had no problems. The polyester fibre would have been manufactured under customs bond and this would have obviated payment of customs duty by the assessees. So also, the production of the blended yarn at the Rajasthan Spinning and Weaving Mills would have been under Central excise supervision and no excise duty would have been payable on the manufacture. Unfortunately, however, the customs authorities were not in a position to permit the conversion of the DMT into polyester fibre under customs bond for reasons which are not at present relevant and which are not being challenged in these proceedings. The assessees 's request for the manufacture of polyester fibre under: customs bond was declined by the customs authorities on 2.4.1976. Perhaps anticipating this difficulty, the Association of Polyester Staple Fibre Manufacturers at Bombay made an application to the Central Government on 26.3.1976 praying for exemption from customs duty on DMT required for the manufacture of polyester staple fibre. This letter points out: "Members of this Association manufacture polyester staple fibre. One of our members has received an advance licence for the import of DMT, a photostat copy of which we attach herewith. This DMT is to be used for manufacture in polyester fibre and the polyester fibre then converted into yarn to be supplied against export orders. Our members wish to explore possibility of larger export business in this manner. Indigenous supplies of both DMT and glycol are 298 insufficient to meet the domestic market requirements and export business can only be done by import of the two materials. Fulfilling export orders by using advance licences as the one issued to our member poses certain problems because the licence stipulated manufacture under Customs Bond. You will appreciate the difficulty in manufacturing under bond when the fibre for export constitutes only a portion of the total manufacture of the factory. If DMT and glycol could be included in the schedule to the customs Notification GSR 183, the procedural difficulties in manufacturing under Bond will not apply. Exports of yarn made from raw materials obtained against advance licences could earn considerable foreign exchange because of the value added during processing. One of the assessees also made a similar request and, eventually, a notification was issued on 2nd August, 1976 under section 25 of the exempting DMT from customs duty. The Government of India also wrote to one of the present appellants on 9.9.76 drawing attention to the said notification and stating that with the issue of this notification. The assessees ' problem would appear to have been solved. This, however, was not correct. The notification exempted future imports of DMT from customs duty but the assessees, having imported the DMT earlier, had to clear the same after paying customs duty thereon. Hence their request for a drawback of the customs duty already paid by them, the refusal of which has led to the present litigation. On behalf of the appellants, it is contended that the contains provisions enabling thd Government either to exempt goods under section 25 from the levy of Customs duty at the time of import or failing this, to permit a drawback of customs duty paid in the event of the conditions set out in section 75 being fulfilled. In the present case, an exemption under section 25 of the was in fact notified but unfortunately this happened only in August, 1976. By this time, the assessees had already imported the DMT. This they were obliged to do because of a time bound programme for export of the manufactured fibre to Sri Lanka. Counsel states that, from the very outset, the assessees had proceeded on the footing that they would be obtaining exemption from customs and excise duty because, apart from getting some conversion charges from the ICI, their own margin of profit on the transaction was not substantial. That is why even at the time of obtaining the customs clearance permit they had sought for permission to convert DMT into polyester under customs bond. If that had been 299 done, there would have been no necessity to pay customs duty at all. Unfortunately, because the department lacked facilities to supervise such an operation, the attempt of the assessees was only partially successful in that they were able to get only the production of the blended fibre done under Central Excise supervision. The initial stage of conversion from DMT to polyester fibre could not be done under customs bond. It is pointed out that the Government of India had exempted DMT from customs duty only on the basis of the representations made by the assessees and it is urged that the refusal to grant drawback of customs duty to assessees is wholly unjustified. The object of section 75 of the , read with section 27 of the Central Excise Act, is obviously to provide that in cases where certain goods are imported for complete utilisation in the manufacture of goods which are exported, the importer should be able to obtain relief in respect of customs and excise duties. In the present case there is no controversy that the D.M.T. imported by the assessee was utilised for the manufacture of polyester staple fibre and that the final product was fully exported to Sri Lanka. The notification made under the rules framed for this purpose, however, provides only for a drawback in respect of the excise duty involved in the manufacture of polyester staple fibre but not the customs duty on the raw material actually imported. Sri Habbu, learned counsel, contends that this notification, in fact, is contrary to the provision contained in rule 3 which obliges the Government, in determining the amount or rate of drawback, to have regard, among other things, to the amount of duties paid on imported or excisable material used in the manufacture of the exported goods. He submits that, in so far as the rates prescribed by the Central Government do not take into account the element of import duty on DMT, the fixation is not in accordance with the rule. According to him, therefore, this case 'falls under rule 6 which enables an assessee to apply to the Central Government to determine a drawback where none has been determined. The Central Government, he submits, was in error in rejecting the assessees ' application as one falling under rule 7 and, therefore not maintainable both in law and equity. Having heard the learned counsel for the assessees at some length, we are of opinion that the High Court was right in rejecting the assessees contentions. We think that the assessees ' arguments are based on a basic misapprehension that, under the Acts and rules, a manufacturer is automatically entitled to a drawback of the entire customs and excise duties paid by him if the terms and conditions of 300 section 75 are fulfilled. Though section 75 of the and section 37 of the Central Excises & Salt Act empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provides only for a refund of the "average amount of duty paid on materials" of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7 (to be noticed presently). The rules do not envisage a refund of an amount arithmetically equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer. If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacture of goods which are exported, the assessee would be entitled to a drawback of the customs or excise duties paid by him for the import or on the manufacture. On the other hand, section 75(2) requires the amount of drawback to be determined on a consideration of all the circumstances prevalent in a particular trade and the fact situation relevant in respect of each of various classes of goods imported and manufactured. The need for providing an elaborate process of determination as envisaged in rule 3 is this. There may be different manufacturers of a particular manufactured item. Some of them may be using indigenous material and some may be importing some of the raw material. Similarly, in the process of manufacture also, there may be difference between manufacturer and manufacturer. That is why the drawback rules provide for a determination of the drawback after taking into account the "average" amount in respect of each of the various items specified in rule 3 in relation to each type of goods listed in Schedule II. The notification issued also determines the composite drawback available in respect of both customs and excise duties to importers cum manufacturers in respect of various categories of goods. In other words, the amount of drawback is not intended to be the amount of the duties that may have been paid by individual manufacturers; it is to be determined by considering the overall position prevalent in the country in respect of each of the categories of trade in the goods specified in Schedule II. We think that, if this basic principle is understood, the decision of the Govermment would become intelligible and rational. There is no controversy that, in this case, the goods exported fall under item 25. Learned counsel sought to contend that the goods here fall under sub item 2501 but this is clearly untenable. Sub item 2501 represents a residuary category which will not be attracted to the 301 goods here which clearly fall under sub item 2502. The notification prescribes different amounts of drawback under this it@m depending on the composition of the yarn and the nature of its contents. It specifies an amount of Rs.43.15 per Kg. as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502. This much indeed, was conceded before the High Court. Once we understand the principles on which and the scheme according to which the rates of drawback are to be and are determined as explained earlier, the plea of the appellants, that the amount of drawback determined is nothing more than the excise duty payable on manufacture of blended fibre with polyester fibre, content and that the notification has erred in overlooking the customs duty paid on imported DMT, is wholly untenable. We say this for two reasons. First, the rates prescribed constitute a composite rate of drawback fixed having regard to the liabilities under the as well as the Central Excises & Salt Act. It would not be correct, in principle, to bifurcate the amount so fixed into its two constituents and to say, merely because the amount fixed is equal to one of the duties, that the other has not been taken into account. In theory, the drawback determined could have taken into account both sets of duties in part only. It cannot be said to be merely the customs duty drawback or central excise duty drawback. Though it does appear that the various rates of drawback prescribed under item 2502 are equal to the rates of excise duty payable on the manufacture of the various items referred to therein, the nature of exemption granted is one of relief under both enactments. It is immaterial whether this quantum of relief benefits the assessee in respect of one or other or both of the levies which he has to discharge. The attempt to identify and correlate the rebate granted to the central excise duty paid does not therefore appear to be correct in principle. But, this ground apart, we think there is force in the point made by the learned counsel for the Union of India and accepted by the High Court that at the time when these drawback rates were fixed, the Government of India took into account both the import duty as well as the excise duties which would be payable on the manufacture of the goods the export of which was intended to be encouraged. After examining the condition in the trade, it was found that D.M.T. was easily available in India at that time and that, therefore, it would not be necessary to grant any relief in respect of drawback of customs duty on the imported material because that would only result in assessees 302 attempting unnecessarily to import a raw material which was available in the country itself. In fact, this is the aspect on which the Delhi High Court has laid considerable emphasis. Learned counsel for the appeallants contends that this is factually and that this is clearly shown by the very fact that Government of India itself, in August, 1976, decided to grant exemption in respect of customs duty for the import of D.M.T. He submits that if D.M.T. had been easily available indigenously at that time, the question of granting exemption under section 25 would not have appealed to the Government at all. He, therefore, submits that, in fixing the rate of drawback the Central Government had proceeded on the footing that no import duty would be payable on the DMT and that it will be sufficient to grant relief in respect of Central excise duty alone. We find that, on this aspect, the position is not so simple as submitted by the learned counsel for the appellants. We have already extracted reply of the Government of India to the assessees ' representation which clearly mentions that DMT is available indigenously and that, therefore, no duty in manufacture of polyester yarn was taken into account. This is a statement of fact and there is no material placed before us to contradict the same except for the cor respondence referred to earlier. If one looks carefully at the corres pondence, one will find that it does not support the assessees 'case. For one thing the memorandum submitted by the Association of March 1976 itself proceeds on the footing that DMT is available locally but not sufficient to meet the domestic market requirments. This, clearly, is a reference to something which happened after the present appellants had imported their goods and started the manufacture. Indeed, it is their claim that they were fore runners in this field. Fol lowing up on the assessees ' attempt to obtain imports of DMT and exporting the goods manufactured, other polyester staple fibre manufacturers also proposed to explore the possibilities of such imports and exports and what the letter says would only appear to be that the indigenous supplies of DMT and Glycol may not be enough to meet the domestic market requirements if the business is so expanded. By the time the notification fixing the rates was issued, import duty on DMt had been removed and, therefore, there was no purpose in granting a drawback of customs duty. In these circumstances, the customs duty was rightly not taken into account in fixing the rate of drawback. The letter of the Government dated 9.9.76 is only an answer to the assessees ' prayer that its problem may be solved by granting an exemption for DMT from customs duty and refers only to the position after the notification of exemption. It is not reply to the assessees ' representation in respect of the past which was filed only much later in 1977. The correspondence in the case is, therefore, of no 303 help to the assessees. It may also be pointed out that the assessees appear to have imported DMT not because it was not locally available but only because it was able to get it free of cost from the ICI which was a benefit which other manufacturers, if any, could not have enjoyed. We are, therefore, of opinion that High Court was right in concluding that the rate of drawback in respect of the goods in ques tion was fixed after taking into consideration the aspect of customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the Country itself. It cannot,therefore, be said that this is a case where the fixation is contrary to the terms of rule 3 and that the assessees ' application for determination of a rate in his case should be taken as an application under rule 6. Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufactured goods which does not seem to be the case here. The assessees ' reliance on rule 6, therefore, fails. It is true the fixation of rates of drawback on the average basis indicated in rule 3 could work hardship in individual cases. Provi sion for this contingency is made in rule 7. The assessees ' application was rightly treated as one made under this rule and they could, if at all seek relief only if their case fell within its terms. This rule, unfortu nately does not provide for relief in every case where an individual manufacture has to pay customs and excise duty to a larger extent than that determined for his class of goods. Relief is restricted only to cases when the margin of difference is substantial and to the extent specified in rule 7. The High Court has discussed this point at length and demonstrated, by giving necessary figures, how the assessees ' case does not fulfill the term of the rule and this conclusion is not, in fact, challenged by the learned counsel for the appellants. The Government was, therefore, right in rejecting the appellants ' request made under section 7 of the Drawback Rules. For the reasons above mentioned, we agree with the High Court that the order of the Central Government rejecting the assessees 'application was well founded and cannot be interfered with. Learned counsel for the appellants brings to our notice a manual published by the Directorate of Publication. Ministry of Finance, Department of Revenue explaining the scope of the rules as well as two notifications issued by the Government on 9.6.1978 and 1.2.1982 respectively and submits that the present case falls within the terms of these notifica tions. We are constrained to point out that these are notifications issued subsequent to the period of the controversy before us: also this 304 is material which was not placed before the authorities or the High Court. We, therefore, find ourselves unable to permit the assessee to rely upon them at this late stage. However, having regard to the circumstances and the subsequent policy in the above rules, we think it is a fit case in which the Central Government could consider whether, on equitable grounds, the assessee can be given relief in respect of the customs duty on DMT paid by it. In this context, it is worthwhile noting that the assessee saved foreign exchange for the country by importing DMT free of cost. The entire manufactured product has also been exported and earned foreign exchange. The appellants also apparently gave impetus to other manufacturers for the export of blended fibre on large scale. If only the appellants had imported the DMT a few months later, they would have been entitled to exemption from customs duty and would not have suffered the present handicap. They also did obtain the permission of the Government to convert DMT into polyester fibre under customs bond but this could not be implemented for reasons beyond their control. Having regard to all these circumstances, it would seem only just and fair that the assessees should not be denied a benefit of which all other persons have since availed of. We, therefore, think that this is a fit case in which the Government should consider, in case the assessees make an application within two months from today, whether the assessees could be granted the relief prayed for, if only on equitable grounds, and pass appropriate orders on such applications. With the above observations, these appeals are dismissed. But in the circumstances, we make no order as to costs. Y. Lal Appeals dismissed.

The dispute between the parties is regarding the ownership rights and right of removal of timber clear felled from 150 acres of jungle area in Kallar Valley in the erstwhile Travancore territory of Kerala State commonly called the Kanan Devan Hills Concession area over which the Poonjar Raja held free hold proprietary rights under the suzerainty of Travancore State. By a deed dated July 11, 1877 called the 'First Concession ' (Exhibit P 1) the Raja conveyed the concession area with all the Hills and Forests to one J.D. Munro for a certain cash consideration and a deferred perpetual annual payment from 1884 onwards. This was followed by another deed (exhibit P 2) between the same parties reiterating all the original terms. This grant to Munro was ratified by the Travancore Government by a deed dated November 28, 1878 (Exhibit P 62). Munro in turn assigned the area to the North Travan core Land Planting & Agricultural Society Ltd. Later an agreement was executed between the Travancore Government and the Society in August 1886 (Exhibit P 64). In 1899 the entire territory comprising the Kanan Devan Hills including the concession area was declared part of Travancore State. After several transfers the concession area finally came to be vested in the Respondent Company in virtue of a Deed dated July 16, 1900. Somewhere in 1963 the Respondent Company clear felled about 150 acres in the concession area for cultivation and sought permission from the State Government for grant of free passes to carry the felled timber out of the concession area. The Government by order dated 25.11.1966 informed the company that it could not take out the timber 262 from the concession area without payment of Kuttikanamin terms of the deeds of conveyance/ratification. Thereupon the company filed a suit against the State praying inter alia for a declaration claiming full ownership, title and right to remove the timber without payment of Kuttikanam, a mandatory injunction directing the defendants to grant free passes for removal of the timber and a prohibitory injunction to restrain it from taking any further steps under its order dated 25.11.1966. On the interpretation of Exhibits P 1, P 2, P 62 and P 64 the trial court came to the findings that the company did not acquire absolute proprietary rights over the concession area or the trees and timber. It also held that the Government was justified in demanding Kuttikanam in terms of the Rules framed under the Travancore Cochin Forest Act, 1951. Accordingly the suit was dismissed. The Company preferred an appeal to the High Court which was allowed and the decree of the Trial Court set aside. The decision of the High Court has been challenged by the State in this appeal by way of special leave. This court while allowing the appeal and setting aside the judgment of the High Court, HELD: The respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein. The company only acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of the agreement Exhibit P 64. Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area. [269C] Clause 7 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force. [270D] The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951 had by a notification dated July 9, 1958 framed rules regulating the levy of Kuttikanam on trees standing on Government land. [270E] The rules were holding the field at the relevant time and the Government was justified in demanding Kuttikanam from the Company. [272A B] 263

l Appeals Nos. 280 and 281 of 1960. Appeal from the judgment and order dated April 20, 1956, of the Madras High Court, in T. R. C. Nos. 101 and 102 of 1956. B. Ganapathy Iyer and G. Gopalakrishnan, for the appellant. M. M. Ismail and T. M. Sen, for the respondent. 572 D. V. Sastri and T. M. Sen, for Intervener No. 1. Naunit Lal, for Intervener No. 2. section M. Sikri, Advocate General, Punjab and D. Gupta, for Intervener No. 3. section M. Sikri, Advocate General, Punjab, N. section Bindra and D. Gupta, for Intervener No. 4. G. C. Kasliwal, Advocate General, Rajasthan, section K. Kapur and D. Gupta, for Intervener No. 5. 1961. April 28. The Judgment of the Court was delivered by section K. DAS, J. These are two appeals on certificates granted by the High Court of Madras and consolidated by its orders dated March 22, 1957. They are from the judgment and orders of the said High Court dated April 20, 1956 and July 30, 1956 in two Tax Revision Cases, by which the High Court dismissed two petitions filed by the appellants under section 12 B of the Madras General Sales Tax Act (Madras Act IX of 1939), hereinafter called the principal Act, in the fol lowing circumstances. Messrs. George Oakes (Private) Limited, appellants herein, are dealers in Ford motor cars, spare parts and accessories. For the two years 1951 52 and 1952 53 the appellants submitted their returns under the relevant provisions of the principal Act and claimed exemption from tax with regard to certain amount realised on transactions of sales which the appellants contended were inter State sales and hence exempt from tax under article 286 of the Constitution as it stood at the relevant time. The Deputy Commercial Tax Officer, Madras, not only rejected the claim of exemption, but added to the turnover certain amounts which the appellants had collected by way of tax. The amounts so added for 1951 52 were (a) Rs. 8,000 to the net turnover assessable at 3 pies per rupee, and (b) Rs. 4,30,000 to the turnover assessable at 9 pies per rupee. For 1952 53 the amounts so added were (a) Rs. 30,132 odd and (b) Rs. 2,92,257 odd res pectively. Aggrieved by the orders of the Deputy Commercial 573 Tax Officer, the appellants preferred two appeals to the Special Commercial Tax Officer, Appeals, Madras City. These appeals were dismissed. The matter was then taken to the Sales Tax Appellate Tribunal by means of two appeals. By this time the Madras Legislature had passed the Madras General Sales (Definition of Turnover and Validation of Assessments) Act, 1954, being Madras Act No. XVII of 1954. This Act we shall refer to as the impugned Act in this judgment, because its constitutional validity is now the only question for decision in these appeals. The Tribunal negatived the claim of the appellants arising out of the contention that some of the sale transactions in the relevant years were in effect interState sales and therefore exempt from tax; the tribunal declined to go into the second question of the constitutional validity of the impugned Act. We may state here, though nothing now turns upon this, that the Tribunal held that when sales tax was included in the turnover, it was proper to tax the amounts so included at the minimum rate only, viz., 3 pies in the rupee under section 3(1) of the principal Act. Thereafter the appellants filed two revision petitions to the High Court under section 12 B of the principal Act. These were dismissed in limine. By the orders dated April 20, 1956 the High Court held that the contention as to some of the transactions being inter State sales was concluded by one of its earlier decisions, which came before us in Ashok Leyland Ltd. vs The State of Madras, Civil Appeal No. 446 of 1958. In that appeal we delivered judgment on March 28, 1961 and held that the Sales Tax Laws (Validation) Act, 1956 applied and it was unnecessary to consider the true nature of the transactions which the appellants contended were inter State sales. Learned Counsel for the appellants has conceded before us that decision governs the present appeals, and the first question no longer survives. As to the second question, the High Court by oversight did not deal with it in its orders dated April 20, 1956. When the matter was brought to the notice of 73 574 the High Court, it said in its orders dated July 30, 1956 that the second question was also concluded by its decision in Sri Sundararajan and Co., Ltd. vs The State of Madras( ') where the validity of the impugned Act was upheld. When we heard these appeals along with Ashok Leyland Ltd. vs The State of Madras, Civil Appeal No. 446 of 1958, we expressed the view that there was some divergence of opinion in the High Courts on the second question and the substantial point for consideration before us was whether the impugned Act was validly made under entry 54 of the State List in the Seventh Schedule to the Constitution: thus the question raised was one of legislative competence and affected all the States. The State of Madras was already a party respondent to these appeals. Accordingly, we directed the issue of notices to the Advocates General of all other States also. In pursuance of the said notices the Advocates General of Andhra Pradesh, Assam, West Bengal, Gujarat, Maharashtra, Punjab and Rajasthan have appeared before us. They have unanimously supported the State of Madras in its submission that the impugned Act is valid; some of them have added supplementary arguments in support of that submission. For convenience and brevity we shall refer in this judgment to the main arguments as representing two differing points of view; firstly, there is the argument on behalf of the appellants that the several provisions of the principal Act as also section 2 of the impugned Act make a distinction between the sale price of goods sold and the amount collected by way of tax and in view of that distinction made, What the impugned Act seeks to impose is a 'tax on Sales tax ' a subject which does not come within the ambit of entry 54 of List II which at the relevant time read as "Taxes on the sale or purchase of goods other than newspapers. " On the other side, the argument is that what the impugned Act seeks to do is to enlarge the scope of the definition of 'turnover ' so as to include the amount collected by way of tax in the turnover by a deeming (1) (1956) 7 S.T.C. 105. 575 provision, and this the State Legislature was competent to enact under entry 54 of the State List. These are the main arguments on two sides; but there are several subsidiary points in support of the main argument on each side, and it would be an over simplification to ignore these altogether. We shall, therefore, consider them also when dealing with the main argument on each side. We shall first refer to the relevant provisions of the principal Act and of the impugned Act, in so far as they bear on the points debated before us. Under section 3 of the principal Act which is the charging section, every dealer is liable to pay, subject to the provisions of the Act, for each year a tax on his total turnover for that year calculated at a particular percentage of such turnover. What is 'turnover ' is defined in section 2(i). The definition substantially states " 'turnover ' means the aggregate amount for which goods are either bought or sold by a dealer whether for cash or for deferred payment or other valuable consideration. . 'Sale ' is defined in section 2(h) and means (we are reading so much of the definition only as is material for our purpose) "every transfer of property in goods by one person to another in the course of trade or business for cash or deferred payment or other valuable consideration. " It is worthy of note here that the tax imposed by the principal Act is a tax on total turnover, and turnover means the aggregate amount for which goods are either bought or sold by a dealer. Therefore, one of the questions which fall for consideration is whether the State Legislature went beyond its legislative competence in enacting by the impugned Act that the amounts collected by the dealer by way of tax shall be deemed to have formed part of his turnover. This brings us to section 8B of the principal Act, which provides in sub section (1) that no person who is not a registered dealer shall collect any amount by way of tax; nor shall a registered dealer make any such collection except in accordance with such conditions and restrictions, if any, as may be prescribed; sub section (2) provides inter alia that every person who has collected or collects by way of tax any amounts shall pay 576 over the same to the State Government. Section 15 provides for penalties for a, contravention of some of the provisions of the principal Act including the provisions of section 8B. In The Deputy Commissioner of Commercial Taxes, Coimbatore Division vs M. Krighnaswami Mudaliar & Sons (1) the Madras High Court held that the amount collected by a registered dealer from the consumer by way of sales tax and paid over to Government should not be included in the turnover of the registered dealer as part of the sale price of the goods sold and it was not liable to be taxed again. This decision was given on January 7, 1954. In July 1954 was enacted the impugned Act sections 2 and 3 whereof need only be set out here. "section 2. Sales Tax Collections by dealers to be deemed part of turnover. In the case of sales made by a dealer before the 1st April 1954, amounts collected by him by way of tax under the Madras General Sales Tax Act, 1939 (Madras Act IX of 1939) (hereinafter referred to as the principal Act), shall be deemed to have formed part of his turnover. Validation of certain assessment and collections. (1) All assessments, and collections made, all orders passed, all actions taken by any officer in the exercise or purported exercise of jurisdiction or power conferred by the principal Act, and all judgments, decrees or orders pronounced by any Tribunal or Court in the exercise of its jurisdiction or powers with respect to matters in the principal Act, on the basis that amounts collected by a dealer by way of tax under the principal Act before the 1st April 1954, formed part of the turnover of the dealer are hereby declared to have been validly made, passed, taken or pronounced, as the case may be; and any finding recorded by any officer, Tribunal or Court to a contrary effect and any order, judgment or decree in so far as such order, judgment or decree embodied or is based on any such finding and does not relate merely to the costs of the proceeding which result in the judgment, decree or order shall be void and of no effect: (2) [1954] 5 S.T.C. 88. 577 Provided that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act had not been passed. (2) Nothing in sub section (1) shall be construed as authorising any officer, in assessing any dealer in s the exercise or purported exercise of jurisdiction or powers conferred by the principal Act, to include in the turnover of the dealer amounts collected by him after the 1st April 1954 by way of tax under the principal Act. " The validity of the impugned Act was then questioned in the Madras High Court and in Sri Sundararajan and Co., Ltd. vs The State of Madras (1) it was held that the impugned Act was valid. The High Court pointed out that the earlier decision in Krishnaswami Mudaliar 's case (2) was not that the State Legislature could not make the amounts collected by a registered dealer by way of tax under section 8B part of the assessable turnover, but that the principal Act as it stood at the relevant time did not make such amounts part of the assessable turnover. It held that in pith and substance the impugned Act validated the assessments already made before April 1, 1954 and that even where the registered dealer collected any amount by way of tax under the authority of section 8B, the payment by the purchaser was on the occasion of the sale by the dealer and vis a vis the latter it was in reality part of the price the purchaser paid the seller for purchasing the goods. The same view was also expressed by the Patna High Court in Ashoka Marketing Company Ltd. vs The State of Bihar (3) with regard to the Bihar Sales Tax (Definition of Turnover and Validation of Assessments) Act, 1958. The question before us is whether the aforesaid view is correct. The relevant legislative entry, as we have said earlier, is entry 54 of List II "Taxes on the sale or purchase of goods other than newspapers. " A similar entry (No. 48) in List 11 of Schedule VII to the Government of India Act, 1935 read as "Taxes on the (1) [1956] 7 S.T.C. 105. (2) [1954] 5 S.T.C. 88. (3) [1959] 10 S.T.C. 110, 578 sale of goods." The true scope and effect of that entry was considered by this Court in the State of Madras vs Gannon Dunkerley and Co. (Madras) Ltd. (1) and on a review of several decisions bearing on the subject it held that the expression "sale of goods" was a term of well recognised legal import in the general law relating to sale of goods and in the, legislative practice relating to that topic and must be interpreted as having the same meaning as in the ; in other words, it was held that sales contemplated by entry 48 of the Government of India Act, 1935 were transactions in which title to the goods passed from the seller to the buyer, and in The Sales Tax Officer, Pilibhit vs Messrs. Budh Prakash Jai Prakash (2) it was held that a mere executory agreement was not a sale within the meaning of that entry. We think that the same meaning must be given to entry 54 of List 11 of the Seventh Schedule to the Constitution. The question before us is that giving that meaning to the entry, is the impugned Act a valid piece of legislation by a competent Legislature? Now, learned Counsel for the appellants has not raised before us the extreme contention that in no case could the State Legislature validly make a law which would include the amount collected by way of tax as part of the turnover of the dealer. He has submitted that it is unnecessary for him in this case to press into service any such wide proposition. His argument is that the principal Act by sections 8B and 15 and the impugned Act by section 2 thereof having made a distinction between what he calls the sale price and what is collected by way of tax by the dealer, the question of the validity of the impugned Act must be determined on the basis of that distinction and so determined, what the impugned Act does is to impose what learned Counsel calls "a tax on tax" and therefore not covered by the relevant legislative entry. His submission further is that what is collected by way of tax being distinct from sale price and therefore from turnover, it must be necessarily held that the amount collected by way of tax is not essentially (1) ; (2) ; 579 connected with the transaction of sale and therefore the imposition of "a tax on tax" has no necessary connexion with the transaction of sale as understood in the general law relating to sale of goods. We are unable to accept this argument as correct. First of all, we do not think that either the principal Act or the impugned Act proceeds,on any immutable distinction between sale price and tax such as learned Counsel for the appellants has suggested. The principal Act does not contain any separate definition of sale price. We have already referred to the definitions of 'sale ' and 'turnover '; those definitions do not show any such distinction. On the contrary, the expression 'turnover ' means the aggregate amount for which goods are bought or sold, whether for cash or for deferred payment or other valuable consideration, and when a sale attracts purchase tax and the tax is passed on to the consumer, what the buyer has to pay for the goods includes the tax as well and the aggregate amount so paid would fall within the definition of turnover. In Paprika Ltd. and Another vs Board of Trade (1) Lawrence, J. said "Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as x plus purchase tax." The same view was again expressed in Love vs Norman Wright (Builders), Ltd. (2) when Goddard, L. J. said: "Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether the seller has included tax or not. " (1) (2) 580 We think that these observations are apposite even in the context of the provisions of the Acts we are considering now, and there is nothing in those provisions which would indicate that when the dealer Collects any amount by way of tax, that cannot be part of the sale price. So far as the purchaser is concerned, he pays for the goods what the seller demands, viz., price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover. But, argues learned Counsel for the appellants, section 8 B of the principal Act and Turnover and Assessment Rules made under section 19 show that under the scheme of the principal Act a distinction is drawn between the amount collected by way of tax and the amount of purchase price. It is indeed true that in section 8 B the amount collected by way of tax is separa tely mentioned, and while sub section (1) thereof is merely enabling in the sense that a registered dealer may pass on the tax, sub section (2) imposes an obligation on the registered dealer to pay over the amount of tax collected by him to Government. The position under the Turnover and Assessment Rules is correctly summarised in the following extract from the judgment in Krishnaswamy Mudaliar 's case (1): "Rule 4 provides that the gross turnover of a dealer for the purposes of the rules is the amount for which goods are sold by the dealer. Provision is made in rule 5 for certain deductions, and the mode or manner in which the tax to be levied has to be arrived at. The object of these rules is to assess. , the net turnover on which the tax is to be levied under the charging section. It is therefore clear that under the charging section, tax is to be paid on the turnover which is assessed according to the rules. Rule 11 requires that every dealer should submit a return under rule 6 every year to the assessing authority in Form A in which he has to show the actual gross and net turnover for the preceding (1) [1954] 5 S.T.C. 88. 581 year and the amounts by way of tax or taxes actually collected during that year. In Form A columns 1 to 10 relate to the gross turnover and the deductions to be made from the gross turnover; column 10 requires the net turnover liable to tax to be shown. In column 11 the amount actually collected by way of tax or taxes under section 8 B has to be shown. " The question however still remains do the aforesaid provisions show such a distinction under the scheme of the two Acts that the amount collected by way of tax cannot be part of the turnover of the dealer and if the impugned Act makes it a part of the turnover by a deeming provision, it must be struck down as being outside the legislative competence of the State Legislature? It is necessary to emphasise here that no question of legislative competence arose in Krishnaswamy Mudaliar 's case( ') the decision being based on a construction of section 8 B and the Turnover and Assessment Rules only. We do not think that the distinction drawn in Krishnaswamy Mudaliar 's case( ') whether right or wrong on a question of construction only, is material to the question of legislative competence. In The Tata Iron & Steel Co., Ltd. vs The State of Bihar (2) this Court dealt with a provision in the Bihar Sales Tax Act, 1947 similar to section 8 B of the principal Act. Das, C. J., delivering the majority opinion said: "The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not (1) [1954] 5 S.T.C. 88. (2) ; 74 582 be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love, vs Norman Wright (Builders), Ltd. L. R. These observations show that when the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entire consideration and the distinction between the two amounts tax and price loses all significance from the point of view of legislative competence. The matter is not in any way different under the Turnover and Assessment Rules. It is true that in column 11 of Form A the amount collected by way of tax under section 8 B has to be shown; that does not, however, mean that an immutable distinction such as will go to the root of legislative competence has been drawn and must be always maintained. It appears to us that the true effect of section 8 B and the Turnover and Assessment Rules is that (a) a registered dealer is enabled to pass on the tax, (b) an unregistered dealer cannot do so, and (c) the amount collected by way of tax is to be shown separately, for it has to be paid over to Government. This does not mean that it is incompetent to the legislature enacting legislation pursuant to entry 54 in List 11 by suitable provision to make the tax paid by the purchaser to the dealer together with the sale price in consideration of the goods sold, a part of the turnover of the dealer; nor does it mean that in law the tax as imposed by Government is a tax on the buyer making the dealer a mere collecting agency so that the tax must always remain outside the sale price. There is another aspect from which the question may be considered. We shall assume that under the ,scheme of the principal Act a distinction is drawn between the amount collected by way tax and the sale price other than the tax. Is such a distinction continued and maintained by the impugned Act? Learned Counsel for the appellants has referred us to 583 section 2 of the impugned Act where the expression "collected by him by way of tax under the Madras General Sales Tax Act, 1939" occurs. It is argued that the aforesaid expression in the impugned Act has to be read with the provisions of the principal Act and so read, B. 2 maintains and continues the distinction made under the principal Act. Again, we are unable to agree. The expression "collected by him by way of tax etc." is merely descriptive of the "amounts" so collected; the essential and operative part of section 2 says that the amounts so collected shall be deemed to have formed part of the turnover of the dealer. Therefore, in express terms section 2 states that the tax shall be deemed to have formed part of the turnover and obliterates the distinction, if any, between 'tax ' and 'turnover ' for the limited period during which the impugned Act operates. To hold that the distinction is maintained and continued under the impugned Act is to go against the express terms of section 2. This aspect of the question was adverted to in The Government of Andhra vs East India Commercial Co. Ltd. (1) where the Andhra High Court had occasion to consider the question from a somewhat different point of view, namely, an amendment made by the Andhra Pradesh Legislature in the definition of the expression 'turnover ' in the principal Act. Section 2 of the amending Act substituted the following definition of 'turn over ': Turnover means the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods . including any sums charged by the dealer for anything done in respect of the goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof. " Section 4 of the amending Act repeated sections 8 B and 8 C of the principal Act. Dealing with the effect of these amendments, the High Court of Andhra Pradesh said, (1) [1957] 8 S.T.C. 114. 584 "The ultimate economic incidence of the sales tax is on the consumer or the last purchaser and whatever he pays for the goods is paid only as price, that is to say, as consideration for the purchase. The statutory liability, however, for payment of sales tax is laid on the dealer on his total 'turnover ' whether or not he realises the tax from the purchasers. Generally speaking, the price charged by the dealer would be inclusive of sales tax, for, it is to his interest to pass the burden of the tax to the purchaser. So far as the dealer is concerned, the payment of a sum covering the tax made by a purebaser on the occasion of sale, is really part of the price which the purchasers pay for the goods. " Later, it referred with approval to the decision in Sri Sundararajan and Co., Ltd. vs The State of Madras (1). In this latter decision the validity of the impugned Act was questioned and dealing with section 2 of the impugned Act, the High Court said: "Section 2 only enacted that such amount shall be deemed ' to be part of the turnover and for a limited period. It may not be necessary to set out authorities for the well settled principle of what the effect is of the use of the expression 'deemed ' in a statute. Was the legislature competent to enact section 2 including the deeming provision, is the real question. If the validity of section 2 of the impugned Act is established there should be little difficulty in upholding the validity of section 3, which gave effect to the legal fiction enacted by section 2. Obviously, it is not the name the legislature accords to a payment by a purchaser to a seller, who is a dealer as defined by the Act, that determines the question of the legislative competence. No doubt section 8B called the payment as amount (collected) by way of tax. It is equally true that the statutory liability to pay the sales tax is laid on the dealer. What is taxable is not each transaction of sale but the total turnover of the dealer, computed in accordance with the provisions of the (1) (1956) 7 S.T.C. 105. 585 Act and the Rules. But it is well recognised that whatever be the form of the statutory provisions, the ultimate economic incidence of the tax is on the consumer, the purchaser. It was that well settled principle that was re stated in Bengal Immunity Co. Ltd. vs State, of Bihar (1). Even if the registered dealer collects the amount by way of tax under the authority of section 8B of the Act, the payment is by the purchaser on the occasion of the sale by the dealer. Vis a vis the dealer it is in reality part of the price the purchaser has to pay the seller for purchasing the goods. A tax on such a payment, in our opinion, is well within the ambit of Entry 54 of List 11, Schedule VII, read with Article 246(3) of the Constitution. " We are of the view that the aforesaid observations correctly give the true effect of section 2 of the impugned Act, and section 3 of the impugned Act is merely consequential. Mr. Sikri appearing on behalf of. the States of Maharashtra and Punjab has drawn our attention to certain American decisions which show that treating tax as part of the sale price in cases where the tax is passed on to the buyer, is well recognised and is not unknown to law (see Lash 's Products Company vs United States, 73 L. Edn. 251; Pure Oil Company vs State Of Alabama, 148 American Law Reports 260). We consider it unnecessary to examine these decisions, because the validity of the impugned Act must be determined on its own terms in the context of the provisions of the principal Act. Reading the impugned Act in the light of the provisions of the principal Act, it seems clear to us that the impugned Act cannot be held to be bad on the ground of legislative incompetence. Under the definition of turnover the aggregate amount for which goods are bought or sold is taxable. This aggregate amount includes the tax as part of the price paid by the buyer. The amount goes into the common till of the dealer till he pays the tax. It is money which he keeps using for his business till he pays it over to Government. Indeed, (1) 586 he may turn it over again and again till he finally hands it to Government. There is thus nothing anomalous in the law treating it as part of the amount on which tax must be paid by him. This conception of a turnover is not new. It is found in England and America and there is no reason to think that when the legislatures in India defined 'turnover ' to include tax also, they were striking out into something quite unknown and unheard of before. The only question which has been raised in these appeals is regarding the validity of the impugned Act. That question having been decided against the appellants, the appeals fail and are dismissed with costs. One hearing fee. Appeals dismissed.

Certain amounts collected by the appellants as sales tax were included in their turnover by the sales tax authorities. They contested the constitutional validity of the Madras General Sales (Definition of Turnover and Validation of Assessments) Act, 1954, on the ground inter alia that the Sate Legislature went beyond its legislative competence under entry 54 of List If of the Constitution in enacting by the impugned Act that the amounts collected by the dealer by way of tax shall be deemed to have formed part of his turnover. Held, that entry 54 of List II of the Seventh Schedule of the Constitution is similar to entry 48 of List 11 of Sch. Vil of the Government of India Act, 1935 sales under which have been held to be transactions passing title to the Goods from the seller to the buyer and that a mere executory agreement was not a sale within the meaning of that entry. The same meaning must be given to entry 54. 571 State of Madras vs Gannon Dunkerly & Co., Ltd., ; and Sales Tax Officer vs M/s. Budh Prakash jai Prakash; , , referred to. Under sections 2(i) and 2(h) of the Madras General Sales Tax Act, 1939, the expression "turnover" means the aggregate amount for which goods are sold either for cash or deferred payment or other Valuable consideration, and when a sale attracts purchase tax which is passed on to the consumer what the buyer has to pay includes the tax and the aggregate amount to be paid would fall under the definition of turnover. When the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entitle considerations. Papreka Ltd. vs Board of Trade, , Love vs Norman Wright (Builders) Ltd., , followed. Asoka Marketing Co. Ltd. vs The State of Bihar, [1959] IO S.T.C. 110 and Tata Iron and Steel Co. vs The State of Bihar, ; , referred to. Although section 8B of the Madras General Sales Tax Act, 1939 and the Turnover and Assessment Rules separately mentioned the amounts collected as tax for the purpose of paying such amounts to the Government, no immutable distinction was drawn between the sale price and the tax nor was any such distinction maintained under section 2 of the impugned Act. Assuming that such a distinction did exist the Legislature was competent to enact under entry 54 in List II of the Constitution that the tax shall be deemed to have formed part of the turnover and obliterate the distinction for the limited period during which the impugned Act operated. The impugned Act was therefore valid. The Deputy Commissioner of Commercial Taxes vs M. Kyishna swami Mudaliar, [1954] 5 S.T.C. 88, held not applicable. Sri Sundararajan & Co. vs The State of Madras, [1956] 7 S.T.C. 105, approved. The Government of Andhya vs East India Commercial Co., Ltd., [1957] 8 S.T.C. 114 and Bengal Immunity Co., Ltd. vs State Of Bihar,[1955] 2 S.C.R. 603, referred to.

Civil Appeal No. 131 of 1988. From the Judgment and order dated 13.3.1986 of the High Court of Karnataka in C.R.P. No. 1821 of 1984. A.S. Nambiar, R.C. Kaushik and A.K. Sharma for the Appelant. S.S. Khanduja and Y.P. Dhingra for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. Leave granted. The limited question falling for our deterrnination in this appeal by special leave is whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff. G We may now scan the facts. Pursuant to the High Court of Karnataka confirming an order of eviction passed against him in respect of his business premises, a tenant by name Mr. Sequeira wanted to prefer an appeal to the Supreme Court. For that purpose he met the appellant, who is an advocate practising in the Supreme Court, H 610 on 14.6.197 1 at Mangalore during the latter 's visit to that place and engaged him to file the appeal. The special leave petition came up for hearing on 22.11.1971 and was "dismissed as withdrawn". Mr. Sequeira then filed a suit O.S. No. 255 of 1972 in the Court of the District Munsif, Mangalore against the appellant for damages and compensation. He alleged in the plaint that the appellant had been negligent in rendering professional services and had misconducted himself by filing the appeal after considerable delay and giving misleading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission. He further alleged that as a consequence of the appeal being dismissed, he came to be evicted from his business premises and thereby he had incurred loss of income as he had been unable to secure an alternate place for running his business besides suffering mental agony, worry and loss of reputation. The plaintiff, therefore, claimed that the appellant was liable to compensate him in a sum of Rs.20,000 towards the loss sustained by him but he was however content to restrict the amount to Rs.4,500. In addition he claimed a sum of Rs. 1,500 under three heads of Rs.500 each viz., (I) refund of Rs.500 paid towards court fee and miscellaneous expenses, (2) reimbursement of Rs.500 expended for engaging another advocate to obtain a certified copy of the order of the Supreme Court in the special leave petition and (3) compensation towards wrongful retention of the case file by the appellant and reimbursement of expenses incurred for telephone and postal charges. Thus in all the suit was laid against the appellant for a sum of Rs.6,000 by way of damages and compensation besides costs etc. The appellant entered appearance in the suit and filed a written statement refuting the charges of negligence and mis conduct levelled against him by the plaintiff and also disputing the plaintiff 's right to seek damages or reimbursement of amounts from him under any of the heads set out in the plaint. During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to 611 get impleaded and continue the suit. The learned single judge who allowed the Revision has taken the view that Krishna Behari Sen vs Corporation of Calcutta, ILR 31 Calcutta, 993, sets out the correct ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji vs W.H. Nurse, ILR 44 Madras, 357 and Motilal Satyanarayan and Anr. vs Harnarain Premsukh & Anr., The said order of the learned single judge is urlder challenge in this appeal. Even at the threshold of the judgment we may say that the ratio followed by the High Court is not a correct one. Section 306 of the which corresponds to Section 89 of the Probate and Administration Act, 1881, sets out the rights of Executors and Administrators to continue actions of or against a deceased person. Section 306 which is almost a re production of Section 89 in the earlier Act reads as follows: "306. Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators except causes of action for defamation, assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or if granted it would be nugatory . " In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff is concerned, order XXII Rules I and 3(1) govern the matter. They read as under: "1. The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 3.(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. " 612 These provisions of law have come up for consideration in a number of cases before several High Courts. The controversy in all the cases either under Section 89 of the Probate and Administration Act 1881 or under Section 306 of the centred round the meaning to be given to the words "other personal injuries not causing the death of the party". Barring the Calcutta High Court and that too in one reported case only and the Rangoon High Court in one decision, other High Courts have uniformly taken the view that the words "personal injuries" do not mean injuries to the body alone but all injuries to a person other than those which cause death and that the relevant words must be read ejusdem generis with the words "defamation and assault" and not with the word "assault" alone. It would suffice for our purpose if we set out the reasons given in the Full Bench decision of the Madras High Court in Rustomji Dorabji vs W.H. Nurse, (supra) and merely give the citations of the other decisions where the same view has been taken. In Rustomji Dorabji vs W.H. Nurse, Coutts Trotter, J. speaking for himself and Ayling, J. set out the law as follows. "We are therefore driven to the conclusion that the Act must be supposed to have envisaged a logically coherent class of causes of action, and that result can only be achieved by construing "personal injuries" as meaning not "injuries to the body" merely, but injuries to the person in Blackstone 's sense, other than those which either cause death or tangible affect the estate of the deceased injured person or cause an accretion to the estate of the deceased wrong doer. In effect, we think that the words which we have to construe are ejusdem generis not merely with the last preceding word "assault", but with the two preceding words "defamation" and "assault". (Emphasis supplied.) Kumaraswamy Sastri, J., the third judge in the Full Bench, in his concurring judgment gave his reasons as under: "If the words were simply "all personal injuries not causing the death of the party" and omitted defamation or assault, it may be argued that personal meant only physical and that causes of action for defamation and other similar injuries survived. The legislature took two types of personal injuries, one physical and the other not, and used them by way of illustration of what it meant to exclude. In this view, the words "other personal injuries not causing the death of 613 the party" must be read with "defamation" and "assault". There has been a conflict of authority on the question referred. In Punjab Singh vs Ramautar Singh, (!) it was held by the Patna High Court that the words "other personal injuries not causing the death of the party ' in Section 89 of the Act are ejusdem generis not only with assault but also with defamation and include malicious prosecution. The same view has been held by the Madras High Court in Gandhiji Mareppa vs Firm of Marwadi Vannajee, (2) and Marwadi Mothiram vs Samnaji, (3) A contrary view was taken in Krishna Behari Sen vs The Corporation of Calcutta, (4) where the learned Judges differed from Justice Henderson, the trial Judge, and held that to use the words other personal injuries not resulting in death in connexion with an action for defamation or malicious prosecution would be straining the language used by the legislature and placing on it an unnatural and forced construction. In Punjab Singh vs Ramautar Singh, (I) Das, J., who was a member of the Calcutta Bar for several years observes that in his experience the case has never been followed subsequently in the Calcutta High Court. I would follow Punjab Singh vs Ramautar Singh, (I) and Marwadi Mothiram vs Samnaji, (2) and hold that a suit for damages for malicious prosecution abates. " Not only has this view been consistently followed by the Madras High Court in subsequent decisions but the same view has been taken by several other High Courts as may be seen from the following citations: Madras High Court, Palaniappa Chettiar vs Rajah of Ramnad, ILR 49 Madras 208; Irulappa vs Madhava, AIR 1951 Madras 733; Arnuchalam vs Subramanian, AIR 1958 Madras 142; Bombay High Court, Gopal vs Ram Chandra, ILR XXVI Bombay 597; Motilal vs Harnarayan, (supra) Nagpur High Court, Maniramlala vs Mt. Chalti Bai & Anr., ILR 1938 Nagpur 280; Baboo vs Subanshi, ILR 1942 Nagpur 650; Baboolal vs Ramlal, AIR 1952 Nagpur 408; Patna High Court, Punjab Singh vs Ramautar Singh, AIR 1920 Patna 841; Jogindra Kaur vs Jagdish Singh, AIR 1964 Patna 548; Madhya Pradesh High Court, Ratanlal vs Baboolal, AIR 1960 Madhya Pradesh 200; 614 Andhra Pradesh High Court, G. Jayaprakash vs State, AIR 1977 Andhra Pradesh 20. As against the preponderant view taken by several High Courts, a Full Bench of the Calcutta High Court alone took a contrary view in Krishna Behari Sen vs Corporation of Calcutta, (supra). Maclean, C.J. speaking for the Bench held that the words. "personal injuries not causing the death of the party" if accorded their natural and ordinary meaning appear to refer to physical injuries to the person which do not cause death. As has been pointed out by Das, J. in Punjab Singh vs Ramautar Singh, (supra) the ratio in Krishna Behari Sen 's, case had not been followed subsequently by the Calcutta High Court itself in any other case. The view taken by the Calcutta High Court found solitary acceptance only in a decision of the Rangoon High Court in D.K. Cassim & Sons. vs Sara Bibi, ILR XIII Rangoon 385. It is therefore clear that the contrary view taken by the Calcutta High Court is against the weight of judicial pronouncements by other High Courts. In a slightly different context the matter came to be considered by this Court in Melepurath Sankunni Ezhuthassan vs Thekittil Geopalankutty Nair, A plaintiff 's suit for damages for defamation was decreed by the Appellate Court but dismissed by the High Court in Second Appeal. There was an appeal to this Court by the plaintiff by special leave and during its pendency the plaintiff died. This Court declined to allow the legal representatives of the plaintiff to come on record and prosecute the appeal on the ground that by reason of the dismissal of the suit by the High Court, the plaintiff stood relegated to his original position and, therefore, the proceedings abated on his death. The decision pointed out that the position would have been different if the plaintiff had a subsisting decree in his favour because then the cause of action would get merged in the decree and the decree would form part of the estate of the deceased which his legal representatives are entitled to uphold. The maxim 'actio personalis cum moritur persona ' has been applied not only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court, be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court and/or the First Appellate Court as the case may be. This is on the footing that by reason of the dismissal of the suit by the 615 Trial Court or the First Appellate Court as the case may be, the plaintiff stands relegated to his original position before the Trial Court. Vide the decisions in Punjab Singh vs Ramautar Singh, (supra), Irulappa vs Madhva, (supra), Maniramlala vs Mt. Chalti Bai & Anr. (supra), Baboolal vs Ram Lal, (supra) and Melepurath Sankunni Ezhuthassan vs Thekittil Gopalankutty Nair, (supra). In Palaniappa Chettiar vs Rajah of Ramnad (supra), and Motilal vs Harnarayan, (supra) it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party. The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji vs W.H. Nurse, (supra) and Ratanlal vs Baboolal, (supra) as well as in those cases where a suit for damages for defamaton, assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff 's estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend (vide Gopal vs Ramchandra, (supra) and Melepurath Sankunni vs Thekittil, (supra). Though Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives, the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit. We may in this connection only quote the following passage occurring in Melepurath Sankunni 's case (supra). "Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also." Thus it may be seen that there is unanimity of view among many High Courts in the country regarding the interpretation to be given to 616 the words "other personal injuries not causing the death of the party" occurring in Section 306 of the and that the contrary view taken by the Calcutta & Rangoon High Courts in the solitary cases referred to above has not commended itself for acceptance to any of the other High Courts. The preponderant view taken by several High Courts has found acceptance with this Court in its decision in Melepurath Sankunni Ezhuthassan 's case. It is on account of these factors we have expressed our disapproval at the outset itself of the view taken by the High Court in this case. What now falls for consideration is whether the suit filed by the plaintiff was founded on torts or on contract. Mr. Kaushik, learned counsel for the appellant, in all fairness, did not contend that the words "other personal injuries" must be read narrowly i.e., ejusdem generis only with assault and other physical injuries not resulting in the death of the party. His argument however was that the plaintiff 's suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation, mental agony, worry etc. and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death. On the other hand, Mr. Khanduja, counsel for the respondents, contended that the suit is not really founded on torts but is founded on contract and there had been a breach of the conditions of engagement by the appeal being withdrawn contrary to instructions, not to speak of the delay in the filing of the appeal. By reason of the breach of the conditions of engagenment, the plaintiff had been evicted and put to loss and, therefore, the suit for damages really pertained to the loss suffered by the estate of the plaintiff and the said loss could well be claimed by the legal representatives after the death of the plaintiff. It was further urged by him that the suit amount consisted of claims under different heads and that while Rs.4,500 had been claimed by way of compensation for the monetary loss sustained by the plaintiff 's estate, the claims relating to Rs.1,500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was not open to the appellant to contend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death. In view of the fact that this aspect of the matter has not been considered by the Trial Court or the High Court, we do not think it proper to express any opinion one way or the other as to whether the suit cause of action is founded on torts or on contract. Since a copy of the plaint has not been furnished by either party we can only refer to the summary of the plaint contained in the order of the District 617 Munsif. The relevant portion reads as follows. A "at a later stage, he filed the petition and withdrew it; the Special Leave Petition was dismissed as withdrawn; defendant did not inform the plaintiff well in time, plaintiff got suspicion over the attitude of the defendant, he engaged another counsel in the Supreme Court and obtained certified copies of the petitioner 's application and order of the Supreme Court on the application filed by the defendant; even after several requests, defendant has not returned the file; defendant incurred Rs.500 to obtain certified copies; on account of the misconduct of the defendant, plaintiff has suffered untold mental worry, agony, and loss of reputation; plaintiff was evicted from the shop premises situated at Hampankatta; he has not been able to secure a similar place for continuing his business; the defendant is liable to pay the plaintiff an amount of Rs.500 being the loss incurred by him to engage the service of another advocate to obtain the certified copies of the petition and application filed by the defendant in the Supreme Court; that apart the defendant is liable to compensate the plaintiff to the extent of another sum of Rs.500 as the defendant has not renurned the records that were entrusted to the defendant by the plaintiff and for the charges incurred by the plaintiff in sending telegrams, or correspondences or for trunk phone calls; for want of suitable place for continuing the business of the plaintiff, the plaintiff has suffered damage or loss of over Rs.20,000 but the plaintiff restricts the claim to Rs.4,500 in this behalf. The plaintiff is entitled to be compensated by the defendant to the extent of Rs.6,000 as stated above, viz. Rs.500, Rs.500, Rs.500, Rs.4,500 for loss of damage sustained by the plaintiff and the defendant is liable to compensate the plaintiff in this respect as he has not done his duty which he owed towards the plaintiff" (underlining by us) Having regard to the nature of the claim we are not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court have proceeded on the basis that the suit claim is based only on tortious liability though the two Courts have reached different conclusions about the abatement of the suit. The learned counsel for the respondent placed reliance upon the summary of the averments in the plaint set out above and argued that the 618 plaintiff had suffered loss of over Rs.20,000 due to the closure of the business and hence the restricted claim of Rs.4,500 is really towards loss suffered by the estate and not a claim made on the basis of the loss of reputation, mental agony, worry etc. suffered by the plaintiff. He further stated that the claim of Rs.1,500 under three heads of Rs.500 each also related to the loss suffered by the estate of the deceased and hence the suit has to proceed for the entire suit claim. Since no discussion has been made and no finding has been rendered on this question and since we can not render any finding on the basis of the materials on record whether the suit is based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, we think the proper course would be to allow the judgment under appeal to stand even though we do not approve the reasoning of the High Court and dismiss the appeal. We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim is founded on torts the suit would undoubtedly abate. If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive. If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon. Before concluding the judgment, it would not be out of place for us to refer to some English decisions and to the relevant provisions in the and the regarding the liability of counsel to pay damages to their clients for breach of duty or negligence. In England a distinction was made between barristers and other professional men and for a long time it was in usage that a barrister could not be sued by a client for negligence or breach of duty because a barrister 's services were deemed to be gratuitous and therefore he could not sue or even make a contract for his fees with a client or with a solicitor who represented the client and correspondingly a barrister could not be sued by a client for breach of duty or negligence. The position is summarised by Prof. Winfield in all the editions of his book on Torts from 1937 onwards as under: "The reason for this exemption is that in theory his services are gratitous, and although that, by itself, is not a sufficient ground for preventing a legal duty from arising in other circumstances, the rule with regard to a barrister is inveterate, whatever be its justification. " 619 The assumption, however, suffered a setback when the House of Lords enunciated a general principle in Hedley Byrne & Co. Ltd. vs Heller & Partners, [1963] 2 All E.R. 575. The principle has been enunciated in the speech of Lord Morris of Borth Y Gest as under: "If someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise. By reason of this decision, the Court of Appeals in Rondel vs W., [ and the House of Lords in Rondel vs Worsley, [ 1967]3 All E.R. 993 had to rest the immunity of a barrister from being sued for professional negligence in the conduct of a cause on grounds of public policy. The facts in Rondel 's case were that he was charged for having caused grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for sometime, he was afforded the facility of a "Dock Brief" and he chose a barrister by name, Mr. Worsley to act for him. The case eventually ended in conviction and the conviction was confirmed by the Appellate Court and Rondel underwent the sentence. Nearly six years later he issued a writ against Mr. Worsley claiming damages for alleged professional negligence in the conduct of his duty. The writ was dismissed on the ground that an action against a barrister cannot be maintained on grounds of public policy for alleged negligence on his part in the conduct of the case especially when the action would amount to seeking a review of the correctness of the conviction awarded to Rondel in the earlier proceedings. In Heywood vs Wellers, ; the plaintiff was held entitled to recover damages from the defendant firm of solicitors for the mental distress which she had suffered as a result of the molestation suffered by the plaintiff consequent on the solicitor 's negligent failure to enforce the injunction obtained against one Reginald Marrion. In that case, the plaintiff instructed a firm of solicitors to apply for an injunction to restrain one Reginald Marrion from molesting her. The solicitors obtained an interim injunction on 27th February but when the defendant again molested the plaintiff on 28th April in breach of the injunction, they failed to enforce the injunction by bringing the defendant before the Court. As a result of the failure to enforce the injunction, the plaintiff was again molested by Marrion on 25th May and on 8th November. She suffered mental distress in consequence of the molestation committed on those dates. In an action 620 brought by her against the firm of solicitors, it was held that she was entitled to recover damages as well as the costs incurred by her from the firm of solicitors In Midland Bank Trust Co. Ltd. & Anr. vs Hett, Stubbs & Kemp, a firm of solicitors was sued for damages for their failure to register a formal agreement as a consequence of which the plaintiff could, not enforce his option under the agreement to purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had been conveyed to another. It was held that the solicitors were liable to the plaintiff in tort as they had failed to exercise due care and skill on which they knew the client would place reliance and because of the duty they owed to the client not to injure him by failing to do that which they had undertaken to do. Re Bell 's Indenture Ben & Anr. vs Hickley & ors., [1980] 3 All . R. 425 is yet another case where a solicitor was held liable to replace the misappropriated money of his client as a constructive trustee. What happened in that case was that money was paid into the firm 's client account in the name of express trustees. The express trustees misappropriated the money with the solicitors knowledge. It was held that the solicitor was liable to replace the money as a constructive trustee. In India, the matter is governed by the . In the a legal practitioner has been defined as "an advocate, vakil or attorney of any High Court, a pleader, mukhtar or revenue agent. " The preamble to the reads as follows: "An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties. " Section 2 to 5 are important and hence they are extracted below: Section 2: For the purposes of this Act, unless there is anything repugnant in the subject or context, (a) "legal practitioner" means a legal practitioner as defined in section 3 of the ; And 621 (b) a legal practitioner shall not be deemed to "act" if he A only pleads, or to "agree to act" if he agrees only to plead. Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fees to be paid for his professional services. Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner. No legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. " reading of these sections would go to show that any legal practitioner who acts or agrees to act for any person may settle with the said person the terms of his engagement and the fee to be paid for his professional services; that the legal practitioner will be entitled under law institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the costs taxed by the Court where there has been no pre settlement of the fee; and that no legal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. Therefore, a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner. As to whether Section 2(B) will afford protection to a legal practitioner from being sued for negligence by a client if he only pleads or agrees to plead is a matter for judicial determination in an appropriate case if an occasion arises for it. For the present we are not expressing any opinion on the matter except to point out that there is a specific provision in the Legal 622 Practitioner 's (Fees) Act setting out that legal Practitioners would also be liable for being sued by their clients if they have been negligent in the performance of their professional duties. The nature of the controversy in this appeal, as we have stated at the outset itself, does not pertain to these questions. In conclusion, since we find that the question whether the suit has abated or not can be answered only after the nature of the suit is determined on the basis of the materials placed and the evidence adduced by the parties, the appeal has to be dismissed. The suit will stand restored to the file of Trial Court for disposal in accordance with law in the light of the guidelines given by us. Accordingly the appeal is dismissed. In the circumstances of the case, the parties are directed to bear their respective costs. S.L. Appeal dismissed.

% A tenant, Mr. Sequeira, wanted to prefer an appeal to the Supreme Court against an order of the High Court, confirming an order of eviction passed against him in respect of his business premises, and engaged the appellant, an Advocate of the Supreme Court, to file the appeal. The Advocate/Appellant filed a petition for Special Leave in the Supreme Court. The petition came up for hearing on 22.11.1971 and was dismissed as withdrawn. The tenant thereupon filed a suit in the Court of the District Munsiff against the appellant for damages and compensation on the allegations that the appellant had been negligent in rendering professional service and had misconducted himself by filing the appeal after considerable delay, giving misleading information about the filing of the appeal, and withdrawing the appeal instead of canvassing for its admission, and that as a result of the withdrawal of the appeal, he was evicted from his business premises in consequence whereof he had incurred loss of income and business, besides suffering mental agony, worry and loss of reputation. The plaintiff claimed compensation under various heads. The appellant filed a written statement, refuting the charges levelled against him in the plaint and disputing the plaintiff 's right to seek damages. During the pendency of the suit, the plaintiff died and his legal representatives, the respondents in this appeal, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure for their substitution in the suit for prosecuting the suit further. The appellant opposed the petition on the grounds inter alia that the suit abated on the death of the plaintiff as per ahe maxim Actio Personalis cum moritur persona. The Trial Court upheld the objection and dismissed the suit as having abated, but the High Court held otherwise and declared the legal representatives to be entitled to be impleaded and continue the suit. This appeal was filed by special leave against the order of the High Court. Dismissing the appeal, the Court, 607 ^ HElD: The High Court which, in deciding the Revision before it, followed Krishan Behari Sen vs Corporation of Calcutta, I.L.R. 31 Calcutta 993, had not followed the correct ratio. Section 306 of the , which corresponded to section 89 of the Probate and Administration Act, 1881, set out the rights of the Executors and Administrators to continue actions of or against a deceased person. Section 306 was almost a re production of section 89. In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff were concerned, order XXII, Rules I and 3(1) governed the matter. [611C, F] The maxim 'action personalis cum moritur persona ' had been applied not only to those cases where a plaintiff died during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff died during the pendency of an appeal to the Appellate Court, be it the first Appellate Court or the second Appellate Court against the dismissal of the suit by the Trial Court andlor the first Appellate Court, as the case might be. This was on the footing that by reason of the dismissal of the suit by the Trial Court or the first Appellate Court, as the case might be, the plaintiff stood relegated to his original position before the Trial Court [614G H; 615A ] Though section 306 spoke only of executors and administrators. and order XXII, Rule 3, Civil Procedure Code, set out the rights of the legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survived, the Courts had taken the view that the legal representatives stood on par with the executors and administrators regarding their right to seek impleadment to continue the suit. There was unanimity of view among many High Courts regarding the interpretation to be given to the words "other personal injuries not causing the death of the party", occurring in section 306 of the . Preponderant view taken by several High Courts found acceptance with this Court in Melepurath Sankumari Ezhu Thassan vs Thekittl Geopalankutty Nair, A.l. It was on account of these factors, the Court expressed its disapproval of the view taken by the High Court in this case. [615E F, H; 616A B] What now fell for consideration in this case was whether the suit filed by the plaintiff was founded on torts or contract. In view of the fact that this aspect of the matter had not been considered by the Trial Court, the Court did not think it proper to express any opinion one way or the other as to whether the suit cause of action was founded on torts 608 or contract. Having regard to the nature of the claim, the Court was not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court had proceeded on the basis that the suit claim was based only on tortious liability though the two courts had reached different conclusions about abatment of the suit. Since no discussion had been made and no finding, rendered on this question and since the Court could not render any finding on the basis of the materials on record whether the suit was based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate, the Court thought the proper course would be to allow the judgment under appeal to stand even though the Court did not approve the reasoning of the High Court. The matter was left upon for the trial Court to decide whether the suit was founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law. If the entire suit claim was founded on torts, the suit would undoubtedly abate. If the action was founded partly on torts and partly on contract, then, such part of the claim as related to torts would stand abated and the other part would survive. If the suit claim was founded entirely on contract, then, the suit had to proceed to trial in its entirety and be adjudicated upon. [616C; 617G H; 618B d] A legal practitioner could not claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner. Whether section 2(b) of the , would afford protection to a legal practitioner from being sued for negligence by a client if he only pleaded or agreed to plead, was a matter for judicial determination in an appropriate case. For the present, the Court did not express any opinion on the matter except pointing out that there was a specific provision in the , saying that the legal practitioners would also be liable to be sued by their clients if they had been negligent in the performance of their professional duties. In conclusion, since the Court found that the question whether the suit had abated or not could be answered only after the nature of the suit was determined on the basis of the materials placed and the evidence adduced by the parties, the appeal had to be dismissed. The suit would stand restored to the file of the trial Court for disposal in accordance with law in the light of the guidelines given by the Court in this Judgment. [621G H;622A C] Krishna Behari Sen vs Corporation of Calcutta, ILR. 31 Calcutta, 993; Rustomji Dorabji vs W.H. Nurse, ILR 44 Madras 357; Motilal 609 Satyanarayan & Anr. vs Harnarain Premsukh & Anr, ; Palaniappa Chettiar vs Rajah of Ramnad, I.L.R. 49 Madras 208; Irulappa vs Madhava, A.I.R. 1951 Madras 733; Arnuchalam vs Subramanian, A.I.R. 1958 Madras 142; Gopal vs Ram Chandra, ILR XXVI Bombay 597; Maniramlala vs Mtz. Chalti Bai & Anr., I.L.R. 1938 Nagpur 280; Baboo vs Subanshi, I.L.R. 1942 Nagpur 650; Baboolal vs Ramlal, A.I.R. 1952 Nagpur 408; Punjab Singh vs Ramautar Singh, A.I.R. 1920 Patna 841; Joginder Kaur vs Jagdish Singh, A.I.R. 1964 Patna 548; Ratanlal vs Baboo lal, A.I.R. 1960 Madhya Pradesh 200; G. Jaya Prakash vs State, A.I.R. 1977 Andhra Pradesh 20; D.K. Cassim & Sons vs Sara Bibi, I.L.R. XIII Rangoon 385; Melepurath Sankunni Ezhuthassan vs Thekittil Geopalakutty Nair, ; Hedley Byrne & Co. Ltd. vs Heller & Partners, ; ; Rondel vs W, ; Rondel vs Worsley, [ 1967] 3 All. E.R. 993; Heywood vs Wellers, [ ; ; Midland Bank Trust Co. Ltd. & Anr vs Hett, Stubles & Kemp, and Re Bell 's Indenture Bell & Anr. vs Hickley & ors. , , referred to.

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

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

Appeal No. 445 of 1966. Appeal by special leave from the judgment and order dated March 9, 1964 of the Andhra Pradesh High Court in Letters Patent Appeal No. 2 of 1963. M. C. Chagla and T. Satyanarayana, for the appellants. P. Ram Reddy and K. Jayaram, for the respondents. The Judgment of the Court was delivered by Shah, J. One Appanna died on March 12, 1953, leaving him surviving no wife or lineal descendant. Subba Rao claiming to be the father 's sister 's son of Appanna instituted suit No. 64 of 1953 in the Court of the Subordinate Judge, Eluru. for partition and separate possession of his half share in the properties described in Schs. A, B, C, D & E. The plaintiff claimed that Appanna died intestate, and that he and his brother Venugopala Rao were the nearest heirs entitled to the entire estate of Appanna. To this suit were impleaded Pothana Apparao (husband of the sister of Mangamma wife of Appanna), his children, certain relations of Mangamma and the tenants on the lands in suit. Venugopala Rao was impleaded as the 24th defendant. The suit was defended by Pothana Apparao and others contending, inter alia, that Appanna had made and executed a will on July 14, 1948, devising his property in favour of various legatees and the plaintiff 's suit for a share in the property was on that account not maintainable. The, Trial Court held that Appanna of his free will and while in a sound state of mind had executed the will on July 14, 1948, whereby he disposed of his properties described in Schs. A, B, C, D & E, but the Court held that the disposition of the property in Schs. C & E lapsed because Mangamma who was a legatee of the properties died before the testator, and that the direction in the will that whatever remained out of the Sch. E property after the life time of Mangamma shall pass to Venkataswamy and Seshagirirao defendants Nos. 3 & 2 respectively or their descendants was void and incapable of taking effect. The learned Judge accordingly passed a decree in favour of the plaintiff and the 24th defendant for possession of properties described in Schs. C & E. 30 In appeal to the High Court of Andhra Pradesh, Chandrasekhar Sastry, J., allowed the appeal filed by Pothana Apparao and his two sons Venkataswamy and Seshagirirao, and dismissed the claim of the plaintiff in respect of Schs. C & E properties. An appeal under the Letters Patent filed by the plaintiffs against the judgment of Chandrasekhar, J. was dismissed. It has been concurrently found by all the Courts that when he was in a sound and disposing state of mind Appanna executed on July 14, 1948, the will set up by the defendants. In an appeal with special leave this Court will not ordinarily allow a question about due execution to be canvassed, and our attention is not invited to any exceptional circumstances which may justify a departure from the rule. The only question which survives for consideration relates to the true effect of the dispositions made by the will in respect of Sch. C and Sch. E properties. The relevant provisions of the will may first be set out: "I am now about forty years of age. I do not have male or female issue. My wife is alive. and with the fear that I may not survive I have made the following Provisions in respect of my immovable and movable properties to be given effect to. I have given power to my wife Mangamma to sell the immovable property mentioned in the C Schedule hereunder and utilise the amount for celebrating the marriage and other auspicious functions of Tholeti Narsimha Rao 's daughter Seetharatnam mentioned in the B Schedule and for constructing a Ramamandiram in Rajavaram village in my name. "The immovable property mentioned in the E Schedule hereunder shall be enjoyed by my wife Mangamma with all powers of disposition by way of gift, sale, etc. , Whatever remains out of the said E Schedule mentioned immovable property after her life time, (the said property) shall pass either to the said Ven kataswamy and Seshagiri or their descendants. . In the event of my wife taking a boy in adoption the property mentioned in the E schedule hereunder shall pass to the said adoptee with all powers of disposition by way of gift, sale etc. after her life time. . . If, for any reason, the properties and rights do not pass to the individuals mentioned in the aforesaid 31 paras, such properties and rights shall be enjoyed by my wife Mangamma with absolute rights. " Appanna had directed his wife Mangamma to sell the pro perties described in Sch. C and to utilise the proceeds for two purposes, "celebrating the marriage and other auspicious functions" of Seetharatnam, and "for constructing a Ramamandiram in Rajavaram village" in his name. But the marriage of Seetharatnam was celebrated during the lifetime of Appanna, and expenses in that behalf were defrayed by Appanna, and no expenses remained to be incurred after the death of Appanna. Mangamma had no beneficial interest in Sch. C property. She was merely appointed to sell the property and to utilise the proceeds for the purposes specified in the will. The Trial Judge clearly erred in holding that the estate lapsed because Mangamma died during the lifetime of Appanna. In the view of Chandrasekhar Sastry, J., since there was a joint bequest for two purposes, and one of the purposes for which the Sch. C properties were devised was accomplished by Appanna the bequest in its entirety must enure for the remaining purpose i.e. constructing a Ramamandiram, and the plaintiffs ' claim for possession of the C Schedule properties must fail. The learned Judges of the High Court agreed with that view. But there was no "joint bequest" of the properties. In the absence of allocation of the amounts to be utilised for "celebrating the marriage and other auspicious functions" of Seetharatnam and for constructing a Ramamandiram, it must be presumed that the fund was to be utilised in equal moieties for the two purposes. Failure of one of the purposes will result in a moiety of the amount devised falling into the residue. In Jogeswar Narain Dea vs Ram Chund Dutt and Others(1) a devise under the will of a Hindu testator who had given a fouranna share of his estate to his daughter and her son for their maintenance with power of making alienation thereof by sale or gift fell to be construed. The Judicial Committee held that on a true construction of the will each took an absolute interest in a two anna share in the estate. In dealing with the contention that there was a joint estate granted to the daughter and her son the Judicial Committee observed : ". . Mr. Branson. maintained upon the authority of Vydinada vs Nagammal (ILR that,. by the terms of the will the Rani and the appellant became, in the sense of English law, joint tenants of the 4 annas share of Silda, and not tenants in common; and that her alienation of her share before it was severed, and without the consent of the other (1) L. R. 23 1. A. 37,43. 32 joint tenant,, was ineffectual. The circumstances of that case appear to be on all fours with the circumstances which occur here, and, if well decided, it would be a precedent exactly in point. There are two substantial reasons why it ought not to be followed as an authority. In the first place, it appears to their Lordships that the, learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family." That principle applies here. The fund was devised for the construction of a Ramamandiram at Rajavaram village and for "celebrating the marriage and other auspicious functions"of Seetharatnam. Since no part of the fund was needed forthe benefit of Seetharatnam, the legacy failed pro tanto and fell into the residue. Under the will Mangamma was made the owner of the residue, but by her death during the lifetime of Appanna the residuary bequest lapsed and vested as on intestacy in the plaintiff and the 24th defendant. The devise of a moiety of the fund to be applied for the construction of a Ramamandiram however stands good and the trust must be carried out. Mangamma is dead, but on that account the charitable trust is not extinguished The Trial Court must give appropriate directions for utilisation of that moiety for constructing a temple according to the direction of Appanna in the will. The testator gave to his wife Mangamma an absolute interest in the E Schedule properties, for she was invested with all powers of disposition "by way of gift, sale etc. " The will then proceeded to direct that whatever remained out of the E Schedule properties after her death shall pass to Venkataswamy and Seeshagirirao. If Mangamma had survived Appanna, probably the devise in favour of Venkataswamy and Seshagirirao may have failed, but that question does not arise for consideration. Section 105 of the , which applies to the wills of Hindus provides : "(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator 's property, unless it appears by the will that the testator intended that it should go to some other person. . " 33 Mr. Chagla for the plaintiffs contends that the estate in the E Schedule properties devised in favour of Mangamma lapsed, for, there was nothing in the will which expressly provided that in the event of Mangamma dying during the testator 's lifetime, the devise in favour of Venkataswamy and Seshagirirao shall be accelerated. Counsel relies upon the judgment of Wickens, V. C., in Browne vs Hope(1) and contends that a legacy does not lapse, if the testator does two things he, in clear words, excludes lapse; and he clearly indicates the person who is to take the legacy in case the legatee should die in his lifetime. In Browne 's case(1) the testator gave, by his will, the residue of his estate to trustees to pay and transfer the same to seven named legatees in equal shares as tenants in common, and their respective executors, administrators and assigns; and he declared that such shares shall be vested interests in each legatee immediately upon the execution thereof, and that the shares of the married women shall be for their separate use. It was held that the share of one of the legatees a married woman who died after the date of the will but before the testator, did not belong to her husband, who was her legal personal representative, and it lapsed. Counsel says that the rule of interpretation as enunciated by Vice Chancellor Wickens is incorporated in section 105 of the . He submits that a legacy will not lapse only if the testator by express direction excludes lapse, and indicates clearly the person who shall take the legacy if the legatee dies during his lifetime. We are concerned to construe the provisions of section 105 of the . That section enacts that a legacy shall lapse and form part of the residue of the testator 's property if the legatee does not survive the testator except where it appears by the will that the testator intended that the legacy shall on the legatee not surviving him go to some other person. We are unable to agree that the intention of the testator that a legacy shall not lapse may be given effect to only if the testator expressly directs that if the legatee dies during his lifetime the legacy shall go to some other person, and that intention to exclude lapse cannot be inferred. Section 105(1) does not say, nor does it imply, that the testator must have expressly, envisaged the possibility of lapse in consequence of the legatee dying during his lifetime and must have made a provision for that contingency. In In re. Lowman Devenish vs Pester (2 ) a testator, who under a settlement was absolutely entitled to a moiety of the proceeds of a certain real estate under a trust for sale, by his will devised,, (1) L. R. 14 Equity Cases, 343. (2) 34 that real estate by its proper description, together with certain real estate of his own, to trustees, to the use of H. for life, with remainder to trustees to preserve the contingent remainders, with remainder to the use of the first and other sons of H successively in tail male, with remainder to the use of the first and other sons of his niece E successively in tail male, with remainder to the use of the first and other sons of his niece M successively in tail male, with remainder to the use of the first and other sons of his niece F successively in tail male, with remainder over. H survived the testator and died a bachelor. M also survived the testator and died unmarried. E was still alive but unmarried and seventy years of age. F had two sons, the eldest of whom died before the testator. It was held that when there are in a 'Will successive limitations of personal estate in favour of several persons absolutely, the first of those persons who survives the tes tator takes absolutely, although he would have taken nothing if any previous legatee had survived and had taken : the effect of the failure of an earlier gift is to accelerate, not to destroy, the later gift. This rule was applied in In re. Dunstan, Dunstan vs Dunstan(1). A testatrix by her will gave freeholds absolutely to A, subject to the bequest that whatever out of the freeholds should remain after A 's death shall be given to a named charity. It was held that if A had survived the testatrix the gift to the charity would have been repugnant and void, and A would have taken the freeholds absolutely. But since A died in the lifetime of the testatrix, the doctrine of repugnancy did not apply, and the gift to charity was accelerated and took effect. Mangamma died during the lifetime of the testator : thereby the estate in Sch. E properties granted to Venkataswamy and his brother Seshagirirao was accelerated. The plaintiffs are therefore not entitled to any share in Sch. E properties. The decree of the High Court is modified. It is declared that there is intestacy in respect of a half share in the fund arising by sale of Sch. C properties, and the plaintiff and the 24th defendant are entitled to take that half share in the fund. It is directed that the Trial Court will issue appropriate directions for application of the other half of the fund arising by sale of Sch. C properties for constructing Ramamandiram at Rajavaram village as directed by the testator in his will. Subject to this modification the appeal will be dismissed. The appellant will pay 3/4th of the costs of the contesting respondents in this Court. Y.P. Appeal dismissed.

The predecessors in interest of the appellants were landlords owning an estate including agricultural land, trees, groves etc., in U.P., and were heavily indebted to the respondents. Most of the debts were secured. On the application of the landlords proceedings were taken under the U.P. Encumbered Estates Act, 1934, and a decree was passed under section 14(7) of the Act in favour of the respondents in 1938. The nature and extent of property liable to attachment and sale, as required by section 19(2)(b) of the Act, were furnished to the executing authority. By virtue of a notification under the U.P. Zamindari Abolition and Land Reforms Act. 1950, the estate vested in the State, and new rights, namely, bhumidhari rights in the lands in the estate, were created in 1952 in favour of the appellants who were the successors in interest of the landlords. In 1959. the respondents applied under section 24 of the Encumbered Estates Act to recover the amount decreed to them, by proceeding against the bhumidhari rights and trees belonging to the appellants. On the question whether: (1 ) the bhumidhari rights, and (2) the trees, could be proceeded against, HELD: (1) Though the respondents were mortgagees their rights as such were extinguished under the Encumbered Estates Act and the decree in theft favour under the Act was only a simple money decree which was not executable except under the provisions of the Act. Under section 24 execution can be levied from any property or rights, other than proprietary rights in land, which are reported under section 19 as liable to be attached and sold. On the passing of the U.P. Abolition Act the proprietary rights of the landlords in the land vested in the State and thereafter, the appellants had no proprietary rights left in them. The bhumidhari rights being new rights created for the first time in favour of the appellants under the Abolition Act, are not proprietary rights. In the present case, the requirements of sections 19 and 24 have been complied with, even though the bhumidhari rights were not mentioned as being liable to attachment and sale because. , (i) under section 19(2)(b) the requirement is only to report the nature and extent of the property liable to attachment and sale and not the interests or rights of the debtor in the property; and (ii) the decree under the Encumbered Estates Act was passed in 1938 while the bhumidhari rights were created only in 1952, and hence, could not be specifically mentioned in the decree. When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than the proprietary rights in land, and when there is no prohibition in the Abolition Act against execution of a, decree obtained under the Encumbered Estates Act, against the bhumidhari rights, the respondents were entitled to proceed against such rights. [575 A B; 577 B E; G; 578 A.F] 567 Rang Sheo Am,bar Singh vs Allahabad 'Bank Ltd. ; , followed. (2) Unders; 6(a) of the Abolition Act and section 3.(6)of the U.P. Tenancy Act, 1939. ',the right title and interest of intermediaries in trees and grove land, but not in trees constituting a grove, cease, and vest in the State. Since the trees constituting a grove have not vested in the State ,and could not have formed the subject of creation of bhumidhari rights they are the debtor 's property and, are liable to be proceeded against in execution under section 24 of the Encumbered Estates Act. Even if the appellants got bhumidhari rights over the trees constituting the grove, they could be proceeded against; because, bhumidhari rights could be proceeded against in execution. [580 B, C E]

Civil Appeal No. 755 of 1971 From the Judgment and Order dated 21.12.1970 of the Allahabad High Court in Second Appeal No. 2757 of 1963. D.P. Singh, R.P. Singh and D.S. Mehra for the Appellant. L.P. Vats and S.P. Panday for the Respondent. The Judgment of the Court was delivered by B.C. Ray, J. This appeal by special leave is against the judgment and decree dated 21st December, 1970 of the Allahabad High Court in Second Appeal No. 2757 of 1963 allowing the appeal on setting aside the judgment and decree of the court of appeal below and dismissing the plaintiff 's suit. The plaintiff Hari Chand @ Harish Chandra instituted suit No.610 of 1961 in Court of the Munsif, Agra for recovery of possession of the disputed land shown in red colour attached to the plan marked with letters GCDH on demolition of the unauthorised constructions made thereon by the defendant alleging inter alia that the plaintiff became owner in possession of a piece of land measuring 1580 Sq. situated at Sultanpura, Agra Cantt. designated as No. 164A, and 1032 shown in the plan attached thereto with letters A, B, C, D, E, F on the basis of a registered sale deed dated 9th May, 1961, from Ramji Lal owner of the said property. It has been further alleged that the plaintiff started to build a compound wall over and around his land after his purchase. The defendant taking undue advantage of the plaintiff 's temporary absence from Agra, wrongfully encroached and trespassed along the whole Northern length of the plaintiff 's land measuring North to South about 4 ft. and East to West about 62 1/2 ft. by hurriedly raising a low mud wall and extending his khaprail thatch over it. It has been shown in the attached plain in red colour with letters G, C, D & H. It has been further alleged that inspite of plaintiff 's objection against the said wrongful encroachment and trespass the defendant did not pay any heed to it. It has also been pleaded that the cause of action of the suit primarily arose on or about 22nd May, 1961 when the defendant made the encroachment and wrongful constructions over the plaintiff 's land as well as it arose on 4.6.1961 when the defendant failed to remove the encroachment inspite of the plaintiff 's notice. Hence this suit has been instituted. The defendant filed a written statement denying that the plaintiff was owner of the land shown by GCDH in the plan attached to the plaint. The defendant also denied the correctness of the sale deed dated 9.5.1961. It has been stated that the land marked GCDH as shown in red colour in the plan attached to the plaint never belonged to the plaintiff. The wall and khaprail belonging to the contesting defendant have been existing at their present site since time immemorial. The plaintiff 's allegation that the contesting defendant has constructed the wall and extended the khaprail (tiled roof) in May 1961 is totally wrong and baseless. It has been further stated that he did not make any new construction. The defendant also stated that the plaintiff illegally tried to remove his kutcha wall and the tiled roof situate at the place marked G, C, D & H. Accordingly, on 25.5.1961 the contesting defendant gave a notice to the plaintiff mentioning the actual facts to which he gave a wrong reply. The plaintiff 's allegation that the wall and tiled roof of the defendant encroach upon the plaintiff 's land is totally wrong, false and baseless. It has been stated that the wall and tiled roof belongs to the contesting defendant and the eaves of tiled roof have been at the same place since time immemoral where they are at present. He has been regularly and openly enjoying all the proprietary rights and rights of adverse possession in respect of the land aforesaid. Under Sec. 142 of the Limitation Act, the contesting defendant became the absolute owner of the land in dispute on the 1033 basis of the adverse possession as well and he has a right of easement in the form of flowing of water from the tiled roof. The kuchha house No.164 belonging to the contesting defendant has been existing at its site exactly in the same condition in which it was built by the defendant 's grandfather. The eaves have been dropped at that very place and the khaprail has also been existing at that very place. The contesting defendant did not make any new construction as alleged by plaintiff in the plaint. Property Nos. 163 and 164 consisted of kuchha houses. The contesting defendant demolished the Property No. 163 which had come to his share and got in pucca built. Property No. 164 is a khaprail in which the contesting defendant is living and was living at the time of partition. The defendant therefore, states that the suit is liable to be dismissed. Third Additional Munsif, Agra after hearing the parties and also on a consideration and appraisement of the evidence on record held that the plaintiff was the owner of the property described in the plaint by the boundaries but the defendant has not trespassed over his land and has not constructed a new wall or khaprail. It has been further held that the plaintiff failed to prove the case of trespass and encroachment. The suit was accordingly dismissed with costs. Against this judgment and decree the plaintiff preferred an appeal being numbered as Civil Appeal 220 of 1963 in the court of District Judge, Agra. This appeal was allowed by the IInd Addl. Civil Judge, Agra holding that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit, even though it was not proved that the khaprail had been raised in May 1961 as was the case of the plaintiff, but they are recent construction. It was further held that even if the defendant 's wall and khaprail are old ones he is not entitled to maintain them after the same was allotted to Ramji Lal in the deed of partition dated 3.3.1958. It has been further held that the plaintiff is entitled to possession after demolition of the construction on the portion found encroached by defendant. The judgment and degree of the court below was set aside. Against this judgment and decree Second Appeal No. 2757 of 1963 was filed before the High Court at Allahabad. This appeal was dismissed by judgment and order dated 8.9.1963 and the judgment and decree of the lower appellate court was affirmed. A review application No. 269 of 1969 for the review of the said 1034 judgment was filed before the High Court on the ground that the alleged partition deed dated 17th March, 1963 was not in fact a deed of partition but merely an agreement between the parties to partition the property and there was no actual partition by metes and bounds. The defendent continued to remain co owner and co sharer of the property in suit. The decree passed in the said suit is neither possible nor permissible under the law. This review application was allowed by judgment and order dated December 9, 1970 setting aside the judgment dated 8th September, 1969 and directing the appeal to be listed for further hearing. Accordingly on 21.12.1970 the appeal was heard by the learned judge who held that the mere allotment of shares by the said deed of partition did not amount to partition by metes and bounds. The appeal of the defendant was allowed and the judgment and decree of the lower appellate court were set aside and the suit was dismissed. Against this judgment and decree the instant appeal on special leave was filed by the plaintiff. The learned counsel for the plaintiff tried to urge before us that the land in dispute marked as GCDH in the plan was allotted to the share of the plaintiff 's vendor Ramji Lal in accordance with the deed of partition (Ext. 3/1) and shown in map (Ext. 3/2) effected between the parties on 17.3.1958 and this has been mentioned in the sale deed (Ext. 1) executed by Ramji Lal, one of the co sharers of the property. It has, therefore, been submitted that the judgment and decree of the High Court is not in accordance with law and it should be set aside. This contention advanced on behalf of the plaintiff cannot be sustained in as much as there is no pleading in the plaint that the disputed property shown in red colour and marked as GCDH fell within the allotment of the plaintiff on the basis of the deed of partition executed in 1958 between the plaintiff 's vendor Ramji Lal and his two other brothers Daulat Ram and Bishambhar Nath. It was also been not pleaded that the disputed mud wall and the Khaprail over it were all along in possession of his vendor before the sale of the said land measuring 1580 Sq. ft appertaining to Property No. 164A. The plaintiff 's case is that he got possession of the land he purchased including the suit land on May 9, 1961 and the defendant illegally trespassed on the said portion of land marked in red colour in the plan attached to the plaint and hurriedly constructed a low mud wall and extended his khaprail thatch over it on May 22, 1961 and so the suit for recovery of possession of this land on demolition of the unauthorised construction put up by the defendant was brought. There is no pleading regarding the partition of the Property No. 164 between 1035 Ramji Lal and his two brothers nor there is any pleading to the effect that the disputed mud wall with the khaprail on it was ever in possession of his vendor Ramji Lal before the sale of the land in question in favour of the plaintiff. On the other hand, the defendant strongly and categorically stated in his written statement that the mud wall along with khaprail were in existence there for a long time and he was living in the said khaprail to the knowledge of the plaintiff 's vendor. He also denied that he made any new construction of the wall on 22nd May, 1961 as alleged by the plaintiff. He also stated that the wall and the tiled roof belonged to the defendant and the existence of the tiled roof had been at the same place in the same condition for a long time long before. the partition deed made in 1958. The defendant also stated in his written statement that more than twenty years before private parition took place amongst the defendant and his brothers Bish ambar Lal and Ramji Lal. Property No. 163 and 164 had come to his share. He demolished the Property No. 163, and he made pucca construction therein. Property No. 164 is khaprail wherein the contesting defendant is living and was also living at the time of partition. The plaintiff has examined three witnesses including himself and his vendor Ramji Lal. P.W. 1 Ramji Lal stated in his deposition that the portion shown in red in plan No. 36/4 Ka came to his share and defendant Daulat Ram was never in possession of this red portion after partition. It was also his evidence that at the time of sale, wall belonging to Daulat Ram did not exist over the portion showed in red colour. In cross examination he said that there was a tiled shed towards the north of the land in dispute. Daulat Ram used to live therein. All these three portions had old tiles. There was a chhappar over the portion shown in red. Tiled roof was made after the fire accident. It happened about 28 years back. The land in dispute has been affected by salt and the adjoining kuchha walls have also been affected by salt. P.W. 2 Harish Chandra, the plaintiff, stated in his evidence that he was not present at the time encroachment was made by constructing a wall. Some persons told him about the extension of the wall. On crossexamination he stated that pucca rooms belonging to Daulat Ram stand at No. 163. He cannot say if they have been in existence 15 20 years. It is the evidence of defendant Daulat Ram, D.W. 1, that the wall in dispute has been in its place since the time he attained the age of discretion. There has been tiled roof for the last about 28 years back. Before that there was a thatched shed. It is also his evidence that his mother effected partition about 28 years. The wall in dispute was in existence when this partition was effected. It has been existing 1036 in the same condition since then. It is also his evidence that his mother got the partition effected 28 years back. He also stated in crossexamination that he did not affix his thumb impression on the plan prepared at the time the partition deed was executed. No measurements were done at the time the plan was prepared. D.W. 2 Khunni Lal a retired overseer stated in cross examination that he had given his opinion that the wall in dispute belonged to Daulat Ram and that the flow of its water on the southern side was reasonable. On a consideration of these evidences it is quite clear that the disputed kachha wall and the khaprail over it is not a new construction, but existed for over 28 years and the defendant has been living therein as has been deposed to by Ramji Lal vendor of the plaintiff who admitted in his evidence that the land in dispute and the adjoining kachha walls had been affected by salt and the chhappar over the portion shown in red was tiled roof constructed about 28 years back. This is also supported by the evidence of the defendant, D.W. 1, that the wall in dispute was in existence when the partition was effected i.e., 28 years before. On a consideration of these evidences the Trial Court rightly held that the defendant had not trespassed over the land in question nor he had constructed a new wall or khaprail. The trial court also considered the report 57C by the court Amin and held that the wall in question was not a recent construction but it appeared 25 30 years old in its present condition as evident from the said report. The suit was therefore dismissed. The lower appellate court merely considered the partition deed and map Exts. 3/1 and 3/2 respectively and held that the disputed property fell to the share of the plaintiff 's vendor and the correctness of the partition map was not challenged in the written statement. The court of appeal below also referred to Amin 's map 47 A which showed the encroached portion in red colour as falling within the share of plaintiff 's vendor, and held that the defendant encroached on this portion of land marked in red colour, without at all considering the clear evidence of the defendant himself that the wall and the khaprail in question existed for the last 28 years and the defendant has been living there all along. P.W. 1 Ramji Lal himself also admitted that the wall existed for about 28 years as stated by the defendant and the kachha walls and the khaprail has been effected by salt. The lower appellate court though held that P.W. 1 Ramji Lal admitted in cross examination that towards the north of the land in dispute was the khaprail covered room of Daulat Ram in which Daulat Ram lived, but this does not mean that the wall in dispute exists for the last any certain number of years, although it can be said that it is not a 1037 recent construction. Without considering the deposition of defendant No. 1 as well as the report of the Amin 57 C the IInd Addl. Civil Judge, Agra wrongly held that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit. The Civil Judge further held on surmises as "may be that the wall and khaprail have not been raised in May, 1961 as is the plaintiff 's case, but they are recent constructions. " This decision of the court of appeal below is wholly incorrect being contrary to the evidences on record. On a consideration of all the evidences on record it is clearly established that the alleged encroachment by construction of kuchha wall and khaprail over it is not a recent construction as alleged to have been made in May 1961. On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the court Amin 's report 57 C also shows the said walls and khaprail to be 25 30 years old in its present condition. The High Court has clearly came to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the co sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiff 's vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff. The plaintiff has singularly failed to prove his case as pleaded in the plaint. In the premises aforesaid the appeal fails and it is dismissed. There will however be no order as to costs. A.P.J. Appeal dismissed.

The appellant instituted a suit for recovery of possession of the disputed land after demolition of the unauthorised constructions made thereon by the respondent alleging that he became owner of the land on the basis of a registered sale deed, that he started to build a compound wall over and around his land after his purchase, that taking undue advantage of his temporary absence the respondent wrongfully encroached and trespassed along the whole northern length of the land and hurriedly raised a low mud wall and extended his khaprail thatch over it. In his written statement the respondent denied that the appellant was owner of the land and claimed that the wall and khaprail belonged to him as they have been existing at their present site since time immemorial, that he had been regularly and openly enjoying the land and that under section 142 of the Limitation Act he became the absolute owner of the land in question on the basis of adverse possession and he has a right of easement in the form of flowing of water from the tiled roof. The Additional Munsif dismissed the suit holding that the appellant was the owner of the property and that he had failed to prove the case of trespass and encroachment. The appeal filed by the appellant was allowed by the Additional Civil Judge holding that the respondent has failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit, that even if respondent 's wall and khaprail are old ones he is not entitled to maintain them after the same was allotted in the deed of partition dt. 3.3.58, and that the appellant is entitled to posses 1030 sion after demolition of the construction of the portion found encroached by respondent. The second appeal filed by the respondent was dismissed by the High Court and the judgment and decree of the lower Appellate Court were affirmed. The respondent filed a review application alleging that the partition deed dt. 17th March, 1963 was not in fact a deed of partition but merely an agreement between the parties to partition the property and there was no actual partition by metes and bounds and that the respondent continued to remain co owner and co sharer of the property in suit. The High Court allowed the review application and held that the mere allotment of shares by the said deed of partition did not amount to partition by metes and bounds, set aside the judgment and decree of the lower Appellate Court and dismissed the suit. In the appeal to this Court on behalf of the appellant it was contended that the land in dispute was allotted to the vendor in accordance with the deed of partition (Ext. 3/1) and shown in map (Ext. 3/2) effected between the parties on 17.3.58 and this has been mentioned in the sale:deed (Ext. 1) and, therefore, the judgment and decree of the High Court is not in accordance with law and should be set aside. Dismissing the appeal, ^ HELD: 1. There is no pleading regarding the partition of the property No. 164 nor there is any pleading to the effect that the disputed mud wall with the khaprail on it was ever in possession of appellant 's vendor before the sale of the land in question in favour of the appellant. [1034H; 1035A B] 2. On a consideration of the evidence on record it is established that the alleged encroachment by construction of kuchha wall and khaprail over it is not a recent construction as alleged to have been made in May 1961. On the other hand it is crystal clear from the evidence of PW 1 and DW 1 that the disputed wall with khaprail existed there on the disputed site for a long time i.e., 28 years before and the wall and the khaprail have been affected by salt, as deposed by these two witnesses. The Court Amin 's report 57C also shows the said walls and khaprail to be 25 30 years old in its present condition. The High Court rightly came to the finding that though the partition deed was 1031 executed by the parties yet there was no partition by metes and bounds. Moreover, there is no whisper in the plaint about the partition of the property in question between the co sharers by metes and bounds nor there is any averment that the suit property fell to share of appellant 's vendor and he was ever in possession of the disputed property since the date of partition till the date of sale to the appellant. The appellant has singularly faild to prove the case as pleaded in the plaint. [1037C E] 3. Without considering the deposition of Respondent No. 1 as well as the report of the Amin 57C the Additional Civil Judge wrongly held that the respondent failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit. The Civil Judge further held on surmises as "may be that the wall and khaprail have not been raised on May 1961 as is the plaintiff 's case, but they are recent constructions. " This decision of the lower Appellate Court is wholly incorrect being contrary to the evidence on record. [1037A B]

Civil Appeals Nos.159 and 160 of 1958. Appeals by special leave from the Award dated September 4, 1958, of the Industrial Tribunal, Bombay, in Reference (IT) Nos. 138 and 35 of 1958. N. A. Palkhivala, section N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellant. C. L. Dudhia and K. L. Hathi, for respondents No. 1 and 2. 1959. October 16. The Judgment of the Court was delivered by WANCHOO J. These two appeals by special leave arise out of two references made by the Government of Bombay in connection with a dispute between the appellant company and two sets of its workmen, namely, clerical staff and staff other than clerical. The clerical staff had raised four questions which were referred to the Industrial Tribunal, Bombay for adjudication. of these, only two points survive in the present appeal, namely, retirement age and gratuity. The non clerical staff had raised two questions of which only one relating to gratuity arises before us. It appears that the appellant company is an all India concern but the major part of its business is concentrated in Calcutta. The number of non clerical staff outside Calcutta is very small as compared to the 53 non clerical staff in Calcutta while the clerical staff outside Calcutta is much less than the clerical staff in Culcutta. The company had a gratuity scheme in force which applied to both clerical and non clerical staff, though there were differences in the scale of payment depending upon whether the basic salary drawn by workmen other than operatives was more than Rs. 100 or less. In case of operatives, there was a uniform scale equal to the scale for workmen other than operatives drawing less than Rs. 100 per mensem. The clerical and non clerical staff in Bombay raised disputes and their main contention was that the scale fixed by the scheme in force was low and should be raised. As for the retirement age, the clerical staff claimed that it should be raised from 55 years to 60. The case of the appellant company before the tribunal was that as the large majority of the staff both clerical and non clerical was in Calcutta and as the gratuity scheme and the retirement age were enforced by virtue of an agreement arrived at between the appellant company and its workmen both clerical and others in Calcutta who are a large majority of its total workmen, they should not be changed at the instance of a small minority of workmen both clerical and others in Bombay. The tribunal did not accept this contention and raised the age of retirement from 55 years to 60. It also made changes in the gratuity scheme by which the scale was raised and made uniform both for clerical staff and others. Thereupon the appellant applied for and obtained special leave from this Court; and that is how the matter has come up before us. Shri Palkhivala appearing for the appellant has raised only two points before us, relating to the raising of the retirement age and the change in the scale of gratuity, and we shall confine ourselves to these two points only. It is conceded by him that the Industrial Tribunal has jurisdiction to order the changes which it has ordered. But his contention is that though the jurisdiction may be there, the tribunal should take into account the special position of an all India concern and should not make changes particularly at the 54 instance of a small minority of workmen as that would lead to industrial unrest elsewhere. He further contends that the scale of gratuity and the age of retirement are matters which are independent of local conditions and therefore should be uniform thought India in concerns which have an all India character. He points out that the conditions of service in the appellant company are uniform throughout India and were arrived at by agreement with the unions of workmen at Calcutta where the large majority of the workmen are employed, and in these special circumstances, the tribunal at Bombay should not have made any changes in the retiring age or in the gratuity scheme at the instance of the small minority of workmen in Bombay. There is no doubt that in the case of an all India concern it would be advisable to have uniform conditions of service throughout India and if uniform conditions prevail in any such concern they should not be lightly changed. At the same time it cannot be forgotten that industrial adjudication is based, in this country at least, on what is known as industry cumregion basis and cases may arise where it may be necessary in following this principle to make changes even where the conditions of service of an all India concern are uniform. Besides, however desirable uniformity may be in the case of all India concerns, the tribunal cannot abstain from seeing that fair conditions of service prevail in the industry with which it is concerned. If therefore any scheme, which may be uniformity in force throughout India in the case of an all India concern, appears to be unfair and not in accord with the prevailing conditions in such matters, it would be the duty of the tribunal to make changes in the scheme to make it fair and bring it into line with the prevailing conditions in such matters, particularly in the region in which the tribunal is functioning irrespective of the fact that the demand is made by only a small minority of the workmen employed in one place out of the many where the all India concern carries on business. Before we come to consider the two questions raised before us, we may as well point out that the 55 scale of gratuity and the retirement age were originally fixed by an agreement arrived at in 1956, between the appellant company and its workmen in Calcutta who form a large majority. That agreement was for a period of two years ending with December, 31, 1957. Thereafter it was replaced by another agreement also for two years beginning from 1st January, 1958. In that agreement it was specifically provided that no further major issues would be raised excepting those relating to medical aid, retirement age, and retirement benefits. It is clear therefore that even the workmen in Calcutta had reserved the right to raise a dispute with respect to retirement age and gratuity, if necessary. The reason for this is that the references out of which those appeals have arisen were pending before the tribunal in Bombay and the unions in Calcutta wished to await the decision of the Bombay tribunal before finally agreeing to continue the rules relating to retirement age and gratuity. The appellant company also agreed to make this reservation in the said agreement arrived at between it and the unions in Calcutta. Therefore, strictly speaking, it cannot be said in this case that there was a final agreement in force with respect to these two matters between the appellant and large majority of its workmen in September, 1958 when the Bombay Tribunal gave its award. In any case the Bombay Tribunal was bound to go into the merits of the matter with respect to these two items, namely, retirement age and gratuity, keeping in mind the all India character of the concern and the previous agreement of 1956, and this is what the tribunal has actually done. We shall first take the question of retirement age. The tribunal found that retirement age was fixed between 55 years and 60 in various concerns in Bombay. It was also of opinion that 55 years was too low an age to be fixed for retirement for the clerical staff and that the trend in all the awards had in recent times been to fix it at 60 years. It, therefore, ordered that so far as the clerical staff was concerned retirement age should be fixed at 60 years instead 56 of 55. We may in this connection refer to a recent decision of this Court in Guest Keen, Williams (Private) Limited, Calcutta vs P. J. Sterling and Others (1), where the age of superannuation of employees in service before the Standing Orders came into force, in that concern was fixed at 60 years. In these circumstances if the tribunal thought that it would be fair to fix 60 years as the age of retirement for clerical staff in spite of the fact that in the agreement of 1956 the retirement age was fixed at 55 years, it cannot be said that the tribunal 's order was not in accord with the prevailing conditions in many concerns in that region. In these circumstances we are of opinion that no interference is called for in this matter. We now come to the question of gratuity. The gratuity scheme in force in the appellant company on the basis of the agreement of 1956, provided for threequarters of one month 's average basic salary for each completed year of continuous service for staff other than operatives drawing up to Rs. 100 per menses and thereafter half a month 's average basic salary for each year. It also provided three weeks ' average basic wages for each completed year of continuous service for operatives. Three years service was the minimum period for eligibility to gratuity under special circumstances like death, physical and mental incapacity and 15 years service in all other cases. There was also a provision for "deducting some amount in lieu of provident fund credited by the company in 1941 in respect of service prior to 1st July, 1941. The tribunal was of the opinion that the scheme was not adequate and contained features which were not usual in other prosperous concerns it pointed out that the scale of gratuity for clerks was on a lower basis than for operatives and that this was against the general conditions of things prevailing in that region. It further pointed out that the clerical and the supervisory staff had a higher standard of living, and had to meet heavier expenses of education of their children who get employment at a late age as compared to operatives. It was, therefore, of opinion that a uniform scale of gratuity should be fixed for all (1) ; 57 including those getting wages above Rs. 100 per menses. It also pointed out that the requirement of a minimum service of three years in case of death and physical and mental incapacity was another unusual feature of this scheme and held that it should be changed. It was further of opinion that the usual provision in such schemes was a scale of one month 's basic salary for each completed year of continuous service in case of death, physical and mental incapacity and after 15 years ' continuous service and that some gratuity at a lower scale was provided usually even in case of termination of service before the completion of 15 years ' service. It therefore provided for half a month 's basic salary for each completed year of continuous service after 5 years but upto ten years and three fourths of basic monthly salary for each year of completed service after ten years but less than fifteen years continuous service and one month 's basic salary for each year for the rest. Finally, it took into account the fact that there was a supplementary gratuity scheme in force in the company with respect to the employees in the employ of the company from before September 1, 1946, and with respect to them it provided that those employees should either opt for the scheme as framed by it or continue in the gratuity scheme of the company along with the supplementary gratuity scheme. It appears therefore from the gratuity scheme finally sanctioned by the tribunal that it removed those features from the scheme in force in the appellant company which were unusual and unfair and not in consonance with the prevailing conditions for such schemes in that region. In these circumstances we are of opinion that the tribunal was not bound merely because this is an all India concern to refrain from altering the gratuity scheme which in its opinion had certain unusual features and was not in accord with the prevailing conditions in that region. The appellant 's contention therefore on this head also fails. The appeals are hereby dismissed with one set of costs.

In his return of agricultural income for the assessment year I944 45 the appellant showed a sum of Rs. 2,82,192, which he had paid to the Tekari Rai for two lease hold properties taken on Zarpeshgi lease, as one of the items of the total amount of deduction claimed by him as capital receipt. The Agricultural Income tax Officer accepted his claim and exempted the amount from Payment of agricultural income tax. The Assistant Commissioner of Agricultural Income tax affirmed the decision. A demand notice was issued and the assessee paid two instalments. Thereafter, the Agricultural Income tax Officer served on the assessee a notice under section 26 of the Bihar Agricultural , to the effect that income from the said Zarpeshgi lease had escaped assessment and after he appeared, passed a 333 supplementary assessment order and assessed Rs. 39,5I2 6 o as tax. The assessee appealed. The Commissioner of Agricultural Income tax reversed the said decision. The Province of Bihar moved the Board of Revenue and the two questions it referred to the High Court under section 25(1) Of the Act were, (1) whether in the facts and circumstances of the case, the Agricultural Income tax Officer had jurisdiction to revise his own order under section 26 of the Act and (2) if so, whether the income from the Zarpeshgi lease was taxable under the Act. The High Court answered both the questions in favour of the State of Bihar. Hence this appeal by the assessee by special leave. Held, that under section 26 of the Bihar Agricultural , the Agricultural Income tax Officer had the power to revise his own order and assess an item of income which, even though shown in the return, he had earlier omitted to tax under a misapprehension that it was not taxable. The use of the words " any reason " in section 26 of the Act made the section wider than section 34 Of the Indian by dispensing with the conditions which circumscribed the section. Kamal Singh vs Commissioner of Income tax, Bihar & Orissa, ; , applied. Messrs. Chatturam Hoyilyam Ltd. vs Commissioner of Income tax, Bihar and Orissa, ; , distinguished. Case law discussed. Since the appellant had failed to prove his case that the income in question was income from his money lending business or that the payment made to the lessor was not by way of premium but as a loan, the income from the lease hold property which was admittedly agricultural in character, must be held to be liable to tax under the Act, irrespective of the character of the recipient.

ontempt Petition No. 71 of 1990. AND Interlocutory Application No. 1 of 1990. IN Writ Petition (Civil) No. 1 1222 of 1983. (Under Article 32 of the Constitution of India). Shanti Bhushan, Bashant Bhushan, Bohla Prasad Singh for the Petitioner. Kapil Sibal, Additional Solicitor General, Ashok H. Desai, Solicitor General, Tapas Roy, Ratin Das and D.K. Sinha for the Respondent. The Judgment of the Court was delivered by KANIA, J. Seth Mannalal Surana Memorial Trust is the owner of a building situate at 7/ID, Lindsay Street, Calcut ta, one of the busiest streets in Calcutta where the New Market is situated. The petitioner is the lessee of the said building from the said Trust. On February 25, 1958, a por tion of the ground floor premises in the said building admeasuring 4198 Sq. (referred to hereinafter as "the said premises") was requisitioned by the Government of West Bengal under the West Bengal Premises Requisition and Con trol (Temporary Provisions) Act, 1947, (hereinafter referred to as "the West Bengal Act"). The purpose for which the said premises were requisitioned was establishing the main show room of West Bengal Handicraft Development Corporation Limited, a West Bengal Government Undertaking. The said show room is called "Manjusha" and has become a landmark in Calcutta. In H.D. Vora vs State of Maharashtra and Others, ; this Court held that the provisions for, 248 requisition could be resorted to only where premises were required for a temporary purpose but not where they were required for a permanent purpose. If premises were required for a permanent purpose, they have to be acquired in accord ance with law. Following upon this decision, the petitioner filed the aforesaid Writ Petition No. 1 1222 of 1983 in this Court praying for a mandatory order directing that the premises should be derequisitioned and handed over to the petitioner. Certain interim applications were made in this Court and orders were passed thereon to which it is not necessary to refer in this Judgment. By an order dated January 16, 1990, certain directions were given to respondent No. 4 in the writ petition. The relevant portion of the said order runs as follows: "In view of the earlier orders, we direct respondent No. 4 to hand over the possession of the premises in question to the petitioner within nine weeks from today subject to their obtaining any order from the Calcutta High Court in the appeal pending in that Court against the decision of a learned Single Judge in W.P. No. 2063 of 1987 or acquiring any independent right to retain possession of the suit premises within that period. It is contended by Shri Shanti Bhushan, learned coun sel for the petitioner that as the respondents have not succeeded in obtaining any order from the Calcutta High Court in the said appeal or in acquiring any independent right to retain possession of the said premises within the period of nine weeks from January 16, 1990, as set out in the said order, they were bound to hand over the possession of the said premises to the petitioner and have committed contempt as they have deliberately failed to do so. We find that it is not possible to accept the submis sion set out hereinabove. On February 21, 1990, the Govern ment of West Bengal issued a notification under section 4 of the Land Acquisition Act as applicable to the State of West 'Bengal, declaring its intention to acquire the said prem ises. On February 27, 1990, the said declaration was duly published. By the beginning of March 1990 the declaration under section 6 of the Land Acquisition Act in respect of the said premises was duly made and published and on 1st of March. 1990 the Government of West Bengal authorised the First Lanisition Collector to take possession of the said premises under section 17(1) of the Land Acquisition Act. Public notices were given on 9th March, 249 1990. A few days later, the trustees of the said trust which owned the said building filed a writ petition in the Calcut ta High Court challenging the validity of the acquisition proceedings in respect of the said premises which had been initiated consequent upon the amendment of the Land Acquisi tion Act as applicable to the State of West Bengal and on 20th March, 1990, the Calcutta High Court directed the status quo to be maintained regarding possession. It is clear that unless the said order dated March 20, 1990, is vacated, it is not possible for the respondents to proceed with the acquisition and acquire title to the prem ises. The contention of the learned counsel for the peti tioner is that the acquisition is patently bad in law as it is not open to the Government to acquire the said premises on the ground floor of the said building without acquiring the corresponding area on the upper floors. It was submitted by him that such acquisition would be clearly bad in law in spite of the amendment carried out to the provisions of Land Acquisition Act as applicable to the State of West Bengal by the insertion of Section 49 A therein by Land Acquisition (West Bengal Amendment) Act, 1986, which came into force on February 14, 1990, after obtaining the consent of the Presi dent of India. Section 49A permits acquisition of a part of a house. In our view, the question whether the acquisition is valid or not is pending for decision in the Calcutta High Court in the said writ petition filed by the said trust as owner of the building challenging the validity of the said amendment. In our opinion, before a party can be committed for contempt, there must be a wilful or deliberate disobedience of the orders of the Court. In the present case, we do not find that any such wilful or deliberate or reckless disobe dience of our order dated January. 16, 1990, has been com mitted by the respondent to the contempt petition. Hence, the contempt petition is dismissed. There will be no order as to costs. We hope that the Calcutta High Court will be able to dispose of the said writ petition challenging the validity of the said amendment as early as possible. Interlocutory Application No. 1 of 1990 in writ petition No. 11222 of 1983 is not pressed and is allowed to be with drawn with liberty to renew the same if any occasion arises. Although we are of the view that the respondent has not commit 250 ted contempt, we do realise that in case the petitioner succeeds in the writ petition, the respondent would have remained in possession of the said premises for a long time after they should have handed over the possession of the same to the petitioner. We find that the respondent has already been directed to pay compensation for the use of the said premises at the rate of Rs. 15,000 per month by an order of this Court passed over two years earlier. We direct that the respondent shall deposit, in addition, an amount of Rs. 10,000 per month commencing from 1st October, 1990, in the Court, the first of such deposits to be made on or before 20th October, 1990, and deposits for each succeeding month to be made by 15th day of each succeeding month. The amounts deposited shall be invested by the Registrar General at suitable intervals in a nationalised bank in fixed depos it after consulting the parties.

By its order dated January 16, 1990 in the writ petition, the Court had directed respondent No. 4 to band over possession of the premises requisitioned under the West Bengal Premises Requisition and Control (Temporary Provi sions) Act, 1947, within nine weeks subject to their obtain ing any order from the High Court or acquiring any independ ent right within that period to retain possession. In the meantime, the Land Acquisition (West, Bengal Amendment) Act, 1986, which inserted section 49A in the Land Acquisition Act, 1894 as applicable to the State, came into force on February 14, 1990 permitting acqusition of a part of a house. A week thereafter the State Government initiated acquisition process in respect of the said premises. Notifi cations under sections 4 and 6 of the Land Acquisition Act were issued, and the Land Acquisition Collector authorised to take possession under section 17(1) of the Act. However, on March 20, 1990 in a writ challenging the validity of the acquisi tion proceedings the High Court directed the status quo to be maintained regarding possession. In this contempt petition, the petitioner alleged that the respondent had deliberately failed to hand over possession in terms of the order dated January 16, 1990. The acquisition was also assailed as being patently bad in law. HELD: 1. Before a party can be committed for con tempt, then must be a wilful or deliberate disobedience of the orders of the Court In the instant case, no such wilful or deliberate or reckless disobedient, of the order dated January 16, 1990 has been committed by the respondent to the contempt petition. [249F] 2. The question whether the acquisition is valid or not is pending 247 for decision in the High Court. In case the petitioner succeeds the respondent would have remained in possession of the said premises for a long time after they should have handed over the possession. They are, therefore, directed to deposit an amount of Rs. I0,000 per month commencing from 1st October, 1990 in the Court in addition to Rs.15,000 per month they are already paying under the earlier directions. [250A C]