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Appeal No. 2313 of 1966. Appeal by special leave from the judgment and order dated October 13, 1966 of the Andhra Pradesh High Court in Writ Petition No. 853 of 1966. M.C. Setalvad. D. Narasaraju, Anwar Ullah Pasha R. V. Pillai and M. M. Kashatriya, for the appellant. Niren De, Addl. Solicitor General, P. Ram Reddy, section Ramachandra Reddy and T. V.R. Tatachari, for the respondents. The Judgment of the Court was delivered by Vaidyalingam, J. This appeal, by special leave, granted by this Court, is directed against the order dated October, 13, 1966, passed by the Andhra Pradesh High Court, dismissing Writ Petition No 853 of 1966, filed by the appellant, under article 226 of the Constitution. The appellant filed the said writ petition under the following circumstances. The appellant was the Vice Chancellor of the Osmania University, having been appointed, as such, by order dated April 30. 1964, passed by the Governor of Andhra Pradesh, in 216 his capacity as Chancellor of the said University. The appointment of the appellant, under the said order, as Vice Chancellor, there is no controversy, was for a term of five years from the date of taking charge; and the appointment itself was made under sub section (1) of section 12 of the Osmania University Act, 1959 (Andhra Pradesh Act No. IX of 1959). There is, again, no controversy that the appellant took charge as Vice Chancellor, in terms of the said order, on April 30, 1964 and, as such, he became entitled to hold office for the full period of five years, which will expire at the ,end of April 1969. The Osmania University was established in 1918 and the ad ministration of the University was then governed by a Charter of His Exalted Highness, the Nizam of Hyderabad, promulgated in 1947. With effect from November 1, 1956, the State of Hyderabad ceased to exist, and the Telengana region of that State became part of Andhra Pradesh. In 1959, the Andhra Pradesh Legislature passed the Osmania University Act, 1959, earlier referred to. That Act itself was one to amend and consolidate the law relating to the Osmania University. It is only necessary to note at this stage, that under section 12(1) of the said Act, it was provided that the Vice Chancellor shall be appointed by the Chancellor from a panel of not less than three persons selected by a Committee, as constituted under sub section (2); but, if the Chancellor does not approve any of the persons so selected, he may call for a fresh panel from the Committee. Section 13, again, provided for the term of office, salary and allowances etc. , of the Vice Chancellor. Under sub section (1), the term of office of the Vice Chancellor was fixed for a term of five years and there was also a further provision to the effect that he shall be eligible for reappointment. By section 51 of the said Act, the Osmania University Revised Charter, of 1947 was repealed; but, nevertheless, it was provided that the person holding office immediately before the commencement of the Act as Vice Chancellor, was to be the Vice Chancellor on such ,commencement of the Act, and was to continue to hold the said office, in circumstances mentioned therein. There is, again, no controversy that the appellant, who was already the Vice Chancellor of the Osmania University from 1957, was again appointed in 1959, as Vice Chancellor for a period of five years under this Act; and he was similarly appointed for a further term of five years, on April 30, 1964, as Vice Chancellor, as mentioned earlier. During the middle of 1965, certain amendments were sought to be introduced in the Act by providing for removal of the Vice Chancellor, by the Chancellor, from office under certain circumstances. There was also a proposal to reduce the term of office of the Vice Chancellor from 5 years to 3 years, from the date of his appointment, and for provisions being made 217 enabling the Government to give directions to the University relating to matters of policy to be followed by it. The amendments sought to be introduced in the Act, appear to have come in for considerable criticism from several quarters, and these have been elaborately dealt with in the order, under attack. According to the appellant, he was one of those who very strenuously opposed the proposed amendments on the ground that the autonomy of the University was sought to be interfered with by the Government. According to the appellant, again, the various criticisms made by him and others, were taken note of by the Inter University Board, by the Education Minister of the Union and others. It is the further case of the appellant that it was felt by the Government of Andhra Pradesh that he was responsible for the agitation that was being made, against the proposed amendments. But, ultimately, the Andhra Pradesh Legislature passed the Osmania University (Amendment) Act, 1966 (Act 11 of 1966), amending the Osmania University Act of 1959 in certain particulars. The said amendments are to the effect that the Vice Chancellor shall not be removed from office, except as provided for in section 12(2) of the amended Act. The term of office was also fixed at 3 years under the amended section 13. Another provision relating to the power of Government to give instructions to the University, was also introduced, as section 7A; but the appellant continued as Vice Chancellor. The Osmania University Act, was again amended by the Osmania University (Second Amendment) Act, 1966 (Act XI of 1966). Under this amendment, section 13A was enacted. In brief, that section was to the effect that the person holding the office of the ViceChancellor, immediately before the commencement of the amending Act of 1966, was to hold office only until a new Vice Chancellor was appointed under sub section (1) of section 12, and it also provided that such appointment shall be made within 90 days after such commencement. There was a further provision that on the appointment of such new Vice Chancellor, and on his entering upon his office, the person holding the office of Vice Chancellor immediately before such appointment, shall cease to hold that office. Section 7 A, which had been introduced by Act II of 1966, was deleted. Section 33 A was enacted, making special provision as to the re constitution of the Senate, Syndicate, Academic Council and Finance Committee of the University. The appellant filed Writ Petition No. 853 of 1966, in the High Court, praying for the issue of a writ or order declaring section 5 of the Osmania University (Second Amendment) Act. 1966, which introduced section 13A in the original Act, as unconstitutional and void. In that writ petition, he challenged the validity of the new Section, section 13A on several grounds. In brief, his plea was that by virtue 218 of his appointment as Vice Chancellor for 5 years on April 30, 1964, he had acquired a vested right to hold that office for the full term and that such a vested right could not be taken away, during the currency of the period, by any legislative enactment. The legislature had no competence to enact the said provision inasmuch, as section 13A could not be treated as legislation in respect of University education. The appellant had also pleaded that the provision virtually amounted to removal of the appellant from his office without giving him any opportunity to show cause against such removal. According to the appellant, even assuming the Legislature was competent to enact the provision in question, nevertheless, section 13A is unconstitutional and void, inasmuch as it offends article 14 of the Constitution. We do not think it necessary to advert, elaborately, to the various other grounds of attack levelled against the constitutional validity of the provision in question, which have, no doubt, been dealt with by the High Court, because, for the purpose of disposing of this appeal, in our opinion, it is enough to refer to the grounds of attack, taken by the appellant regarding the constitutionality of section 13A, based upon article 14 of the Constitution. So far as this aspect is concerned, according to the appellant, section 9 of Act 11, of 1966 amended the Act of 1959 by incorporating new sub sections (1) and (2) in section 12. Under sub section (1) of section 12, the ViceChancellor is to be appointed by the Chancellor. Under sub section (2), the Vice Chancellor shall not be removed from his office except by an order of the Chancellor passed on the ground of mis behaviour or incapacity; and it also provided for such an order being passed only after due enquiry by a person who Is or has been a Judge of a High Court or the Supreme Court, as may be appointed by the Chancellor, and the Vice Chancellor being given an opportunity of making his representation against the removal. Therefore, in view of these provisions, the Vice Chancellor could not be removed by the Chancellor without any cause, without reason, without enquiry and without an opportunity being given to him to show cause against removal. This provision applied to the appellant, who was in office, on the date of the passing of Act 11 of 1966, as well as Act XI of 1966. Nevertheless, section 5 of Act XI of 1966 incorporated s.13A in the principal Act. Under that section, not only has power been, conferred on the Chancellor, but also a duty imposed, so to say, on him, to remove the appellant, who was the Vice Chancellor, without any reason or justification or even giving an opportunity to him to show cause against such removal. No enquiry, before ordering such removal, is contemplated under this section. Further, while a Vice Chancellor, who is appointed after the passing of Act XI of 1966, cannot be removed from office, except in accordance with the provisions of sub section (2) of section 12, the appellant, who was already in office, could be arbitrarily and 219 illegally removed under section 13A of the Act. There is no provi sion, again, similar to section 13A, applicable to a Vice Chancellor, appointed after the coming into force of the amending Act. Therefore, according to the appellant, the provisions contained in section 13A are clearly directed only against him, as he was the person holding office, prior to the amending Act, and therefore it is a clear case of hostile discrimination. Further, according to the appellant, persons appointed as Vice Chancellors, constitute a group and must be considered as persons similarly situated and they must be treated alike; whereas, by virtue of section 13A, a differentiation is made between the appellant, who was a Vice Chancellor on the date of the commencement of the Amending Act and other persons who are to be appointed as Vice Chancellors thereafter. This differentiation, according to the appellant, is again without any basis; nor has such a classification, any reasonable relation to the main object of the legislation. The appellant also relied on section 33A, introduced by section 6 of Act XI of 1966 relating to the reconstitution of the Senate, Syndicate, Academic Council and the Finance Committee and pleaded that whereas those academic bodies or authorities were allowed to continue without any time limit and to function until they were reconstituted, regarding the Vice Chancellor alone, a period of 90 days had been fixed, under the Amending Act, within which the Chancellor was bound to appoint another Vice Chancellor. This, again, is a clear proof of discrimination against the appellant. The respondents controverted the stand taken on behalf of the appellant. Apart from supporting the competency of the Legislature to enact the measure, in question, they urge that article 14 of the Constitution has no application at all. According to the respondents, inasmuch as the term of office of the Vice Chancellor had been reduced to three years, as per Act 11 of 1966, it was thought fit by the Legislature to provide for the termination of the office of the Vice Chancellor, who was holding that post, at the commencement of Act XI of 1966, as also for the appointment of a new Vice Chancellor. It was, under those circumstances, that section 13A was incorporated in the Act of 1959, by section 5 of Act, XI of 1966. They also referred to similar provisions, which were incorporated in the two enactments relating to the two other Universities in the State, viz., the Andhra University and Sri Venkateswara University. The respondents further pleaded that Act 11 of 1966 placed the Vice Chancellor, who was already appointed and who was functioning prior to that Act, in the first category, as a class apart, from the Vice Chancellors who were to be subsequently appointed and who were to function, after the passing of the said Amending Act, in the second category, both in the matter of the mode of appointment, as well as the term of appointment. The Vice Chancellor 220 viz., the appellant, who was in office, on the date of the passing of Act XI of 1966, according to the respondents, therefore fell into a class all by himself and, as such, came under a third category; and the legislature thought fit to take into account the special features relating to him and, therefore, made separate provisions regarding the termination of his office. Therefore, a suitable provision was made, by enacting section 13A, in respect of the existing Vice Chancellor, who was treated as a class, by himself. The respondents also claimed that the Legislature was entitled to treat the Vice Chancellor, who was then in office, as a class by himself and make suitable provisions with regard to the termination of his office, and therefore a legislation made for that purpose, and on that basis, was constitutionally valid. The charge of hostility towards the appellant, or any attempt to effect discrimination, was stoutly denied by the respondents. The respondents, there fore, urged that the classification of the appellant, as a separate class, was proper and such a classification had a reasonable nexus, with the object of the amending legislation. The respondents further pleaded that the curtailment of the term of office of an existing Vice Chancellor, by a statute, enacted by a competent Legislature, does not amount to 'removal ' of the Vice Chancellor for sufficient and proved cause. The respondents also ` urged that academic bodies or authorities like the Senate, Syndicate and the Academic Council are not similarly situated like the Vice Chancellor, either in the matter of appointment or constitution, or in exercising functions under the statute; and therefore, the appellant, according to them, was not 'entitled to place any reliance. on section 33A, introduced by section 7 of Act XI of 1966. For all these reasons, they urged that article 14 of the Constitution was not violated by the Legislature in enacting section 13A. Before we refer to the findings recorded by the learned Judges of 'the High Court, this will be a convenient stage to refer to the material provisions of the statutes, concerned. We have already mentioned that the appellant was functioning as the Vice Chancellor of the Osmania University, even from 1957, i.e., even before the Osmania University Act, 1959, was passed. We have also indicated that the administration of the University was then governed by a Charter promulgated in 1947. The Osmania University Act, 1959 (Act IX of 1959), (hereinafter called the Act), was passed in 1959 and published in the State Gazette on February 2, 1959. Section 3 of the Act provided that the University, established by the Revised Charter promulgated by H.E.H. the Nizam of Hyderabad, on December 8, 1947, and functioning at Hyderabad immediately before the commencement of the Act, be reconstituted and declared to be a University by the name of 'Osmania University '. The said section also provided that the University would be a 221 residential, teaching and affiliating University consisting of a Chancellor, a Pro Chancellor, a Vice Chancellor, a Senate, a Syndicate and an Academic Council. Section 12(1) provided for the appointment of the Vice Chancellor, by the Chancellor, from a panel of not less than three persons selected by a committee, as constituted under sub section (2) thereof But, if the Chancellor did not approve any of the persons so selected, he could call for a fresh panel from the committee. Sub section (2) provided for the constitution of the committee. Section 13 provided for the term of office salary, allowances etc. , of the Vice Chancellor. Under sub section (1), the Vice Chancellor was to hold office for a term of 5 years and he was eligible for reappointment. There was a proviso to the effect that the ViceChancellor shall continue to hold office after the expiry of his term of appointment, for a period not exceeding six months, or until Ms successor is appointed and enters upon his office, whichever is earlier. Sub section (6) provided for the filling up of the vacancy, in the post of the Vice Chancellor, when it fell permanently vacant; and a Vice Chancellor so appointed as per sub sections (1) and (2) of section 12, was to hold office for a full term of 5 years. Section 51 (I) repealed the Osmania University Revised Charter, 1947; but sub section (2) provided that notwithstanding such repeal, the person holding office immediately before the commencement of the Act, as Vice Chancellor, shall, on such commencement, be the Vice Chancellor of the University, and he was entitled to hold office until a Vice Chancellor is appointed in accordance with the Act. It will be noticed, by the above reference to the material provisions of the Act, that there was no provision for removal of a ViceChancellor; and that the appointment of a Vice Chancellor was to be by the Chancellor, as provided for in section 12. The term of office of the Vice Chancellor was 5 years and he was eligible for reappointment. The appellant, who was already a Vice Chancellor, functioning under the Charter of 1947, was entitled to continue, and did continue, as the Vice Chancellor, by virtue of section 51 of the Act. He was also, as already mentioned, originally appointed as ViceChancellor for a period of 5 years under the Act, in 1959. The Act was amended in certain particulars by the Osmania University (Amendment) Act, 1966 (Act II of 1966) (hereinafter called the First Amendment Act). The First Amendment Act received the assent of the Governor on January 29, 1966. Section 6 of the First Amendment Act, introduced section 7A, which we set out 222 "7A. Instructions by the Government. The Government may, after consultation with the University, give to the University, instructions relating to matters of major educational policy such as pattern of University education, medium of instruction and establishment of post graduate centres, to be followed by it. (2) In the exercise of its powers and performance of its functions under this Act, the University shall comply with the instructions issued under sub section (1). " Similarly, section 9 incorporated new sub sections (1) and (2) in section 12 of the Act, as follows 12. (1) The Vice Chancellor shall be appointed by the Chancellor. (2) The Vice Chancellor shall not be removed from his office except by an order of the Chancellor passed on the ground of misbehaviour or incapacity and after due inquiry by such person who is or has been a Judge of a High Court or the Supreme Court as may be appointed by the Chancellor, in which the Vice Chancellor shall have an opportunity of making his representation against such removal. " Section 10, while effecting certain other amendments to section 13. the Act, incorporated a new sub section (1), as follows : "13. (1) Subject to the provisions of sub section (2) of section 12, the Vice Chancellor shall hold office for a term of three years from the date of his appointment and shall be eligible for re appointment to that office for another term of three years only; Provided that the Vice Chancellor shall continue to hold office after the expiry of his term of appointment for a period not exceeding six months or until his successor is appointed and enters upon his office, whichever is earlier. " It was this Amendment Act, when it was in the Bill stage, that appears to have been severely criticised by various authorities on the ground that the autonomy of the University was sought to be interfered with by the Government. In that connection, the appellant also appears to have made several statements criticising the provisions sought to be incorporated in the Act. It is also on record that counter statements were made on behalf of the Government meeting these criticisms regarding the proposed amendments. They have been dealt with by the High Court rather elaborately; but, we do not propose to go into those matters, for the purpose of this appeal. 223 By virtue of the amendments effected and referred to above, it will be seen that the term of office of the Vice Chancellor has been reduced from 5 years to 3 years. The manner of appointment of the Vice Chancellor has also been changed and a provision is contained for removal of the Vice Chancellor from his office, but that can be done only in accordance with the provisions contained in section 12(2) of the Act. Section 7A gives power to the Government to give instructions to the University relating to matters of major educational policy; and it is made obligatory on the University to comply with such instructions issued by the Government. As we have already stated, the appellant was again appointed as Vice Chancellor for a period of 5 years on April 30, 1964; and he was continuing in office when the First Amendment Act was passed. One of the claims that is made by the appellant, in these proceedings, is that he is entitled to the protection conferred by section 12(2) of the Act referred to above. There does not appear to be any controversy that any appointment of a Vice Chancellor was made, after the passing of the First Amendment Act . The Act was further amended by the Osmania University (Second Amendment) Act, 1966 (Act XI of 1966) (to be referred to as the Second Amendment Act). It received the assent of the Governor on May 16, 1966. Section 2 of the Second Amendment Act, omitted section 7A of the Act. Section 5 of the Second Amendment Act, which introduced new section 13A in the Act, and which provision is the subject of attack in these proceedings, is as follows : "13A. Special provision as to the appointment of a new Vice Chancellor. Notwithstanding anything in this Act, the person holding the office of the Vice Chancellor immediately before the commencement of the Osmania University (Second Amendment) Act, 1966, shall continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor under sub section (1) of section 12 and enters upon his office; and such appointment shall be made within ninety days after such commencement. On the appointment of such new Vice Chancellor, and on his entering upon his office, the person holding the office of the Vice Chancellor immediately before such appointment shall cease to hold that office." Again, section 6 of the Second Amendment Act., incorporated section 33A in the Act, which is as follows : "33A. Special provision as to the reconstitution of the Senate, Syndicate, .Academic Council and Finance Com mittee. Notwithstanding anything in this Act, the members of the Senate, the Syndicate, the Academic Council and the Finance Committee constituted and functioning 224 before the commencement of the Osmania University (Amendment) Act, 1966, shall continue to be such members and function only until a new Senate, Syndicate, Academic Council or Finance Committee, as the case may be, is reconstituted under this Act. On the reconstitution of such new Senate, Syndicate, Academic Council or Finance Committee, the members of the Senate other than the life members thereof, the members of the Syndicate, Academic Council or Finance Committee, as the case may be, holding office immediately before such reconstitution, shall cease to hold that office. " Even according to the respondents, section 13A was incorporated for the purpose of terminating the services of the appellant as Vice Chancellor, so as to enable the Chancellor to make a fresh appointment of a Vice Chancellor. We have referred to section 33A of the Act, because the appellant 's case was also to the effect that with regard to the Senate, Syndicate, Academic Council etc. , there is no provision similar to section 13A of the Act, though they are also similarly situated like him. The findings of the learned Judges of the. High Court may now be briefly summarised : 1. The Andhra Pradesh Legislature was competent to enact section 5 of the Second Amendment Act. The said section does not contravene article 19(1)(f) of the Constitution. The appellant was holding the office of the ViceChancellor when the Act came into force and continued under section 51(2) thereof as Vice Chancellor until the Chancellor passed an order, in 1959 appointing him once again under the Act. Section 13(1), as introduced by the First Amendment Act, is not retrospective and the right of the appellant to continue as Vice Chancellor for the full term of 5 years stood unaffected and the new section 13(1) does not apply to him. The new section 12(2), as introduced by the First Amendment Act, is not applicable to the appellant. Sections 12(2) and 13A of the Act, do not cover the same field. Section 12(2) provides for removal by way of punishment and its operation is on a different field from that of section 13A where the cessation of office is due to a curtailment of the term. Section 12(2) applies only to the future Vice Chancellors and section 13A is solely applicable to the existing Vice Chancellor, the appellant. 225 .lm0 Regarding the attack on section 13A, on the basis of article 14 of the Constitution that there is an unreasonable discrimination, the learned Judges were of the view that the said section did not suffer from any such infirmity. The learned Judges held that the impugned legislation had resulted in classifying Vice Chancellors under two categories, (a) the appellant, as the existing Vice Chancellor, falling under the first category; and (b) future Vice Chancellor, to be appointed under the Act, who falls under the second category. According to the High Court, the object sought to be achieved by such classification, as could be seen from the objects and reasons of the Second Amendment Act, 1966, was to give effect to the reduced term of 3 years fixed under section 13(1) of the Act after the First Amendment. The Hi gh Court further held that the classification adopted by section 13A, of putting the appellant, as the existing ViceChancellor, in a class by himself, is founded on an intelligible differentia, which distinguishes the appellant from future ViceChancellors, and that this differentia has a rational relation to the object sought to be achieved by the Second Amendment Act. In this connection, the learned Judges also advert to the similar provisions enacted, at about the same time, in the Andhra University Act, 1925, and the Sri Venkateswara University Act, 1954. The High Court is also of the view that the Legislature must have taken into account the fact that the appellant has already put in more than 6 years of service as Vice Chancellor, for treating him as a class by himself, as distinct from future Vice Chancellors, who are to be appointed and, as such, have not put in any service at all. The learned Judges have, no doubt, adverted to the fact that the appellant has got an eventful record of efficient service, full of recognition and appreciation, but the appellant cannot plead those circumstances when a competent legislature has passed a valid legislative measure, under which he has to lose his office. Ultimately, on these findings, the High Court came to the conclusion that section 5 of the Second Amendment Act, introducing section 13A in the Act, is not vitiated by any infirmity, as alleged by the appellant, and, finally, dismissed the appellant 's writ petition. The appellant has again raised, no doubt, most of the contentions that were taken before the High Court. But the main ground of attack that has been pressed before us, by learned counsel for the appellant, is the one based upon article 14 of the Constitution. The findings recorded, and the views expressed, by the High Court are sought to be sustained by the learned Additional Solicitor General, appearing for the respondents. But, we do not think it necessary to go into the larger controversy that has been raised by the appellant, before the High Court, in the view that we take, that the appellant must succeed in respect of the attack levelled against the impugned 226 provision, based upon article 14 of the Constitution. As to whether the criticism, made by the appellant, about the proposals to amend the Act, was or was not responsible for the passing of the legislation in question, does not assume much of an importance; because, the simple question is whether the provision, section 13A, as it now stands n the Act, is violative, in any manner, of article 14 of the Constitution. If the answer is 'yes ', it is needless to state that the provision will have to be struck down. Therefore, we are confining our attention only to the provisions of the Act and we will refer to any other circumstance that is brought to our notice only for the limited purpose of considering the grounds of attack based upon article 14 of the Constitution. According to Mr. Setalvad, the appellant is entitled to take advantage of the provisions of section 12(2) of the Act. On the date of the passing of the First Amendment Act, the appellant was, admittedly, a Vice Chancellor and he had been continuing as such. He cannot be removed from his office, except in accordance with the provisions of section 12(2) of the Act. But, in view of section 13A of the Act, introduced by the Second Amendment Act, the appellant is forced out of his office, within 90 days of the passing of the Second Amend ment Act. The creation of two classes of Vice Chancellors, viz., Of Vice Chancellors appointed under the Act and the Vice Chancellor who was in office at the commencement of the Second Amendment Act, is not on any rational basis. Person is appointed as ViceChancellors, constitute a group, and the impugned provision makes a differentiation between the person who is a Vice Chancellor then and other persons who are to be appointed Vice Chancellors thereafter, for which differentiation, there is absolutely no basis. Further, even if it can be stated that there is any basis for the said classification, nevertheless there should be a nexus or connection between the basis of the classification and the object of the legislation, which again, is lacking in this case. Mr. Setalvad further urged that while the services of a ViceChancellor, appointed under the Act, could be terminated only in accordance with the provisions contained in section 12(2) of the Act, the appellant 's services could be terminated under section 13A, without adopting the procedure laid down in section 12(2) of the Act. There was also no provision in the Act, Mr. Setalvad pointed out, making section 13(2) applicable to Vice Chancellors to be appointed in future. Though the term of office for a Vice Chancellor has been fixed under the Act, even after the amendments, as three years, and that may apply to all the Vice Chancellors, so far as the appellant is concerned, his term has been reduced or restricted to 90 days under section 13A of the Act. Mr. Setalvad again urges that even assuming that it is open to the Legislature, in an appropriate case, to make provisions applicable 227 to only one individual or a group of individuals, nevertheless, it is well established, by this Court, that the classification that is effected ,by the statute must be a classification founded on an intelligible differentia and that differentia must have a rational relation to the object sought to be achieved by the statute. Applying these two tests, learned counsel urges, that the impugned legislation must be. considered to be violative of article 14 of the Constitution. The learned Additional Solicitor General has urged that the, term of office of the Vice Chancellor has been reduced to three; years by the First Amendment Act. The Legislature, in order to give effect to this provision and to enable fresh appointments to be made under the Act, has enacted section 13A. That section has, necessarily, to apply only to persons like the appellant who are holding. office at the time when these provisions came into force. Such a provision, in the nature of things, cannot apply to Vice Chancellors who are to be appointed in future under the Act. Therefore it is wrong to state that all Vice Chancellors,. irrespective of the manner ' or mode under which they are appointed, in present or in future, fall under the same category. Further, the appellant has been a Vice Chancellor for nearly 7 years. The legislature, the learned Solicitor points out, having regard to these circumstances, has chosen to treat the appellant, the Vice Chancellor holding office on the date of the Second Amendment Act, as a class by himself and has differentiated him from persons to be appointed ViceChancellor for the first time. Such a classification, is reasonable and it has got a rational relation to the object sought to be achieved by the Second Amendment Act, viz., bringing about uniformity in the tenure of three years of office for all Vice Chancellors. The learned Solicitor points out further that the appellant is not entitled to the benefit of section 12(2) of the Act. The Legislature was competent to enact the Measure in question and the object of the Legislature was to give effect to the amendment provisions as early as. possible. He pointed out that similar provisions were also made in two other enactments at about the same time, viz., in the Andhra University Act, 1925, and the Sri Venkateswara University Act, 1954. It may be that the Legislature could have adopted another method for replacing the present Vice Chancellor, but that is a matter of policy, which cannot be reviewed by the Courts, so long as the Legislature had the competence to enact the measure and the provisions, so enacted, do not suffer from any other legal infirmities. We have given due consideration to the various contentions placed before us by Mr. Setalvad, learned counsel,for the appellant, and the learned Additional Solicitor General, on behalf of the respondents; but we are not inclined to agree with the contentions of the learned Additional Solicitor General. 228 The principles to be borne in mind, when a question arise under article 14 of the Constitution, have been laid down in several ,decisions, by this Court,on a number of occasions. In Budhan Choudhry vs The State of Bihar(1), Das J., speaking for the Court said : "It is now well established that while article 14 forbids class 'legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the, classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. " Therefore, it will be seen that in order to accept a classification as permissible and not hit by article 14, the measure in question will have to pass the two tests laid down in the above decision. The observations, extracted above, have been quoted by Das C. J., in .Ram Krishna Dalmia vs Shri Justice section R. Tendolkar(2). It is no doubt true, as pointed out by the learned Additional SolicitorGeneral, that a statute may direct its provisions against one individual person or thing, or against several individual persons or things. But, before such a provision can be accepted as valid, the Court must be satisfied that there is a reasonable basis of classification which appears on the face of the statute itself, or is deducible from the surrounding circumstances or matters of common knowledge. If no such reasonable basis of classification appears on the face of the statute, or is deducible from the surrounding circumstances, the law will have to be struck down as an instance of naked discrimination. It should also be borne in mind that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon the party who attacks the same as unconstitutional, to ,Show that there is a clear transgression of the constitutional principles; but, as observed by Das C.J., in Ram Krishna Dalmia 's case(2), at p. 297, "while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried (1) ; ,1049. (2) ; , 296. 229 to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. " Having due regard to the principles referred to above, we now proceed to consider as to whether the appellant has been able to establish that section 5 of the Second Amendment Act, introducing s.13A in the Act, is discriminatory and, as such, violative of article 14 of the Constitution. We have already stated that the appellant was appointed, under the Act, for a further term of 5 years, as Vice Chancellor, on April 30, 1964, and he was continuing in office, as such, at the time when the two Amending Acts were passed; and, normally,. he, would be entitled to continue in that post for the full term, which will expire only at the end of April 1969. The First Amendment Act provided, in section 12 of the Act, that the Vice Chancellor is to be appointed by the Chancellor; but section 12(2) specifically provided that the Vice Chancellor shall not be removed from his office excep t by an order of the Chancellor passed on the ground of misbehaviour or incapacity and, after due inquiry by such person who is, or has been, a Judge of a High Court or the Supreme Court, as may be appointed by the Chancellor. It was also provided that the ViceChancellor was to have an opportunity of making his representation against such removal. Prima facie; the provisions contained in sub section (2) of section 12, must also apply to the appellant, who did continue in office even after the passing of the First Amendment Act. No doubt the term of office of the Vice Chancellor was fixed at 3 years under section 13(1) of the Act. But no provisions, were made in the First Amendment Act regarding the termination of the tenure of office of the Vice Chancellor who was then holding that post. There can be no controversy that section 13A, introduced by section 5 of the Second Amendment Act, deals only with the appellant. In fact, the stand taken on behalf of the respondents in the counteraffidavit filed before the High Court, was to the effect that the Legislature had chosen to treat the Vice Chancellor holding office at the time of the commencement of the Second Amendment Act, as a class by himself and with a view to enable the Chancellor to make fresh appointments, section 13A of the Act was enacted. Therefore, it is clear that section 13A applies only to the appellant. Though, no doubt, it has been stated, on behalf of the respondents,,,, that similar provisions were incorporated, at about the same time, in two other Acts, relating to two other Universities, viz., the Andhra University and the Sri Venkateswara University, and though this circumstance has also been taken into account by the learned Judges of the High Court, in our opinion, those provisions 230 have no bearing in considering the attack levelled by the appellant on section 13A of the Act. This is a clear case where the statute itself directs its provisions by enacting section 13A, against one individual, viz., the appellant; and before it can be sustained as valid, this Court must be satisfied that there is a reasonable basis for grouping the appellant as a class by himself and that such reasonable basis must appear either in the statute itself or must be deducible from other surrounding circumstances According to learned counsel for the appellant, all Vice Chancellors of the Osmania University come under one group and can be classified only as one unit and there is absolutely no justification for grouping the appellant under one class and the Vice Chancellors to be appointed in future under a separate class. In any event, it is also urged that the said classification has no relation or nexus to the object of the enactment. Our attention has been drawn to the Statement of Objects and Reasons to the Second Amendment Bill, the material part of which is as follows "The term of office of the Vice Chancellor has been reduced to three years under section 13(1) of the Osmania University Act as amended by section 10 of the Osmania University (Amendment) Act, 1966. Section 13 A, proposed to be inserted by clause 5 of the Bill, enjoins that notwithstanding anything in the Act, the person holding the office of the Vice Chancellor immediately before the commencement of the Osmania University (Second Amendment) Act, 1966 shall continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor under section 12(1) as amended and enters upon his office, and such appointment shall be made within ninety days after such commencement. " We are inclined to accept the contention of Mr. Setalvad, that there is no justification for the impugned legislation resulting in a classification of the Vice Chancellors into two categories, viz., the appellant as the then existing Vice Chancellor and the future Vice. Chancellors to be appointed under the Act. In our view, the Vice Chancellor, who is appointed under the Act, or the Vice Chancellor who was holding that post on the date ,of the commencement of the Second Amendment Act, form one single group or class. Even assuming that the classification of these two types of persons as coming under two different groups can be made nevertheless, it is essential that such a classification must be founded on an intelligible differentia which distinguishes the appel 231 lant from the Vice Chancellor appointed under the Act. We are not able to find any such intelligible differentia on the basis of which the classification can be justified. It is also essential that the classification or differentia effected by the statute must have a rational relation to the object sought to be achieved by the statute. We have gone through the Statement of Objects and Reasons of the Second Amendment Bill, which became law later, as well as the entire Act itself, as it now stands. In the Statement of Objects and Reasons for the Second Amendment Bill, extracted above, it is seen that except stating a fact that the term of office of the Vice Chancellor has been reduced to 3 years under section 13(1) and that s.13A was intended to be enacted, no other policy his indicated which will justify the differentiation. The term of office fixing the period of three years for the Vice Chancellor, has been already effected by the First Amendment Act and, therefore, the differential principle adopted for terminating the services of the appellant by enacting section 13A of the Act, cannot be considered to be justified. In other words, the differentia adopted in section 13A and directed as against the appellant and the appellant alone not be considered to have a rational relation to the object sought to be achieved by the Second Amendment Act. While a Vice Chancellor appointed under section 12 of the Act can be removed from office only by adopting the procedure under section 12(2), the services of the appellant, who was also a Vice. Chancellor and similarly situated, is sought to be terminated by enacting section 13A of the Act. We do not see any policy underlying the Act justifying this differential treatment accorded to the appellant. The term of office of the Vice Chancellors has been no doubt reduced under the First Amendment Act and fixed for 3 years for all the Vice Chancellors. But, so far as the appellant is concerned, by virtue of section 13A of the Act, he can continue to hold that office only until a new Vice Chancellor is appointed by the Chancellor, and that appointment is to be made within 90 days. While all other Vice Chancellors, appointed under the Act, can continue to be in office for a period of three years, the appellant is literally forced out of his office on the expiry of 90 days from the date of commencement of the Second Amendment Act. There is also no provision in the statute providing for the termination of the services of the ViceChancellors, who are appointed under the Act, in the manner provided under section 13A of the Act. By section 13A, the appellant is even denied the benefits which may be available under the proviso to sub section (1) of section 13 of the Act, which benefit is available to all other ViceChancellors. The appointment of the appellant in 1959 and, again in 1964, under section 12(1) of the Act, as it stood prior to the two amendments, by the Chancellor, must have been, no doubt, from a panel of 232 names submitted by a committee constituted under section 12(2). The appointment of a Vice Chancellor after the passing of the First Amendment Act, is to be made exclusively by the Chancellor under section 12(1), as the section now stands. That is a circumstance, relied on by the respondent, for differentiating the appellant as an existing Vice Chancellor from a Vice Chancellor to be appointed under the Act, as amended. Another circumstance relied on is that the appellant has been a Vice Chancellor for 7 years. In our opinion, these are not such vital or crucial factors which will justify treating the appellant as a class by himself, because the powers and duties of a Vice Chancellor, either under 'the Act, prior to the amendment, or under the Act, after amendment, continue to be the same. To conclude, the classification of the appellant, as a class by himself, is not founded on any intelligible differentia, which distinguishes him from other Vice Chancellors and it has no rational relation to the object of the statute, and so section 13A is hit by article 14. The appellant has attacked section 13A, as discriminatory, relying upon a different provision, made under section 33A, in respect of the Senate, Syndicate, Academic Council and the Finance Committee. We have, however, not considered the question as to whether the appellant can be treated as falling under the same class, as the other authorities mentioned in section 33A, as we have accepted the appellant 's contention, based upon article 14, on other grounds. For the above reasons, we accept the contentions of the learned counsel for the appellant, and hold that section 5 of the Second Amendment Act (Act XI of 1966), introducing section 13A in the Act, is discriminatory and violative of article 14 of the Constitution and, as such, has to be struck down as unconstitutional. The result is that the appeal is allowed, and the appellant will be entitled to his costs in the appeal, payable by the respondents, here and in the High Court. R.K.P.S. Appeal allowed. M19Sup. C.I./66 2,500 18 7 67 GIPF.

The appellants purchased certain lands in the State of Punjab and the respondents filed a suit claiming a right of preemption thereon. Under a scheme of consolidation, however, the appellants had before the filing of the suit, been allotted some other lands in lieu of the lands purchased by them, and they contended that the right of pre emption claimed by the respondents did not extend to these lands. The trial court and the High Court decreed the respondents ' suit holding on the oasis of section 24 of the Patiala and East Punjab States Union Holdings (Consolidation and Prevention of Fragmentation) Act 5 of 2007 BK that it was open to pre emptor to follow the land which had been given to the vendees in consolidation proceedings in lieu of the land which was the subject matter of the sale deed. The appellants came to this Court by special leave. HELD : Section 24 when it says that the landowner or the tenant at will shall have the same right in the land allotted to him as he bad in his original holding or tenancy clearly preserves the obligation that may be on the land in the nature of a disability. The consequence therefore is that the ordinary law of pre emption under which the pre emptor his the right to follow the land which is the subject matter of the sale deed becomes expanded and the land allotted to the landlord and tenant at will in lieu of the land which may have been subject to pre emption also becomes subject to pre emption in the same way as the original holding or the tenancy. This inference is not negatived by the special provisions of section 25 in respect of leases and mortgages or other encumbrances. [866 G; 867 D E] Shri Audh Behari Singh vs Gajadhar Jaipuria, [1955] 1 S.C.R. 70, Bishan Singh vs Khazan Singh, ; relied on.

Special Leave Petition (Civil) No. 2939 of 1978. Appeal from the Judgment and order dated 4 10 1978 of the Gujarat High Court in Special Civil Application No. 1174 of 1977. M. V. Gowswami for the Petitioner. P. M. Raval, P. H. Parekh, C. B. Singh and M. Mudgal for the Respondent. 339 The order or the Court was delivered by KRISHNA IYER, J. The petitioner 's counsel, in his fighting submission, argues that his client 's fundamental right to a licence for a meat shop has been flouted by the little Limdi Municipality, founding himself on a decision of this Court in Mohd. Faruk, vs M. P. State(1). That decision hardly helps. There a byelaw was challenged as violative of Art 19(1)(g). Here there is no law whatever which bans the grant of meat licences. Indeed, there are three other licensed meat stalls and the petitioner himself had a meat licence in a shop leased to him by the same Municipality earlier which by efflux of time had expired. The law vests a discretion to he reasonably exercised in the content of citizen 's fundamental right. The ground on which the Municipal body has refused licence here is not irrelevant and cannot be described as unreasonable within the meaning of article 19(6) of the Constitution. The bye laws permit the municipality, as the licensing authority, to grant or to refuse licences. No butcher, baker or circus manager can say that he has the, unqualified right to get a licence on mere application. It is open to the licensing council indeed, is obligatory on its part to take note of all relevant circumstances and then decide whether, in the particular spot chosen by the particular applicant" a licence should be granted. Various factors enter the verdict and the local authorities are the best judge of these factual factors, not the court, especially this Court sitting at the third tier. The, Limdi Municipality is stated to be a small one with a population of around 25000. It is admitted that there are three licensed meat vendors including one who is the father of the petitioner. The claim of the petitioner is for a fourth licence. It is quite conceivable that the fourth may be supernumerary. It is quite understandable that the municipality may think that it is not reasonable to grant licence to the same person or one for the father and another for the son. Moreover, we cannot dismiss as irrelevant or obnoxious the consideration the strong feelings of the local people resulting in law and order problems. The proximity to schools, public institutions and also residents of the locality plus the reaction or impact on those institutions and residents maybe germane from peace keeping and welfare oriented view points. We agree that local bodies should not succumb to religious susceptibilities or fanatical sentiments in secular India and refuse licences where fundamental rights have to be respected. Even so, in the, totality of circumstances present in the present case, it is not possible for us to postulate that there has been an abuse of discretion or a perverse use of power. In this view, we decline to interfere. Certainly, the munici (1) [1978] I SCR 156. 340 pal authority will take care to be alert and alive to the fundamental right of citizens and not refuse licences merely scared by mob sentiment or panicked by religious reaction. In the instant case there is a composite lease cum cum lease of a meat shop and licence for carrying on trade in mutton. There is no obligation on the part of the municipality to grant a lease of its property to any one who asks for it merely for the asking. Granting a lease solely because some one offers a large donation to the municipality. as nearly happened here, may not be correct, which this local body will note. If the refusal of the lease or its renewal cannot be faulted, the question of grant of the licence does not arise. In this view also we ( find it difficult to accede to the argument of the petitioner. We agree that municipal discretion should be exercised rationally, not religiously nor ritually, but we also realize that judicial discretion should go into anxiously, not impetuously nor in disregard of the pragmatic guideline that local authorities are the best judges of local conditions. Of course, if irrelevant criteria or perverse application vitate the decision courts will guardian the rule of law against little tyrants trampling over people 's rights or local factions fouling the council 's verdict. The Special Leave Petition is, therefore, dismissed.

Dismissing the special leave petition, the Court, ^ HELD: 1. No butcher, baker or circus manager can say that he has the unqualified right to get a licence on mere application. It is open to the licencing Council Indeed, is obligatory on its part to take note of all relevant circumstances and then decide whether, in the particular spot chosen by the particular applicant, a licence should be granted or not. [339C D] 2. Various factors enter the verdict and the local authorities are the best judge of the factual factors, not the Court especially, the Supreme Court at the third tier The factual factors may be many, like the proximity to schools, public institutions and also residents of the locality plus the reaction or impact on those institutions and residents, the unreasonableness to grant licence to the same person or one for the father and another for the son, the need for an extra shop, other considerations which are germane from peace keeping and welfare oriented view points etc. Certainly granting a lease solely because someone offers a large donation to the Municipality may not be correct. [339D. G, 340B] 3. No doubt Municipal discretion should be exercised rationally, not religiously nor ritually and judicial discretion should go into anxiously, not impetuously nor in disregard of the pragmatic guideline that local authorities are the best judges of local conditions. Of course, if irrelevant criteria or perverse application vitiate the decision, courts will guardian the rule of law against little tyrants trampling over people 's rights or local factions fouling the council s verdict. [340C D] In the instant case, the ground on which the Municipal body, has refused licence is not irrelevant and cannot be described as unreasonable within the meaning of article 19(6) of the constitution. [339C] Mohd. Faruk vs M. P. State, ; ; inapplicable.

o. 1 of 1989. IN Civil Appeal No. 3334 of 1982. From the Judgment and Order dated 16.9.1982 of the Calcutta High Court in Appeal No. nil. Kapil Sibal, R.F. Nariman and Vineet Kumar for the Petition er. Dr. Shankar Ghose, H.N. Salve, G. Joshi, A.K. Sil, Ms. Urmil Narang (N.P.), C.S. Vaidyanathan, Vivek Gambhir (N.P.) and Praveen Kumar for the Respondents. The following Order of the Court was delivered by MISRA, J. This civil appeal by special leave is at the instance of a builder who had entered into a contract with the Board of Governors of the La Martiniere School at Cal cutta in respect of certain immovable property of the School to be taken by the builder on permanent lease. Christopher Martin Desgranges Martin left behind a will which stipulated the setting up of a school for the benefit of the city of Calcutta and upon his death the will was probated and the executors 447 set up the school. The Board of Governors of the School (hereinafter 'Board ') among others has the reverend Bishop of the city of Calcutta as its Chairman and a retired Major General of the Indian Army as a member. The Old Mar tinians Association (hereinafter 'Association ') being a body of the old students of the School resisted the request of the School before the High Court when it applied for accept ance of the agreement of lease of 1981. A learned Single Judge while agreeing on principle to accord sanction asked for further details. The Division Bench made certain direc tions in an appeal taken to it by the builder and the inter im directions form the basis of subject matter of this appeal. During the pendency of the appeal in this Court the builder and the School entered into a fresh agreement on 12.9.1986 to which the Association is also a party. Under the agreement more favourable terms for the School were stipulated, such as (1) annual payment of ground rent of Rs.22,000 during the period of lease; (2) as against a one time payment of Rs.31 lakhs in the 1981 agreement, a recur ring annual payment of about Rs.50 lakhs; and (3) built in area of 60,000 square feet to enable extension of the School and earning of rental income. Apart from these, it is stated that under the 1981 agreement the School had entered into arrangements with prospective lessees and had received a substantial sum of money by way of advance from them in respect of approximately 53,000 square feet to be construct ed. The builder under the 1986 agreement took the responsi bility of dealing with the prospective lessees either by refunding the money or providing leasehold area from out of its share. It is not disputed that a total area of about 1,80,000 square feet would be available as a result of the construc tion agreed to be raised by the builder under the 1986 agreement. Parties decided to file an application for com promise before this Court in the pending appeal and the petition was duly drawn up on 12.9.1986. It was signed on behalf of the Board by the Chairman and Major General B.M. Bhattacharya ', Anjan Dey in his personal capacity and as President of the Association and the builder. Mr. Anjan Dey 's signature in his personal capacity was duly attested by Mr. P.L. Agarwal, his Advocate and his signature as President of the Association was duly witnessed by Mr. Bhankar Kar, Secretary of the Association. This application was, however, not presented in this Court until some time in May, 1989, for difficulties which have been attempted to be explained by the School. After this application was made the Association represented by Mr. Amit Bikram Roy resisted it. Rejoinders have been filed on behalf 448 of the School and the builder to the objection. The original compromise petition has been produced. The builder has also placed on record the proceedings of the Board of the Associ ation dated 11th September, 1986 a day before the compro mise was signed. The resolution of the Association 's Board reads thus: "RESOLVED that in view of finalisation of pending case at Supreme Court of India regard ing dispute arising out of Property Develop ment at La Martinique for Boys, Calcutta as petitioned by Developer/Contractor Damodar Ropeways & Construction Co. Pvt. Ltd. with one of the parties being Mr. Anjan Dey and Old Martinians Association, Mr. Anjan Dey be and is hereby authorised to act on behalf of the Association for the compromise solution as drawn up by the Association 's Solicitors M/s. Khaitan & Co. and as already approved by all parties concerned subject to permission by the Hon 'ble Supreme Court. " The proceedings were signed by Mr. Shankar Kar, General Secretary, Ms. Joyita Sen, Treasurer, Messrs Amit Bikram Roy, Vice President, Ashoke Paul, Anjan Dey, President and Ms. Raktima Dutt. Objection of the Association to the petition of compro mise is mainly on two grounds (1) lapse of three years between the date of signature of the petition by the parties and its filing; and (2) want of authority of Mr. Anjan Dey to enter into the compromise. The delay in filing the compromise petition in Court has been attempted to be explained on behalf of the School and the builder. If the compromise is genuine and lawful, the delay in presentation in Court could at the most, if at all, be in the realm of equity and would not be otherwise materi al. The resolution of the Board of the Association of 11th September, 1986, extracted above is a complete answer to the second ground as it clarifies the position that all parties had agreed to the compromise and it was intended to be presented before this Court for permission to enter into compromise. Mr. Anjan Dey had been authorised to associate himself for the purpose. It is not the contention of the Association that the whole or any part of the agreement is unlawful; nor is it the contention of any of the parties that the petition has not been signed by him or them. The compromise is, therefore, in accordance with the provisions of Order XXIII, rule 3 of he Code of Civil Procedure and can be acted upon. 449 Before the compromise is accepted it is for the Court to be satisfied that the terms are in the interests of the Trust. Dr. Ghosh for the Association strenuously contended that the property was very valuable even as vacant site in view of the recent escalation of price of land in Calcutta and if a genuine attempt is made there was possibility of a higher offer being made and the interest of the School should, therefore, not be sacrificed by allowing it to enter into the compromise. When we suggested to Dr. Ghosh that the Association could provide a guarantee to accept and work out the ten, as in the compromise in the event of the response to the advertisement not being as favourable, he was not willing to do so. We do not think that it is in the interest of the School to reject the agreement on the representation of Dr. Ghosh that there was scope of receiving better offers if advertisement was made. A solemn agreement has been entered ' into. The builder has already spent substantial sums of money on the property. The plan has been sanctioned by the Corporation and we are told that under the changed regulations it would be difficult for the School to obtain a fresh sanction. Three years have now been lost on account of the compromise not having been placed before the Court and following the course suggested by Dr. Ghosh involves an element of uncertainty to which the School should not be exposed. Under the agreement forming the subject matter of compromise the School would ,have space available for expan sion in the near future. Keeping these aspects in view, we have thought it appropriate that the compromise should be accepted but with certain variations. As we have already stated, built in area of 1,80,000 square feet would be available under the agreement and excluding about 50,000 square feet of built in area which may be set apart for the purpose of meeting the prospective lessees (we express no opinion about the tenability of such claim) who had entered into arrangements with the School, 1,30,000 square feet would be available. Out of it the School has been given 60,000 square feet and the builder is to take 70,000 square feet. We suggested to Mr. Nariman for the builder that the constructed area of 1,30,000 square feet should be equally divided between the School and the builder and on instructions from his client (present in Court) Mr. Nariman has fairly agreed to do so. Since the annual ground rent had been fixed at Rs.22,000 three years back, we indicated to Mr. Nariman that the sum should be escalated and he has agreed to have it enhanced to Rs.40,000 per year after receiving consent of his client. We are of the view that there should be an escalation clause in regard to the ground rent and once in every ten years escalation of ten per cent in the annual ground rent beginning from 1990 450 should be provided. These three terms in our view suffi ciently protect the interests of the School and the Trust. We accordingly accord permission to the Board of Governors to enter into compromise on behalf of the School. The civil appeal is disposed of and the terms of compromise with the three modifications indicated as to availability of extra area of 5,000 square feet to the School, escalation of the ground rent to Rs.40,000 from Rs.22,000 and provision for automatic escalation of ten per cent once on very ten years shall be incorporated in the decree while the other terms as agreed to by the parties shall also form part of the decree to be drawn up in the appeal. We have not considered it in the interests of the par ties to transmit the matter to the Calcutta High Court as that would protract the matter and the order of the Single Judge might be challenged in appeal and ultimately the dispute may again be brought before this Court. Another round of such litigation would be time consuming and would not at all be in the interest of anyone. T.N.A. Appeal disposed of.

The appellant/petitioner company Good Year India Limit ed a registered dealer both under the Haryana General Sales Tax Act, 1973 and , was manufac turing automobile tyres and tubes at Ballabgarh in the State of Haryana. For the said manufacturing activity it was purchasing various kinds of raw materials both within the State and from outside the State of Haryana. The Company was despatching these manufactured goods viz. tyres and tubes to its own branches and sales depots outside the State of Haryana. The assessing authority imposed upon the appellant company the purchase tax under section 9 of the Haryana General Sales Tax Act, 1973 in view of the despatches made by it of the manufactured goods to its various depots out side the State. The petitioner company filed writ petition in the Punjab and Haryana High Court challenging the validity of the Notification levying the tax. A Division Bench of the High Court allowed the petition holding that disposal of goods being separate and 'distinct from despatch thereof, a mere despatch of goods out Of the State by a dealer to his own branch while retaining both 'the title and possession there of does not come within the ambit of the phrase "disposes of the manufactured goods in any manner otherwise than by way of sale", as employed in Section 9(i)(a)(ii) of the Act. Accordingly the High Court set aside the assessment orders and quashed the impugned Notification as ultra vires of section 9 on the ground that whereas Section 9 provided only for the levy of purchase tax On the disposal of the manufac tured goods, the impugned Notification makes mere despatch of goods to the dealer themselves taxable. To override the effect of the said judgment the Haryana Legislature enacted Haryana General Sales Tax (Amendment and Validation) Act 1983 where by Section 9 of the Act was amended with retro spective effect to include within its sweep the despatch of manufactured goods to a place outside the State in any manner otherwise than by way of sale. The impugned Notifica tion and the con 513 sequential action taken thereunder were also validated. The petitioner company filed writ petitions challenging the assessments. The High Court allowed the petitions hold ing section 9(1)(b) of the Haryana General Sales Tax Act 1973 as amended by the Haryana General Sales Tax (Amendment and Validation) Act, 1983 in so far as it levied a purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce was beyond the legislative competence of the State of Haryana and was void and inoperative because it intruded and trespassed into an arena exclusively meant for taxation by the Union of India under Entry 92 B of List I of the Seventh Schedule. Accord ingly the High Court set aside the amended provisions of section 9 as also the retrospective validation of the Noti fication and the consequential validation of all actions taken thereunder. Against this decision of the High Court, State of Haryana preferred Special Leave Petitions in this Court. During the pendency of these Special Leave Petitions, the assessing authority issued Show cause notices asking the petitioner company to show cause why in addition to the purchase tax, it should not be liable to penalty as well. The Petitioner company again filed writ petitions in the Punjab & Haryana High Court challenging the validity of these notices. In the meantime a Full Bench of the High Court decided the question again and overruling the decision of the earlier Division Bench held that the taxing event was the act of purchase and not the act of despatch of the consignment. The Full Bench of the High Court held that section 9(1)(b) as amended was neither invalid nor ultra vires. Against the aforesaid judgment of the Full Bench the Petitioner Company filed appeals in this Court. All these questions are the subject matters of these appeals. In the connected appeals, the Food Corporation of India was procuring food grains from the farmers through commis sion agents in tile mandis of Haryana and despatching them to its own branches in the deficit State of the country. The Corporation branches in the recipient States were supplying these stocks to the State agencies/Fair Price Shops and were also paying tax as per the provisions of the Sales Tax law of the respective States. Some of the stocks were distribut ed within the State of Haryana for the public distribution system for which sales tax was charged. and deposited with the sales tax depots as per the Haryana General Sales Tax Act, 1973. In respect of the inter State despatch of wheat and other food grains by the Food Corporation of India to its own branches tax was attracted at the time of despatch 514 under section 9(1)(c) of the Haryana Act. The Food Corpora tion of India impugned the levy of tax. In the other connected appeals the appellant companies Hindustan Lever Ltd. and Wipro Products were manufacturing vanaspati, soaps, chemicals and agro chemi cals. For the said manufacturing activities, they were purchasing non essential vegetable oil (VNE oil) and other raw materials and were paying purchase tax @4% under section 3 of the Bombay Sales Tax Act, 1959. The VNE oil was subse quently used by the appellant companies in the manufacture of vanaspati and soaps. The finished products manufactured by the appellant companies viz. vanaspati and soaps used to be despatched outside the State of Maharashtra to their clearing and forwarding agents. The assessing authority levied additional purchase tax @ 2% under section 13 AA of the Act on the purchase of said goods VNE oil. The appellant companies filed writ petitions in the High Court challenging the orders of the assessing authority levying the additional tax of 2% and also the vires of section 13 AA of the Bombay Sales Tax Act, 1959 under which the additional tax was levied, contending that the addition al tax of 2% levied on raw materials, where the finished goods manufactured therefrom were despatched outside the State was in the nature of consignment tax which was not within the legislative competence of the State Legislature. The High Court dismissed the petitions holding (i) the additional purchase tax levied under section 13 AA of the Act was on the purchase value of VNE oil used in the manu facturing of goods transferred outside the State and not on the value of the manufactured goods so transferred; (ii) the State Legislature was competent to levy the tax under Entry 54 of the State List in the Seventh Schedule to the Consti tution, and (iii) Section 13 AA was not violative of either Article 14 or Article 301 of the Constitution of India. Against the decision of the High Court appellant compa nies filed appeal in this Court. Disposing of the matters, this Court, HELD: (Per Mukharji, J.) 1. Analysing section 9 of the Haryana General Sales Tax Act, 515 1973 it is clear that the two conditions specified, before the event of despatch outside the State as mentioned in section 9(1)(b), namely, (i) purchase of goods in the State and (ii) using them for the manufacture of any other goods in the State, are only descriptive of the goods liable to tax under Section 9(1)(b) in the event of despatch outside the State. If the goods do not answer both the descriptions cumulatively, even though these are despatched outside the State of Haryana, the purchase of those goods would not be put to tax under Section 9(1)(b). The liability to pay tax under section 9(1)(b) does not accrue on purchasing the goods simpliciter, but only when these are despatched or consigned out of the State of Haryana. The section itself does not provide for imposition of the purchase tax on the transaction of purchase of the taxable goods but when fur ther the said taxable goods are used up and turned into independent taxable goods, losing its original identity, and thereafter when the manufactured goods are despatched out side the State ' of Haryana and only then tax is levied and liability to pay tax is created. It is the cumulative effect of that event which occasions or causes the tax to be im posed. [539F H; 540A B] 1.1 A taxable event is that which is closely related to imposition. In the instant section viz. section 9(1)(b) there is such close relationship only with despatch. The goods purchased are used in manufacture of new independent commodity and thereafter the said manufactured goods are despatched outside the State of Haryana. In this series of transactions the original transaction is completely eclipsed or cease to exist when the levy is imposed at the third stage of despatch of manufacture. The levy has no direct connection with the transaction of purchase of raw materi als, it has only a remote connection of lineage. The mere consignment of goods by a manufacturer to his own branches outside the State does not in any way amount to a sale or disposal of the goods as such. The consignment or despatch of goods is neither a sale nor a purchase. The tax imposed under Section 9(1)(b) is a tax on despatch. The tax on despatch of goods outside the territory of the State cer tainly is in the course of inter State trade or commerce and amounts to imposition of consignment tax, and hence the latter part of section 9(1)(b) is ultra vires and void. [540G H; 542H; 543A; 544E; 545A] Tata Iron & Steel Co. vs State of Bihar, ; , referred to. Good Year India Ltd. vs State of Haryana, 53 STC 163 and Bata India Ltd. vs State of Haryana & Anr., 54 STC 226, approved. 516 Des Raj Pushap Kumar Gulati vs The State of Punjab, 58 STC 393, overruled. Yusuf Shabeer & Ors. vs State of Kerala & Ors., 32 STC 359; Coffee Board vs Commissioner of Commercial Taxes & Ors., 60 STC 142 and Coffee Board, Karnataka vs Commissioner of Commercial Taxes, Karnataka, 70 STC 162, distinguished. State of Tamil Nadu vs M.K. Kandaswami, 36 STC 191; Ganesh Prasad Dixit vs Commissioner of Sales Tax, M.P., [1969] 24 STC 343 and Malabar Fruit & Company vs Sales Tax Officer, Pallai, 30 STC 537, distinguished. 1.2 The effect of the Constitution (Forty sixth Amend ment) Act, 1982 is that the field of taxation on the con signment/despatch of goods in the course of inter State trade or commerce expressly comes within the purview of the legislative competence of the Parliament. [543H] 2. If section 9(1)(b) is ultra vires, the penalty pro ceedings would automatically go as they are in substance, based on the violation of section 9(1)(b) of the Act and the consequent proceedings flowing therefrom. [545B] 3. Section 24(3) of the Haryana General Sales Tax Act, 1973 without making any change in the substantive provision purports to give a direction to ignore the judgments in Goodyear and Bata India Ltd. cases. This provision is void. [546B] Shri Prithvi Cotton Mills Ltd. vs Broach Borough Munici pality, [1969] 2 SCC 283 and Dy. Commissioner of Sales Tax (Law) Board of Revenue (Taxes) vs M/s Thomas Stephen & Co. Ltd. Quilon; , , followed. In respect of inter State despatch of wheat and other food grains by Food Corporation of India to its own branch es, tax is attracted at the time of despatch under Section 9(1)(c) of the Haryana Act. Section 9 is the charging sec tion for taxation in case where the goods are purchased for export. There is no other provision for levy of purchase or sales tax in such cases of export. [547B] 4.1 No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India. But the tax is payable for sale in the course 517 of inter State trade and commerce i.e. under the . It is only when the goods are despatched/consigned to the depots of the FCI in other States that tax is levied under section 9 of the Haryana Act. This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States. In view of sections 14 & 15 of the , it becomes clear that wheat is one of the commodities specified as 'declared goods ' and in respect of which the intention is clear that the tax is payable only once on the declared goods. In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State Sales. On these transactions no tax is liable in the recipient State, while in case of inter State despatch es, the tax is leviable twice. Section 9(1)(c), which inso far as it purports to tax, exports, is beyond the legisla tive competence of the State of Haryana. [547E G] 5. The incidence of the levy of additional tax of two paise in the rupee under Section 13 AA of the Bombay Sales Tax Act, 1959 is not on the purchase of goods, but such a levy is attracted only when (a) the goods which so pur chased on payment of purchase tax are used in the manufac ture of taxable goods; and (b) the goods so manufactured are despatched to his own place of business or to his agent 's place of business outside the State. Therefore, the inci dence of tax is attracted not merely on the purchase but only when the goods so purchased are used in the manufacture of taxable goods and are despatched outside the State. The incidence of additional tax has no nexus with the purchase of the raw materials. [553A B; D] 5.1 Purchase tax under section 3 of the Act is attracted when the taxable event i.e. the purchase of goods occurs but the taxable event for the imposition of additional tax of two paise in the rupee occurs only when the goods so pur chased are used in the manufacture of taxable goods and such taxable goods are despatched outside the State by a dealer manufacturer. The goods which are despatched are different products from the goods on the purchase of which purchase tax was paid. It is therefore not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch. [553E; 556F; 557C] 5.2 The charging event is the event the occurrence of which immediately attracts the charge. Taxable event cannot be postponed to the occurrence of the subsequent condition. In that event, it would be the subsequent condition the occurrence of which would attract the Charge which will be taxable event. Therefore the charge under 518 section 13 AA is a duty on despatch. Accordingly this charge can not be sustained.[557D] The Bill to amend section 20 of the and section 3 of the Central Excises & Salt Act, [1944]; , ; M/s Guruswamy & Co. vs State of Mysore, ; Mukunda Murari Chakravarti & Ors. vs Pabitramoy Ghosh & Ors., ; Kedar Nath Jute Mfg. Co. Ltd. vs C.I.T., 82 ITR SC 363; State of M.P. vs Shyam Charan Shukla, 29 STC SC 215; R.C. Jail vs Union of India, [1962] Suppl. 3 SCR 436; Union of India vs Bombay Tyre International Ltd., ; and State of Karnataka vs Shri Ranganatha Reddy, ; , referred to. Wipro Products vs State of Maharashtra, [1989] 72 STC 69 Bom. , Reversed. 5.3 Imposition of a duty or tax in every case would not tantamount per se to any infringement of Article 301 of the Constitution. Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fail within the prohibition imposed by Article 301. A tax in certain cases may directly and immedi ately restrict or hamper the flow of trade. but every impo sition of tax does not do so. Every case must be judged on its own facts and its own setting of time and circumstances. Unless the court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Article 301 the further question as to whether the Statute is saved under Article 304(b) does not arise. [558B C] 5.4 In the instant case. the goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or substantial hindrance to a free flow of trade. Therefore Section 13 AA of the Bombay Sales Tax Act 1959 is not violative of Article 301. [558D E] Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; ; The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan, [1963] 1 SCR 491; Andhra Sugars Ltd. vs State of Andhra Pradesh, ; ; State of Madras vs N.K. Nataraja Mudaliar, ; and State of Kerala vs A.B. Abdul Khadir & Ors., ; , referred to. Kalyani Stores vs The State of Orissa & Ors., ; , relied on. 519 6. The provisions of constitutional changes have to be construed not in a narrow isolationism but on a much wider spectrum and the principles laid down in Heydon 's case are instructive. [529H; 530A] Black Clawson International Ltd. vs Papierwerke Waldhof Aschaffenburg, ; , referred. Heydon 's case; , , relied on. In construing the expressions of the Constitution to judge whether the provisions of a statute are within the competence of the State Legislature, one must bear in mind that the Constitution is to be construed not in a narrow or pedantic sense. The Constitution is not to be construed as mere law but as the machinery by which laws are to be made. [533F] James vs Commonwealth of Australia, ; The Attorney General for the State of New South Wales vs The Brewery Employees Union etc. ; , ; Re. Central Provinces & Berar Sales of Motor Spirit and Lubri cants Taxation Act 1938, A.I.R. 1939 F.C.I. and The Province of Madras vs M/s Boddu Paidanna & Sons, A.I.R. 1942 F.C. 33, referred to. The nomenclature of the Act is not conclusive and for determining the true character and nature of a particular tax, with reference to the legislative competence of a particular Legislature, the Court will look into its pith and substance. [543H; 544A] Governor General in Council vs Province of Madras, [1945] 72 I.A. 91 and Ralla Ram vs The Province of East Punjab, A.I.R. 1949 F.C. 81, referred to. The doctrine of pith and substance means that if an enactment substantially falls within the power expressly conferred by the Constitution upon the Legislature which enacted it, it cannot be held to be invalid merely because it incidentally encroaches upon matters assigned to another legislature. [555H; 556A] Kerala State Electricity Board vs Indian Aluminium Co., [1976] 1 S.C.R. 552 and Prafulla Kumar Mukherjee & Ors. vs Bank of Commerce, A.I.R. 1947 PC 60, referred to. 9.1 The true test to find out what is pith and substance of the 520 legislation is to ascertain the true intent of the Act which will determine the validity of the Act. [577B] 10. There are three stages in the imposition of tax. There is the declaration of liability, that is the part of the Statute which determines what persons in respect of what property are liable. Next, there is the assessment Liabili ty does not depend on assessment, that exhypothesi has already been fixed. But assessment particularises the exact sum which a person is liable to pay. Lastly comes the method of recovery if the person taxed does not voluntarily pay. [539B C] Whitney vs Commissioner of Inland Revenue, [1926] A.C. 37 and Chatturam & Ors. vs C.I.T., Bihar, 15 I.T.R. F.C. 302, referred to. While determining nature of a tax, though the stand ard or the measure on which the tax is levied may be a relevant consideration, it is not the conclusive considera tion. [556C] Governor General in Council vs Province of Madras, [1945] 72 I.A. 91; R.R. Engineering Co. vs Zila Parishad Bareilly & Anr., ; ; In Re A reference under the Government of Ireland Act, 1920, and Navnitlal C. Javeri vs K.K. Sen, Appellate Asstt. Commis sioner of Income Tax 'D ' Range Bombay; , , referred to. The liability to tax would be determined with reference to the interpretation of the Statute which creates it. It cannot be determined by referring to another Statute. [555G] 13. In fiscal legislations normally a charge is creat ed. The. mischief of taxation occurs on the happening of the taxable event. Different taxes have different taxable events. A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax. What is the taxable event or what necessitates taxation in an appro priate Statute must be found by construing the provisions. The main test for determining the taxable event is that on the happening of which the charge is affixed. [552H; 553A: 552G: 533E; 539B] 14. Fiscal laws must be strictly construed. n is not permissible to make assumptions and presumptions in a fiscal provision. [536H; 538G] C.S.T., U.P. vs The Modi Sugar Mills Ltd., ; and Baidyanath Ayurved Bhawan (P) Ltd., Jhansi, vs Excise Commis 521 sioner, U.P. & Ors., ; , referred to. While interpreting a Statute a reasonable construc tion should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act. [555F] Commissioner of Wealth tax, Bihar & Orissa vs Kripashan kar Dayashankar Worah, and Income Tax Commis sioners for City of London vs Gibbs, 10 I.T.R. (Suppl.) 121 H.L., referred to. The Entries in the Constitution only demarcate and legislative fields of the respective legislatures and do not confer legislative powers as such. [544H; 545A] 17. A precedent is an authority only for what it actual ly decides and not for what may remotely or even logically follows from it. [537E] Quinn vs Leathem, ; and The State of Orissa vs Sudhansu Sekhar Misra & Ors., ; , followed. 17.1 A decision on a question which has not been argued cannot be treated as a precedent. [542B] Rajput Ruda Maha & Ors. vs State of Gujarat, [1980] 2 S.C.R. 353, followed. (Per Ranganathan, J.) (Concurring) 1. Section 9 of the Haryana General Sales Tax Act, 1973 as well as section 13 AA of the Bombay Sales Tax Act, 1959 purport only to levy a purchase tax. The tax, however, becomes exigible not on the occasion or event of purchase but only later. It materialises only if the purchaser (a) utilises the goods purchased in the manufacture of taxable goods, and (b) despatches the goods so manufactured (other wise then by way of sale) to a place of business situated outside the State. The legislation, however, is careful to impose the tax only on the price at which the raw materials are purchased and not on the value of the manufactured goods consigned outside the State. [559G H; 560A] 2. It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied is described in a particular manner and a case like the present where the tax, though described as purchase tax, actually becomes effective with reference to 522 a totally different class of goods and, that too, only on the happening of an event which is unrelated to the act of purchase. [560D E] 2.1 The "taxable event", if one might use the expression often used in this context, is the consignment of the manu factured goods and not the purchase. [560E] 2.2 The background of the Constitutional (Forty sixth Amendment) indicates that there were efforts at sales tax avoidance by sending goods manufactured in a State out of raw materials purchased inside to other States by way of consignments rather than by way of sales attracting tax. This situation lends force to the view that the State, unable to tax the exodus directly, attempted to do so indi rectly by linking the levy ostensibly to the "purchases" in the State. [560G H] Andhra Sugar Ltd. & Anr. vs State, ; , re ferred to. State of Tamil Nadu vs Kandaswami, [1975] 36 S.T.C. 191, distinguished.

Appeal No.208 of 1958. Appeal by special leave from the order dated January 29, 1958, of the Commissioner of Income tax,Delhi & Rajasthan at New Delhi, under section 8A(2) of the 532 Taxation on Income (Investigation Commission) Act, 1947. Harnam Singh and Sadhu Singh for the appellant. M. C. Setalvad, Attorney General for India, C. K. Daphtary, Solicitor General of India, B. Sen and R. H. Dhebar for the respondents. A. C. Mitra and B. P. Maheshwari, for the interveners. November 19. The Judgment of Das, C. J., and Kapur, J.,, was delivered by Das, C. J. Bhagwati, section K. Das and Subba Rao, JJ., delivered separate judgments. DAS, C. J. This appeal by special leave filed by one Shri Besheshar Nath hereinafter referred to as ",the assessee " calls in question the validity of a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947), hereinafter referred to as " the Investigation Act ". This Act, which came into force on May 1, 1947, by a notification issued by the Central Government under section (1) (3) thereof, has had a short but chequered career, as will appear from the facts hereinafter stated. In order to appreciate the several questions canvassed before us it is necessary to refer to the provisions of the impugned Act. Section 3 authorised the Central Government to constitute an Income Tax Investigation Commission (hereinafter called the Commission) and imposed on it the following duties: " (a) to investigate and report to the Central Government on all matters relating to taxation on income, with particular reference to the extent to which the existing law relating to, and procedure for, the assessment and collection of such taxation is adequate to prevent the evasion thereof; (b) to investigate in accordance with the provisions of this Act any case or points in a case referred to it under section 5 and make a report thereon (including such interim report ' s as the Commission may think fit) to the Central Government in respect of all or any of the assessments made in relation to the case 533 before the date of its report or interim report, as the case may be. " We may skip over section 4 which dealt with the composition of the Commission. Section 5, which is of importance was as follows: " 5. (1) The Central Government may at any time ' before the 30th day of June, 1948, refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income, together with such material as may be available in support of such belief, and may at any time before the 30th day of June, 1948, apply to the Commission for the withdrawal of any case or points in a case thus referred, and if the Commission approves of the withdrawal, no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn. (2) The Commission may, after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary, report to the Central Government that in its opinion further investigation is not likely to reveal any substantial evasion of taxation on income and on such report being made the investigation shall be deemed to be closed. (3) No reference made by the Central Government under sub section (1), at any time before the 30th day of June, 1948, shall be called in question, nor shall the sufficiency of the material on which such a reference has been made be investigated in any manner by any Court. (4) If in the course of investigation into any case or points in a case referred to it under sub section (1), the Commission has reason to believe (a)that some person other than the person whose case is being investigated has evaded payment of taxation on income, or (b) that some points other than those referred to 534 it by the Central Government in respect of any case also require investigation, it may make a report to the Central Government stating its reasons for such belief and, on receipt of such report, the Central Government shall, notwithstanding anything contained in sub section (1), forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report. " The date " 30th day of June, 1948 " appearing in sub sections (1) and (3) was, by Act 49 of 1948, substituted by the words " 1st day of September, 1948 ". Section 6 set out the various powers conferred on the Commission and section 7 prescribed the procedure of the Comission. It is not necessary to set out the various powers and the details of the procedure in extenso and it will suffice to say that they have been considered by this Court and pronounced to be much more drastic and harsh than the powers to be exercised and the procedure to be followed by the income tax authorities acting under the provisions of the Indian Income Tax Act, 1922. The relevant portions of section 8 ran as follows: " 8. (1) Save as otherwise provided in this Act, the materials brought on record shall be considered by all the three members of the Commission sitting together and the report of the Commission shall be in accordance with the opinion of the majority. (2) After considering the report, tile Central Government shall by order in writing direct that such proceedings as it thinks fit under the Indian Income Tax Act, 1922, the Excess Profits Tax Act, 1940, or any other law, shall be taken against the person to whose case the report relates in respect of the income of any period commencing after the 31st day of December, 1938; and, upon such a direction being given, such proceedings may be taken 'and completed under the appropriate law notwithstanding the restrictions contained in section 34 of the Indian Income Tax Act, 1922, or section 15 of the Excess Profits Tax Act, 1940, or any other law and notwithstanding any lapse of time or any decision to a different effect given 535 in the case by any Income tax authority or Income Tax Appellate Tribunal. (3). . . . . . . . . . (4) In all assessment or re assessment proceedings taken in pursuance of a direction under sub section ' (2), the findings recorded by the Commission on the case or on the points referred to it shall, subject to the provisions of sub sections (5) and (6), be final; but no proceedings taken in pursuance of such direction shall be a bar to the initiation of proceedings under section 34 of the Indian Income Tax Act, 1922. (5). . . . . . . . . . (6). . . . . . . . . . (7) Notwithstanding anything to the contrary contained in this Act or in any other law, for the time being in force, any evidence in the case admitted before the Commission or an authorised official shall be admissible in evidence in any proceedings directed to be taken under sub section (2). (8). . . . . . . . . . Section 9 barred the jurisdiction of Courts to call in question any act or proceeding of the Commission or any authorised official appointed under section 6. Section 10 gave power to the Central Government to make rules by notification in the official gazette. On July 22, 1948, the case of the assessee was referred to the Commission in the following terms: " Ministry of Finance (Revenue Division) New Delhi, the 22nd July, 1948. Under section 5 (1) of the Taxation on Income (Investigation Commission) Act, 1947, the cases of the following persons are hereby referred to the Investigation Commission for investigation and report, as the Central Government has prima facie reasons for believing that each such person has either alone or in combination with the other persons mentioned below, evaded payment of taxation on income to a substantial 536 extent. The material available in support of 'such belief accompanies. No. Name EP. 829/1 Beshashar Nath and Co. 829/2 Lala Beshashar Nath. Sd./ Pyare Lal, Deputy Secretary, Ministry of Finance (Revenue Division). The Secretary,Income tax, Investigation Commission, New Delhi. " It is not necessary to set out the annexures that accompanied this Orders It appears that the total wealth statement of the assessee was filed on November 10, 1948, and was forwarded to the authorised official. It also appears that from January 8, 1949, to October 14, 1949, the authorised official was engaged in the collection of assessment records of the assessee from the territorial income tax offices and of materials from the Civil Supplies Directorate regarding the assessee. In the meantime by a. 33 of Act 67 of 1949 the following section was inserted in the Act as section 8A: " 8A. Settlement of cases under investigation:(1) Where any Person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Commission shall, if it is of opinion that the terms of the settlement contained in the application may be approved, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed. (2) For the purpose of enforcing the terms of any, settlement arrived at in pursuance of sub section (1), 537 the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940), or any other law may be taken against the person to whom the settlement relates, and in particular the provisions of the second proviso to clause (a) of sub section (5) of section 23, section 24B, the proviso to sub section 2 of section 25A, the proviso to subjection 2 of section 26 and sections 44 and 46 of the Indian Income tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the, Income Tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrear of income tax within the meaning of those provisions. (3) Subject to the provisions of sub section (6) of section 8, any settlement arrived at under this section shall be conclusive as to the matters stated therein, and no person whose case has been so settled be entitled to re open in any proceeding for the recovery of any sum under this section or in any subsequent assessment or reassessment proceeding relating to taxation on income or in any other proceeding before any Court or other authority any matter which forms part of such settlement. (4) Where a settlement has been accepted by Government under sub section (1), no proceedings under section 34 of the Indian Income Tax Act, 1922 (XI of 1922), or under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in respect of the items of income covered by the settlement, unless the initiation of such proceedings is expressly allowed by the terms of the settlement." On July 5, 1949, the total wealth statement was received back from the authorised official. Our Constitution came into force on January 26, 1950. The order sheet shows that the authorised official on May 26, 1950, issued a notice to the assessee fixing the hearing for June 10, 1950, which indicates that the authorised official was proceeding with the investigation set in motion by the reference of the assessee 's 68 538 case to the Commission. The assessee appears to have attended on June 6, 1950, with an application for extension of time which apparently was given. On September 30, 1950, the assessee supplied certain statements of his firm. The entry in the order sheet ,,,against the date October 31, 1950, shows that the assessee asked for further extension of time. There appears to be a hiatus of about 3 years and evidently nothing was done until June 9, 1953, when the authorised official fixed the hearing of the case on June 15, 1953. The authorised official submitted his interim report to the Commission on June 9. 1953. The assessee was examined on October 9, 10 and 13, 1953, and the authorised official submitted his final report on October 19, 1953. On January 30, 1954, notice was issued to the assessee to appear before the Commission on February 15, 1954. Presumably to get ready for the hearing the assessee, on February 5, 1954, asked for inspection of certain assessment orders concerning his case , for the return of his lease deed filed by him and a copy of the statement of one L. Kalidas and for production of certain documents before the Commission. The hearing, which had been fixed for February 15, 1954, was adjourned till March 4, 1954. Witness Kalidas was examined on March 4,. On March 29, 1954, the assessee asked for a, copy of the deposition given by the witness Durgadas before the Commission. After the evidence was closed notice was issued to the assessee on May 1, 1954, asking him to appear before the Commission on May 19, 1954. On that date the assessee attended, arguments were heard and orders were reserved. Learned counsel for the assessee states that at the close of the arguments on May 19, 1954, the Commission announced its view that the income, profits and gains that had escaped assessment in the hands of the assessee for the period beginning with April 1, 1939, and ending March 31, 1947, were the sum of Rs. 4,47,915, that the Commission also threw a hint that should the assessee accept the said finding he would be granted the benefit of a settlement on the lower concessional basis of. payment of 75% and a small penalty of Rs. 14,064 539 other alternative than to make the best of the bad job by proposing a settlement under section 8A offering to pay Rs. 3,50,000 by way of tax and penalty. This sequence of events is amply borne out by paragraphs 3 and 4 of the settlement application filed by the assessee on May 20, 1954, a copy of which has been produced before us by the respondents. The Commission on May 24, 1954, made a report under section 8A (1) to the Central Government that it was of opinion that the terms of settlement contained in the application might be approved. The Central Government having accepted the proposed settlement, the Commission had the terms thereof recorded. The Central Government by its Order C No. 74 (9 IT) 54 made on July 5, 1954, under section 8A (2) of the Investigation Act directed that demand notice in accordance with the said terms be served immediately by the Income Tax Officer and that all such other proceedings under the Indian Income Tax Act or other law as may be necessary be taken with a view to enforce the payment of the demand and that the entire sum of Rs. 3,50,000 be demanded in one sum. It appears, however, that the assessee was allowed to make payments by instalments of Rs. 5,000, per month. In the meantime on May 28, 1954, this Court delivered judgment in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri (1). In that case in the course of investigation of the case of Messrs. Jute and Gunny Brokers Ltd. which had been referred to the Commission under section 5 (1) of the Investigation Act, it was alleged to have been discovered by the Commission that Suraj Mall Mohta and Co. had made large profits which they had not disclosed and had thus evaded taxation. A report to that effect having been made on August 28, 1953, by the Commission to the Central Government under section 5 (4) of the Investigation Act the Central Government on September 9, 1953, referred the case against Suraj Mall Mohta and Co. to the Commission under the provisions of section 5 (4). On September 15, 1953, the Commission notified Suraj Mall [1955] 1 S.C.R.448 540 Mohta and Co. that their cases had been referred for investigation and called upon them to furnish certain materials, details of which were set out in annexure to the petition. On April 12, 1954, Suraj Mall Mohta and Co. filed a petition under article 32 of the Constitution asking for an appropriate writ restraining the, Commission from taking any action on the ground that the provisions of the Investigation Act had become void being discriminatory in character. By that judgment this Court held that both section 34 of the Indian Income Tax Act, 1922, as it then stood, and sub section (4) of section 5 of the Investigation Act dealt with persons who had similar characteristics of being persons who had not truly disclosed their income and had evaded payment of tax on their income but that as the procedure prescribed by the Investigation Act was substantially more prejudicial than the procedure under the Indian Income Tax Act, 1922, sub section (4) of section 5 and the procedure prescribed by the Investigation Act, in so far as it affected persons proceeded against under that sub section was a piece of discriminatory legislation which offended the provisions of article 14 of the Constitution and was, therefore, void and unenforceable. Sub section (4) of section 5 of the Investigation Act having been declared void, Parliament passed the Indian Income Tax Amendment Act (33 of 1954) amending section 34 of the Indian Income Tax Act, 1922. Paradoxical as it may seem, the result of this amendment was that persons who originally, fell only within the ambit of section 5 (1) of the Investigation Act and formed a distinct class of substantial tax evaders also came within the amended section 34 of the Indian Income Tax Act, 1922. The position after the amendment, therefore, was that the Income Tax Officers could pick out some of these persons and refer their cases under section 5 (1) of the Investi gation Act and thereby subject them to the drastic and harsh procedure of that Act, while they could deal with other persons similarly situate under section 34 as amended and apply to them the comparatively more beneficial procedure laid down in the Indian Income Tax Act, 1922. Promptly several applications were 541 made under article 32 of the Constitution complaining that after the amendment of section 34 of the Indian Income Tax Act, section 5 (1) of the Investigation Act became discriminatory in that the persons falling within it could be dealt with under the drastic, prejudicial and harsh procedure prescribed by the Investigation Act, while other persons similarly situate and belonging to the same category could at the whim or pleasure of the Income Tax authorities be proceeded against under the more beneficial procedure prescribed under the Indian Income Tax Act. All those applications were disposed of by a common judgment reported as Shree Meenakshi Mills Ltd. vs Sri A. V. Visvanatha Sastri (1) This Court held that section 34 of the Income Tax Act, as amended by the Indian Income Tax Amendment Act, 1954 (33 of 1954), operated on the same field as section 5 (1) of the Investigation Act, and, therefore, section 5 (1) had become void and unenforceable as the procedure applied to persons dealt with thereunder became discriminatory in character. It should be noted that in none of those petitions disposed of by that judgment had any assessment been made under the Investigation Act and this Court only prohibited further proceedings before the Commission under the Investigation Act. The assessee appellant now before us who had entered into a settlement under section 8 of the Investigation Act and had been assessed in accordance with the terms of the settlement continued to pay the tax by monthly instalments of Rs. 5,000 as before. Finally on December 20, 1955, came the decision of this Court in M. CT. Muthiah vs The Commissioner of Income Tax, Madras (2). In that case the Central Government had under section 5 (1) of the Investigation Act referred the case to the Commission. The Commission after holding an enquiry recorded its findings and held that an aggregate sum of Rs. 10,07,322 4 3 represented the undisclosed income during the period under investigation. The Commission having submitted its report to the Central Government, the latter acting under section 8 (2) of the Investigation Act directed that appropriate action under the (1) (2) ; 542 Indian Income Tax Act, 1922, be taken against that assessee with a view to assess or re assess the income which had escaped assessment for the period 1940 41 to 1948 49. The Income Tax Officer accordingly issued notices and made the re assessment for the years 1940 41, 1941 42 and 1943 44 to 1948 49 based upon the finding of the Commission, which was treated as final and conclusive. These assessment orders were served on that assessee. There was, however, no re. assessment order for the year 1942 43. In regard to the assessment orders which had been served the assessee concerned applied to the Commissioner of Income Tax under section 8 (5) of the Investigation Act for reference to the High Court on questions of law arising out of those re assessment orders. During the pendency of those proceedings the assessee, in that case on December 6, 1954, filed a petition contending that the provisions of the Investigation Act were illegal, ultra vires and unconstitutional. The majority of this Court held that different persons, though falling under the same class or category of substantial evaders of income. tax, were being subjected to different procedures, one a summary and drastic procedure and the other the normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed by the Investigation Act and, therefore, the assessments made under section 8 (2) were void and unenforceable. That was a case of assessment under section 8 (2) in invitum after an investigation under the Investigation Act. The assessee appellant before us, who had at the end of the investigation entered into a settlement and been assessed in accordance with the terms of such settlement, however, went on making payments in discharge of the balance due under the terms of settlement right up to September 8, 1957, when he made the last payment of Us. 8,000 bringing the aggregate payment up to Rs. 1,28,000. In the meantime the Income Tax Officer had sent a certificate requesting the Collector of Delhi for the recovery of the balance due by the assessee under the settlement. In execution of that certificate some of 543 the properties belonging to the assessee situate in Dharamsalla and Hissar were attached. On December 27, 1957, the assessee made an application to the Income Tax Commissioner. After pointing out that between July 5, 1954, and December 27, 1957, the petitioner had paid in all Rs. 1,28,000 towards the ' discharge of his liability under the settlement and referring to the decisions of this Court in suraj Mall Mohta 's case (1) and Muthiah 's case (2) the assessee submitted that the settlement under a. 8A of the Investigation Act had no force and did not bind the petitio ner and that the settlement had been made under the pressure of the situation and in view of the coercive machinery of the Investigation Act and that from either point of view the settlement was not binding. His contention was that when section 5(1) of the Investigation Act had been held unconstitutional the settlement under section 8A could not be enforced, for the foundation of the proceedings under section 8A was the reference under section 5(1) and the foundation having crumbled down the superstructure must fall with it. Under the circumstances the assessee submitted that the attached properties be released and the amount already recovered under the settlement be refunded. On January 29, 1958, the Income Tax Commissioner sent the following communication to the assessee: No. L 228(1)/54 55/17590 Office of the Commissioner Income Tax Delhi and Rajasthan, New Delhi. Dated, New Delhi the 29th January, 1958. Shri Besheshar Nath, 9, Barakhamba Road, New Delhi. Dear Sir, Sub: Taxation on Income (Investigation Commission) Act, 1947 Order u/s 8A(2) Your petition dated 27th December, 1957. With reference to your petition dated 27th December, 1957, regarding the settlement arrived at (1) ; (2) ; 544 under section 8A(2) of the Taxation on Income (Investigation Commission) Act, 1947, I am to inform you that the settlement is valid and binding on you. You are, therefore, requested to make good arrears of instalments which you have not paid recently by 5th February, 1958, and also to continue making the payments in accordance with the instalments scheme agreed to, failing which the recovery proceedings will be vigorously pursued through the usual recovery channels. Your 's faithfully, Sd./ section K. Gupta, Commissioner of Income tax, Delhi & Rajasthan, New Delhi. Being aggrieved by the above decision the assessee thereupon moved this Court and obtained special leave to appeal against that order. The appeal has now come up for final disposal before us. It may be mentioned here that as the respondents are anxious to have the matters of controversy raised in this appeal decided and set at rest by a decision of this Court, the respondents, for the purposes of this appeal, have not insisted on their objection that an appeal does not lie under article 136 of the Constitution against an order of the Commissioner of Income Tax. Learned counsel for the assessee also has not pressed his claim for refund of the amounts already paid and has pressed the appeal regarding the balance that remains to be paid under the settlement which is characterised as invalid. Model Knitting Industries Ltd. which has a case pending in the High Court of Calcutta where the same questions as are in issue in the appeal before us, are also in issue has been. permitted to intervene and we have heard counsel appearing for that intervener. In view of the three decisions referred to above learned Attorney General does not seriously contend that the powers conferred on the Commission by section 6 and the procedure laid down by section 7 of the Investigation Act are not discriminatory, but what he urges is that none of the said decisions has held that section 5(1) is 545 wholly void and inoperative. He says that section 5(1) only authorises the Central Government to refer certain cases to the Commission. Upon such a reference two lines of procedure are clearly indicated by the Investigation Act, namely, (1) that an investigation may be held in invitum following the procedure prescribed and exercising the powers conferred by the lnvestigation Act and (2) that a settlement may be made under section 8A. If the first procedure is followed and an assessment is made under section 8(2) such assessment will undoubtedly be invalid as has been held in Muthiah 's case (1), but if on a case being referred the settlement procedure is followed then the consequential order of assessment under section 8A cannot be questioned. We are unable to accept this line of argument as permissible in view of the provisions of the Investigation Act. It will be recalled that when the case of the assessee was referred to the Commission under section 5(1) on July 22, 1948, there was no provision for settlement in the Act at all. Therefore, that reference, when it was made, consigned the assessee to the only procedure of investigation that was then prescribed by the Act. In the next place it should be remembered that after section 8A was added in the Investigation Act by section 33 of Act 67 of 1949 an authorised official was appointed under section 6(3) to investigate the affairs of the assessee and to examine the books and to interrogate any person or obtain any statement from any person and under sub section (4) the authorised official was empowered to exercise the same powers as had been vested in the Commission under sub sections (1) and (2) of section 6. Further, by its own terms section 8A made it clear that the person concerned in any case referred to the Commission for investigation might apply to the Commission at any time during such investigation to have the case settled. Therefore this provision for settlement was an integral part of the entire investigation procedure. It was not a separate or independent procedure apart from the investigation procedure. It is true that there was nothing to prevent the assessee from straightaway (1) ; 69 546 making a proposal for settlement before any actual step towards investigation was taken by the Income Tax authorities, but before the Commission could refer the proposal for settlement to the Central Government it had to be satisfied that the terms of settlement contained in the application were such as might be approved. For the purpose of satisfying itself the Commission had obviously to go into the facts either by itself or through an authorised official and to consider the materials collected by the authorised official and in the process of doing so had to hold an investigation of some sort and that investigation had neces sarily to be made in accordance with the procedure prescribed by the Investigation Act itself. It is, therefore, not correct to say that there could be a pro ceeding for settlement without any investigation at all. In our opinion section 8A did not provide for a separate procedure at all. When a case was referred under section 5(1) it was really for investigation and a settlement was something which could crop up in the process of that investigation just as in the course of a suit parties may arrive at some compromise. In recording the compromise and passing a judgment in accordance with the compromise thereof, the court exercises the same jurisdiction as it exercises in entertaining and disposing of the suit itself. Likewise in entertaining a proposal for settlement the Commission exercised its jurisdiction of investigation under section 5, followed the procedure prescribed by section 7 and exercised all its powers under section 6. As already stated the language of s.8A itself shows that a settlement can be proposed only during such investigation. In our judgment, therefore, the contention of the learned Attorney General that the Investigation Act prescribed two procedures is not well founded. Learned Attorney General then points out that the Investigation Act was a pre Constitution Act and that before the commencement of the Constitution when there was no such thing as a fundamental right, its provisions could not be questioned however discriminatory the procedure may have been. He urges that after the commencement of the Constitution the 547 assessee has not been subjected to the coercive procedure laid down by the Investigation Act, but voluntarily proposed a settlement which was accepted by the Central Government on the recommendation of the Commission. In that situation he was in the same position as Qasim Razvi had been in and the observations to be found in the judgment of Mukherjea, J., who delivered the majority judgment in Syed Qasim Razvi vs The State of Hyderabad (1) applied to the present appeal. We do not think it is necessary, for the purpose of this appeal, to go minutely into the facts of Qasim Razvi 's case (1) with reference to which the observations relied on had been made, or to analyse the correctness of the reasoning adopted in that case, for that can only be done by a larger Bench. We are definitely of opinion, however, that the observations made in the majority judgement should not be extended but must be kept strictly confined to the special facts of that case. In our judgement those observations have no ~application to the facts of the present appeal before us, for here even after the commencement of the Constitution, the process of investigation continued in that the authorised official went on collecting materials by following the procedure prescribed by section 7 and exercising the powers conferred on him by section 6 of the Investigation Act. The last argument advanced by the learned Attorney General is that if there had been a breach of the assessee 's fundamental right by subjecting him to a discriminatory procedure laid down in the Investigation Act, the asessee, by voluntarily entering into a settlement, must be taken to have waived such breach and cannot now be permitted to set up his fundamental right. Immediately two questions arise for consideration, namely, (1) whether the assessee could waive the breach of the fundamental right in question and (2) whether in the facts and circumstances of this case he had actually done so. (1): In Behram Khurshed Pesikaka vs State of Bombay (2) there was a general discussion whether a (1) (2) 548 fundamental right could be waived. At page 638 Venkatarama Aiyar, J., observed: " The question is, what is the legal effect of a statute being declared unconstitutional. The answer to it depends on two considerations firstly does the constitutional prohibition which has been infringed affect the competence of the Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its competence; and secondly, if it is merely a check, whether it is enacted for the benefit of individuals or whether it is imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it would be a nullity. That would also be the position when a limitation is imposed on the legislative power in the interests of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to inter State trade and commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable. In America this principle is well settled. (Vide Cooley on Constitutional Limitations, Volume 1, pages 368 to 371 ; Willis on Constitutional Law at pages 524, 531, 542 and 558 ; Rottschaefer on Constitutional Law at pages 28 and 29 30). " After referring to three decisions of the American Supreme Court which are also now relied on by the learned Attorney General, the learned Judge concluded as follows: " The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. The rights guaranteed under article 19 (1) (f) are enacted for the benefit of owners of properties and when a law is found to infringe that provision, it is open to any person whose rights have been infringed to waive it and when there 549 is waiver there is no legal impediment to the enforcement of the law. It would be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived it cannot be treated as non and as effaced out of the statute book. It is scarcely necessary to add that the question of waiver is relevant to the present controversy not as bearing on any issue of fact arising for determination in this case but as showing the nature of the right declared under article 19 (1) (f) and the effect in law of a statute contravening it. " When the case came up before the court on review Mahajan, C. J., with the concurrence of Mukherjea, Vivian Bose, and Ghulam Hassan, JJ., said at page 653: " In our opinion, the doctrine of waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. No inference in deciding the case should have been raised on the basis of such a theory. The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. 550 Reference to some of the Articles, inter alia, articles 15 (1), 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State " You can discriminate ", or get convicted by waiving the protection given under articles 20 and 21. " On that occasion one of us preferred not to express any opinion on this subject and said at page 670: " In coming to the conclusion that I have, I have in a large measure found myself in agreement with the views of Venkatarama Aiyar, J., on that part of the case. 1, however, desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment, particularly those relating to waiver of unconstitutionality, the fundamental rights being a mere check on legislative power or the effect of the declaration under article 13(1) being " relatively void ". On those topics I prefer to express no opinion on this occasion. " It will, however, be noticed that the observations of the learned judges made in that case did not relate to the waiver of a breach of the fundamental right under article 14. The fundamental right, the breach whereof is complained of by the assessee, is founded on article 14 of the Constitution. The problem, therefore, before us is whether a breach of the fundamental right flowing from article 14 can be waived. For disposing Of this appeal it is not necessary for us to consider whether any of the other fundamental rights enshrined in Part III of our Constitution can or cannot be waived. We take the view that this court should not make any pronouncement on any question which is not strictly necessary for the disposal of the particular case before it. We, therefore, confine our attention to article 14 and proceed to discuss the question on that footing. Article 14 runs as follows: " The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. " It is the first of the five Articles grouped together under the heading " Right to Equality". The underlying object of this Article is undoubtedly to secure to 551 all persons, citizen or non citizens, the equality of status and of oppotunity referred to in the glorious preamble of our Constitution. It combines the English doctrine of the rule of law and the equal protection T. clause of the 14th Amendment to the American Federal Constitution which enjoins that no State shall deny to any person within its jurisdiction the equal protection of the laws ". There can, therefore, be no doubt or dispute that this Article is founded on a sound public policy recognised and valued in all civilised States. Coming then to the language of the Article it must be noted, first and foremost that this Arti cle is, in form, an admonition addressed to the State and does not directly purport to confer any right on any person as some of the other Articles, e.g., article 19, do. The obligation thus imposed on the State, no doubt, enures for the benefit of all persons, for, as a necessary result of the operation of this Article, they all enjoy equality before the law. That is, however, the indirect, though necessary and inevitable, result of the mandate. The command of the Article is directed to the State and the reality of the obligation thus imposed on the State is the measure of the fundamental right which every person within the territory of India is to enjoy. The next thing to notice is that the benefit of this Article is not limited to citizens, but is available to any person within the territory of India. In the third place it is to be observed that, by virtue of article 12, " the State " which is, by article 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of article 13. Clause (1) of that Article provides that all laws in force in the territories of India immediately before the commencement of the Constitution, in so 552 far as they are inconsistent with the provisions of Part III shall, to the extent of the inconsistency be void. Likewise el. (2) of this Article prohibits the State from making any law which takes away or abridges the rights conferred by the same Part and follows it up by saying that any law made in contravention of this clause Shall, to the extent of the contravention, be void. It will be observed that so far as this Article is concerned, there is no relaxation of the restriction imposed by it such as there are in some of the other Articles, e.g., article 19, cls. (2) to (6). Our right to equality before the law is thus completely and without any exception secured from all legislative discrimination. It is not necessary, for the purpose of this appeal to consider whether an executive order is a " law" within the meaning of article 13, for even without the aid of article 13 our right to the equal protection of the law is protected against the vagaries, if any, of the executive Government also. In this connection the observations of Lord Atkin in Eshugbayi Eleko vs Officer Administering the Government of Nigeria (1) are apposite. Said his Lordship at page 670 that in accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except when be can support the legality of his act before a court of justice That apart, the very language of article 14 of the Constitution expressly directs that " the State ", which by article 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus article 14 protects us from both legislative and executive tyranny by way of discrimination. Such being the true intent and effect of article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person ? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because 'a person tells the State that it may do so ? If the Constitution asks the State as (1) L.R. [1931] A,. C. 662. 553 to why the State did not carry out its behest, will it be any answer for the State to make that " true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it. " I do not think the State will be in any better position than the positions in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State 's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. ever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State. The learned Attorney General has relied on various passages in text books written by well known and eminent writers, e.g., Cooley, Willoughby, Willis and Rottschaefer and on eight American decisions. In considering the statements of law made by American writers and judges the following observations of Patanjali Sastri, C. J., in The State of Travancore Cocochin and others vs The Bombay Co. Ltd. (1) should conatantly be borne in mind: scope and purpose, and a varying body of doctrines and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the expanding American commerce and industry, and we are of opinion that not much help can be derived from them (1) ; ,112O, 1121. 70 554 in the solution of the problems arising under article 286 of the Indian Constitution. " (See also The State of Bombay vs R.M.D. Chamarbaugwala(1)). The American authorities cited by the Attorney General relate to waiver of obligations under a contract, of the deprivation of right to property without due process of law or of the constitutional right to trial by jury and the like. They have no bearing on the question of the waiver of the equal protection clause of the 14th Amendment which, like our article 14, is a mandate to the State. It is signifi cant that no American decision is forthcoming which upholds the waiver of the breach of that clause. When a case of breach of any of the fundamental rights akin to what are dealt with in the American authorities will come before us it will, then, be the time for us to discuss those authorities and to consider their applicability in the matter of the interpretation of the corresponding provisions of our Constitution. For the moment we prefer to confine our observations to a consideration of waiver of the breach of the fundamental right under article 14. Learned Attorney General has relied on three decisions of this Court: (1) Laxmanappa Hanumantappa Jamkhandi vs The Union of India (2), (2) Dewan Bahadur Seth Gopal Das Mohta vs The Union of India (3) and (3) Baburao Narayanrao Sanas vs The Union of India(4) in support of his thesis that a breach of article 14 may well be waived by a person. In none of those cases, all of which were disposed of on the same day (October 21, 1954) was the question of waiver specifically or seriously discussed. As learned counsel appearing for the intervener points out, the first of the above mentioned cases proceeded on the footing that as article 265 was not a fundamental right conferred by Part III, it could not be enforced under article 32. Learned counsel for the intervener further submitted that the decision in the 2nd case mentioned above could also be explained on that basis and on the further ground that proceeding under article 32 was not (1) ; , 918. (3) ; (2) ; (4) intended to be used for obtaining relief against the voluntary action of a person and that appropriate remedy for recovery of money lay in a suit. The decision in the 3rd case proceeded on the same basis and did not carry the matter any further. It is impossible to treat any of those decisions as representing the considered opinion of this Court on the question of waiver of a breath of the fundamental right under article 14 of the Constitution. Reference was also made by the learned Attorney General to the decision of a Single Judge of the Allahabad High Court in Subedar vs State (1) where it was held that article 20(3) conferred merely a privilege and that such privilege could always be waived It was overlooked that if a person volun tarily answered any question then there was no breach of his fundamental right at all, for the fundamental right is that a person shall not be compelled to incriminate himself. That case, therefore, is not a case of waiver at all. The case of Pakhar Singh vs The State (2) is also, for the same reason, not a case of waiver. (2): The answer to this question depends upon facts which have not been properly investingated. The appeal is against the order of the income tax authorities which order makes no reference to the plea of waiver. Further the filing of the statements of case having been dispensed with, we have not had the benefit of the statement of facts on which this plea is said to be founded. The view taken on question (1), however, relieves us of the necessity of going into this question. On a consideration of the nature of the fundamental right flowing from article 14, we have no doubt in our mind that it is not for a citizen or any other person who benefits by reason of its provisons to waive any breach of the obligation on the part of the State. We are, therefore, of the opinion that this appeal should be accepted, the order of the Income Tax Commissioner, Delhi, dated January 29, 1958, should be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5, 1954, (1) A. I. R. 1957 All. (2) A. 1. R. 1958 Punj. 556 should be quashed and that the assessee appellant, should get the costs of this appeal. BHAGWATI, J. I agree with the reasoning adopted and the conclusion reached in the judgments prepared by My Lord the Chief Justice and my brother, section K. Das, J., in regard to the ultra vires character of the proceedings adopted under section 8 A of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947), and the void character of the settlement reached thereunder. As regards the parts of the judgments which deal with the question whether a fundamental right guaranteed by the Constitution can be waived at all, I find myself in agreement with the judgment prepared by my brother, Subba Rao, J., and am of the opinion that it is not open to a citizen to waive the fundamental rights conferred by Part III of the Constitution. The question of waiver came to be argued before us in this way. If the proceedings and the settlement under section 8 A of the Act were void as aforesaid, the respondent contended that the appellant had waived the fundamental right enshrined in article 14 of the Constitution and was therefore not entitled to challenge the settlement. This was only by way of reply to the contention of the appellant and was not set out in proper details in any affidavit filed on behalf of the respondent. The learned Attorney General, however, relied upon the application made by the appellant before the Investigation Commission and the contents thereof as also the payments made by the appellant from time to time both before and after the pronouncement of our decision in M. Ct. Muthiah vs The Commissioner of Income tax, Madras (1) in order to support this plea of waiver and the arguments before us proceeded on that basis. No objection was taken by either of the parties before us to the issue of waiver being decided on such materials and the question was argued at considerable length before us. The arguments moreover extended to the whole field of fundamental rights and were not confined to article 14 only. (1) ; 557 We, therefore, see no reason why we should refrain from pronouncing our opinion on that question. The preamble to our Constitution, article 13 and the language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America, no distinction can be drawn here, as has been attempted in the United States of America, between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy. Ours is a nascent democracy. and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself, e.g., in articles 19, 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America or the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution. The genesis of the declaration of fundamental rights in our Constitution can be traced to the following passage from the Report of the Nehru Committee (1928): " Canada, Australia and South Africa have no declaration of rights in their Constitutions but there are various articles to be found in the Constitution of the Irish Free State which may properly be grouped under the general head " fundamental rights ". The reason for this is not far to seek. Ireland is the only country where the conditions obtaining before the treaty were the nearest approach to those we have in India. The first concern of the people of Ireland was, as indeed it is of the people of India to day, to secure fundamental rights that have been denied to them. The other dominions had their rise from earlier British 558 settlements which were supposed to have carried the law of England with them. Ireland was taken and kept under the rule of England against her own will and the acquisition of dominion status by her became a matter of treaty between the two nations. We conceive that the constitutional position in India is very much the same. That India is a dependency of Great Britain cannot be denied. That position can be altered in one of two ways force or mutual consent. It is the latter in furtherance of which we are called upon to recommend the principles of a constitution for India. In doing so it is obvious that our first care should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances. " At the Round Table Conference that preceded the making of the Government of India Act, 1935, therefore, the, Indian leaders pressed for a Bill of Rights in the proposed Constitution Act, in order to bind the administration with certain declarations of individual rights. This was, however, rejected by the Simon Commission with these observations: " We are aware that such provisions have been inserted in many Constitutions, notably in those of the European States formed after the War. Experience, however, has not shown them to be of any great practical value. Abstract declarations are useless unless there exist the will and means to make them effective. " The framers of our Constitution however followed the American view represented by the famous words of Jefferson in preference to that expressed by the Simon Commission : " The inconveniences of the declaration are, that it may cramp government in its useful exertions. But the evil of this is short lived, moderate and reparable. The inconveniences of the want of a declaration are permanent, afflictive and irreparable. They are in constant progression from bad to worse. The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread. . . . 559 (Vide Basu 's Commentary on the Constitution of India, Vol. 1, p. 74). and incorporated the fundamental rights in Part III of our Constitution. The object sought to be achieved was as the preamble to the Constitution states " to secure to all its citizens: JUSTICE, social, economic and political; ]LIBERTY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity of the Nation and article 13 provided: " 13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. . . " Laws in force " were defined in article 13(3) to include : " Laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas " and they were declared void, in so far as they were inconsistent with the provisions of this Part, to the extent of such inconsistency. As regards laws to be enacted after the commencement of the Constitution, the State, in the wider significance of the term as including " the Government and Parliament of India and the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India " (Vide article 12) was enjoined not to make any law which takes away or abridges the rights conferred by this Part and 'any law made in con travention of this clause was to the extent of the 560 contravention declared void. It will be seen that the prohibition was thus effective both against past laws as well as future laws and both were equally void in so far as they were " inconsistent with " or " in derogation of " the fundamental rights enshrined in Part III of the Constitution. no distinction was made between the past laws and future laws in this respect and they were declared void to the extent of the inconsistency or the extent of the contravention a,,; the case may be, leaving the unoffending parts thereof untouched. It will be also seen that under article 13(2) an admonition was administered to the State not to enact any law which takes away or abridges the rights conferred by this Part and the obligation thus imposed on the State enured for the benefit of all citizens of Bharat alike in respect of all the fundamental rights enacted in Part III of the Constitution. No distinction was made in terms between the fundamental rights said to have been enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy. The question then arises whether a breach of the obligation thus imposed on the State can be waived by a citizen. To borrow the words of My Lord the Chief Justice " In the face of such unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the Constitutional mandate merely because a citizen told the State that it may do so ? if the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that " True, you directed me not to take away or abridge the rights conferred by this Part, but this citizen said that I could do so, for he had no objection to my doing so. " I do not think the State will be in any better position than the position in which Ad am found himself when God asked him as to why he had eaten the forbidden fruit and the State 's above answer will be as futile as that of Adam who pleaded that the woman had tempted him and Bo he ate the forbidden fruit. " It is absolutely clear on a perusal of article 13(2) of the Constitution that it is a constitutional mandate 561, to the State 'and no citizen can by any act or conduct relieve the State of the solemn obligation imposed on it by article 13(2) and no distinction can be made at all between the fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of public policy. What then is the basis of this distinction which has be strenuously urged before us that there are certain fundamental rights which are enacted only for the private benefit of a citizen, e.g., rights of property, which can be waived by him and there are other fundamental rights enacted for the public good or as a matter of public policy which it would not be open to a citizen to waive even though he were affected by the breach thereof. Reliance is placed in this behalf on certain decisions of the Supreme Court of the United States of America, passages from Willoughby, Willis and Rottschaeffer, quoted in the judgment of T. L. Venkatarama Aiyar, J., in Behram Khurshed Pesikaka vs The State of Bombay (1) and the observations of the said learned Judge in that case adopting the said distinction. (Vide pp. 638 643 of the Report). I am afraid this distinction cannot be accepted. There is nothing in the terms of the various articles embodying the fundamental rights in Part III of our Constitution which warrants such a distinction. The fundamental rights are enacted with all precision and wherever limitations on their exercise are thought of they are also similarly enacted. Such constitutional limitations are to be found within the terms of the articles themselves and there is no justification for reading in the terms of the articles anything more than what is expressly stated therein. There is further this distinction between the American Constitution and ours that whereas the American Constitution was merely enacted in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for common defence, promote the general welfare and secure the blessings of liberty and was an outline of government and nothing more, our Constitution was (1) 71 562 enacted to secure to all citizens, justice, Liberty. ' Equality and Fraternity and laid emphasis on the welfare state and contained more detailed provisions,, defining the rights and also laying down restrictions thereupon in the interest of the general welfare, etc. As observed by Wills in his Constitutional Law at p. 477: "The conflict between man and the state is as old as human history. For this reason some compromise must be struck between private liberty and public authority. There is some need of protecting personal liberty against governmental power and also some need of limiting personal liberty by governmental power. The ideal situation is a matter of balancing one against the other, or adjusting conflicting interests." " In the United States Constitution an attempt has been made to strike a proper balance between personal liberty and social control through express limitations written into the Constitution and interpreted by the Supreme Court, by implied limitations created by the Supreme Court, and by the development of the governmental powers of regulation, taxa tion, and eminent domain by the Supreme Court." (Ibid pp. 477 478), whereas our Constitution has expressly sought to strike the balance between a written guarantee of individual rights and the collective interests of the community by making express provisions in that behalf in Part III of the Constitution. (Vide Gopalan vs State of Madras) (1). Moreover in the matter of considering the statements of law made by the text book writers in America and the dicta of the judges of the Supreme Court there in the various decisions cited before us, we must bear in mind the following admonition of Patanjali Sastri, C. J., in the State of Travancore Cochin vs The Bombay Co., Ltd. (2). " These clauses are widely different in language, scope and purpose, and a varying body of doctrines (1) ; (2) [1952] S.C.R.1112, 1120 and tests have grown around them interpreting, extending or restricting, from time to time, their operation and application in the context of the expanding American commerce and industry, and we are of opinion that not much help can be derived from them in the solution of the problems arising under article 286 of the Indian Constitution" or for the matter of that, articles embodying the fundamental rights in Part III of our Constitution (see also The State of Bombay vs R. M. D. Chamarbaugwala(1) The rights conferred on citizens may be thus classified : (i) statutory rights; (ii) constitutional rights; and (iii) fundamental rights. One need not consider the statutory rights in this context but the constitutional rights are those created and conferred by the Constitution. They may or may not be waived by a. citizen, as stated in the text books and the decisions of the Supreme Court of the United States of America above referred to. But when the rights conferred are put on a high pedestal and are given the status of fundamental rights, which though embodied in the Constitution itself are in express terms distinguished from the other constitutional rights (e.g., fundamental rights which are enshrined in Part III of the Constitution and are enacted as immune from any legislation inconsistent with or derogatory thereto and other constitutional rights which are enacted in other provisions, for instance in articles 265 and 286 and in Part XIII of the Constitution), they are absolutely inviolable save as expressly enacted in the Constitution and cannot be waived by a citizen. The Constitution adopted by our founding fathers is sacrosanct and it is not permissible to tinker with those fundamental rights by any ratiocination or analogy of the decisions of the Supreme Court of the United States of America. The only manner in which that can be done is by appropriate amendment of the Constitution and in no other manner whatever. There is no difficulty whatever in working out this position and to my mind the difficulties pointed out (1) ; , 918. 564 are more imaginary than real. If a citizen wanted to assert his fundamental right under the circumstances envisaged for instance in the judgment of my brother section K. Das, J., and made an application for a writ under article 32 or article 226 of the Constitution he would be promptly confronted with the argument that the Court should in the exercise of its discretion refuse him the relief prayed for. The remedy is purely discretionary and no Court in those circumstances would exercise @ its discretion in his favour (Vide Dewan Bahadur Seth Gopal Das Mohta vs Union of India (1), Baburao Narayan Savas vs Union of India(2) and Laxmanappa Hoonmantappa Janakhandi vs Union of India (3). Even then he might merely obtain a relief declaring the legislation ultra vires the Constitution and the Court would not grant him any consequential relief For that relief he would have to approach the regular courts of law, when all questions of law, apart from the mere constitutionality of the provision would be considered by the Court on a contest between the par. ties, e.g., estoppel, acquiescence, limitation and the like (Compare our observations in Sales Tax Officer, Banaras vs Kanayalal Mukundlal Saraf (4) ). The only thing which parties would be concluded by would be the adjudication as to the ultra vire 's character of the measure in question and the citizen would not be entitled to the relief claimed merely for the asking. These considerations, therefore, do not militate against the position that a citizen cannot waive the fundamental rights conferred upon him by Part III of the Constitution. I fully endorse the opinion expressed by Mahajan, C. J., in Behram Khursheed Pesikaka vs The State of Bombay (5) at page 653 : ,,We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a (1) [1955] I S.C.R. 773. (3) [19551 1 S.C.R. 769. (2) (4) Civil Appeal No. 87 Of 1957 decided on September 23, 1958. (5) 565 sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a, matter of constitutional policy. " This, in my opinion is the true position and it cannot therefore be urged that it is open to a citizen to, waive his fundamental rights conferred by Part III of the Constitution. The Supreme Court is the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a, sacrilege to whittle down those rights in the manner attempted to be done. The result is however the same and agree with the order proposed by My Lord the Chief Justice. section K. DAS J. This is an appeal by special leave from an order dated January 29, 1958, passed by the Commissioner of Income tax, Delhi, respondent No. 1 before us, in circumstances which are somewhat unusual and out of the ordinary. We shall presently relate those circumstances; but at the very outset it may be stated that two questions of far reaching importance fall for consideration in this appeal. One is the validity of a settlement made under section 8A of the Taxation on Income (Investigation Commission) Act, 1947 (30 of 1947) hereinafter referred to as the Act, after the coming into force of the Constitution on January 26, 1950, and the second is if a fundamental right guaranteed by the Constitution can be said to have been waived by the appellant in the circumstanoes of this case. 'The appellant before us is Basheshar Nath, whom we shall hereafter call the assessee. As we have already stated, the Commissioner of Income tax, Delhi, is the first respondent, The second respondent 566 is the Union of India. We also allowed the Model Knitting Industries, a limited liability Company with its registered office in Calcutta, to intervene in the appeal, on the ground that the intervening Company has a case pending in the High Court of Calcutta where the same questions are in issue. We have also heard the intervener in support of the appeal. On behalf of the appellant it has been ' contended that the Commissioner of Income tax, Delhi, is a tribunal within the meaning of Art, 136 of the Constitution and exercised judicial functions when it passed the impugned order of January 29, 1958. The respondents pointed out, however, that the so called order was nothing but a reply which respondent No. 1 gave to a communication received, from the assessee. However, the respondents have waived any prelimi nary objection to the maintainability of the present appeal, and the learned Attorney General appearing for the respondents has frankly stated before us that he is raising no such preliminary objection, as the Union Government is equally anxious to have a decision on the question, very important from its point of view and with far reaching financial consequences, as to whether a settlement made under section 8A of the Act after January 26, 1950, and the orders passed thereon by the Union Government are valid. We have, therefore, proceeded on the footing that the present appeal is competent, and have considered it unnecessary to decide in the abstract the more general question as to the circumstances in which an order made by a revenue authority like the Commissioner of Income tax partakes of the character of A judicial or quasi judicial order. Now, for the facts and circumstances which have led up to this appeal. The Act received the assent of the Governor General on April 18, 1947, and came into force on May 1, 1947. On July 22, 1948, the case of the assessee was referred to the Investigation Commission, constitued under section 3 of the Act. The reference was made under section 5(1) of the Act, and it ,stated that the Central Government had prima facie reasons for believing that the assessee either alone or 567 in combination with ' other persons evaded payment of taxation on income to a substantial extent, and therefore the case of the asseesee was sent to the Investigation Commission for investigation and report. The period of investigation was from April 1, 1939 to March 31, 1947. The report of the Investigation Commission which has been made available to us shows that the case against the assessee was that he carried on a business of supplying tents, executing contract works, and commission agency for some textile mills on a fairly extensive scale, both individually and in partnership With his brother. It appears that the total wealth statement of the assessee was filed on November 10, 1948, and was forwarded to an authorised official appointed under section 6(3) of the Act. From January 8, 1949 to October 14, 1949 the authorized official was engaged in the collection of assessment records of the assessee from the income tax authorities and of materials from the Civil Supplies Directorate. On July 5, 1949, the total wealth statement was received back from the assessee and the order ,sheet shows that on May 26, 1950, (that is, after the coming into force of the Constitution) the authorised official is sued a notice to the assessee fixing the hearing for June 10, 1950. The assessee then asked for time, and it appears that for a period of about three years till June, 1953, nothing was done. Thereafter, the authorised official held a preliminary investigation and computed intially that the undisclosed income ,of the assessee for the period in question was Rs. 12,07,000; on further scrutiny and examination of accounts and after heating the assessee 's explanation, the authorised official reduced the amount in his final report, submitted sometime towards the end of 1953, to Rs. 9,56,345. The Investigation Commission considered the report of the authorised official, heard the assessee, and came to the conclusion that the total amount to be assessed in the hands of the assessee was Rs ' 4,47,915. In their report dated May 24, 1954 the Investigation Commission said: " During the course of the hearing before us,the assessee as well as his Auditors applied for a 568 settlement after admitting liability for the aforesaid sum. In the circumstances, we consider it proper to allow the assessee the benefit of a settlement on the lower concessional basis of 75% of evaded income payable by way of tax and a moderate penalty of Rs, 14,064. . The assessee accepting our findings both as regards the amount of income that escaped assessment and the amount of tax and penalty payable, offered a settlement. In the circumstances, we re commend the acceptance by the Government of the assessee 's offer of a settlement. " The Central Government accepted the settlement under section 8A of the Act and on July 5, 1954, passed an order under section 8A(2) directing the issue of a demand notice by the Income tax Officer concerned for a sum of Rs. 3,50,000 (including the penalty of Rs. 14,064) on the assessee and further directing that " all such other proceedings under the Indian Income tax Act or under any other law, as may be necessary, should be taken with a view to enforcing the payment of the demand and the terms and conditions of settlement." Though under the terms of settlement no instalments were given, it appears that the assessee was allowed to pay the amount at the rate of Rs. 5,000 per month. It further appears that up to and including September 8, 1957, the assessee had paid in all a sum of Rs. 1,28,000 towards the demand. In December, 1955 was given the decision of this Court in M. CT. Muthiah vs The Commissioner of Income tax, Madras (1), in which the majority of Judges held that section 5(1) of the Act was ultra vires the Constitution, as it was discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution by reason of two amendments which were made in section 34 of the Indian Income tax Act 1922 one in 1948 by the enactment of the Income. tax and Business Profits Tax (Amendment) Act, 1948 (48 of 1948) and the other in 1954 by the enactment of the Indian Income tax (Amendment) Act, 1954 (33 of 1954). Sometime earlier than the aforesaid deci sion, the Income tax Officer concerned had sent a (1) ; , 569 recovery certificate to the Collector, New Delhi, and the assessee stated that in execution of the said certificate his properties situated in Dharamsala and Hissar were attached. On December 27, 1957, the assessee filed a petition to the Income tax Commissioner, Delhi, in which after stating the relevant facts, the assessee claimed that, after the decision in Muthiah 's case (1), the settlement made under section 8A of the Act had no force and was not binding on him: the assessee then prayed that the attached properties should be released from attachment and the amounts recovered under the terms of settlement refunded to him. On January 29, 1958, the Commissioner of Income tax sent the following reply " With reference to your petition dated 27th December 1957 regarding the settlement arrived at under section 8A(2) of the Taxation on Income (Investigation Commission) Act, 1947, 1 am to inform you that the settlement is valid and binding on you. You are ' therefore, requested to make good the arrears of instalments which you have not paid recently by 5th February, 1958 and also to continue making the payments in accordance with the instalments ' scheme agreed to, failing which the recovery proceedings will be vigorously pursued through the usual recovery channels. " The assessee asked for and obtained special leave from this Court on February 17, 1958, to appeal from the aforesaid order. In the appeal as orginally filed in pursuance of the special leave granted to the assessee, the prayer portion was inadvertently left out. Subsequently, the assessee prayed that (a) the report of the Investigation Commission dated May 24, 1954, be quashed, (b) the settlement made on the basis of the report and the directions given by the Central Government in pursuance thereof and the proceedings for recovery of arrears of tax be all quashed, and (c) the amounts already recovered may be ordered to be refunded. With regard to the last prayer, we may state here that it was not pressed before us and we are relieved from the task, at least in this appeal, of (1) ; 72 570 deciding in what circumstances and on what considerations a refund of tax voluntarily paid can be claimed. Therefore, the first and foremost question before us is the validity of the settlement made under section 8A of , the Act. On behalf of the assessee the main argument is that section 5(1) of the Act having been held ultra vires the Constitution, the very foundation for the report of the Investigation Commission has disappeared and a settlement based thereon is neither valid, nor can it be enforced. On behalf of the respondents, the learned Attorney General has contended that there is no decision of this Court which has held that section 5(1) of the Act is wholly void and on a proper construction of the various sections of the Act, it will be found that there are two separate and distinct procedures or jurisdictions which the Investigation Commission may follow or exercise: one is investigation and the other relates to settlement. He has submitted that the jurisdiction conferred on the Investigation Commission under section 8A, which was inserted in the Act in 1949 by section 33 of Act 67 of 1949, is not affected by the decision in Muthiah 's case (1), and if the Investigation Commission had jurisdiction to entertain an application from the assessee for settlement, approve of the same, and refer it to the Central Government, the latter had also jurisdiction to accept it under sub s.(1) and make necessary orders under sub.s. (2) of section 8A.In short, the argument of the learned Attorney General is that there is nothing in Muthiah 's decision (1), which renders section 8A constitutionally invalid. It is necessary to read at this stage the relevant provisions of the Act in so far as they bear upon the problems before us. We have said that the Act came into force on May 1, 1947. This was before the coming into force of the Constitution of India, and no question of the violation of any fundamental rights guaranteed by the Constitution arose on that date. Section 3 of the Act empowers the Central Government (now Union Government) to constitute a Commission to be called the Income tax Investigation (1) ; 571 Commission, whose duties shall be (to quote the words of the section) " (a) to investigate and report to the Central Government on all matters relating to taxation on income, with particular reference to the extent to which the existing law relating to, and procedure for, the ' assessment and collection of such taxation is adequate to prevent the evasion thereof ; (b)to investigate in accordance with the provisions of this Act any case or point in a case referred to it undersection 5 and make a report thereon (including such interim reports as the Commission may think fit) to the Central Government in respect of all or any of the assessments made in relation to the case before the date of its report or interim report, as the case may be. " We are concerned in this appeal with the duty of the Commission referred to in section 3(b) above. Section 4 deals with the composition of the Commission, details whereof are unnecessary for our purpose, Sub sections (1), (2) and (4) of section 5 are relevant to the problems before us and must be read : " 5(1). The Central Government may at any time before the 1st day of September 1948 refer to the Commission for investigation and report any case or points in a case in which the Central Government has prima facie reasons for believing that a person has to a substantial extent evaded payment of taxation on income, together with such material as may be available in support of such belief, and may at any time before the 1st day of September, 1948 apply to the Commission for the withdrawal of any case or points in a case thus referred, and if the Commission approves of the withdrawal, no further proceedings shall thereafter be taken by or before the Commission in respect of the case or points so withdrawn. (2) The Commission may, after examining the material submitted by the Central Government with reference to any case or points in a case and making such investigation as it considers necessary, report to the Central Government that in its opinion further investigation is not likely to reveal any substantial 572 evasion of taxation on income and on such report being made the investigation shall be deemed to be closed. (3). . . . . . . . . . (4) If in the course of investigation into any case or points in a case referred to it under sub section (1), the Commission has reason to believe (a)that some person other than the person whose case is being investigated has evaded payment of taxation on income, or (b) that some points other than those referred to it by the Central Government in respect of any case also require investigation, it may make a report to the Central Government stating its reasons for such belief and, on receipt of such report, the Central Government shall, notwithstanding anything contained in sub section (1), forthwith refer to the Commission for investigation the case of such other person or such additional points as may be indicated in that report. " Section 5 as originally enacted mentioned the date, 30th of June, 1948, but by Act 49 of 1948 the date substituted was " 1st day of September, 1948 ". Section 6 states the powers of the Commission, and they may be summarised thus: (a) the Commission has power to require any person or banking or other Company to give information on relevant points; (b) it has power to administer oaths and all the powers of a civil court to take evidence, enforce the attendance of witnesses etc; (c) it has power to impound and retain a document in its custody; (d)it has power to ask an authorised official to examine accounts and interrogate any person; (e) it has power to give directions to an authorised official; (f) it has power to close the investigation and make a best of judgment assessment in respect of a person who refuses or fails to attend in person to give evidence or produce documents etc; and 573 (g) it has power of seizure, search etc. in certain specified circumstances. Sections 6A and 6B deal with the power of the Commission to tender immunity from prosecution and to withdraw such tender. Section 7 states the procedure to be followed by the Commission, sub sections (2), (4) and (6) whereof need only be referred to here: " 7(2) In making an investigation under clause (b) of section 3, the Commission shall act in accordance with the principles of natural justice, shall follow as far as practicable the principles of the (1 of 1872), and shall give the person whose case is being investigated a reasonable opportunity of rebutting any evidence adduced against him; and the power of the Commission to compel production of documents shall not be subject to the limitation imposed by section 130 of the (1 of 1872), and the Commission shall be deemed to be a court and its proceedings legal proceedings for the purpose of sections 5 and 6 of the (XVIII of 1891). (3). . . . . . . . . . (4) No person shall be entitled to inspect, call for, or obtain copies of, any documents, statements or papers or materials furnished to, obtained by or produced before the Commission or any authorised official in any proceedings under this Act; but the Commission, and after the Commission has ceased to exist such authority as the Central Government may in this behalf appoint, may, in its discretion, allow such inspection and furnish such copies to any person: Provided that, for the purpose of enabling the person whose case or points in whose case is or are being investigated to rebut any evidence brought on the record against him, he shall, on application made in this behalf and on payment of such fees as may be prescribed by Rules made under this Act, be furnished with certified copies of documents, statements, papers and materials brought on the record by the Commis Sion. (5). . . . . . . . . . 574 (6) In any proceedings under this Act, the Commission may, in its discretion, admit in evidence and act upon any document notwithstanding that it is not duly stamped or registered. " Section 8 states in effect what the Commission shall do on the conclusion of the investigation: it states that the materials brought on the record shall be considered by all the members, and the report shall be in accordance with the opinion of the majority. Subsection (2) of section 8 gives the Central Government power to direct reopening of assessment proceedings on the report of the Commission. Sub section (4) states that in the assessment or reassessment proceedings in pursuance of a direction given under sub section (2), the findings recorded by the Commission shall be final, subject to the provisions of sub sections (5) and (6). Then comes section 8A which must be quoted in full: "section 8A(1) Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Commission shall, if it is of opinion that the terms of the settlement contained in the application may be approved, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed. (2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of subsection (1), the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940) or any other law may be taken against the person to whom the settlement relates, and, in particular, the provisions of the second proviso to clause. (a) of sub section (5) of section 23, section 24B, the proviso to sub section (2) of section 25A, the proviso to sub section (2) of section 26 and sections 44 and 46 of the Indian Income tax Act, 1922 575 shall be applicable to the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrear of income tax within the meaning of those provisions. (3) Subject to the provisions of subsection (6) of section 8, any settlement arrived at under this section shall be conclusive as to the matters stated therein, and no person whose case has been so settled shall be entitled to reopen in any proceeding for the recovery of any sum under this section or in any subsequent assesssment or reassessment proceeding relating to taxation on income or in any other proceeding before any court or other authority any matter which forms part of such settlement. (4) Where a settlement has been accepted by Government under sub section (1), no proceedings under section 34 of the Indian Income tax Act, 1922 (XI of 1922), or under section 15 of the Excess Profits Tax Act, 1940 (XV of 1940), shall be initiated in respect of the items of income covered by the settlement unless the initiation of such proceedings is expressly allowed by the terms of the settlement. " Section 9 bars the jurisdiction of courts, but it is not disputed that if any of the provisions of the Act are ultra vires the Constitution, section 9 will neither cure the defect nor stand in the way of the assessee. Section 10, the last section, gives the Central Government power to make rules. The above recital gives a brief conspectus of the main provisions of the Act. It is necessary now to refer to a few earlier decisions of this Court with regard to some of these provisions. The earliest in point of time is the decision in Suraj Mall Mohta and Co. vs A. V. Viswanatha Sastri where sub section (4) of section 5 of the Act and the procedure prescribed by the Act in so far as it affected the persons proceeded against under that sub section, were held to be discriminatory and therefore void and unenforceable. No opinion was, however, expressed on the validity of section 5(1) of the Act. (1) ; 576 In Shree Meenakshi Mills Ltd., Madurai vs Sri A. V. Viswanatha Sastri (1), it was held that after the coming into force on July 17, 1954, of the Indian Income tax (Amendment) Act, 1954, (33 of 1954) which operated on the same field as section 5(1) of the Act, the provisions of section 5 (1) became void and unenforceable as being discriminatory in character. It was further held that when an Act was valid in its entirety before the date of the Constitution, that part of the proceedings regulated by the special procedure and taken during the pre Constitution period could not be questioned how. ever discriminator it might have been, but the discriminatory procedure could not be continued after the coming into force of the Constitution. In that case (Meenakshi Mills ' case(1)) the Investigation Commission had not even commenced the proceedings though a period of seven years had elapsed and the investigation was pending when the writ petitions were filed. In those circumstances it was held that the proceedings before the Investigation Commission which had become discriminatory could no longer be continued. Then came the decision in M. CT. Muthiah vs The, Commissioner of Income tax, Madras(2). The facts relevant to that decision were that the Investigation Commission held an enquiry into three cases and submitted a report on August 26, 1952, finding a particular sum to be the undisclosed income during the investigation period. The Central Government accepted the report and passed an order under section 8(2) of the Act on September 16, 1952. Notices under section 34 of the Indian Income tax Act were then issued and reassessments except for one year were made on the findings of the Commission, which were treated as final and conclusive. The re assessment orders were served on the assessees in February and May 1954. On December 6, 1954, the assessees filed their writ petitions challenging the constitutionality of section 5 (1) of the Act. It was held by the majority that section 5 (1) was discriminatory and violative of the fundamental right guaranteed under article 14 of the Constitution, because section 34 of the Indian Income tax Act, 1922 as (1) (2) ; 577 amended in 1948 operated on the same field and from and after January 26, 1950, it included the strip of territory which was also occupied by section 5 (1) and two substantially different laws of procedure, one more , prejudicial to the assessee than the other, could not be allowed to operate on the same field in view of the , guarantee of article 14 of the Constitution. In the result it was held that barring those cases which were already concluded by reports made by the Commission and directions given by Government before January 26, 1950, the cases which were pending before the commission for investigation as also assessment or reassessment proceedings which were pending on January 26, 1950, were hit by article 14. The assessment orders were accordingly quashed as being unconstitutional. Now, we come back to the problems before us: (1) what is the effect of Muthia 's decision(1) in the present ease, and (2) does the Act contemplate two separate and distinct, but severable, procedures or jurisdictions one relating to investigation and the other to settlement, so that the vice of discrimination (if any) attaches to the investigation procedure only and not to the other ? We do not see how the learned Attorney General can escape from the position that Muthia 's decision (1) holds in express terms that section 5 (1) of the Act was hit by article 14 of the Constitution on and after January 26, 1950. The ratio of the decision was thus explained in the majority judgment at page 1260, 1261: " After the 8th September, 1948, there were two procedures simultaneously in operation, the one under Act XXX of 1947 and the other under the Indian Income tax Act with reference to persons who fell within the same class or category, viz., that of the substantial evaders of income tax. After the 8th September, 1948, therefore, some persons who fell within the class of substantial evaders of income tax were dealt with under the drastic and summary procedure prescribed under Act XXX of 1947, while other (1) ; 73 578 persons who fell within the same class of substantial evaders of income tax could be dealt with under the procedure prescribed in the Indian Income tax Act after service of notice upon them under the amended section 34 (1) of the Act. Different persons, though falling under the same class or category of substantial evaders of income tax, would, therefore, be subject to different procedures, one a summary and drastic procedure and the other a normal procedure which gave to the assessees various rights which were denied to those who were specially treated under the procedure prescribed in Act XXX of 1947. The legislative competence being there, these provisions, though discriminatory, could not have been challenged before the advent of the Constitution. When, however, the Constitution came into force on the 26th January, 1950, the citizens obtained the fundamental rights enshrined in Part III of the Constitution including the right to equality of laws and equal protection of laws enacted in article 14 thereof, and whatever may have been the position before January 26, 1950, it was open to the persons alleged to belong to the class of substantial evaders thereafter to ask as to why some of them were subjected to the summary and drastic procedure prescribed in Act XXX of 1947 and others were subjected to the normal procedure prescribed in section 34 and the cognate sections of the Indian Income tax Act, the procedure prescribed in Act XXX of 1947 being obviously discriminatory and, therefore, violative of the fundamental right guaranteed under article 14 of the Constitution. " That ratio is equally applicable in the present case, and if section 5(1) of the Act is unenforceable after January 26, 1950, the reference made thereunder against the assessee must also fall after that date and with it must go overboard all that was done under the drastic and summary procedure prescribed under the Act after January 26,1950. Two possible arguments that (1) substantial evaders whose s were referred by the Central Government for investigation by the Commission 579 before September 1, 1948, formed a class by themselves and (2) that proceedings having started before the Commission under a reference valid at the time when it was made cannot be affected by any subsequent amendment of the Income tax Art, 1922, were raised, but not accepted in Suraj Mall Mohta 's Meenakshi Mills ' or Muthia 's case (1) (2) (3). There has been some argument before us as to how the two procedures one prescribed under the Income tax Act, 1922, and the other under the Act compare and contrast with each other; but this is a point which was canvassed at great length in each of the three cases mentioned above. This Court found in unequivocal terms that the procedure prescribed under the Act was more summary and drastic, and in Suraj Mall Mohta 's case the substantial differences between the two procedures were summarised at pp. 463 466 of the report. We do not propose to cover the same ground again, but cop tent ourselves with drawing attention to what was pointedly said in Suraj Mall Mohta 's case namely, that it was conceded on behalf of Government that the procedure prescribed by the impugned Act in sections 6 and 7, which we have read earlier, was more drastic than the procedure prescribed in sections 37 and 38 of the Indian Income tax Act. It was stated therein that though in the first stages of investigation there was some similarity between the two procedures, the overall picture was not the same. The learned Attorney General has not seriously contested the correctness of this position, but has argued that what we are concerned with in the present case is not the mere possibility of a differential treatment, but what actually was done by the Commission in the case of the present assessee after January 26, 1950. He has submitted that the assessee was not subjected to any differential treatment in fact, and has invoked to his aid the ratio of our decision in Syed Qasim Razvi vs The State of Hyderabad (4), where the majority judgment laid down the following tests: in a case where part of the trial cannot be challenged as (1) [1955] 1S.C.R.448 (2) (3) [1955) 2 S.C.R. 1247. (4) 580 bad, it is incumbent on the court to consider, first whether the discriminatory provisions of the law can be separated from the rest and even without them a fair measure of equality in the matter of procedure can be secured, and secondly, whether the procedure actually followed 'did or did not, proceed upon the discriminatory provisions and it was stated that a; mere threat or possibility of unequal treatment was not sufficient to invalidate the subsequent proceedings. A reference was there made to the earlier decisions, of this Court in Keshavan Madhava Xenon vs The State of Bombay (1), and Lachmandas Kewalram Ahuja vs The State of Bombay (2 ), and the decision in Lachmandas case (supra), again a majority decision, was distinguished on two grounds: first, the question as to whether after eliminating the discriminatory provisions it was still possible to secure a fair measure of equality with the normal procedure was neither raised nor considered ; secondly, it was assumed that it was not possible to proceed with the trial without following the discriminatory procedure and as that procedure became void on the coming into force of the Constitution, the jurisdiction to proceed under that procedure came to an end. Applying the tests laid down in the majority decision of Syed Qasim Razvi 's case (3), the learned Attorney General has contended that in the present case the discriminatory provisions can be separated from the rest of the Act, and the assessee was not in fact subjected to any discriminatory procedure. He has sought to distinguish Muthia 's case on the same ground, viz., that the re assessments made in that case were actually based on a discriminatory procedure. In our view the ratio of the majority decision in Syed Qasim Razvi 's case (3) has no application in the case under our consideration, and the principle which applies is what was laid down in Lachmandas 's case (2). The majority decision is Syed Qasim Razvi 's case proceeded on the finding (to quote the words of Mukherjea, J., who delivered the majority judgment) that " although there were deviations in certain particulars, (1) ; (2) (.3) 581 the accused had substantially the benefit of a normal trial". The minority judgments, however, very pertinently pointed out that the discriminatory provisions were an integral part of the Regulation under which the accused person in that case was tried and in fact the discriminatory provisions were applied. Bose, J. (as he then was expressed the view (at p. 618) " that in testing the validity of a law, it is irrelevant to consider what has been done under it, for a law is either constitutional or not and the validity or otherwise cannot depend upon what has been accomplished under its provisions. " It is, we think, unnecessary to go into the controversy which arises out of the two views expressed above. For the present case, it is sufficient to say that (1) the discriminatory provisions are an integral part of the procedure prescribed under the Act which cannot be separated from the rest; and (2) we are satisfied that the report which led to the settlement was made by the Investigation Commission in pursuance of and as a direct result of the discriminatory procedure which it followed. Indeed, the Investigation Commission followed the only procedure of investigation prescribed under the Act, which was a drastic and summary procedure, and if that procedure became void on the coming into force of the Constitution, the jurisdiction of the Investigation Commission practically came to an end (see Lachmandas 's case, supra). It is necessary to explain here why we cannot accept the contention of the learned Attorney General that there are two procedures or two jurisdictions under the Act. What in substance is the effect of the provisions of the Act, in so far as they relate to the Commission 's duty under section 3 (b)? The Commission receives a reference under section 5 (1) if it does not proceed under section 5 (2), it exercises such of its powers under section 6 as it considers necessary. It then follows the procedure laid down in section 7 and submits its report under section 8. On that report, the Central Government takes action under section 8 (2). If, however, the assessee applies for settlement, even then the Commission has the, duty to report to Government if the terms of settlement are 582 approved by it. To fulfil this duty, the Commission must get the materials by exercising its powers under section 6 and by following the procedure laid down in section 7. That is exactly what was done in the present case. An authorised official was asked to examine the accounts etc. under section 6 (3). He examined the accounts and submitted an interim report in 1953. He followed the procedure laid down in the Act with regard to inspection of documents, examination of witnesses etc. He then submitted a final report. The Commission then heard the assesee on May 19, 1954, and reserved orders. On May 20, 1954, after the assessee knew what the final finding of the Commission was going to be, he filed an application for settlement. The Commission made its final report four days after. It is difficult to understand how in the circumstances stated above, it can be said that the Commission followed a non discriminatory procedure or that it had two jurisdictions one relating to investigation and the other to settlement. The jurisdiction was really one, and the procedure followed also the same. It is not as though the Act provided a separate procedure for purposes of effecting a settlement; nor is this a case where a settlement has been made without applying any of the provisions relating to investigation. A full investigation was made, and after the assessee had been subjected to the drastic and summary procedure under the Act, he was told what the result of the investigation was. Then, he made an application for settlement, which was approved by the Commission under section 8A. We are accordingly of the view that the learned Attorney General has failed to make out his case that (1) Muthia 's decision (1) does not apply and (2) the settlement under section 8A of the Act is a legally valid settlement by reason of the severability or non application of the discriminatory procedure under the Act in the case of the assessee. This brings me to the second question, that of waiver of a fundamental right, which is as important as it is complex. It is a question on which unfortunately we (1) [1955] 2 S.C.R.1247. 583 have not been able to achieve unanimity. It is beset with this initial difficulty that the present appeal is not from a judgment or order rendered after the trial of properly framed issues; it is from an order which merely rejected the prayer of the assessee that his properties attached in execution of the recovery certificate should be released and the amounts paid under the terms of the settlement refunded. The question of waiver was neither raised, nor tried; and the necessary facts were not ascertained or determined by the revenue authority concerned. Unfortunately, the filing of a statement of their case by the parties was also dispensed with, the result whereof has been that the question of waiver has been urged for the first time in the course of arguments here. We have, however, heard full arguments on it, and proceed to consider it on such materials as have been placed before us. It is necessary to make one point clear. The respondents have raised the plea of waiver, and the onus lies heavily on them to establish the essential requirements in support of the plea. Two points arise in this connection: (1) have the respondents established, on the materials before us, the necessary facts on which a plea of waiver can be founded ; and (2) if so, can a fundamental right guaranteed by the Constitution be waived at all. If the first point is answered in the negative, the second point need not be answered in the abstract. On behalf of the respondents, it has been submitted that assuming (without conceding) that the discriminatory provisions of the Act were applied in the case of the assessee before he asked for a settlement, the materials on record show that he never objected to the procedure adopted, voluntarily asked for a settlement, got by the settlement the benefit. of reducing his liability for both tax and penalty, and paid without demur the following instalments (some even after Muthia 's decision (1) ) (1) [1955] 2 S.C.P. 1247. 584 Payments made up to April 55 10,000 Payment made on 10 5 55 5,000 19 6 55 5,000 7 7 55 5,000 13 8 55 5,OOO 7 9 55 5,000 15 10 55 5,000 10 11 55 5,000 15 12 55 5,000 8 2 56 5,000 13 2 56 5,000 7 3 56 5,000 14 5 56 5,000 19 5 56 5,000 13 6 56 5,000 6 8 56 5,000 7 9 56 5,000 9 10 56 5,000 10 11 56 5,000 23 12 56 5,000 14 1 57 5,000 29 3 57 5,000 4 6 57 5,000 8 9 57 8,000 1,28,000 The learned Attorney General has in this connection referred us to the application for settlement which the assessee had made to the Commission, wherein the following statements were made: " in view of the fact that though no disclosure statement had been made before the submission of his reports by the authorised official,, still during the enquiry before the Commission,, the assessee and his auditors admitted their liability to tax in respect of the aforesaid sum of Rs. 4,47,915, the Commission was of the opinion that the assessee should be granted the benefit of a settlement on the lower concessional basis of payment of 75 per cent. of the undisclosed income by way of tax. The Commission was also of the opinion that the assessee should pay by way of penalty a sum of Rs. 14,064. 585 The assessee accepts the conclusions of the Commission as regards the amount of income that escaped assessment, the tax payable thereon and the penalty payable as aforesaid. " On the basis of these statements, the learned Attorney General has argued that there is no foundation for the suggestion made on behalf of the assessee that the application for settlement was made " under the pressure of circumstances and in view of the coercive machinery of the Act." He has submitted that the necessary facts on which the plea of waiver is founded have been established, and he has relied on three cases decided by this Court, where according to him the effect of the decisions was to accept such a plea in circumstances very similar: Dewan Bahadur Seth Gopal Das Mohta vs The Union of India(1); Baburao Narayanrao Sanas vs The Union of India (2); and Laxnanappa Hanumantappa Jamkhandi vs The Union of India (3) On behalf of the assessee, it is contended on the contrary that the necessary facts to found a plea of waiver are totally absent in the present case, and none of the aforesaid three decisions which were all pronounced on the same day proceed on a plea of waiver. Two of the three decisions referred to above relate to a settlement made under section 8A and the third to an order made under section 8(2) of the Act. All the three decisions were pronounced on applications made under article 32 of the Constitution, and not on any appeal from an order of the revenue authority. In Gopal Das Mohta 's case (1) the argument urged was, inter alia, that sections 5, 6, 7 and 8 of the Act were invalid and ultra vires as they contravened the provisions of articles 14, 19 (1) (f), and 31 of the Constitution and the prayer made was that the entire proceedings should be quashed as also all orders made by the Central Government in pursuance of the settlement under section 8A. In rejecting the argument and prayer, Mahajan, C. J., who delivered the , judgment of the Court said at p. 776 (1) ; (2) (3) ; 74 586 " In our judgment this petition is wholly misconceived. Whatever tax the petitioner has already paid, or whatever is still recoverable from him, is being recovered on the basis of the settlement proposed by him and accepted by the Central Government. Because Of his request for a settlement no assessment was made against him by following the whole of the procedure of the Income tax Act. In this situation unless and until the petitioner can establish that his consent was improperly procured and that he is not bound thereby he cannot complain that any of his fundamental rights has been contravened for which he can claim relief under article 32 of the Constitution. Article 32 of ',,the Constitution is not intended for relief against the voluntary actions of a person. His remedy, if any, lies in other appropriate proceedings. " There has been a good deal of argument before us as to the true effect of the decision in Gopal Das Mohta 's case (1). While I recognise that the reason stated for the decision, viz., that article 32 is not intended for relief against voluntary actions of a person, comes very near to saying that a person has waived his protection in a given case since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him, I am unable to hold that the decision proceeded strictly on the doctrine of waiver; it is perhaps true to say that some of the observations made therein are of a " Delphic nature to be translated into concreteness by the process of litigating elucidation" (to borrow the words of Frankfurter, J., in Machinists vs Gonzales (2). It seems to me that the decision proceeded more upon the scope of article 32 than upon the doctrine of waiver. I am fortified in this view by the circumstance that in a decision given only a month earlier (see Behram Khurshed Pesikaka vs The State of Bombay (3)) the same learned Chief Justice expressed himself strongly, though tentatively, against introducing in our Constitution the doctrine of waiver as enunciated by some American Judges in construing the American Constitution, without a full discussion of the matter. The report of Gopal (1) [1955] 1 S.C.P. 773. (2) ; ,619 (3) 653,654. 587 Das Mohta 's case (1) does not contain any reference to the doctrine of waiver, and it is obvious that no ,fuller discussion of the doctrine took place in that case. It is not, therefore, reasonable to hold that the effect of Gopal Das Mohta 's case is to uphold the doctrine of waiver. Babu Rao 's case (2) merely followed Gopal Das Mohta (1) and gave no separate reasons. Laxmanappa Jamkhandi 's case (3) dealt with an order under section 8(2) of the Act and said at p. 772: " From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income tax Act itself were made against the petitioner in November, 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal vs Income tax Officer, Mohindar garh; , , that as there is a special pro. vision in Article 265 of the Constitution, that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court. " Here, again, there is no reference to the doctrine of waiver, and the case was decided on the ambit and scope of article 32 of the Constitution. I would hold, therefore, that the decisions of this Court relied on by the learned Attorney General do (1) ; (2) (3)[1955] 1 S.C.R.769. 588 not help him in establishing waiver. Let me now examine the circumstances on which the learned Attorney General founds his plea of waiver. Indeed, it is true that the assessee submitted to the discriminatory procedure applied to him by the Commission; he also asked for a settlement under which he agreed to pay 75% of his alleged tax liability and a small amount of penalty; he made some payment in instalments even after Muthia 's decision in December, 1955. Do these circumstances amount to waiver ? It is to be remembered that in 1953 1954 when the discriminatory procedure of the Act was applied to him and the report against him was made by the Commission on which the settlement is based, the assessee did not know, nor had it been declared by a court of competent jurisdiction that section 5(1) of the Act was ultra vires. In his application for a settlement, he said clearly in paragraph 3 that the Commission announced it as its view that the income, profits and gains that had escaped assessment in the hands of the assessee was Rs. 4,47,915. The assessee also knew that under the Act this finding was final and binding on him. If in these circumstances, the assessee made an application for settlement, can it be said that it is a voluntary or intentional relinquishment of a known right ? I venture to think not. It has been said that ' waiver ' is a troublesome term in the law. The generally accepted connotation is that to constitute ' waiver ', there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right; estoppel is a rule of evidence. (See Dawson Bank Limited vs Nippon Menkwa Kabushiki Kaisha) (1). What is the known legal right which the assessee intentionally relinquished or agreed to release in 1953 1954 ? He did not know then that any part of the Act was invalid, and I doubt if in (1) (1935) L.R.62 I.A.100,108. 589 the circumstances of this case, a plea of 'waiver ' can be founded on the maxim of 'ignorance of law is no excuse '. I do not think that the maxim 'ignorance of law is no excuse ' can be carried to the extent of saying that every person must be presumed to know that a piece of legislation enacted by a legislature of competent jurisdiction must be held to be invalid, in case it prescribes a differential treatment, and he must, therefore, refuse to submit to it or incur the peril of the bar of waiver being raised against him. I do not think that such pre science is a necessary corollary of the maxim. On the contrary, the presumption, if any, which operated at the relevant time was the presumption that a law passed by a competent legislature is valid, unless declared unconstitutional by a court of competent jurisdiction. Furthermore, I do not think that any inference of waiver can be retrospectively drawn from the instalments paid in 1956 57, particularly when the question of refund of the amounts already paid is no longer a live issue before us. It would, I think, be going too far to hold that every unsuspecting submission to a law, subsequently declared to be invalid, must give rise to a plea of waiver: this would make constitutional rights depend for their vitality on the accident of a timely challenge and render them illusory to a very large extent. I hold, therefore, that the necessary foundation for sustaining the plea of waiver has not been laid in this case, and the onus being on the respondents, the plea must fail. In view of my finding that the necessary foundation on facts for sustaining the plea of waiver has not been laid in this case, it becomes unnecessary to decide, in the abstract, the further question if a right guaranteed by any of the provisions in Part III of the Constitution can be waived at all. I am of the view that this Court should indeed be rigorous in avoiding to pronounce on constitutional issues where a reason. able alternative exists; for we have consistently followed the two principles (a) that " the Court will not anticipate a question of constitutional law in 590 advance of the necessity of deciding it " (Weaver on Constitutional Law, p. 69) and (b) " the Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied " (ibid, p. 69). My Lord the Chief Justice and my learned brother Kapur, J., have however expressed the view that the fundamental right guaranteed under article 14 cannot be waived; my learned brethren, Bhagwati and Subba Rao, JJ., have expressed the view that none of the fundamental rights guaranteed by the Constitution can be waived. I greatly regret to have to say that I have come to a conclusion different from theirs with regard to this question, and as they have thought fit to express their views on it proceed now to explain why I have come to a conclusion different from those of my learned brethren on this question. This question was mooted, though not fully answered, in Behram Khurshed Pesikaka 's case (1). Venkatarama Aiyar, J., expressed his views at pages 638 to 643 of the report. Mahajan, C. J., with whom Mukherjea, Vivian Bose and Ghulam Hasan, JJ., concurred, expressed his views at pages 651 to 655 of the report, and my Lord the Chief Justice as Das, J., reserved his opinion on the question. The view which Venkatarama Aiyar, J., expressed was this: if the constitutional provision which has been infringed affects the competence of the legislature which passed the law, the law is a nullity; as for example, when a State enacts a law which is within the exclusive competence of the Union; when, however, a law is within the competence of the legislature which passed it and the unconstitutionality arises by reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity, but is merely unenforceable; such unconstitutionality can be waived and in that case the law becomes enforceable. He said that in America this principle was well settled and he referred to Cooley on Constitutional Limitations, Volume 1, pages 368 to 371 ; Willis on Constitutional Law at (1) , 653, 654. 591 pages 524, 531, 542 and 558; Rottschaefer on Constitutional Law at pages 28 and 29 30. He then referred to certain American decisions in support of his views and then said: " The position must be the same under our Constitution when a law contravenes a prescription intended for the benefit of individuals. . It is open to any person whose rights have been infringed to waive it and when there is waiver, there is no legal impediment to the enforcement of the law. It will be otherwise if the statute was a nullity; in which case it can neither be waived nor enforced. If then the law is merely unenforceable and can take effect when waived, it cannot be treated as non est and as effaced out of the statute book. " The contrary view expressed by Mahajan, C. J., can be best explained in his own words: " We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the lawmaking power of a State is restricted by a written fundamental law, then any law enacted and opposed to fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of the Parliament and the State legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution. " His Lordship then referred to article 13 of the Constitution and said that it was a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which came into conflict with Part III of the Constitution. His Lordship added: " In our opinion the doctrine of, waiver enunciated by some American Judges in construing the American Constitution cannot be introduced in our Constitution without a fuller discussion of the matter. . Without finally expressing an opinion on this question, we 592 are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of the Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the ,preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can, have no application to provisions of law which have been enacted as a matter of constitutional policy. " It would appear that the two main reasons which Mahajan, C. J., gave in support of the views expressed by him were these. Firstly, he held that the effect of article 13 of the Constitution was to prohibit the State from making any laws which came into conflict with Part III of the Constitution and he recognised no such distinction as was drawn by Venkatarama Aiyar, J., between absence of legislative power (that is, incompetence of the legislature) and non observance of provisions which operate merely as a check on the exercise of legislative power. He thought that absence of legislative power and check on the exercise of legis lative power were both aspects of want of legislative power. Secondly, he referred to the preamble and the scheme of Part III of the Constitution in support of his view that the doctrine of waiver did not apply. I shall take these reasons in the order in which I have stated them. First, as to the effect of article 13 of the Constitution. Article 13 is in two parts: the first part deals with " all laws in force in the territory of India immediately before the commencement of this Constitution " 'and says that so far as such laws are inconsistent with the provisions of Part III, they shall to the extent of such inconsistency be void; the second part deals with laws made after the commencement of the Constitution and says that " the State shall not make any law which takes. away or abridges the rights conferred by Part III " of the Constitution and any law made in contravention of cl. (2) of article 13 shall to the extent of the contravention be void. It seems clear to me that the Article itself recognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void, and exercise of legislative power in contravention of a restriction or check on such power, which will make the law void to the extent of the inconsistency or contravention. The use, of the words " to the extent of the inconsistency " and " to the extent of the contravention " indubitably points to such a distinction, and indeed this was pointed out in Bhikaji Narain Dhakras vs The State of Madhya Pradesh (1). This was an unanimous decision of this Court and several earlier decisions including the decision in Kesavan Madhava Menon 's case (2), on which Mahajan, C. J., placed so much reliance, were considered therein. The decision in Behram Khurshed Pesikaka (3)was also considered, and then the following observations were made with regard to article 13 of the Constitution at p. 598 " Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menon 's case. The law continued in force even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental right. In short, article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1)(g) read with el. (6) as it then stood ineffectual, nugatory and devoid of any legal (1) [1055] 2 S.C.R. 589 (2) ; (3) ,653. 654. 75 594 force or binding effect only in respect of the exercise of the fundamental right on or after the date of the commencement of the Constitution. . All laws,existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of article 13, rendered void I to the extent of such inconsistency '. Such laws were not dead for all purposes. " The aforesaid view expressed in Bhikaji Narain 's case (1) was accepted in many later decisions including the decision in Muthia 's case (2). The same distinction was again referred to in another unanimous decision of this Court in The State of Bombay vs R.M.D. Chamarbaugwala (3) where at p. 885 it was observed: The Court of Appeal has rightly pointed out that when the validity of an Act is called in question, the first thing for the court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature which enacted it. if it is, then the court is next to consider whether, in the case of an Act passed by the Legislature of a Province now a State), its operation extends beyond the boundaries of the Province or the State, for under the provisions conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its laws cannot, in the absence of a territorial nexus, have any extra territorial operation. If the impugned law satisfies both these tests, then finally the court has to ascertain if there is anything in any other part of the Constitution which places ~any fetter on the legislative powers of such Legislature. The impugned law has to pass all these three test. " Therefore, the mere use of the word ~(6 void " in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of our Constitution. Under the American Constitution also, a law made in violation of a constitutional guarantee is struck down, because under article VI of that Constitution, " the Constitution and the laws of the United States which (1) ; (2) ; (3) ; 595 shall be made in pursuance thereof. . shall be the supreme law of the land. " I am unable, therefore, to accept the view that article 13 shows that the doctrine of waiver can never be applied in respect of the provisions in Part III of the Constitution. Let me now go to the second reason. Is there any thing in the preamble and the scheme of our Constitution, with particular reference to Part III, which will make the doctrine of waiver inapplicable ? Let me first place the two preambles side by side: Premple to our Premple to the American Constitution. Constitution,1787. "We the people of India "We the people of the United having solemny resolved to States, in order to form a constitute India into a so more perfect Union,establish vereign democratic republic justice,insure domestic tra and to secure to all its ci nquillity,provide for the tizens:justice,social,ecc common defence,promote the nomic and political; liber general welfare,and secure ty of though,expression, the blessing of liberty to belief,faith and worship; ourselves and our posterity equality of status and of do ordain and establish opportunity;and to promote this Constitution for the among them all fraternity United State of America." assuring the dignity of the individual and the unity of the nation;in our Constitu ent Assemply this twenty sixth day of November,1949 do hereby adopt,enact and give to ourselves this Co nstitution. " 596 American Constitution were : (a) to form a more perfect Union; (b) to establish justice; (c) to insure domestic tranquillity; (d) to promote general welfare; and (e) to secure the blessings of liberty. In our Constitution, the emphasis is on the Welfare State on Justice, Liberty, Equality and Fraternity. But the question before us is the limited question of the application of the doctrine of waiver. I do not find any. thing in the two preambles which will make the doctrine applicable in one case and not applicable in the other. It is necessary to refer here to one important distinction between the two Constitutions. Speaking broadly, the American Constitution of 1787, except for defining the enumerated powers of the Federal Government and limiting the powers of the States, was an outline of government and nothing more. Its provisions were written in general language and did not provide minute specifications of Organisation or power. It contemplated subsequent legislation and interpretation for carrying the provisions into effect. In other words, it was early recognised that the Constitution was not self executing. The Indian Constitution is more detailed, and in Part III of the Constitution are provisions which not merely define the rights but also state to what extent they are subject to restrictions in the interests of general welfare, etc. In other words, there is an attempt at adjustment of individual rights with social good, and in that sense the limitations or restrictions are also defined. But I do not think that this distinction has any particular bearing on the question at issue before us. The rights as also the restrictions are justiciable, and an interpretation of the rights given and of the restrictions imposed, by courts of competent jurisdiction is contemplated. Indeed, I recognise that there is a constitutional policy behind the provisions enacted in Part III of the Constitution. In a, sense, there is a legislative policy in all statutory enactments. In my opinion, the crucial question is not whether there is a constitutional or legislative policy behind a particular provision, but the question is is the provision meant 597 primarily for the benefit of individuals or is it for the benefit of the general public ? That distinction has, I think, been recognised in more than one decision. Take, for example, an ordinary statutory enactment like section 80 of the Code of Civil Procedure which says that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after a notice in writing has been given, etc. There is undoubtedly a reason of public policy behind this provision, but it is open to the party for whose benefit the vision has been made to waive notice and indeed the party may be estopped by his conduct from pleading the want of notice. As the Privy Council pointed out in AL. Villavar Chettiar vs Government of the Province of Madras (1), there is no inconsistency between the propositions that the provisions of a section are mandatory and must be enforced by the court and that they may be waived by the authority for whose benefit they are provided. The question then is is there anything in the statute which militates against the application of the doctrine of waiver to such right, subject to the safeguards and precautions necessary for the application of the doctrine, provided the right is for the benefit of individuals ? I am conscious that rights which the Constitution itself characterises as fundamental must be treated as such and it will be wrong to whittle them down. But are we whittling down fundamental rights when we say that the question of waiver of fundamental rights cannot be answered in the abstract by a general affirmative or a general negative; the question must always depend on (a) the nature of the right guaranteed and (b) the foundation on the basis of which the plea of waiver is raised. It is to be remembered that the rights guaranteed by Part III of the Constitution are not confined to citizens alone. Some of the rights are guaranteed to non citizens also. Moreover, they are not all rights relating to justice, liberty, equality and fraternity; some of the provisions define the rights (A) (1947) L.R. 74 I.A. 223, 228. 698 while others indicate the restrictions or checks subject to which the rights are granted. Article 33, for example, does not give any right to any person; on the contrary it gives power to Parliament to modify the rights conferred by Part III in their application to persons. Article 34 lays down a conferred by Part III while in any area. It is not, there fore, quite correct to say that all the provisions in Part III grant fun amental rights, though the heading is 'Fundamental Rights '. There is, I think, a three fold classification: (1) a right granted by an ordinary statutory enactment; (2) a right granted by. the Constitution; and (3) a right guaranteed by Part III of the Constitution. With regard to an ordinary statutory right there is, I think, no difficulty. It is well recognised that a statutory right which is for the benefit of an individual can in proper circumstances be waived by the party for whose benefit the provision has been made. With regard to a constitutional right, it may be pointed out that there are several provisions in our Constitution which do not occur in Part III, but which yet relate to certain rights; take, for example, the rights relating to the Services under the Union and the States in Part XIV. I do not think that it can be seriously contended that a right which is granted to a Government servant for his benefit cannot be waived by him, provided no question of jurisdiction is involved. I may refer in this connection to the provisions in Part XIII which relate to trade, commerce and intercourse within the territory of India. These provisions also impose certain restrictions on the legislative powers of the Union and of the States with regard to trade and commerce. As these provisions are for the benefit of the general public and not for any particular individual, they can not be waived, even though they do not find place in Part III of the Constitution. Therefore, the crucial question is not whether the rights or restrictions occur in one part or other of the Constitution. The crucial question is the nature of the right given: is it for the benefit of individuals or is it for the general public? 599 That, in my opinion, is the true test. I may here state that the source of the right contractual or statutory is not the determining factor. The doctrine of waiver is grounded on the principle that a right, statutory or otherwise, which is for the benefit of an individual can be waived by him. I am aware that a right which is for the benefit of the general public must in its actual operation relate to particular individuals, in the same way as a right for the benefit of individuals will in its actual operation arise in connection with individual A or individual B. The test is not whether in its operation it relates to an individual. The test is for whose benefit the right has been primarily granted for the benefit of the general public or for individuals ? Let me now apply this test to some of the provisions in Part III of the Constitution. These provisions have been classified under different heads: (1) right to equality, (2) right to freedom, (3) right against exploitation, (4) right to freedom of religion, (5) cultural and educational rights, (6) right to property and (7) right to constitutional remedies. There can be no doubt that some of these rights are for the benefit of the general public. Take, for example, article 23 which prohibits traffic in human beings, etc ; so also article 24 'which says that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. I do not wish to multiply examples and it is sufficient to state that several of these rights are rights which are meant primarily for the benefit of the general public and not for an individual. But can we say the same thing in respect of all the rights ? Let us take article 31, which says that no person shall be deprived of his property save by authority of law and that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation, etc. Take a case where a man 's property is acquired under a law which does not fix the amount of compensation or specify the principles on which or the manner in which the compensation is to be determined and given. The man whose 600 property is taken may raise no objection to the taking of his property under such law. Indeed, he may expressly agree to Government taking his land for a public purpose under the law in question, though it does not comply with the requirements as to compensation. Can such a man after two or three years change his mind and say that the law is invalid and his land on which a school or a hospital may have been built in the meantime should be restored to him, because he could not waive his fundamental right ? In my opinion, if we express the view in the abstract that no fundamental right can ever be waived, many startling and unforeseen results may follow. Take another example. Suppose a man obtains a permit or a licence for running a motor vehicle or an excise shop. Having enjoyed the benefit of the permit for several years, is it open to him to say when action is proposed to be taken against him to terminate the licence, that the law under which the permit was granted to him was not constitutionally valid ? Having derived all the benefit from the permit granted to him, is it open to him to say that the very Act under which a permit was granted to him is not valid in law ? Such and other startling results will follow if we decide in the abstract, by a general negative, that a fundamental right can never be waived. Take article 32, which is a right to a constitutional remedy, namely, the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. It is now well settled by several decisions of this court that the right under article 32 is itself a fundamental right. Suppose a person exercises that right and initiates appropriate proceedings for enforcement of a fundamental right ' Later he thinks better of it and withdraws his application. Still later he changes his mind. Can he then say that he could not waive his right under article 32 and the order passed on his application for withdrawal had no legal validity ? We may take still another example. Under article 30(1) of the Constitution, all minorities, whether based on religion or language, have the right to establish and administer educational institutions of 601 their choice. Suppose, there is a minority educational institution and the minority has the right to administer that institution, but they want grant from Government. The minority may have to surrender part of its right of administration in order to get Government aid. Can the minority waive its right? Such a question arose for consideration in the advisory opinion which we gave in connection with the Kerala Education Bill and , so far as I have been able to understand, the effect of our opinion is that the minority can surrender part of its right of administration of a school of its own choice in order to get aid from Government. If we now hold that the minority can never surrender its right, then the result will be that it will never be able to ask for Government aid. I do not see any such vital distinction between the provisions of the American Constitution and those of our Constitution as would lead me to the conclusion that the doctrine of waiver applies in respect of constitutional rights guaranteed by the American Constitution but will not apply in respect of fundamental rights guaranteed by the Indian Constitution. Speaking generally, the prohibition in Part III is against the State from taking any action in violation of a fundamental right. The word 'State ' in that Part includes the Government and Parliament of India as also the Government and Legislature of each of the States and also all local or other authorities within the territory of India or under the control of the Government of India. The American Constitution also says the same thing in effect. By article VI it states that the Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land. It is well settled in America that the first ten amendments to the original Con stitution were substantially contemporaneous and should be construed in pari materia. In many of the amendments the phraseology used is similar to the phraseology of the provisions of Part III of our Constitution. The position under the American Constitution is 76 602 well settled and a succinct statement of that position will be found in Rottschaefer on Constitutional Law, pp. 28 29. The learned author has summarised the position thus: " There are certain constitutional provisions that may be waived by the person for whose protection they were intended. A person who has waived that protection in a given instance may not thereafter. raise the issue that his, constitutional rights have been infringed in that instance, since whatever injury he may incur is due to his own act rather than to the enforcement of an unconstitutional measure against him. A person who would otherwise be entitled to raise a constitutional issue is sometimes denied that right because he is estopped to do so. The factor usually present in these cases is conduct inconsistent with file present assertion of that right, or conduct of such character that it would be unjust to others to permit him to avoid liability on constitutional grounds. A person may not question the constitutionality of the very provision on which he bases the right claimed to be infringed thereby, nor of a provision that is an integral part in its establishment or definition. The acceptance of a benefit under one provision of an Act does not ordinarily preclude a person from asserting ' the invalidity of another and severable provision thereof, but there are exceptions to this rule. The. ' promoters of a public improvement have been denied ' the right to contest the validity of the rule apportioning its cost over the benefited lands, and a person who has received the benefits of a statute may not there ' after assert its invalidity to defeat the claims of those, against whom it has been enforced in his own favour. A state is estopped to claim that its own statute deprives it. of its property without due process of law but it is permitted to assert that its own statute invades rights that its constitution confers upon it. Prior inconsistent conduct will not,however preclude a person from asserting the, invalidity of an act if under all the circumstances its assertion involves no 603 unfairness or injustice to those against whom it is raised. " The learned Attorney General placed reliance on the following decisions: (1) Pierce vs Somerset Railway (1); (2) Wall vs Parrot Silver and Copper Company (2); (3) Pierce Oil Corporation vs Phoenix Refining Company (3) ; (4) Shepard vs Barron(4) ; (5) United States V. Murdock(5); (6) Patton vs United States (6) ; and (7) Adams vs United States (7). The position in America is so well settled that I think it is unnecessary to examine the aforesaid decisions in detail. I need only refer to the observations of Frankfurter, J., in William A. Adam 's case (supra). The observations were made in connection with a case where a trial was held without a jury at the request of the accused person himself in spite of the guarantee of Amendment VI. The observations were " What was contrived as protections for the accused should not be turned into fetters. To assert as an absolute that a layman, no matter how wise or experienced he may be, is incompetent to choose between judge and jury as the tribunal for determining his guilt or innocence, simply because a lawyer has not advised him on the choice, is to dogmatize beyond the bounds of learning or experience. " I have not been able to find any real reason on the basis of which the decisions given above with regard to the American Constitution can be held to be inapplicable to similar cases arising under the Indian Constitution. Two subsidiary reasons have been given for holding that the position under the Indian Constitution is different. One is that ours is a nascent democracy and, therefore, the doctrine of waiver should not apply. With respect, I am unable to concur in this view. I do not think that we shall be advancing the cause of democracy by converting a fundamental right into a fetter or using it as a means for getting out of an (1) ; (2) (1917) 244.U.S.407. (3) (1922) 259.U.S.125. (4) (1904) 194.U.S.553. (5) (1931) 284.U.S.141. (6) (1930) 281.U.S.276. (7) (1942) 317.U.S.269. 604 agreement freely entered into by the parties. I appreciate that waiver is not to be light heartedly applied, and I agree that it must be applied with the fullest rigour of all necessary safeguards and cautions. What I seriously object to is a statement in the abstract and "in absolute terms that in no circumstances can a right given by any of the provisions in Part III of the Constitution be waived. Another point taken is that the provisions in Part III embody what are called natural rights ' and such rights have been retained by the people and can never be interfered with. I am unable to acquiesce in this. The expression natural rights ' is in itself somewhat vague. Sometimes, rights have been divided into natural rights ' and civil rights ', and natural rights ' have been stated to be those which are necessarily inherent or innate and which come from the very elementary laws of nature whereas civil rights are those which arise from the needs of civil as distinguished from barbaric communities. I am unable, however, to agree that any such distinction is apparent from the provisions in Part III of our Constitution: all the rights referred to therein appear to be created by the Constitution. I do not think that Locke 's doctrine of natural rights ', which was perhaps the authority for the American Declaration of Independence, played any part in the enactment of the provisions of Part III of our Constitution. The doctrine which has long since ceased to receive general acceptance, has been thus explained by E. W. Paterson (see Natural Law and Natural Rights, Southern Methodist University Press, Dallas, 1955, p. 61): " The theory of natural rights, for which we are indebted to the seventeenth century English philosopher, John Locke, is essentially different from the theories of natural law just discussed in that it lacked the two important characteristics above mentioned: the concept of an immutable physical order and the concept of divine reason. . He begins with the purpose of justifying the existence of a government with coercive powers. What inconveniences would arise if there were no government? Men would live in a " stage of nature '; to avoid confusion with the 605 political state I shall call this a condition of nature '. In such a condition man would be free to work, to enjoy the fruits of his labour, and to barter with others; he would also be free to enforce the law of nature (whose precepts Locke did not define) against every other man. Since Locke was an optimist about human nature he thought men would get along pretty well in this lawless condition. Yet the condition of nature is for Locke a fiction like the assumption of a frictionless machine in mechanics. The chief disadvantages that men in this condition would suffer were, he thought, the absence of an established law,, the absence of a known and impartial magistrate to settle disputes, the absence of a. power sufficient to execute and enforce the judgment of the magistrate. Moved by these inconveniences, men would enter into a social compact with each other whereby each would transfer to a third person, the government, such rights over his person and property as the government must have in order to remove these inconveniences. All other rights, privileges, and immunities he reserved, as a grantor of land conveys the fee simple to his son and reserves a life estate to himself. These reserved rights were natural ' rights because they had originated in the condition of nature and survived the social compact. " There are, in my opinion, clear indications in Part III of the Constitution itself that the doctrine of ' natural rights ' had played no part in the formulation of the provisions therein. Take articles 33, 34 and 35 which give Parliament power to modify the rights conferred by Part III. If they were natural rights, the Constitution could not have given power to Parliament to modify them. Therefore, I am of the view that the doctrine of 'natural rights ' affords nothing but a foundation of shifting sand for building up a thesis that the doctrine of waiver does not apply to the rights guaranteed in Part III of our Constitution. The true position as I conceive it is this: where a right or privilege guaranteed by the Constitution rests in the individual and is primarily intended for his benefit and does not impinge on the right of others, it 606 can be waived provided such waiver is not forbidden by law and does not contravene public. policy or public morals. In the case before us, I have held that there is no foundation on facts to sustain the plea of waiver. Therefore, I would allow the appeal with costs. The order of the Commissioner of Income tax, Delhi, dated January 29, 1958, must be set aside and all proceedings now pending for implementation of the order of the Union Government dated July 5, 1954, must be quashed. SUBBA RAO, J. I have had the advantage of perusing the judgments of my Lord the Chief Justice and my learned brother, section K. Das, J. I agree with their conclusion, but I would prefer to express my opinion separately in regard to the question of the applicability of the doctrine of waiver to the fundamental rights. This case raises a most serious and important question, viz., whether the doctrine of waiver operates on the fundamental rights enshrined in the Constitution, a question not confined to the immediate purpose of this litigation, but to the public in general. The question is bound to arise frequently, and the varying observations already expressed by the learned Judges of this Court would lend scope for conflicting decisions involving parties in unnecessary litigation and avoidable hardship. The question was directly raised and fully argued before us. In the circumstances, I cannot share the opinion of my learned brother, section K. Das, J., that this Court should avoid a decision on this question and leave it to be decided in a more appropriate case. The facts have been fully stated by my Lord the Chief Justice in his judgment and I need not restate them. The learned Attorney General contended that in the American Law the principle of waiver was applied to rights created by the Constitution except in cases where the protection of the rights was based upon public policy and that, by the same analogy, if no public policy was involved, even in India, the person 607 affected by the infringement of the fundamental rights could waive the constitutional protection guaranteed to him. It was said that in the present case the appellant waived his fundamental right under article 14 of the Constitution as the right was only in respect of his liability to tax and he could legitimately waive it. To, appreciate this argument it would be convenient at the outset to notice the American Law on the subject. Certain rights, which are sometimes described as the Bill of Rights, have been introduced by the Amendment; to the Constitution of America. They declare the rights of the people of America in respect of the freedom of religion speech, press, assemblage and from illegal seizurs. They guarantee trial by jury in certain criminal and civil matters. They give protection against self incrimination. The Fifth Amendment of the Constitution of the United States prescribes that no person shall be deprived of life. , liberty or property without due process of law; nor shall private property be taken for public use without just compensation. The Fourteenth Amendment of the Constitution introduces the rule of due process as a protection against the State action. The said amendments are intended as a protection to citizens against the action of the Union and the States. Though the rights so declared are general and wide in their terms, the Supreme Court of America, by a long course of judicial, interpretation, having regard to the social conditions ' in that country, has given content to those rights and imposed limitations thereon in an attempt to reconcile individual rights with social good, by evolving counterbalancing doctrines of police power, eminent domain,,. and such others. During the course of the evolution. of the law, attempts were made to apply the doctrine of waiver to the provisions of the Constitution of America. American Courts applied the doctrine with great caution and in applying the same, laid down definite principles. The said principles were culled out from the various decisions and clearly summarized in the authoritative, text books on the Constitution of America under different heads: 608 WILLIS ON 'CONSTITUTIONAL LAW ': 1. Self incrimination: The privilege against self incrimination ' like any other privilege, is one which may be waived. Double jeopardy: Double jeopardy is a privilege and may be waived expressly or impliedly. Immunity against unreasonable searches and seizures: The immunity is one which may be waived and by consent one can make a search and seizure reasonable. Jury Trial: The United States Supreme Court. . held that neither a jurisdictional question nor the interest of the State was involved, but only the privilege and right of the accused, and that these were subject to waiver in accordance with the usual rules. Due Process of Law as a matter of jurisdiction: In order to delimit personal liberty by exercising social control, the branch of the government undertaking to do so must have jurisdiction. If it does not have jurisdiction, it is taking personal liberty (life, liberty or property) without due process of law. To this rule there are no exceptions. It cannot be waived. 'COOLEY 'S CONSTITUTIONAL LIMITATIONS ': Where a constitutional provision is designed for, the protection solely of the property rights of the. citizen, it is competent for him to waive the protection, and to consent to such action as would be invalid if taken against his will. In criminal cases the doctrine that a constitutional privilege may be waived must be true to a very limited extent only. A party may consent to waive rights of. property, but the trial and punishment for. public offences are not within the provinces of individual con. sent or agreement. CORPUS JURIS SECUNDUM: It has been stated supra (p. 1050, note 32) that the doctrine of waiver extends to rights and privileges 609 of any character, and since the word ' waiver ' covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred by statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended 'for his sole benefit, do not infringe on the rights of others, and further provided the waiver Of the right or privilege is not forbidden by law, and does not contravene public policy, and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right and without detriment to the community at large. . As a general rule, rights relating to procedure and remedy are subject to waiver, but if a right is so fundamental in its nature as to be regarded by the state as vitally integrated in immemorially established processes of the administration of justice, it cannot be waived by anyone. The cases cited at the Bar illustrate the aforesaid principles. The doctrine was applied to the obligations under a contract in Pierce vs Somerset Railway (1); to deprivation of property without due process of law in Pierce Oil Corporation vs Phoenix Refining Company(2) and Shepard vs Barron (3) to trial by jury in Patton vs United States (4) and Adams vs United States(5); and to self incrimination in United States vs Murdock (6). It is true, as the learned counsel for the appellant contended, that in some of the aforesaid decisions, observations are in the nature of obiter, but they clearly indicate the trend of judicial opinion in America. (1) (1898) 43 L. Ed 316; ; (2) ; ; (3) ; ; (4) ; ; (5) ; (6) ; ; 77 610 The American Law on the subject may be summarized thus: The doctrine of waiver can be invoked when the Constitutional or Statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right. But if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. But even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precau tionary and stringent conditions should be applied before the doctrine is invoked or applied. This leads me to the question whether the fundamental rights enshrined in the Indian Constitution pertain to that category of rights which could be waived. To put it differently, whether the Constitutional guarantee in regard to the fundamental rights restricts or ousts the jurisdiction of the relevant authorities under the Constitution to make laws in derogation of the said rights or whether the said rights are for the benefit of the general public. At the outset I would like to sound a note of warning. While it is true that the judgments of the Supreme Court of the United States are of a great assistance to this Court in elucidating and solving the difficult problems that arise from time to time, it is equally necessary to keep in mind the fact that the decisions are given in the context of a different social, economic and political set up, and therefore great care should be bestowed in applying those decisions to cases arising in India with different social, economic and political conditions. While the principles evolved by the Supreme Court of the United States of America may in certain circum stances be accepted, their application to similar facts in India may not always lead to the same results. It is therefore necessary to consider the nature of the fundamental rights incorporated in the Indian Constitution, the conditions of the people for whose benefit and the purpose for which they were created, and the effect of the laws made in violation of those rights. The Constitution of India in its preamble promises to secure to all citizens justice, social, economic and 611 political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity of the nation. One of the things the Constitution did to achieve the object is to incorporate the fundamental rights in the Constitution. They are divided into seven categories: (i) right to equality articles 14 to 18; (ii) right to freedom articles 19 to 22; (iii) right against exploitation articles 23 and 24; (iv) right to freedom of religion articles 25 to 28 ; (v) cultural and educational rightsArts. 29 and 30; (vi) right to property articles 31, 31 A and 31B; and (vii) right to Constitutional remediesArts. 32 to 35. Patanjali Sastri, J., as he then was, pointed out, in Gopalan vs The, State of Madras(1), that fundamental rights contained in Part III of the Constitution are really rights that are still reserved to the people after the delegation of rights by the people to the institutions of Government both at the Centre and in the States created by the Constitution. Article 13 reads : (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the pro. visions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or, abridges the rights conferred by this Part and any law made in contravention of this clause, shall, to the extent of the contravention, be void. " This Article, in clear and unambiguous terms, not only declares that all laws in fore before the commencement of the Constitution and made thereafter taking away or abridging the said rights would be void to the extent of the contravention but also prohibits the State from making any law taking away or abridging the said rights. Part III is therefore enacted for the benefit of all the citizens of India, in an attempt to preserve to them their fundamental rights against infringement by the institutions created by the Constitution; for, without that safeguard, the objects (1) ; 612 adumbrated in the Constitution could not be achieve, ]. For the same purpose, the said chapter imposes a limitation on the power of the State to make laws in violation of those rights. The entire part, in my view, has been introduced in public interest, and it is not proper that the fundamental rights created under the various Articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit. Part III reflects the attempt of the Constitution makers to reconcile individual freedom with State Control. While in America this process of reconciliation was allowed to be evolved by the course of judicial decisions, in India, the fundamental rights and their limitations are crystallized and embodied in the Constitution itself; while in America a freehand was given to the judiciary not only to evolve the content of the right but also its limitations, in the Indian Constitution there is not much scope for such a process. The Court cannot therefore import any further limitations on the fundamental rights other than those contained in Part III by any doctrine, such as " waiver " or otherwise. I would, therefore, hold that the fundamental rights incorporated in Part III of the Constitution cannot be waived. It is said. that such an inflexible rule would, in certain cases, defeat the very object for which the fundamental rights are created. I have carefully scrutinized the Articles in Part III of the Constitution of India, and they do not, in my view, disclose any such anomaly or create unnecessary hardship to ' the people for whose benefit the rights are created. Article, 14 embodies the famous principle of equality before the law and equal protection of the laws, and articles 15 to 18 and article 29(2) relate to particular applications of the rule. The principle underlying these Articles is the mainspring of our democratic form of government and it guarantees to its citizens equal protection in respect of both substantive and procedural laws. If the doctrine of waiver is engrafted to the said fundamental principles, it will mean that a citizen can agree to be discriminated. ' When one realizes the unequal 613 positions occupied by the State and the private citizen, particularly in India where illiteracy is rampant, it is easy to visualize that in a conflict between the State and a citizen, the latter may, by fear of force or hope of preferment, give up his right. It is said that in such a case coercion or influence can be established in a Court of law, but in practice it will be well nigh impossible to do so. The same reasoning will apply to articles 15 and 16. article 17 illustrates the evil repercussion of the doctrine of waiver in its impact on the fundamental rights. That Article in express terms forbids untouchability; obviously, a person cannot ask the State to treat him as an untouchable. Article 19 reads: "(1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India ; (e)to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of property ; and (g) to practice any profession, or to carry on any occupation, trade or business. " The right to freedom is the essential attribute of a citizen under democratic form of government. The freedoms mentioned in article 19 are subject to certain restrictions mentioned in cls. (2) to (6) of that Article. So far as the freedoms narrated in sub cls. (a) to (g) of Cl. (1) of article 19 are concerned, I cannot visualise any contingency where a citizen would be in a worse position than he was if he could not exercise the right of waiver. In regard to freedom to acquire, hold and dispose of property, a plausible argument may be advanced, namely, that a citizen should have a right to waive his right to acquire, hold and dispose of property ; for, otherwise he might be compelled to acquire and hold his property, even if he intended to give it up There is an underlying fallacy in this argument. The Article does not compel a citizen to acquire, hold and 614 dispose of property just as it does not compel a per. son to do any of the acts covered by the other freedoms. If he does not want to reside in any part of the territory of India or to make a speech or to practise any profession, he is at liberty not to do any of ,,these things. So too, a person may not acquire the property at all or practise any profession but if he seeks to acquire property or practise any profession, he cannot be told that he has waived his right at an earlier stage to acquire property or practise the profession. A freedom to do a particular act involves the freedom not to do that act. There is an essential distinction between the non exercise of a right and the exercise of a right subject to the doctrine of waiver. So understood, even in the case of the right covered by sub cl. (f) of cl. (1), there cannot be any occasion when a citizen would be worse off than when he had no fundamental rights under the Article. The preservation of the rights under article 19 without any further engrafting of any limitations than those already imposed under the Constitution, is certainly in the interest of the public ; for, the rights are essential for the development of human personality in its diverse aspects. Some comment is made in regard to the right covered by el. (3) of article 20, and it is asked that if a person has no liberty to waive the protection under that clause, he could not give evidence even if he wanted to give it in his own interest. This argument ignores the content of the right under cl. (3) of article 20. The fundamental right of a person is only that he should not be compelled to be a witness against himself. It would not prevent him from giving evidence voluntarily. Under article 21, no person shall be deprived of his life or personal liberty except according to procedure established by law and article 22 gives protection against arrest and detention in certain cases. I do not think that any situation can be conceived when a person could waive this right to his advantage. Article 23(1) prohibits traffic in human beings and forced labour. It is not suggested that a person can waive this Constitutional protection. So too, the right under article 24, which prohibits employment 615 of children in factories, cannot be waived. That apart, so far as this Article is concerned, no question of waiver can arise as a child cannot obviously waive his right under this Article. Article 25 gives guarantee for religious liberty subject to certain restrictions contained therein. It declares that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. This right is certainly conceived in the public interest and cannot be waived. So too, freedom to manage religious affairs, freedom as to payment Of taxes for promotion of any particular religion and freedom as to attendance at religious instruction or religious worship in certain educational institutions are all conceived to enforce the religious neutrality of the State and it cannot be suggested that they are not in public interest. The cultural and educational rights of the minorities and their right to establish and administer educational institutions of their choice are given for the protection of the rights of the minorities and it cannot be said that they are not in public interest. Article 31, which prohibits the State from depriving a person of his property save by authority of law or to acquire any property without paying compensation, is intended to protect the properties of persons from arbitrary actions of the State. This Article is conceived in the interest of the public and a person cannot say that he can be deprived of his property without authority of law or that his land can be acquired without compensation. It is suggested that if a person, after waiving his fundamental right to property and allowing the State to incur heavy expenditure in improving the same, turns round and claims to recover the said property, the State would be put to irreparable injury. Firstly, no such occasion should arise, as the State is not expected to take its citizens ' property or deprive them of their property otherwise than by authority of law. Secondly, if the owner of a property intends to give it to the State, the State can always insist upon conveying to it the said property in the manner known to law. Thirdly, other remedies may be open to the 616 recover compensation or damages for the improvements bonafide made or the loss incurred, having regard to the circumstances of a particular case. These considerations, in my view, are of no relevance in considering the question of waiver in the context of fundamental rights. By express provisions of the Constitution, the State is prohibited from making any law which takes away or abridges the rights conferred by Part III of the Constitution. The State is not, therefore, expected to enforce any right contrary to the Constitutional prohibition on the ground that the party waived his fundamental right. If this prohibition is borne in mind, no occasion can arise when the ' State would be prejudiced. The prejudice, if any, to the State would be caused not by the non application of the doctrine of waiver but by its own action contrary to the Constitutional prohibition imposed on it. It is then said that if the doctrine of waiver is to be excluded, a person can apply to the Supreme Court under article 32 of the Constitution for the relief provided therein, withdraw the petition, get the order of the Supreme Court dismissing it and then apply over again for issue of a writ in respect of the same right. The apprehension so expressed is more imaginary than real; for, it has no foundation either in fact or in law. When an application is dismissed, for whatever reason it may be whether on merits or on admission , the order of the Court becomes final and it can be reopened only in the manner prescribed by law. There is no scope for the application of the doctrine of waiver in such a cage. Articles 33 and 34 contain some of the Constitutional limitations on the application and the enforcement of the fundamental rights. The former. Article confers power on Parliament to modify the rights conferred by Part III of the Constitution in their application to facts and the latter enables it to impose restrictions on the rights conferred by ' that Part, while martial law is in force in any area. These two Articles, therefore, do not create fundamental rights, but impose limitations thereon and I 617 cannot appreciate the argument that their presence in Part III either derogates from the content of the fundamental rights declared therein or sustains the doctrine of waiver in its application to the said rights. Article 35 confers on the Parliament, the power to legislate for giving effect to the provisions of Part III to the exclusion of the Legislatures of the, States. This Article also does not create a fundamental right, but provides a machinery for enforcing that right. A startling result, it is suggested, would flow from the rejection of the doctrine of waiver and the suggestion is sought to be illustrated by the following example : A person takes a permit for several years from the State for running a motor vehicle or an excise shop. Having enjoyed the benefit for several years and when action is proposed to be taken against him to terminate the licence, he contends that the law under which the permit was granted to him offended his fundamental rights and therefore constitutionally not valid. It is asked whether it would be open to him to say that the very Act under which the permit was granted to him was not valid in law. To my mind, this illustration does not give rise to any anomaly. Either a person can run a motor vehicle or an excise shop with licence or without licence. On the basis the law is valid, a licence is taken and the motor vehicle is run under that licence and if that law offends his fundamental right and therefore void, he continues to ran the business without licence, as no licence is required under a valid law. The aforesaid illustration does not, there. fore, give rise to any anomaly and even if it does, it does not affect the legal position. I have considered the various provisions relating to the fundamental rights with a view to discover if there is any justification for the comment that without the aid of the doctrine of waiver a citizen, in certain circumstances, would be in a worse position than that he would be if he exercised his right. I have shown that there is none. Nor is there any basis for the suggestion that the State would irreparably suffer under certain contingencies; for, any resulting hardship would be its 78 618 own making and could be avoided if it acted in accordance with law. A large majority of our people are economically poor, educationally backward and politically not yet conscious of their rights. Individually or even collectively, they cannot be pitted against the State organizations and institutions, nor can they meet them on equal terms. In such circumstances, it is the duty of this Court to protect their rights against themselves. I have, therefore, no hesitation in holding that the fundamental rights created by the Constitution are transcendental in nature, conceived and enacted in national and public interest, and therefore cannot be waived. That apart, I would go further and hold that as section 5(1) of the Act XXX of 1947 was declared to be void by this Court in M. Ct. Muthiah vs The Commissioner of Income tax, Madras (1), the appellant can. not, by the application of the doctrine of waiver, validate the enquiry made under the said Act. It is suggested that there is a distinction between a case where the enactment is beyond the legislative competence Of the Legislature which made it and the case where the law is unconstitutional on the ground of existence of a constitutional limitation, that while in the former case the law is null and void, in the latter case the law is unenforceable and may be revived by the removal of the limitation by an amendment of the Constitution. On this distinction an argument is sought to be built to the effect that as in the present case section 5(1) of the Act XXX of 1947 was declared to be invalid only on the ground that it was hit by article 14 of the Constitution, the law must be deemed to be on the statute book and therefore the appellant was within his right to waive his constitutional guarantee. I am unable to appreciate this, argument. The scope of article 13(1) of the Constitution was considered by this Court in Keshavan Madhava Menon vs The state of Bombay (2). This Court by a majority held that article 13(1) of the Constitution does not make (1) ; (2) ; 619 existing laws which are inconsistent with the fundamental rights, void ab initio, but only renders such laws unenforceable and void with respect to the exercise of the fundamental rights on and after the date of commencement of the Constitution. Mahajan, C. J., who was a party to that decision, explained the word ,void ' in article 13(1) of the Constitution in Behram Khurshed Pesikaka vs State of Bombay (1). He observed at page 652 thus: " It is axiomatic that when the law making power of a State is restricted by written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent but two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights Chapter of the Constitution. " This decision in clear and unambiguous terms lays down that there cannot be any distinction on principle between Constitutional incompetency and Constitutional limitation. In either case, the Act is void, though in the latter case, the pre constitutional rights and liabilities arising under the statute are saved. This Court again dealt with the meaning of the word void ' in Bhikaji Narain Dhakras vs State of Madhya Pradesh (2). There the question was whether an Act 'Which was declared void on the ground of inconsist ency with the Constitution, can be revived by any subsequent amendment to the Constitution removing the inconsistency. This Court answered the question in the affirmative. Das, acting C.; J., observed at page 598 thus: " As explained in Keshavan Madhava Menon 's case, the law became void not in toto or for all purposes or for all times or for all persons but only to the extent of such inconsistency that is to,say, to the extent, it became inconsistent with the provisions of Part (1) (2) ; 620 III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. In Short, Article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with the exercise of the fundamental right on and after the date of the commencement of the Constitution. . . . It is only as against the citizens that they remained in a dormant or moribund condition. In our judgment, after the amendment of clause (6) of article 19 on the 18th June, 1951, the impugned Act ceased to be unconstitutional and became revivified and enforceable against citizens as well as against non citizens. " This judgment does not say anything different from that expressed in Keshavan Madhava Menon 's case (1) nor does it dissent from the view expressed by Mahajan, C. J., in Behram Khurshed 's case (2). The problem that confronted the learned Judges was a different one and they resolved it by applying the doctrine of "eclipse '. The legal position, vis a vis, the law declared to be void either on the ground of legislative incompetence or for the reason of constitu tional limitation, as stated in the earlier decisions, remains unshaken by this decision. So long as the inconsistency remains the law continues to be void, at any rate vis a vis the fundamental rights of a person. We are not concerned in this case with the doctrine of revival; for the inconsistency of section 5(1) of the Act with the fundamental right under article 14 of the Constitution has not been removed by any amendment of the Constitution. So long as it is not done, the said section is void and cannot affect the fundamental rights of the citizens. In M. Ct. Muthiah vs The Commissioner of Income tax, Madras (3), it was declared that section 5(1) of Act XXX of 1947 was unconstitutional on the ground that it infringed the fundamental rights of the citizens under article 14 of the Constitution. (1) ; (2) (3) ; 621 Under article 141 of the Constitution, the law declared by the Supreme Court is binding on all the Courts in India. It follows that the Income tax Commissioner had no jurisdiction to continue the proceedings against the appellant under Act XXX of 1947. If the Commissioner had no jurisdiction, the appellant could not by waiving his right confer jurisdiction on him. The scope of the doctrine of waiver was considered by this Court in Behram Khurshed 's case(1). There a person was prosecuted for an offence under section 66(b) of the Bombay Prohibition Act and he was sentenced to one month 's rigorous imprisonment. One of the questions raised there was whether section 13(b) of the Bombay Prohibition Act, having been declared to be void under article 13(1) of the Constitution in so far as it affected the consumption or use of liquid medicinal or toilet preparation containing alcohol, the prosecution was maintainable for infringement of that section. The Court held that in India once the law has been struck down as unconstitutional by the Supreme Court, no notice can be taken of it by any Court, because, after it is declared as unconstitutional, it is no longer law and is null and void. Even so, it was contended that the accused had waived his fundamental right and therefore he could not sustain his defence. Mahajan, C. J., delivering the judgment of the majority, repelled this contention with the following observations at page 653: " The learned Attorney General when questioned about the doctrine did not seem to be very enthusiastic about it. Without finally expressing an opinion on this question we are not for the moment convinced that this theory has any relevancy in construing the fundamental rights conferred by Part III of our Constitution. We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political ; liberty ,of thought, expression, belief, faith and worship; (1) 622 equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for the individual benefit though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Reference to some of the articles, inter alia, Articles 15(1) 20, 21, makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'You can discriminate ', or get convicted by waiving the protection given under Articles 20 and 21. " On the question of waiver, Venkatarama Aiyar, J., in his judgment before review, considered the American decisions and was inclined to take the view that under our Constitution when a law contravenes the provisions intended for the benefit of the individual, it can be waived. But the learned Judge made it clear in his judgment that the question of waiver had no bearing to any issue of fact arising for determination in that case but only for showing the nature of the right declared under article 19(1)(f) and the effect in law of a statute contravening it. Das, J., as he then was, in his dissenting judgment, did not state his view on this question but expressly reserved it in the following words: " In coming to the conclusion that I have, I have in a large measure found myself in agreement with the views of Venkatarama Aiyar, J., on that part of the case. I, however, desire to guard myself against being understood to agree with the rest of the observations to be found in his judgment, particularly those relating to waiver of 'unconstitutionality, the fundamental rights being a mere check on the legislative power or the effect of the declaration under article 13(1) being relatively void '. On those topics prefer to express no opinion on this occasion. " I respectfully agree with the observations of Mahajan, C. J. For the aforesaid reasons, hold that the doctrine of waiver has no application in the case of fundamental rights under our Constitution. 623 ORDER The appeal is allowed. The order of the Income Tax Commissioner, Delhi, dated January 29, 1958, is set aside and all proceedings now pending for implementation of the order of Union Government dated July 5, 1954, are quashed. The appellant shall get costs of this appeal.

The two questions for determination in this appeal were, (1) whether a settlement under section 8A of the Taxation of Income (Investigation Commission) Act, 1947 (30 Of 1947) made after the commencement of the Constitution was constitutionally valid and (2) whether the waiver of a fundamental right was permissible under the Constitution. The appellant 's case was on July 22, 1948, referred by the Central Government under section 5(1) of the Act to the Investigation Commission. for investigation and report. The Commission directed the authorised official under section 6 of the Act to examine the appellant 's accounts. He submitted his final report by the end of 1953. The Commission considered the report heard the assessee and came to the conclusion that Rs. 4,47,915 had escaped assessment. Thereupon the appellant on May 20, 1954, applied to the Commission for a settlement of his case under section 8A of the Act, agreeing to pay Rs. 3,50,000 by way of tax and penalty at the concessional rate. The Commission reported to the Central Government approving of the settlement, the Central Government accepted it and it was recorded by the Commission. The Central Government directed the recovery of the said amount under section 8A(2) of the Act. The appellant was permitted to make payments by monthly instalments of Rs. 5,000 and the total amount thus paid up to September 8, 1957, aggregated to Rs. 1,28,000. In the meantime the Income Tax Officer issued a certificate and certain properties of the appellant were attached. Relying on the decisions of this Court in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri, ; and M. Ct. Muthiah vs The Commissioner of Income tax, Madras, ; , the appellant applied to the Commissioner of Income tax challenging the validity of the settlement made under section 8A of the Act on the ground that section 5(1) Of the Act on which it was founded had been declared void by this Court, and claimed that his properties might be released from attachment and the amount paid under the settlement might be refunded to him. , On January 29, 1958, the Commissioner of Income Tax sent a reply to the appellant maintaining that the settlement was valid and 529 that the appellant was bound thereunder to pay up the arrears of instalments and requesting him to continue to pay in future. Against this decision of the Commissioner of Income Tax the. appellant came up to the Supreme Court by special leave. It was contended on behalf of the respondent that the Act laid down two distinct and separate procedures, one for investigation and the other for settlement and it was the former alone and not the D, latter that was affected by the decisions of this Court. and that the appellant by voluntarily entering into the settlement had waived his fundamental right founded on article 14 of the Constitution. Held (Per Curiam), that both the contentions must fail. It was not correct to say that the Taxation of Income (In vestigation Commission) Act, 1947, laid down two different procedures, one for investigation and assessment under section 8(2) of the Act and another for settlement under section 8A of the Act and assessment in terms of such settlement and that while the decision of this Court in M. Ct. Muthiah vs The Commissioner of Incometax, Madras, declaring section 5(1) of the Act to be discriminatory and therefore void, affected only the former procedure and not the latter. The Act laid down but one procedure and in entertaining a proposal for settlement as in the investigation itself the Commission exercised the same jurisdiction, and powers and followed the one and the same procedure as laid down by sections 5, 6 and 7 Of the Act. Since the settlement in the instant case was no exception to that rule, it was covered by the decision and must be held to be violative of article 14 Of the Constitution. M. Ct. Muthiah vs The Commissioner of Income tax, Madras, ; , applied. The observations made in the majority judgment of this Court in Syed Qasim Razvi vs The State of Hyderabad, [1953] S.C.R. 589, must be kept strictly confined to the special facts of that case and had no application to the facts of the present case. Syed Qasim Razvi vs The State of Hyderabad, [1953] S.C.R. 589, held inapplicable. Per Das, C. J., and Kapur J. There could be no waiver of the fundamental right founded on article 14 Of the Constitution and it was not correct to contend that the appellant had by entering into the settlement under section 8A of the Act, waived his fundamental right under that Article. Article 14 was founded on a sound public policy recognised and valued all over the civilised world, its language was the language of command and it imposed an obligation on the State of which no person could, by his act or conduct, relieve it. As it was not strictly necessary for the disposal of this case, the question whether any other fundamental right could be waived need not be considered in this connection. Laxamanappa Hanumantappa jamkhandi vs The Union of India; , ; Dewan Bahadur Seth Gopal Das Moht 67 530 vs The Union of India, [1955] 1 S.C.R.773; Baburao Narayanrao Sanas vs The Union Of India, [1954] 26 I.T.R. 725; Subedar vs State, A.I.R. 1957 All. 396 and Pakhar Singh vs The State, A.I.R. 1958 Punj. 294, distinguished and held inapplicable. Per Bhagwati and gubba Rao, jj. There could be no waiver '.,not only of the fundamental right enshrined in article 14 but also of any other fundamental right guaranteed by Part III of the Constitution. The Constitution made no distinction between fundamental rights enacted for the benefit of the individual and those enacted in the public interest or on grounds of the public policy. There could, therefore, be no justification for importing American notions or authority of decided cases to whittle down the transcendental character of those rights, conceived in public interest and subject only to such limitations as the Constitution had itself thought fit to impose. Article 13(2) was in terms a constitutional mandate to the State in respect of all the fundamental rights enacted in Part III of the Constitution and no citizen could by waiver of any one of them relieve the State of the solemn obligation that lay on it. The view expressed by Mahajan, C. J., in Behram Khurshed Pesikaka vs The State of Bombay, , correctly laid down the law on the point. Since the arguments in the instant case had covered the entire field of fundamental rights, there was no reason why the answer should be confined to article 14 alone. Behram Khurshed Pesikaka vs The State of Bombay, ; State of Travancore Cochin vs The Bombay Co., Ltd., and The State of Bombay vs R. M. D. Chamarbaugwala; , , referred to. Per section K. Das, J. It seems clear that article 13 itself re cognises the distinction between absence of legislative power which will make the law made by an incompetent legislature wholly void, and exercise of legislative power in contravention of a restriction or check on such power, which will make the law void to the extent of the inconsistency or contravention; therefore the mere use of the word " void " in article 13 does not necessarily militate against the application of the doctrine of waiver in respect of the provisions contained in Part III of the Constitution. Behram Khurshed Pesikaka vs The State of Bombay, , considered. Bhikaji Narain Dhakyas vs The State of Madhya Pradesh, ; ; M. Ct. Muthiah vs The Commissioner of Income tax, Madras, ; and The State of Bombay vs R.M.D. Chamarbaugwala, ; , referred to. There was nothing in the two preambles to the Indian and the American Constitutions that could make the doctrine of waiver applicable to the one and not to the other; since the doctrine 531 applied to the constitutional rights under the American Constitution, there is no reason why it should not apply to the fundamental rights under the Indian Constitution. Case law considered. But it must be made clear that there is no absolute rule, or one formulated in the abstract, as to the applicability of that doctrine to fundamental rights and such applicability must depend on (1) the nature of fundamental right to which it is sought to be applied and (2) the foundation on the basis of which the plea is raised. The true test must be whether the fundamental right is one primarily meant for the benefit of individuals or for the benefit of the general public. Where, therefore, the Constitution vested the right in the individual, primarily intending to benefit him and such right did not impinge on the rights of others, there could be a waiver of such right provided it was not forbidden by law or did not contravene public policy or public morals. As in the instant case the respondents who had raised the plea, had failed to prove the necessary facts on which it could be sustained, the plea of waiver must fail. Per Subba Rao, J. Apart from the question as to whether there could be a waiver in respect of a fundamental right, section 5(1) of the Taxation of Income (Investigation Commission) Act, 1947, having been declared void by this Court in M. Ct. Muthiah vs The Commissioner of Income tax, Madras, as being violative of the fundamental right founded on Art ' 14 Of the Constitution and such decision being binding on all courts in India, the Commissioner of Income tax had no jurisdiction to continue the proceedings against the appellant under that Act and the appellant could not by a waiver of his right confer jurisdiction on him. No distinction could be made under article 13(1) of the Con stitution between the constitutional incompetency of a legislature and constitutional limitation placed on its power of legislation, for a statute declared void on either ground would continue to be so, so long as the inconsistency continued. As the inconsistency of section 5(1) of the Act with article 14 continued, it must continue to be void. Keshavan Madhava Menon vs The State of Bombay, [1951] S.C.R. 228; Behram Khurshed Pesihaka vs State of Bombay, and Bhikaji Narain Dhakras vs State of Madhya Pradesh, ; , referred to.

Appeal (Criminal Appeal No. 1 of 1950) by special leave from an order of the High Court of Allahabad. N.P. Asthana, and N.C. Chatterjee (K.B. Asthana, with them) for the appellant. P.L. Banerjee (Sri Ram, with him) for the respondent. March 19. The judgment of the Court was deliv ered by KANIA C.J. This is an appeal by special leave against an order of the Allahabad High Court dismissing the revision petition of the appellant against the order of the Special Magistrate refusing to quash the proceedings on the ground that the prosecution of the appellant inter alia under sections 161 and 165 of 314 the Indian Penal Code was illegal and without jurisdiction in the absence of the sanction of the Government under section 107 of the Criminal Procedure Code and section 6 of the Prevention of Corruption. Act (II of 1947), hereafter referred to as the Act. The material facts are these. In 1947 the appellant held the office of Regional Deputy Iron and Steel Controller, Kanpur Circle, U.P., and was a public servant. The police having suspected the appellant to be guilty of the offences mentioned above applied to the Deputy Magistrate, Kanpur, for a warrant of his arrest on the 22nd of October, 1947, and the warrant was issued on the next day. The appellant was arrested on the 27th of October, 1947, but was granted bail. On the 26th of November, 1947, the District Magistrate cancelled his bail as the Magistrate considered that the sureties were not proper. On the 1st of December, 1947, the Government appointed a Special Magis trate to try offences under the Act and on the 1st December, 1947, the appellant was produced before the Special Magis trate and was granted bail. The police continued their investigation. On the 6th of December, 1948, sanction was granted by the Provincial Government to prosecute the appel lant inter alia under sections 161 and 165 of of the Indian Penal Code. On the 31st January, 1949, sanction in the same terms was granted by the Central Government. In the meantime as a result of an appeal made by the appellant to the High Court of Allahabad the amount of his bail was reduced and on the 25th of March, 1949, the appellant was ordered to be put up before the Magistrate to answer the charge sheet submit ted by the prosecution. On behalf of the appellant it is argued that when the warrant for his arrest was issued by the Magistrate on the 22nd of October, 1947, the Magistrate took cognizance of the offence and, as no sanction of the Government had been obtained before that day, the initiation of the proceedings against him, which began on that day without the sanction of the Government, was illegal. It is argued that the same proceedings are continuing against him and therefore the notice to 315 appear before the Magistrate issued on 25th March, 1949, is also illegal. In support of his contention that the Magis trate took cognizance of the offences on 22nd March, 1947, he relies principally on certain observations in Emperor vs Sourindra Mohan Chuckerbutty(1). It is therefore necessary to determine when the Magis trate took cognizance of the offence. The relevant part of section 190 of the Criminal Procedure Code runs as follows: 190. (1)"Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub divisional Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. " It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non cognizable of fences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an (1) I.L.R. 41 316 order from the Magistrate. Under section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate. It may also be noticed that the Magistrate who makes the order of remand may be one who has no jurisdiction to try the case. The offences for which the appellant is charged are under the Criminal Procedure Code non cognizable and there fore if the matter fell to be determined only on the provi sions of the Criminal Procedure Code the appellant could not be arrested without an order of the Magistrate. The posi tion however is materially altered because of section 3 of the Act which runs as follows: 3. "An offence punishable under section 161 or section 165 of the Indian Penal Code shall be deemed to be a cogniz able offence for the purposes of the Code of Criminal Proce dure, 1898, notwithstanding anything to the contrary con tained therein. Provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant. " It therefore follows that for the Prevention of Corrup tion Act, offences under sections 161 and 165 of the Indian Penal Code become cognizable, notwithstanding what is pro vided in the Criminal Procedure Code. The proviso to sec tion 3 of the Act puts only two limitations on the powers of the police in connection with the investigation relating to those offences under the Act. They are: (1) that the inves tigation 317 should be conducted by an officer not below the rank of a Deputy Superintendent of Police unless a Magistrate of the first class otherwise orders; and (2) if an arrest has to be made an order of the Magistrate has to be obtained. The important point to be borne in mind is that the order of the Magistrate, which has to be obtained, is during the time the police is investigating the case and not when they have completed their investigation and are initiating the pro ceedings against the suspected person under section 190 of the Criminal Procedure Code. The order which may be applied for and made during the police investigation by virtue of section 3 of the Act is therefore before the Magistrate has taken cognizance of the offence under section 6 of the Act or section 190 of the Criminal Procedure Code. That appears to us to be the result of reading sections 3 and 6 of Act II of 1947 and section 190 of the Criminal Procedure Code read with the definition of cognizable offence in the Code. The argument of the appellant is that when the Magis trate issued the warrant in October, 1947, he did so on taking cognizance of the offence under section 161 or 165 of the Indian Penal Code under section 190 of the Criminal Procedure Code. It was contended that without such cogni zance the Magistrate had no jurisdiction to issue any proc ess as that was the only section which permitted the Magis trate to issue a process against a person suspected of having committed an offence. In our opinion having regard to the wording of section 3 of the Act the assumption that the Magistrate can issue a warrant only after taking cogni zance of an offence under section 190 of the Criminal Procedure Code is unsound. The proviso to section 3 of the Act expressly covers the case of a Magistrate issuing a warrant for the arrest of a person in the course of investi gation only and on the footing that it is a cognizable offence. Section 3 of the Act which makes an offence under section 161 or 165 of the Indian Penal Code cognizable has provided the two safeguards as the proceedings are contem plated against a public servant. But because of these safe guards it 318 does not follow that the warrant issued by the Magistrate under section 3 of the Act is after cognizance of the of fence, and not during the course of investigation by the police in respect of a cognizable offence. The only effect of that proviso is that instead of the police officer ar resting on his own motion he has got to obtain an order of the Magistrate for the arrest. In our opinion, it is wrong from this feature of section 3 of the Act alone to contend that because the warrant is issued it must be after the Magistrate has taken cognizance of it and the Magistrate 's action can be only under section 190 of the Criminal Proce dure Code. The material part of section 197 of the Criminal Procedure Code provides that where any public servant who is not removable from his office save with the sanction of Government is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cogni zance of such offence except with the previous sanction of the appropriate Government. This section read as following section 190 shows that the word 'cognizance ' in this section indicates the stage of initiation of proceedings against a public servant. Sections 190 to 199 B of the Criminal Proce dure Code are grouped together under the caption "Initiation of proceedings". The sections dealing with the stage of in vestigation by the police in the case of cognizable offences are quite different. Under section 6 of the Act it is pro vided that no court shall take cognizance of an offence punishable under section 161 or 165 of the Indian Penal Code . alleged to have been committed by a public servant except with the previous sanction of the appropriate Government. Reading sections 197 and 190 of the Criminal Procedure Code and section 6 of the Act in the light of the wording of the proviso to section a, it is therefore clear that the stage at which a warrant is asked for under the proviso to section 3 of the Act is not on cognizance of the offence by the Magistrate as contemplated by the other three sections. 319 Learned counsel for the appellant relied on some observa tions in Emperor vs Sourindra Mohan Chuckerbutty (1), in respect of the interpretation of the word 'cognizance '. In that case, on the 24th April, 1909, a dacoity took place at N and on the same day the police sent up a report of the occurrence to the Sub divisional officer of Diamond Harbour. On the 2nd September one of the accused was arrested and he made a confession on the 18th October. The case was subse quently transferred by the District Magistrate of Alipore to his own file and on the 20th January, 1910, an order under section 2 of the Criminal Law Amendment Act (XIV of 1908) was issued in the following terms: "Whereas the District Magistrate of the 24 Parganas has taken cognizance of offences under sections 395 and 397, I.P.C., alleged to have been committed by the persons accused in the case of Emperor vs Lalit Mohan Chuckerbutty and others . and whereas it appears to the Lieutenant Governor of Bengal. the provi sions of Part 1 of the Indian Criminal Law Amendment Act should be made to apply to the proceedings in respect of the said offences, now, therefore, the Lieutenant Governor. directs. that the provisions of the said Part shall apply to the said case. " S surrendered on the 24th of January and was arrested by the police and put before the Joint Magis trate of Alipore who remanded him to Jail. Applications for bail on his behalf were made but they were dismissed. The Sessions Judge was next moved unsuccessfully for bail under section 498 of the Criminal Procedure Code. S then moved the High Court for a Rule calling upon the District Magistrate to show cause why bail should not be granted on the grounds (1) that no order had been made applying Act XIV of 1908 and (2) that there did not appear any sufficient cause for further inquiry into the guilt of section The first contention rested on the assertion that the Magistrate had not taken cognizance of the offence of dacoity on the 20th of January. The learned Judges pointed out that the argument was ad vanced because the legal adviser of S had (1) 1. 320 SUPREME COURT REPORTS no opportunity to see the record of the case. On the facts it was clear that the Magistrate had taken cognizance of the offence on the 20th of January. The observations "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a. magistrate as such applies his mind to the suspected commission of an offence" have to be read in the light of these facts. As noticed above, the magistrate had expressly recorded that he had taken cognizance of the case and thereupon the provi sions of the Criminal Law Amendment Act were made applicable to the case. The question argued before the High Court was in respect of the power of the High Court to grant bail after the provisions of the Criminal Law Amendment Act were applied to the case. In our opinion therefore that decision and the observations therein do not help the appellant. In Gopal Marwari vs Emperor (1), it was observed that the word 'cognizance 'is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. it is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate. The court noticed that the word 'cognizance 'is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense. After referring to the observations in Emperor vs Sou rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal vs Abani Kumar Banerjee (3) as follows : " What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose (1) A.I.R. 1943 Pat. (3) A.I.R. 1950 Cal. (2) I. L. R. 321 of proceeding in a particular way as indicated in the subse quent provisions of this Chapter proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156 (3), or issuing a search warrant for the purpose of the investiga tion, he cannot be said to have taken cognizance of the offence. " In our opinion that is the correct approach to the question before the court. Moreover, in the present case on the 25th March, 1949, the Magistrate issued a notice under section 190 of the Criminal Procedure Code against the appellant and made it returnable on the 2nd of May, 1949. That clearly shows that the Magistrate took cognizance of the offence only on that day and acted under section 190 of the Criminal Procedure Code. On the returnable date the appellant contended that the sanction of the Central Government was void because it was not given by the Government of the State. On the deci sion going against him he appealed to the High Court and to the Privy Council. The appellant 's contention having thus failed, the Magistrate proceeded with the trial on the 26th of November, 1949. The only question which is now presented for our decision therefore is whether there was any sanction granted by the Government before the Magistrate took cogni zance of the offence and issued the notice under section 190 of the Criminal Procedure Code On the 25th March, 1949. To that the clear answer is that the Government had given its sanction for the prosecution of the appellant before that date. It seems to us therefore that the appellant 's conten tion that the Magistrate had to take cognizance of the offences without the previous sanction of the Government is untenable and the appeal fails. Appeal dismissed.

On the ground that 50% of the transactions recorded in a rough note book detected and seized by the Inspecting officer from the Head office of the firm were not entered in the regular books of accounts maintained by the assessee, the Sales Tax officer made an addition of 10% to the admitted turnover and completed the assessment. In an appeal, the Appellate Assistant Commissioner, reduced the addition to 5% of the admitted turnover. The respondents preferred a second appeal before the Appellate Tribunal. But the Department neither filed an appeal against the order of the Appellate Assistant Commissioner nor raised any cross objections in the assessee 's appeal After issuing a show cause notice to the assessee, the Tribunal, under section 39(4) of the Kerala General Sales Tax Act 1963, directed the addition of a certain amount to the taxable turnover. In its Tax Revision Petition, the respondent contended before the High Court that the order of the Tribunal was wrong in that it had no jurisdiction or power to enhance the assessment in the absence of an appeal or cross objections by the Department. Setting aside the impugned order of the Tribunal the High Court remanded the case for hearing the appeal afresh. In appeal to this Court, the appellant (Department) contended that on a true construction of section 39(4) of the Act, the Appellate Tribunal should be regarded as possessing the power to enhance the assessment even in the absence of any appeal or cross objections by the Department against the Appellate Assistant Commissioner 's order. Dismissing the appeal ^ Held: (1) The Tribunal has no jurisdiction or power to enhance the assessment in the absense of an appeal or. cross objections by the Department. [543 E] (2) To accept the construction placed by the counsel for the appellant on sub section (4)(a)(i) would be really rendering sub section (2 of section 39 otiose, for if in an appeal preferred by the assesses against, the Appellate Assistant Commissioner 's order, the tribunal would have the power to enhance the assessment, a provision for cross objections by the Department was really unnecessary. [1543 D] 539 (3) The elementary principle found in the Code of Civil Procedure that the respondent who has neither preferred his own appeal nor filed cross objections in the appeal preferred by the appellant must be deemed to be satisfied with the decision of the lower authority and that he will not be entitled to seek relief against a rival party in an appeal preferred by the latter, is equally applicable to revenue proceedings.[543 G] Motor Union Insurance Co. Ltd. vs Commissioner of Income Tax Bombay and New India Life Assurance Co. vs Commissioner of Income Tax, Excess Profits Tax, Bombay City. approved. Commissioner of Sales Tax, orissa vs Chunnilal Parmeshwar Lal (1961) 12 STC 677 distinguished.

o. 296 of 1951. Appeal against the Judgment and Order dated the 16th January, 1951, of the High Court of Judicature for the State of Rajasthan at Jodhpur (Nawal Kishore and Kanwar Lal Bapna JJ.) in D. B. Civil Miscellaneous Case No. 15 of 1950. M. C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the appellant. N.C. Chatterjee, Senior Advocate (G. L. Agarwal, with him) for the respondent. December 16. The Judgment of the Court was delivered by PATANJALI SASTRI C. J. This is an appeal from an order of the High Court of Rajasthan directing by writ issued under article 226 of the Constitution that the Union of India, appellant herein, should not levy income tax on the income of the respondent accruing, arising or received in Rajasthan (excluding the area of the former covenanting State of Bundi) prior to April 1, 1950. The respondent resides and carries on business in the District of Jodhpur in Rajasthan which is one of the States specified in Part B of the First Schedule to the Constitution (hereinafter referred to as Part B States). In May, 1950, the respondent was required to file a return of his income for the previous year, that is the year ending March 31, 1950, for assessment to income tax, and subsequently was also asked to produce the relevant account books before the Income tax Officer, Jodhpur, on August 11, 1950. Thereupon the respondent presented the petition, out of which this appeal arises, on August 23, 1950, invoking the, jurisdiction of the High Court under article 226 of the Constitution for the issue of "a writ of mandamus or certiorari or other appropriate writ"directing the appellant not to take a any action under the Indian Income tax Act, 1922, (hereinafter referred to as the Indian Act) as amended by the Indian Finance Act, 1950, for the assessment or levy 544 of income tax on the income which accrued or arose to the respondent or was received by him prior to April 1, 1950, on the ground that such income was not liable to be charged "under the provisions of any law validly in force in Rajasthan. " The petition was heard by a Division Bench of the High Court (Nawal Kishore and Kanwarlal Bapna JJ.) who accepted the petition and issued a writ as already stated, overruling sundry preliminary objections to which no reference need be made as they have not been raised by the appellant before us. As is well known, after the Indian Independence Act, 1947, came into force, various Indian States (as they were then known) which had been recognised, subject to certain restrictions and limitations not material here, as independent principalities were brought into the Dominion of India from, time to time under arrangements with their Rulers, and this process of accession and integration . resulted in the expansion of the territory of India in successive stages. So far as Rajasthan is concerned, the Rajaputana States, as they were then called, integrated their territories into the United State of Rajasthan, and the new State acceded to the Dominion of India by an Instrument of Accession executed by the head of the State (Rajpramukh) on April 15, 1949, and accepted by the Governor General of India on May 12, 1949. By clause (3) of the Instrument the Rajpramukh accepted "all matters enumerated in Lists I and III of the Seventh Schedule to the Act (the Government of India Act, 1935) as matters in respect of which the ]Dominion Legislature may make laws for the United State, provided that nothing contained in the said Lists or in any other provisions of the Act shall be deemed to empower the Dominion Legislature to impose any tax or duty in the territories of the United State or prohibit the imposition of any duty or tax by the Legislature of the United State in the said territories.": This limitation on the power of the Dominion Legislature thus imposed by agreement between the two States was given effect to as a 545 constitutional limitation by section 101 of the Government of India Act, 1935, as adapted by the Governor General in August, 1949, in exercise of the powers conferred on him by the Indian Independence Act, 1947. That section provided that "nothing in this Act shall be co nstrued as empowering the Dominion Legislature to make laws for an acceding State otherwise than in accordance with the Instrument of Accession of that State and any limitations contained therein. " The position thus was that the Dominion Legislature had no power to make any law imposing any tax or duty in the territories of the United State of Rajasthan. In July, 1949, however, the. Indian States Finances Enquiry Committee appointed by the Government of India submitted their report recommending, among other things, the financial integration of the acceding States and the imposition of the Indian income tax in their territories as from the first day of April, 1950. Meanwhile the framing of the Constitution of India by the Constituent Assembly, which also included duly appointed representatives of the acceding States, was Hearing completion, and in November, 1949, the Rajpramukh, in exercise of his powers as the duly constituted head of the State, issued a Proclamation whereby he declared and directed that the "Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the Rajasthan State as for the other parts of India, and shall be enforced as such in accordance with the tenor of its provisions and that the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State. " The Constitution of India then came into force on January 26, 1950. It repealed the Government of India Act, 1935, including section 101 thereof, and brought all the Part B States, including Rajasthan, within the Union of India, incorporating the territories of all those States in the "territory of India" as defined in article 1 (2). It created a new Central 546 Legislature for the Union called Parliament and empowered that Legislature by article 245 "to make laws for the whole or any part of the territory of India" subject to the provisions of the Constitution and, by article 246 (1) read with entry No. 82 of List 1, it conferred "exclusive power" to make laws with respect to"taxes on income other than agricultural income". In exercise of that power and pursuant to there commendation of the Indian States Finances Enquiry Committee referred to above, Parliament enacted the Finance Act, 1950 (Act XXV of 1950) providing by section 2 (1) that income tax and super tax shall be charged "for the year beginning on the first day of April, 1950," (i.e., 1950 51) at the rates specified in Parts I and 11 respectively of the First Schedule to that Act. Section 3 made certain amend ments in the Indian Act "with effect from the first day of April, 1950. " Among these was the substitution of the present clause (14 A) in section 2 in the place of clause (14 A) as it stood before. The new clause defines " taxable territories " as respects different periods so as to correspond to the successive stages of expansion of the territory of India after the Indian Independence Act, 1947. The material part of that clause as amended runs thus: (14 A) I taxable territories ' means . (a). . (b). . (c). (d)as respects any period after the 31st day of March, 1950, and before the 13th day of April, 1950, the territory of India excluding the State of Jammu and Kashmir and the Patiala and East Punjab States Union, and (e) as respect any period after the 12th day of April, 1950, the territory of India excluding the State of Jammu and Kashmir: Provided that the taxable territories shall be deem ed to include (a). 547 (b)the whole of the territory of India excluding the State of Jammu and Kashmir (i) as respects any period, for the purposes of sections4 A and 4 B, (ii) as respects any period after the 31st day of March, 1950, for any of the purposes of this Act, and (iii)as respects any period included in the previous yearfor the.purpose of making any assessment of the yearending on the 31st day of March, 1951, or for any subsequent year. " The definition, it may be observed in passing, is by no means a model of perspicuity. Parts of it seem redundant and even mutually contradictory. For instance, (leaving out the State of Jammu and Kashmir altogether in this discussion) whereas clause (d) excludes the Patiala and the East Punjab States Union from the taxable territories as respects the period from April 1, 1950, to April 12, 1950, subclause (ii) of clause (b) of the proviso would seem to include that State also within such territories as respects the same period, and while clauses (d) and (e) of the substantive part of the definition when read together seem apt by themselves to bring the territory of India within the taxable territories as respects the period after March 31, 1950, sub clause (ii) of clause (b) of the proviso apparently seeks to bring about the same result by means of a fiction. Now, the scheme of the Indian Act is to tax a person resident in the taxable territories during the previous year on all his income of the previous year whether accruing within or without the taxable territories, and to tax a person not resident in the taxable territories upon his income accruing within the taxable territories during the previous year. Residence in the taxable territories has to be determined in accordance with the provisions of section 4 A which, in the case of an individual, takes into account his having been in such territories within the five years preceding the year of assessment. If Rajasthan was a taxable territory in the year 1949 50, the respondent would be chargeable in 72 548 respect of his income whether derived within or without .Rajasthan. It is, however, argued on his behalf by Mr. Chatterjee that section 3 of the Finance Act, 1950, having substituted the amended clause .(14 A) " with effect from the first day of April, 1950," Rajasthan was not a taxable territory during the accounting year 1949 50, and that no income tax being admittedly leviable in that State on the income accruing there in that year, the new clause (14 A) should not be construed so as to impose liability to pay Indian incometax on such income. According to learned counsel the word "assessment" in sub clause (iii) of clause (b) of the proviso must be taken to mean only computation of income and not the imposition of liability. In support of the construction he relied on the decision of the Privy Council in Commissioner of Income tax, Bombay vs Khemchand Ramdas(1) where it was said that the word "assessment" was used in the Indian Income tax Act as meaning "sometimes the computation of income, sometimes the determination of tax payable and sometimes the whole procedure laid down in the Act for imposing liability on the taxpayer." Mr. Chatterjee reinforced the argument by referring to the repealing and saving provisions of section 13 which he read as keeping alive a State law of incometax in.force in any Part B State "for the purposes of levy, assessment and collection of tax" not only in respect of the income of the year 1948 49 but also on the income of,1949 50 which is the previous year for assessment for the year ending March 31, 1951 (i.e., 1950 51). The result, therefore, according to him, was that where any State law of income tax was in force in any Part B State before April 1, 1950, so as to make the income of 1949 50 chargeable to tax, the amended clause (14 A) authorised the computation of such income for the purpose of taxation as, for example, in the State of Bundi. But where, as in the rest of the territory of Rajasthan, no income tax was leviable on the income of the year 1949 50, the amendment by the Finance Act, 1950, which took effect only from April 1, 1950, did not, on its true construction, bring (1) I.L.R. 549 the income of the year 1949 50 into charge under the Indian Act. This argument found favour with the learned Judges in the High Court but we are unable to accept it. A short answer to it is provided by sub clause (i) of clause (b) of the proviso under which the whole of the territory of India including Rajasthan is to be deemed taxable territory for the purpose of section 4 A of the Indian Act "as respects any period. " The words "any period" cannot be taken to mean "any period after March 31, 1950," for the period referred to in the next clause is expressly limited in that sense. ' Those limiting words cannot be read into sub clause (i) which must, therefore, be understood as referring to any period before or after March 31, 1950. As already indicated, residence in the taxable territories within the meaning of section 4 A can, in some cases, relate back to as many as five years before the year of assessment, and that is obviously the reason why the period mentioned in sub claure (i) is not limited as in sub clause (iii) of clause (b) of the proviso. Indeed, if the words "any period" id sub clause (i) were intended to mean any period after March 31, 1950, that sub clause of the proviso which enacts a fiction, would be wholly unnecessary, for clauses (d) and (e) of the substantive part of the definition taken together clearly have the effect, as already stated, of making the territory of India a taxable territory , during that period. If Rajasthan was thus a part of the taxable territories during such period preceding the assessment year, 1950 51, as would be necessary to make the respondent "resident" in such territories within the meaning of section 4 A, then the income accruing or. arising, to him in Rajasthan during the year 1949 50 would be taxable though, Rajasthan was not part of the taxable territories in that year, for, in the case of a person resident in the taxable territories, income accruing or arising to him without the taxable territories is also chargeable to tax under section 4, sub section (1) clause @b) sub clause.(ii) of the Indian Act. This aspect of the matter does not appear to have been sufficiently 550 appreciated in the court below. The learned Judges say: "The first clause in proviso (b) means to say that the earlier residence in Part B States will be taken to be residence in taxable territories while taking account of the residence for a certain prior period." Having thus correctly construed the clause, they failed to realise its effect on the operation of section 4 (1) (b) (ii), for they proceeded to consider the construction of proviso (b) (iii) observing: "The next important question calling for determination is whether Rajasthan became taxable territory during the financial year in this case, i.e., 1949 50, for, if the answer is in the negative, the petitioner must be held to be ' Immune from liability to assessment on the income of that year. " This, as pointed out above, is a misconception. It may well be that proviso (b) (iii) was designed to bring the income,, profits and gains of the year 1949 50 into charge under section 4 (1) (a) and section 4(1) (c), in which cases receipt or accrual, as the case may be,, in the taxable territories is the test of chargeability. it may be mentioned here that the exemption from tax under section 14 (2) (c) of the Indian Act of income accruing within Part B States was abrogated, except as regards the State of Jammu and Kashmir, by the amendment of that provision with effect from the first day of April, 1950. Even assuming it were necessary for the Revenue to bring the case within proviso (b) (iii) in order to sustain the charge on the respondent 's income accruing in Rajasthan during the year 1949 50, we are of opinion that the construction, placed by the learned Judges on that clause cannot be supported. They assume that proviso (b) (iii) is a provision authorising assessment of income tax, and proceed to discuss what the word " 'assessment" in that context should be taken to mean. Charge of income to tax and its computation are matters governed by other provisions of the Indian Act. All that section 2 (14 A) does is to define what the expression "taxable territories" means in certain cases and for certain purposes wherever that expression is used in the various provisions of the Indian Act. 551 And as the expression is used in the charging section 4 in connection with the conditions which are to determine liability to tax, sub clause (iii) of clause (b) of the definition must, when read with section 4 of the Indian Act, have reference to chargeability of income. The result is that sections 3 and 4 of the Indian Act read in the light of the definition in proviso (b) to the amended section 2 (14 A) and section 2 of the Indian Finance Act, 1950, authorise the imposition of the Indian income tax and super tax on the income derived 'by the respondent in they are 1949 50 in the territory of Rajasthan. As already observed, the learned Judges below, in order to reinforce their construction of sub clause (iii) of clause (b) of the proviso, read section 13 of the Finance Act as keeping alive the law of income tax in force in any Part B State for purposes of levy, assessment, and collection of tax in respect of the income of 1949 50. This, in our opinion, is not the effect of section 13 on its true construction. After referring to the decision of the Privy Council to which reference has been made, the learned Judges say "There are three stages in connection with the imposition of a tax. The first is the declaration of liability, the second is the assessment and the third is the collection. This clause makes the territory a taxable territory for the purpose of making any assessment but not for the purpose of chargeability. The chargeability is left to arise by some other law and that law is the previous State law referred to in section 13, Finance Act, 1950. It arises in a twofold manner. In the first place, under section 6 of the General Clauses Act the repeal of the State law as from April 1, 1950 did not affect any liability incurred under the repealed enactment and secondly, though the language used in section 13 is very complicated, a careful perusal makes it clear that the State law is not only kept alive for the purpose of levy, assessment and collection of, incometax the income of the year 1949 50, but also for the above purposes in the subsequent year. The previous year. in relation to the, subsequent year 1951 52 is the 552 year 1950 51 and the period not included therein would be the year 1949 50 and the State law is directed to apply if the income remains untaxed under the Indian law. . Therefore if somebody is liable to income tax in any territory where such law was in force prior to April 1, 1950, but certain period has not been included while assessing him to income tax but the chargeability existed, the proviso (b) (iii) would become applicable for such period as he was not charged but the liability had accrued, and the territory would become taxable territory for the purpose of making any assessment of the year 1950 51. It will be seen that the basis on which this reasoning proceeds is that section 13 of the Finance Act, 1950, ,saves the operation of the States laws relating to income tax in Part B States in the year 1949 50 for the purpose of levy, assessment and collection, and it is those laws that imposed the liability to tax on the income accruing in those States during that, year. This is a misapprehension of the true meaning and effect of section l3. That section, so far as it is material here, runs thus: "Repeal and savings. (1) If immediately before the 1st day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch Behar any law relating to income tax or supertax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act,, 1922, for, the year ending on the 31st day of March, 1951, or, for any subsequent year. . .A close reading of that provision will show that it saves the operaton of the State law only in respect of 1948 49 or any earlier period 'which is the period not included in the previous year (1949 50) for the purposes of asessment for the year 1950 51. In other words, there remained no State law of income tax in operation, in any Part B State in the year 1949 50, No doubt, 553 there is the phrase "or for any subsequent year" immediately following the words "for the year ending on the 31st day of March, 1951. " Relying on that phrase, the learned Judges argue thus : Take the "subsequent year" 1951 52. The previous year for making an assessment for that year would 'be 1950 51. The year 1949 50 "is a period not included" in that previous year. Therefore, section 13 saves the operation of any law relating to income tax in force in any Part B State in 1949 50 "for the purposes of the levy, assessment and collection of income tax and super tax in respect of that period," that is to say, the income accruing in 1949 50 in a Part B State continues to be chargeable under the State law. But the learned Judges failed to see that, on this reasoning, the same thing could be said of the income of 1950 51, 1951 52, etc. if you take the "subsequent year" to be 1952 53, 1953 54, etc. and work backwards. On this construction of section 13, the State law of income tax would continue to operate for an indefinite period even after the commencement of the Constitution during which period the Indian income tax and super tax would be leviable. In other words, the State law of income tax in Part B States for the levy, assessment and collection would be in operation side by side with the Indian Act even after the financial integration of those States with the Indian Union a result manifestly repugnant to the policy underlying the Finance Act, 1950. No argument, therefore, could be logically based on the words "or for any subsequent period", which evidently were added with a view to catch the income of any broken. period prior to April 1, 1950, which might otherwise escape assessment both under the repealed. State law and the newly introduced Indian Act. Nor can section 6 of the General Clauses. Act, 1897, serve to keep alive the liability to pay tax on the income of the year 1949 50 assuming it to have accrued under the repealed State law, for a "different intention" clearly appears in sections 2 and 13 of the Finance Act read together as indicated above. In any case no question of keeping any such liability alive could arise in the present case as admittedly no State law of 554 income tax was in operation in the territory of Rajasthan, except the former State of Bundi. On this view the whole basis of the reasoning of the learned Judges below falls to the ground. Even so, it was contended, the Finance Act, 1950, in so far as it purports to authorise such levy is ultra vires and void as Parliament was not competent under the Constitution to make such a law. The argument was put in two ways. In the first place, it was said broadly that as the Constitution could not operate retrospectively as held by this court in Kesava Madhava Menon 's case(1), the power of legislation conferred by the Constitution upon Parliament could not extend so as to charge retrospectively the income accruing a prior to the commencement of the Constitu is a fallacy. While it is true that the tion. This Constitution has no retrospective operation, except where a different intention clearly appears, it is not correct 'to say that in bringing into existence new Legislatures and conferring on them, certain powers of legislation, the Constitution operated retrospectively. The legislative powers conferred upon Parliament under article 245 an article 246 read with List I of the Seventh Schedule could obviously be exercised only after the Constitution came into force and no retro spective operation of the Constitution is involved in the conferment of those powers. But it is a different thing to say that Parliament in exercising the powers thus acquired is precluded from making a retroactive law. The question must depend upon the scope of the powers conferred, and that must be determined with reference by which, affirmatively, to the "terms of the instrument the legislative powers were created and by which, negatively, ' they were restricted": [Queen vs Burah (2)]. Article 245 of the Constitution enacts that subject to its provisions Parliament may make laws for the whole or any part of the territory of India and article 246 proceeds to distribute legislative powers as between Parliament and the State Legislatures in the (1) ; (2) 51.A. 178, 555 country. Thus, these articles read with entry No. 82 of List I of the Seventh Schedule empower Parliament to make laws with respect to taxes on income for the whole of the territory of India, and no limitation or restriction is imposed in regard to retroactive legislation. It is, therefore, competent for Parliament to. make a law imposing a tax on the income of any year prior to the commencement of the Constitution. It was said, however, that the line of decisions like, Queen vs Burah(1), which defined the powers of legislatures created by the British Parliament, could have no application to the Union Parliament which came into life as a new legislature on the commencement of the Indian Constitution. It could not be assumed that such a legislature had the power of making a law having retrospective operation in relation to a perio prior to its birth unless the Constitution itself clearly and explicitly conferred such power. In support of this argument certain observations of one of the Judges in an Australian case [Exparte Walsh and Johnson ; In re Yates(2)] were relied on. We are unable to accept the argument. Our Constitution, as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution. But, it was insisted, such a power should be given in clearly expressed terms. There is, however, no question here of the Constitution operating retrospectively in bringing into existence the Union Parliament or the legislatures of the States. The only question is 'What powers have been conferred upon these legislatures by the representatives of the people who framed the Constitution and, in determining that issue, the principles laid down in cases. like Queen vs Burah (1) apply in full foree. The observations in the Australian case, to which reference has been made, seem to us (1) 5 I.A. 178. (2) ; , at pp 80, 81, 73 556 to go too far and cannot be accepted as sound constitutional doctrine. Nor can it be said, in strictness, that the Finance Act, 1950, is retroactive legislation. That Act, as already noticed, purports by section 2 to charge income tax and super tax at specified rates "for the year beginning on the last day of April, 1950". The case,is thus one where the statute purports to operate only prospectively, but such operation has, under the scheme of the Indian income tax law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retroactive legislation, though its operation may affect acts done in the past. Dealing with a statute authorising the removal of destitute widows from a parish, it was observed in an English case [Queen vs St. Mary, Whitechapel(1) 1: "It was said that the operation of the statute is confined to persons who have become widows after the Act was passed and that the presumption against a retrospective statute being intended supported this construction. But we have before shown that the statute is in its direct operation prospective as it relates to future removals only and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing. " It is, however, unnessary to pursue this aspect of the matter further as we have held that Parliament has the power to make retroactive laws. Secondly, it was said that section 101 of the Government of India Act, 1935, which gave effect to the stipulation in the Instrument of Accession against the imposition by the Dominion Legislature. of any tax or duty in the territory of the United State of Rajasthan, was kept alive, notwithstanding its repeal by article 395 of the Constitution, by section 6 of the , [which is made applicable to the interpretation of the Constitution by article 367 (1)] as a " right" or "privilege" acquired under the repealed enactment, and so (1) (1848) i2 Q.B. 120,127; ii6 E.R. 8ii, 814. 557 continued to operate under article 372 (1) as a con stitutional limitation on the power of Parliament, with the result that Parliament had no power to impose tax contrary to section 101 of the Government of India Act, 1935. The argument is somewhat ingenious but there are obvious difficulties in the way of its acceptance. For one thing, section 101 of the Government of India Act, 1935, created no right or privilege in the subjects of the United State of Rajasthan which, notwithstanding the repeal of that section, could be regarded as still enuring for their benefit. Section 101 merely imposed a restriction upon the power of the Dominion Legislature to make laws for an acceding State inconsistent with the stipulations contained in the Instrument of Accession. When that section along with the rest of the Government of India Act, 1935, was repealed by the new Constitution, which has created new legislatures with power to make retroactive laws, it is idle to suggest that rights or privileges acquired while the old Constitution Act was in force are preserved for ever for that must be the result of the argument by section 6 of the General Clauses Act, which can have no application to such cases. Furthermore, it will be recalled that the Proclamation made by the Rajpramukh as Ruler of Rajasthan on 23rd November, 1949, declared and directed that the Constitution of India when brought into force "shall be the Constitution for the Rajasthan State" and it expressly "superseded and abrogated all other constitutional provisions inconsistent therewith" which were then in force. The competency of the Rajpramukh as the Ruler of the State to accept the Constitution of India as governing that State also was not challenged before us, and it is manifest that, after such declaration and direction, no I restriction imposed on the Dominion Legislature by the Instrument of Accession and enforced by section 101 of the Government of India Act could prevail against the legislative powers conferred on Parliament by the Constitution of India. The difference in the constitutional position which previously existed between the Provinces and the acceding: States has thus 558 disappeared except, of course, in regard to matters in which such distinction has been preserved by the Constitution itself, e.g., by article 238 and article 371. It follows that the amendment of section ' 2 clause (14 A) of the Indian Act, by the Finance Act, 1950, so as to authorise the levy of tax on income accruing in the territory of Rajasthan in the year 1949 50 is within the competence of Parliament and therefore valid. We accordingly allow the appeal, and set aside the judgment of the High Court. We make no order as to costs. Appeal allowed.

The assessee leased out its tea estates for a period of ten years in consideration of a sum as and by way of premium and an annual rent to be paid by the lessor to the assessee. As premium a part the sum was paid at the time of the execution of the lease and the balance was spread over in ten annual instalments; and the annual rent was payable in monthly instalments. The annual instalment paid as premium was taxed by the Income Tax authorities as revenue receipt of the assessee. On reference, the High Court held to be capital gains. In appeal by certificate. HELD: The annual instalment paid as premium was capital gains. When the interest of the lessor is parted for a price the price paid is premium or salami. But the periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent. The former is a capital income and the latter a revenue receipt. There may be circumstances where the parties may camouflage the real nature of the transaction by using clever phraseology. In some cases, the so called premium is in fact advance rent and in others rent is a deferred price. It is not the form but the substance of the transaction that matters. The nomenclature used may not be decisive or conclusive but it helps the court, having regard to the other circumstances, to ascertain the intention of the parties. Premium can be paid in a single payment or by instalments. The real test is whether the said amount paid in a lump sum or in instalments is the consideration paid by the tenant for being let into possession. [813 H; 814 E G] Raja Bahadar Kamakshya Narain Singh of Ramgarb vs Commissioner of Income tax, Bihar and Orissa, , Member for the Board of Agriculture Income tax Assam vs Sindhurani Chaudhurani, , and Chintamani Saran Nath Sah Deo vs Commissioner of Income tax, Bihar and Orissa, (1961)41 I.T.R. 506, applied. The parties, who were businessmen well versed in their trade, must be assumed to have ,known the difference between the two expressions "premium" and 'rent , and they had designedly used those two expressions to connote two different payments. The annual rent fixed was a considerable sum of Rs. 54,500/ and the premium, when spread over 10 years would work out to Rs. 22,500/ a year. There was no reason, therefore, to assume that the parties camouflaged their real intention and fixed a part of the rent in the shape of premium. The L/P(D)5SCII 13 812 mere fact that the premium was made payable in instalments could not obviously be decisive of the question, for that might have been to accommodate the lessee. [815 B, C] The construction based on the clause in the lease deed that on the de.fault in the payments of the instalments of the premium or rent, the lessor shall be entitled to recover the balance of the unpaid premium and not the entire balance of the premium, really ignores the main terms of the lease. In the context of the other clauses, this clause could not be so construed as to override or come into conflict with the main terms of the lease deed. [815 H, 816B]

ICTION: Writ Petition (CRL) Nos. 1566/86, 186/85,192/86,338/88 & 649/87. (Under Article 32 of the Constitution of India.) R.K. Jain, Rangarajan, Mrs. Urmila Sirur, Mohd. Naseem, Rakesh K. Khanna, P.K. Jain, Mukul Mudgal, Sanjay Parikh, B.P. Singh, P. Krishna Rao, B.K. Prasad, Ms. Malini Poduwal, Lalit Kumar Gupta, Manoj Swarup, Harish Salve, Rajiv Garg, Rajiv Shakdhar, N.D. Garg, L.K. Gupta (Amicus curiae), M. Veerappa and Dalveer Bhandari for the Petitioners. K. Parasaran, Attorney General, B. Datta, Additional Solicitor General, V.C. Mahajan. T.U. Mehta, Anand Prakash, Ms. A Subhashini, A.K. Srivastava, S.K. Bhattacharya, M.N.Shroff, Ms. Sushma Ralhan. Mahabir Singh, AV. Rangam and R.S. Suri for the Respondents. 519 A.K. Goel, Ajit Pudissery and Mrs. Jayamala Singh for the Interveners. The following Judgments of the Court were delivered: OZA, J. These matters came up before us because of the conflict in the two decisions of this Court:(i) T.V. Va theeswaran vs State of Tamil Nadu, ; Sher Singh & Others vs The State of Punjab, ; and observations in the case of Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; In Vatheeswaran 's case, a Bench of two Judges of this Court held that two years delay in execution of the sentence after the judgment of the trial court will entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life. The Court observed that: "Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke article 21 and demand the quashing of the sentence of death." In Sher Singh 's case which was a decision of a three Judges ' Bench it was held that a condemned prisoner has a right of fair procedure at all stages, trial, sentence and incarceration but delay alone is not good enough for commu tation and two years rule could not be laid down in cases of delay. It was held that the Court in the context of the nature of offence and delay could consider the question of commutation of death sentence. The Court observed: "Apart from the fact that the rule of two years run in the teeth of common experience as regards the time generally occupied by pro ceedings in the High Court, the Supreme Court and before the executive authorities. We are of the opinion that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the sentence of life imprison ment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated. A convict is undoubtedly entitled to pursue all remedies lawfully open to him to get rid 520 of the sentence of death imposed upon him and indeed, there is no one, be he blind, lame, starving or suffering from a terminal illness, who does not want to live. " It was further observed: "Finally, and that is no less important, the nature of the offence, the diverse circum stances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to wheth er the sentence should be vacated for the reason that its execution is delayed. The substitution of the death sentence by a sen tence of life imprisonment cannot follow by the application of the two years ' formula, as a matter of "quod erat demonstrandum". In Javed 's case, it was observed that the condemned man who had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind will entitle him for commutation of sentence of death into im prisonment for life. It is because of this controversy that the matter was referred to a five Judges ' Bench and hence it is before us. Learned counsel for the petitioners at length has gone into the sociological, humane and other aspects in which the question of sentence of death has been examined in various decisions and by various authors. It is however not disputed that in Bachan Singh etc. vs State of Punjab etc. ; , constitutionality of sentence of death has been upheld by this Court. Learned counsel has at length referred to the opinion of Hon. Mr. Justice P.N. Bhagwati, as he then was, which is the minority opinion in Bachan Singh 's case. In his opinion Justice P.N. Bhagwati has conducted a detailed research and has considered the materi al about the various aspects of sentence of death. Learned Attorney General appearing for the respondents also referred to some portions of the judgment but contended that howsoev er condemned the sentence may be but its constitutional validity having been accepted by this Court all this study about looking at it from various angles is not of much consequence. He also contended that the opinion has been drifting and the statistics reveal that 521 at one time there was a trend towards abolition of death sentence and then a reverse trend started and therefore all this, so far as the present case is concerned, is not neces sary. One of the contentions advanced by learned counsel for the petitioners was that apart from all other considerations it is clear that this is a sentence which if executed is not reversible and even if later on something so glaring is detected which will render the ultimate conclusion to be erroneous the person convicted and executed could not be brought back to life and it was on this basis that it was contended that although the law provides for the sentence and it has been held to be constitutional but still the Courts should be slow in inflicting the sentence and in fact it was contended that courts are in fact slow in awarding the sentence. In Bachan Singh 's case, it was observed: "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 320, Penal Code, on the ground of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antitheti cal views, held by the Abolitionists and Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners ' argument that retention of the death penalty in the impugned provisions, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people the world over, including sociologists, legislators, jurists, judges and administra tors still firmly believe in the worth and necessity of capital punishment for the pro tection of society, if in the perspective of prevailing crime conditions in India, contem porary public opinion channalised through the people 's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware of the existence of death 522 penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and subsequent Reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Proce dure Code and the insertion of the new sec tions 235(2) and 354(3) in that Code providing for pre sentence hearing and sentencing proce dure on conviction for murder another capital offences were before the Parliament and pre sumably considered by it when in 1972 73, it took up revision of the Code of 1898, and replaced it by the Code of Criminal Procedure, 1973, it cannot be said that the provisions of death penalty as an alternative punishment for murder, in section 302, Penal Code, is unrea sonable and not in public interest. Therefore, the impugned provision in section 302, vio lates neither the letter nor the ethos of Article 19. " We are in entire agreement with the view expressed above. It is not necessary to go into the jurisprudential theories of punishment deterrent or retributive in view of what has been laid down in Bachan Singh 's case, with which we agree but the learned counsel at length submitted that the modern theorists of jurisprudence have given a go bye to the retributive theory of punishment although in some coun tries it is recognised on a different principle i.e. to pacify the public anger whereas some theorists have tried to put both the theories together. So far as the deterrent theory of punishment is concerned even about that doubts have been expressed as regards the real deterrent effect of punishment. The absence of determent effect has been at tributed to various causes sometimes long delay itself as public memory is always short. When the convict is utlimate ly sentenced and executed people have forgotten the offence that he has committed and on this basis it is sometimes felt that it has lost its importance. In the present case we are not very much concerned with all these questions except to some extent the question of delay and its effect. It was also contended that this sentence is a sentence which is irreversible thereby meaning that if ultimately some mistake in convicting and executing the sentence is detected after the sentence is executed there is no possi bility of correction. After all the criminal jurisprudence which is in vogue in our system even otherwise eliminates all possibilities of error as benefit of doubt at all stages goes in favour of accused. Apart from it there are only a few offences where sentence of death is provided and there too the manner in which the 523 law has now been changed ultimately the sentence of death is awarded in the rarest of rare case. Therefore not much could be made of the possibility of an error. The offences in which sentence of death is provided are under Sections 120 B (in some cases), 121, 132,302,307 (in some cases) and 396. The law as it stood before 1955 the Court was expected to give reasons if it chose not to pass a sentence of death as normally sentence of death was the rule and alternative sentence of imprisonment of life could only be given for special reasons. As Section 367 clause (5) in the Code of Criminal Procedure, 1898 stood: "If the accused is convicted for an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed." Section 367 clause (5) of Cr. P.C. was amended in 1955 and after the amendment discretion was left to the courts to give either sentence. Section 367 clause (5) after the amendment reads: "In trials by jury, the Court need not write a judgment, but the Court of Sessions shall record the heads of the charge to the jury: Provided that it shall not be neces sary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand. " Thus the legislature dropped that part of the sub clause which made it necessary for the Court to state reasons for not awarding sentence of death. Thus after the amendment the legal position was that it was the discretion of the Court to award either of the sentences. In the Code of Criminal Procedure 1973 Section 354 clause (3) has now been introduced and it has been provided that in all cases of murder, life imprisonment should be given unless there are special reasons for giving sentence of death. This provision Sec. 354 clause (3)reads: "When the conviction is for an offence punish able with 524 death or in the alternative with imprisonment for life or imprisonment of a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sen tence. " It is thus clear that before 1955 sentence of death was the rule, the alternative sentence had to be explained by rea sons. Thereafter it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except for the special reasons to be recorded sentence of death could be passed. It is therefore clear that this indicates a trend against sentence of death but this coupled with the decisions ultimately wherein sentence of death has been accepted as constitutional go to show that although there is a shift from sentence of death to lesser sentence but there is also a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases. It is there fore clear that in spite of the divergent trends in the various parts of the World there is consistent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty. As stated generally that it is awarded in the rarest of rare cases and in this accepted position of law, in our opinion, it is not necessary to go into the academic question about sociologi cal and humane aspects of the sentence and detailed examina tion of the jurisprudential theories. It was also contended though not very seriously that in ultimate analysis out of the two sentences imprisonment for life or death it has been left to the discretion of the courts. On the one hand it was suggested that there are no norms laid down for exercise of discretion but on the other hand it was also admitted that it is very difficult to lay down any hard and fast rule and apparently both the sides realised that the attempt that was made by this Court in enumerating some of the circumstances but could not lay down all possible circumstances in which the sentence could be justified. In Machhi Singh and others vs State of Punjab, it was observed that: "In this background the guidelines indicated in Bachan Singh 's case, will have to be culled out and applied to the facts of each individu al case where the question of imposing of death sentence arises. The following proposi tions emerge from Bachan Singh 's case: (i) The extreme penalty of death need not be inflicted 525 except in gravest cases of extreme culpabili ty. (ii) Before opting for the death penalty the circumstances of the 'offender ' also require to be taken into consideration along with the circumstances of the 'crime '. (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circum stances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines inter alia the following questions may be asked and answered: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circum stances which speak in favour of the offender? If upon taking an overall global view of all the circumstances in the light of the afore said ' proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. " In ultimate analysis it could not be disputed and was not seriously disputed that the circumstances in which the extreme penalty 526 should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and in this context in ultimate analysis it is not doubted that the Legislature therefore was right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof. In the matter before us we are mainly concerned with a) delay in execution of the sentence of death; b) what should be the starting point for computing this delay?; c) what are the rights of a condemned prisoner who has been sentenced to death but not executed? and d) what could be the circum stances which could be considered alongwith the time that has been taken before the sentence is executed. The main theme of the arguments on the basis of delay has been the inhuman suffering which a condemned prisoner suffers waiting to be executed and the mental torture it amounts to and it is in this background also that the par ties argued at length about the starting point which should be considered for computing delay in execution of the sen tence. On the one hand according to the petitioners the mental torture commences when the trial court i.e. the Sessions Court pronounces the judgment and awards capital punishment. However, learned counsel also conceded that even the condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court. Mainly therefore it was contended that the real mental torture commences after the death sentence is confirmed by the High Court and therefore to consider the question of delay the time should be computed from the date of the High Court judgment. On the other hand learned Attorney General contended that even if the judgment of confirmation by the High Court is passed in which capital punishment is awarded, invariably comes to this Court and this Court ordinarily grants leave and ap peals are heard at length and it was therefore contended that the delay in execution of the sentence really could be considered after the pronouncement of the final verdict by this Court and it is only after the final verdict is pro nounced that it could be said that the judicial process has concluded. It is no doubt true that sometimes in these procedures some time is taken and sometimes even long time is spent. May be for unavoidable circumstances and sometimes even at the instance of the accused but it was contended and rightly so that all this delay upto the final judicial process is taken care of while 527 the judgment is finally pronounced and it could not be doubted that in number of cases considering the time that has elapsed from the date of the offence till the final decision has weighed with the courts and lesser sentence awarded only on this account. As early as in 1944, the Federal Court in Piare Dusadh and others vs The King Emperor, [1944] Federal Court Reports 61 observed: "It is true that death sentences were imposed in these cases several months ago, that the appellants have been lying ever since under the threat of execution, and that the long delay has been caused very largely by the time taken in proceedings over legal points in respect of the constitution of the courts before which they were tried and of the valid ity of the sentences themselves. We do not doubt that this court has power, where there has been inordinate delay in executing death sentences in cases which come before it, to allow the appeal in so far as death sentence is concerned and subsitute a sentence of transportation for life on account of the time factor alone, however right the death sentence was at the time when it was originally im posed." Similarly in State of Uttar Pradesh vs Lalla Singh and others, ; Sadhu Singh vs State of U.P., AIR 1978 SC 1506; State of U.P. vs Sahai, AIR 1981 SC 1442 and Joseph Peter vs State of Goa. Daman & Diu, ; while finally deciding the matter the courts have taken notice of the delay that has occurred in the judicial proc ess. It was contended that Article 21 contemplates not only a fair procedure but also expeditious procedure and in this context it was contended that observations be made so that judicial process also is concluded as expeditiously as possible. Learned Attorney General has filed compilation of rules of various High Courts and it is not disputed that practically in all the High Courts, a confirmation case where the sentence of death is awarded by the Sessions Court and the case is pending in the High Court for confirmation time bound programme is provided in the rules and it could be said that except on some rare occasion the High Court has disposed of a confirmation case between six months to one year and therefore it could not be said that there is no procedure provided for expeditious disposal of these cases. At the Sessions level also the normal procedure of the Sessions trial is that it is taken up day to day although after coming into force of the Code of 528 Criminal Procedure in 1973 where the number of offences triable by the Sessions Court have been increased but there is sometimes a slight departure from the normal rule which is the cause to some extent for some slackness in the Ses sions trial but attempt is always made and it is expected that Sessions case where offences alleged is one which is punishable with death should be given top priority and normally it Is given top priority and it is expected that the trials must continue day to day unless it is concluded. Although it is well known that sometimes it is at the in stance of the advocates appearing for defence also that this normal rule is given a go bye but ordinarily it is expected that these cases must be tried expeditiously and disposed of. Even in this Court although there does not appear to be a specific rule but normally these matters are given top priority. Although it was contended that this reference before us a Bench of five Judges, was listed for heating after a long interval of time. We do not know why this reference could not, be listed except what is generally well known the difficulty of providing a Bench of five Judges but ordinarily it is expected that even in this Court the matters where the capital punishment is involved will be given top priority and shall be heard of and disposed of as expeditiously as possible but it could not be doubted that so long as the matter is pending in any Court before final adjudication even the person who has been condemned or who has been sentenced to death has a ray of hope. It therefore could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms Day. The delay therefore which could be considered while considering the question of commutation of sentence of death into one of life imprisonment could only be from the date the judgment by the apex court is pronounced i.e. when the judicial process has come to an end. After the matter is finally decided judicially, it is open to the person to approach the President or the Gover nor, as the case may be, with a mercy petition. Some times person or at his instance or at the instance of some of his relatives, mercy petition and review petitions are filed repeatedly causing undue delay in execution of the sentence. It was therefore contended that when such delay is caused at the instance of the person himself he shall not be entitled to gain any benefit out of such delay. It is no doubt true that sometimes such petitions are filed but a legitimate remedy if available in law, a person is entitled to seek it and it would therefore be proper that if there has been undue and prolonged delay that alone will be a matter at tracting the jurisdiction of this Court, to consider the question of the execution of the 529 sentence. While considering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of the convicted person himself however shall not be considered. The only delay which would be material for consideration will be the delays in disposal of the mercy petitions or delay occurring at the instance of the Executive. So far as the scope of the authority of the President and the Governor while exercising jurisdiction under Article 72 and Article 16 1 are concerned the question is not at all relevant so far as the case in hand is concerned. But it must be observed that when such petitions under Article 72 or 161 are received by the authorities concerned it is expected that these petitions shall be disposed of expedi tiously. It was also contended that when capital punishment is awarded the sentence awarded is only sentence of death but not sentence of death plus imprisonment and therefore if a condemned prisoner has to live in jail for long in substance it amounts to punishment which is sentence of death and imprisonment for some time and this according to the learned counsel will amount to double jeopardy which is contrary to Article 20 and the imprisonment cannot be justified in law. Section 366 of the Code of Criminal Procedure provides: "366. Sentence of death to be submitted by Court of Session for confirmation (1) When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. (2) The Court passing the sentence shall commit the convicted person to jail custody under a warrant. " This no doubt authorises the Court of Sessions to commit a person sentenced to death to jail custody under a warrant. But this Section does not contemplate how long he has to be in jail. Clause (1) of Section 366 provides that when the Court of Sessions passes a sentence of death the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. It is therefore apparent that sub clause (2) provided for committing the convicted person to jail awaiting the confir mation of the sentence by the High Court. It is also clear that when a person is committed to jail awaiting the execu tion of the sentence of death, it is not imprisonment but the prisoner has to be kept secured till the 530 sentence awarded by the court is executed and it appears that it is with that purpose in view that sub clause (2) of Section 366 simply provided for committing the convicted person to jail custody under a warrant. The question about solitary confinement or keeping the condemned prisoner alone under strict guard as provided in various jail manuals was considered by this Court in Sunil Batra vs Delhi Administration, ; and consid ering the question of solitary confinment it was observed: "In our opinion sub section (2) of section 30 does not empower the jail authorities in the garb of confining a prisoner under sentence of death, in a cell apart from all other prisoners, to impose solitary confinement on him. Even jail discipline inhibits solitary confinment as a measure of jail punishment. It completely negatives any suggestion that because a pris oner is under sentence of death therefore and by reason of that consideration alone, the jail authorities can impose upon him addition al and separate punishment of solitary con finement. They have no power to add to the punishment imposed by the Court which addi tional punishment could have been imposed by the Court itself but has in fact been not so imposed. Upon a true construction, sub section (2) S.30 does not empower a prison authority to impose solitary confinment upon a prisoner under sentence of death. " In the same judgment, it was further observed: "What then is the nature of confinement of a prisoner who is awarded capital sentence by the Sessions Judge and no other punishment from the time of sentence till the sentence becomes automatically executable? Section 366(2) of the Cr. P.C. enable the Court to commit the convicted person who is awarded capital punishment to jail custody under a warrant. It is implicit in the warrant that the prisoner is neither awarded simple nor rigorous imprisonment. The purpose behind enacting sub section (2) of S.366 is to make avail able the prisoner when the sentence is re quired to be executed. He is to be kept in jail custody. But this custody is something different from custody of a convict suffering simple or rigorous imprisonment. He is being kept in jail custody for making him available for execution of the sent 531 ence as and when that situation arises. After the sentence becomes executable he may be kept in cell apart from other prisoners with a day and night watch. But even here, unless special circumstances exist, he must be within the sight and sound of other prisoners and be able to take food in their company. If the prisoner under sentence of death is held in jail custody, punitive deten tion cannot be imposed upon him by jail au thorities except for prison offences. When a prisoner is committed under a warrant for jail custody under section 366(2) Cr. P.C. and if he is detained in solitary confinement which is a punishment prescribed by section 73 IPC, it will amount to imposing punishment for the same offence more than once which would be viola tive of Article 20(2). But as the prisoner is not to be kept in solitary confinement and the custody in which he is to be kept under section 30(2) as interpreted by us would preclude detention in solitary confinement, there is no chance of imposing second punishment upon him and therefore, section 30(2) is not violative of Article 20. " It is therefore clear that the prisoner who is sentenced to death and is kept in jail custody under a warrant under Section 366(2) he is neither serving rigorous imprisonment nor simple imprisonment. In substance he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded and in this view the aspect of solitary confinement has already been dealt with in the above noted case but it must be said that the life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence but it is also essen tial that he must be kept safe as the purpose of the jail custody is to make him available for execution after the sentence is finally confirmed. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to chal lenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar and Ors. vs State of Maharashtra and Anr. , ; and also in A.R. Antulay vs R.S. Nayak and 532 another; , the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circum stances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circum stances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. So far as our conclusions are concerned we had delivered our Order on October 11, 1988 and we had reserved the rea sons to be given later. Accordingly in the light of the discussions above our conclusion is as recorded in our Order dated October 11, 1988, reproduced below: "Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re open the conclusions reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordi nate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran 's case cannot be said to lay down the correct law and therefore to that extent stands overruled." 533 K. JAGANNATHA SHETTY, J In Bachan Singh vs State of punlab, , this Court pronounced that the provision of death penalty as an alternative punishment for murder, under sec.302 IPC is valid and constitutional. Sarkaria, J. who spoke for the majority view held that the provisions relating to imposition of death sentence and the procedure prescribed thereof would ensure fairness and reasonableness within the scope of Article 21. It was also observed that by no stretch of imagination it can be said that death penalty under sec. 302 either per se or because of execution by hanging constitutes an unreasonable, cruel or unusual punishment Nor the mode of its execution has a degrading punishment which would defile the "dignity of the individual ' within the preamble to the Constitution. The learned Judge, however, cautioned (at 751): "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law 's instrumentali ty. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionable foreclosed. " (Empha sis supplied) Bachan Singh case has thus narrowly tailored the sen tencing discretion of courts as to death sentence. Death sentence cannot be given if there is any mitigating circum stance in favour of the accused. All circumstances of the case should be aggravating. It is in the gravest of grave crimes or in the rarest of rare cases, the death sentence may be awarded. There is no offence in the penal code carry ing mandatory death penalty. Section 303 IPC carrying the mandatory punishment has been declared unconstitutional in Mithu vs State of Punjab, ; So much so, the death sentence is now awarded only in miniscule number of cases. All the accused in these cases belong to that limited and exceptional category. The trial court convicted them under sec. 302 IPC and sentenced them to death. The High Court confirmed their conviction and sentence. This Court dismissed their special leave petitions or appeals and subsequent review petitions. Their mercy petitions to the President and/or the Governor were also rejected. They have now moved writ petitions under Article 32 of the Constitu tion. They are not seeking to overturn the death sentence on the ground that the Court has illegally inflicted it. Obvi ously, that they can not do. The judgment of the court has become final. Under Article 141, it shall be binding on all Courts. Under Article 142, it shall be enforceable through out the territory of India. Under Article 144 all authori ties, 534 civil and judicial, in the territory of India shall act in aid of this Court. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one 's fundamental right. The judgment of a court cannot be said to affect the fundamental rights of citizens (See Naresh Sridhar Mirajkar 's case, The petitioners, however, contend that this Court must set aside the death penalty and substitute a sentence of life imprisonment in view of the prolonged delay in the execution. The dehumanising factor prolonged delay with the mental torture in solitary confinement in jail, according to them, has rendered the execution unconstitutional under Article 21. There are also some other subsidiary contentions to which I will presently refer. We have earlier dismissed all but one petition giving our unanimous conclusion stating therein that we would give our reasons later. Here are my own reasons in support of that conclusion: The question whether prolonged delay renders death sentence inexecutable and entitles the accused to demand the alternate sentence of life imprisonment has arisen amid the diversity of judicial decisions in (i) T.V. Vaitheeswaran vs State of Tamil Nadu, ; (ii) Sher Singh vs State of Punjab; , ; and (iii) Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; Vaitheeswarn case was decided by a two Judge Bench, where Chinnappa Reddy, J. said (at 359): "We find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriv ing a person of his life in an unjust, unfair and unreasonable way as to offend the consti tutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death. " There then the learned Judge said (at 360): "Making all reasonable allowance for the time necessary for appeal and considera tion of reprieve, we think that delay exceed ing two years in the execution of a sentence of death should be considered sufficient to entitle the person 535 under sentence of death to invoke Article 21 and demand the quashing of the sentence of death." Sher Singh case was decided by a three Judge Bench. Chandrachud, CJ., who spoke for the Bench while disagreeing with above view in Vaitheeswaran, said (at 595): "The substitution of the death sentence by a sentence of life imprisonment cannot follow by the application of the two years ' formula, as a matter of "quod erat demonstrandum." Then followed the decision in Javed Ahmad case. There Chinnappa Reddy, J. raised a question whether a three Judge Bench would overrule the decision of a two Judge Bench merely because three is larger than two? The learned Judge said: "The court sits in division of two and three Judges for the sake of convenience and it may be inappropriate for a Division Bench of three Judges to purport to over rule the decision of a Division Bench of two Judges. Vide Young vs Bristol Aeroplane Co. Ltd. It may be otherwise where a full Bench does so. We do not, however, desire to embark upon this question in this case. In the present case. we are satisfied that an overall view of all the circumstances appears to us to entitle the petitioner to invoke the protec tion of Article 21 of the Constitution. We accordingly quash the sentence of death and substitute in its place the sentence of im prisonment for life. " The question posed in Javed Ahmad case relates to the practice and procedure of this Court. It presents little problem and could be conveniently disposed of without much controversy. At the time of flaming the Constitution, Mr. B.N. Rau, after his return from United States reported to the President of the Constitution Assembly as follows: "Again Justice, Frankfurter was very emphatic that any jurisdiction, exercisable by the Supreme Court, should be exercised by the full Court. His view is that the highest Court of appeal in the land should not sit in divi sions. Every Judge, except of course such judges as may be disqualified by personal interest or otherwise from hearing 536 particular cases, should share the responsi bility for every decision of the Court." (The Framing of India 's Constitution Vol. III by section Shiva Rao p. 219). This was a very good suggestion. But unfortunately that suggestion was not accepted and the principle which was dear to Justice Frankfurter was not incorporated in out Constitu tion. The result iS that each Judge does not share the responsibility for every decision of this Court. For a proper working arrangement in the Court, we have framed Rules under Article 145 of the Constitution confer ring power on the Chief Justice to constitute benches for disposal of cases. Order VII Rule (1) of the Supreme Court Rules 1966 provides that every cause, appeal or matter shall be heard by a Bench consisting of not less than two judges nominated by the Chief Justice. But this rule is subject to the requirement under Article 145(3) of the Constitution. Article 145(3) requires a minimum number of five judges for deciding any case involving substantial question of law as to interpretation of the Constitution. In any event, the Supreme Court has to sit in benches with judges distributed as the Chief Justice desires: In this context, Order VII Rule 2 of the Supreme Court Rules also needs to be noted. It provides: "Where in the course of the hearing of any cause, appeal or other proceeding, the bench considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a bench for the hearing of it. " This is undoubtedly a salutory Rule, but it appears to have only a limited operation. It apparently governs the procedure of a smaller bench when it disagrees with the decision of a larger bench. The bench in the course of hearing of any matter considers that the matter should be dealt with by a larger bench, it shall refer the matter to the Chief Justice. The Chief Justice shall then consitute a larger bench for disposal of the matter. This exercise seems to be unnecessary when a larger bench considers that a decision of a smaller bench is incorrect unless a constitu tional question arises. The practice over the years has been that a larger bench straightaway considers the correctness of and if necessary overrules the view of a smaller bench. This practice has been held to be a crystallised rule of law in a recent decision by a 537 special bench of seven learned judges. In A.R. Antulay vs R.S. Nayak; , , Sabyasachi Mukharji, J., speaking for the majority said: "The principle that the size of the bench whether it is comprised of two or three or more judges does not matter, was enunciat ed in Young vs Bristol Aeroplace Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad A bdul Hamid Pawla vs State of Maharashtra, ; where it has been held that a Division Bench of two judges, has not been followed by our courts. XXXX XXXX XXXX XXXX XXXX "The law laid down by this Court is some what different. There is a hierarchy within the court itself here where larger benches over rule smaller benches. See Mattulal vs Radhey Lal, [1975] 1 SCR 127: ; ; Union of India vs K.S. Subramanian ; at 92: ; at 2437 and State of U.P.v. Ram Chandra Trivedi; , at 473: ; at 2555. This is the practice followed by this Court and now in is a crystallised rule of law. " The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. We must regard this as a final seal to the controversy. Before grappling with the crucial issue that has been raised in these petitions, it would be convenient to dispose of what may be regarded as peripheral submissions. Mr. R.K. Jain, learned counsel who led the arguments on behalf of the petitioners referred to us in detail the consideration of justice, morality and usefulness of capital punishment. The counsel also referred to us the opinion expressed by eminent persons like Shri Arvindo (Tales of Prison Life) with regard to torment in the prison life. He also invited our attention to the dissenting opinion of Bhagwati, J., in Bachan Singh where learned Judge observed that the execution "serves no social purpose." The learned counsel made an impassioned appeal to save the life of these condemned persons by sub stituting life imprisonment on the ground of inordinate delay in execution. I can really appreciate the compassion ate feeling with which the counsel made his submission. The "self" in 538 him came out with every word he uttered. He seems to belong to a faith where 'non violence ' to every life is a must. Not that we are different underneath the rotes. As said by Justice Brennan, white dealing with his opinion in Furman vs Georgia. ; "I am not, that we are each not, a human being with personal views and moral sensioilties and religious scruples. But it is to say that above all, 1 am a Judge". (The Oliver wendell Homes Lecture, delivered in September 5, 1986). We are flesh and blood mortals with normal human traits. Indeed, like all others, we too have some inborn aversions and acquired attractions. But it is not for us while presiding over courts to decide what pun ishment or philosophy is good for our people. While examin ing constitutional questions, we must never forget Mar shall 's mighty phrase "that it is a constitution that we are expounding". We are oath bound to protect the Constitution. We are duty bound to safeguard the life and liberties of persons. We must enforce the constitutional commands, no matter what the problem. In other issues of constitutional considerations, we must understand the aspirations and convictions of men and women of our time. And we should not be swayed by our own convictions. We must never allow our individuality t0 overshadow or supersede the philosophy of the Constitution. These are various philosophical ideologies and underpin nings about the purposes of punishment. It includes among others deterfence, retribution, protecting persons, punish ing guilty and acquitting the innocent. Among these objec tives deterfence and retribution are prominent. Retribution is often confused with revenge, but there are distinct differences. Retribution embodies the concept that an of fender should receive what he rightfully deserves. Deter fence has a two fold object. The first object relates to specific deterrence. It will deter the individual from committing the same or other offences in the future. The second object is as to general deterrence. It will convince or deter others that "crime does not pay") (See Crime and Punishment ' by Harry E. Allen & Ors. at 735). The Law Commission of India summarised these aspects as to the capital sentence (35th report para 265( 18)): "The fact remains however, that whenever there is a serious crime. the society feels a sense of disapprobation. If there is any element of retribution in the law, as administered now, it is not the instinct of the man of jungle but rather a refined evolu tion of that instinct the feeling prevails in the public is a fact of which notice is to be taken. The law 539 does not encourage it, or exploit it for any undesirable ends. Rather, by reserving the death penalty for murder, and thus visiting this gravest crime with the gravest punishment the law helps the element of retribution merge into the element of deterrence. " Sarkaria, J., after referring to this report speaking for the majority in Bachan Singh, [19801 2 SCC 684 at 721 recognises: "Retribution and deterrence are not two divergent ends of capital punishment. They are convergent goals which ultimately merge into one. " The punishments are provided in order to deter crimes. The punishments are imposed to make the threat credible. Threats and imposition of punishments are obviously necessary to deter crimes. As a venerated British Historian, Arthur Bryant writes "The sole justification for the death penalty is not to punish murderers but to prevent murder." Professor Earnest Van Den Haag states: "The murderer learns through his punishment that his fellow men have found him unworthy of living, that because he has mur dered, he is being expelled from the community of the living. This degradation is self in flicted. By murdering, the murderer has so dehumanised himself that he cannot remain among the living. The social recognition of his self degradation is the punitive essence of execution. " (See Harward Law Review: 1986 Vol. 99 p. 1699). Of course, one cannot have any empirical data to prove that capital punishment can be deterrent greater than life imprisonment. It may be that most killers as the Professor Jack Greenberg states "do not engage in anything like a cost benefit analysis. They are impulsive and they kill impulsively. " The paradigm of this kind of murderers cannot be properly accounted for. However, many classic experiments on the effects of corporal punishments on dogs, monkeys, pigeons and other animals have been conducted in psychology laboratories. Graeme Newman in his book "Just and Painful" (at 127) refers to such experiments. The learned author states that corporal punishment works and it has been so successful that some animals have starved themselves to death rather than eat the forbidden food. This position with the human beings is said to be not different. Indeed, it cannot be different as we could see from day to day life. As between life and 540 death one lives life. It is the love of life with sensuous joy of companionship that moves the race and not so much the ideals. One views the death with trepidation. In fact, every living being dreads death and it cannot be an exception with those on death row. They like all others want to live and live as long as they can. Because, the life has its own attraction, no matter in what form and condition. The death has no such attraction and cannot have any, since it is the most mysterious of all in this world. The criminal law always keeps pace with the development of society. It reflects as Chief Justice Warren said: "the evolving standards of decency that mark the progress of a maturing society". (Trop. vs Dulles; , , 101 (1958). We have much to learn from history of every country. The punishment which meets the unanimous approval in one generation, may rank as the most reprehensible form of cruelty in the next. Take for instance, the punishment of whipping. A search of historical records of 16th century England shows that men and women were whipped unmercifully for trivial offences as peddling, being drunk on a Sunday, and participating in a riot. Many other instances of ferocious whippings of men and women, both for political and other offences, besprinkle and blacken English historical records. Rarely did any shred of excuse for human frailty seem to enter into the souls of those sitting in judgment. In the days of Charles the Sec ond, however, the Duke of York did interpose in one such case he saved Lady Sophia Lindsay from being publicly whipped through the streets of Edinburgh for the crime of assisting at the escape of the Earl of Argyle, her own father in law. In the early eighteen hundreds the Australian penal settlements were the scene of floggings of so severe a nature as to rival, for sheer savagery, the worst that were inflicted in England during the sixteenth century, or in the southern State of America during the days of slavery. In the United States of America whipping was a favorite seven teenth century punishment for various offences, and both male and female culprits came under the lash. Of all the civilized, nations, Russia may be considered to be the one which not only used the whip unmercifully, but also as the nation which continued to use it longer by far and for a greater variety of crimes than did any other. Next to Rus sia, for sheer love of whipping, comes China, and little less formidable than the Russian known is the Chinese rod of split bamboo. The sharp edges of the bamboo cut into the flesh, inflicting terrible lacera 541 tions. Little wonder that deaths, as a result of these floggings, have been frequent, and that those who escape this fate are often so terribly mutilated that they remain crippled for the rest of their lives (The History of corpo ral Punishment by G.R. Scott (1948) pages 39 to 56). Take the history of punishment of death in England. In 1810 Sir Samuel Romilly who asked the Parliament to abolish the death penalty for some of crimes said "there is probably no other country in the world in which so many and so great a variety of human actions are punishable with loss of life as in England". (A History of English Criminal Law By L. Radzinowicz V(1) p(1). The beginning of the nineteenth century was a period of indiscriminate imposition of capital punishment in England for numerous widely differing offences. There were two hundred or more such offences. There were several legisla tions providing punishment of death in the reign of George IV. All felonies except petty larceny and mayhem were theo retically punishable with death. From 1827 to 1841 several legislations were passed abolishing the punishment of death in a variety of cases. Burning continued till 1790 to be the punishment inflicted on women for treason, high or petty. (Which latter included not only the murder by a wife of her husband, and the murder of a master or mistress by a servant but also several offences against the coin). Burning in such cases was abolished by 30 Geo, 3, c. 48. In practice, women were strangled before they were burnt; this, however, de pended on the executioner. In one notorious case a woman was actually burnt alive for murdering her husband, the execu tioner being afraid to strangle her because he was caught by the fire. In the reign of George II, an act was passed which was intended to make the punishment for murder more severe than the punishment for other capital crimes. This was 25 Geo. 2, c. 37, which provided that a person convicted of murder should be executed on the next day but one after his sentence (unless he was tried on a Friday, in which case he was to be hanged on the Monday). He was to be fed on bread and water in the interval and his body, after death, was either to be dissected or to be hung in chains. The judge, however, had power to respite or to remit these special severities. Under this act murderers were usually anato mized, but sometimes gibbeted. By the 2 & 3 Will 4, c. 7 section 16 (for the regulation of schools of anatomy), it was enact ed that the bodies of murderers should no longer be anato mized, but that the sentence should direct that they should either be hung in chains or a buried in the prison. Several persons were gibbeted under this act. 542 These provisions distinguish English law in a marked manner from the continental laws down to the end of the last cen tury. In most parts of the continent breaking on the wheel, burning in some cases quartering alive and tearing with red hot pincers, were in use, as well as simpler forms of death. (History of the Criminal Law of England by Stephen Ch. XIII p. 477 478). Through out the reign of Henry the Eighth, there were no fewer than two thousand executions a year. As the stress on the value of property increased, the net was widened. Not alone murderers and traitors; but robbers, coiners, heretics and witches were sent to their death. The shooting of a rabbit; the forgery of a birth certificate; the theft of a pocket handkerchief; the adoption of a disguise; the damag ing of a public property were also included in the list of death sentence. In 1814 a man was hanged at Chelmsford for cutting down a cherry tree. The public hangings in England continued until well into the nineteenth century. There were public executions with a large number of people watching. On January 22, 1829, Willi an Burke was hanged at Edinburgh, and the crowd was great beyond all former precedent. The last person to be hanged publicly in England was Michael Marett, who was executed at Newgate on May 26, 1868. As time went past, the list of death sentence crimes was rapidly reduced and in 1950, it was confined for four crimes only, to wit; (1) murder, (2) treason, (3) piracy with violence, and (4) setting fire to arsenals and dockyards. Later this was also abolished. G.R. Scott, The History of Capital Punishment, 38 66 (1950). What happened in the United States? It will be noticed that in the United States, the accused has a constitutional right to be tried by a Jury, as provided under 6th Amend ment. The accused has a right not to be subjected to "cruel and unusual punishment" as mandated under 8th Amendment. In Furman, some Judges took the view that death sentence was unacceptable to the evolving standards of decency of the American people. But the American people rejected that view. Since then 35 States have re enacted laws providing for the death sentence for murder of suitably altering the provi sions to comply with Furman. What do we have here? The representatives of our people are cognizant of the contemporary social needs. The legisla tive amendments brought about from time to time are indica tive of their awareness. Sub sec. (5) of sec. 367 of the Code of the Criminal Procedure, 543 1898 as it stood prior to its amendment by Act 25 of 1955 provided: "If the accused is convicted of an offence punishable with death, and the court sentences to any punishment other than death, the court shall in its judgment state the reasons why sentence of death was not passed. " This provision laid down that if an accused was convict ed of an offence punishable with death, the imposition of death sentence was the rule and the awarding of a lesser sentence was an exception. The court had to state the rea sons for not passing the sentence of death. There was a change by the amending Act 26 of 1955 which came into force with effect from January 1, 1956. The above sub section was deleted and it was left to the discretion of the court in each case to pass a sentence of death or life imprisonment. In 1973 there was again a reshaping of the provision regard ing the death penalty. In the Code of Criminal Procedure, 1973, sec. 354(3) was inserted in these terms: "When the conviction is for an offence punishable with death, or in the alternative with the imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and in the case of sentence of death, the special reasons for such sentence. " It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder. The court cannot award death sentence without giving special reasons. As earlier noticed that death sentence Could be awarded only in exceptional cases and not in the usual run of murders. We have got just six offences carrying death penalty and that too as an alternate sentence (Sections 120B, 121, 132, 302,307 and 396 IPC). This is the need and notion of the present day society. Tomorrow 's society and the atmosphere in which they live may be quite different. They may not have rapist murderers like Ranga and Billa. They may not have any merciless killing and bride burning They may have more respect for each other life. They may be free from criminalisation of politics and elimination of political leaders by muscle power. There then the penal law cannot remain isolated and untouched. It will be profoundly influenced by philosophy prevailing. Time may reach for the representatives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unnecessary. There is 544 nothing in our Constitution to preclude them from deleting that alternate sentence. The crusade against capital punish ment may,, therefore, go on elsewhere and not in this Court. Let me now turn to the pivotal question which I have referred at the beginning of the judgment. The question is whether the sentence of life imprisonment should be substi tuted on account of time factor alone, however, right and valid and death sentence was at the time when it was award ed. The arguments for the petitioners primarily rested on the common area of agreement in Vaitheeswaran and Sher Singh cases on the implication of Article 21. The accepted princi ple according to counsel, is that prolonged delay in execu tion would be "unjust, unfair and unreasonable". It would be inhuman and dehumanising to keep the condemned person for a long period. It offends the constitutional safeguards under Article 21. Article 21 of the Constitution mandates the state that no person shah be deprived of his life or personal liberty except according to the procedure established by law. The scope and content of this Article has been the subject matter of intensive examination in the recent decisions of this Court. I do not want to add to the length of this judg ment by recapitulating all those decisions in detail. I may only highlight some of the observations which are relevant to the present case. In Maneka Gandhi vs Union of India, [1978] 1 SCC 248 this Court gave a new dimension to Article 21. The seven Judge bench held that a statute which merely prescribes some kind of procedure for depriving a person of his life or personal liberty cannot meet the requirements of Article 21. Bhagwati, J., as he then was, while explaining the nature and requirement of procedure under Article 21 observed (at 283): "We must reiterate here what was pointed out by the majority in E.P. Rayappa vs State of Tamil Nadu, [1974] 3. SCR 348: , namely, that from a posi tivistic point of view, equally is antithetic to arbitrariness. In fact equality and arbi trariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both accord ing to political logic and constitutional law and is, therefore, violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which 545 legally as well as philosophically, is an essential element of equality or non arbi trariness pervades Article 14 like a brooding omni presence and the procedure contemplated by Article 21 must answer the test of reasona bleness in order to be in conformity .with Article 14. It must be "right and just and fair" and not "arbitrary, fanciful or oppres sive", otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. " If one prefers to go yet further back, the procedural fairness in the defence of liberties was insisted upon even in 1952. The State of West Bengal vs Anwar Ali, ; Bose, J., remarked (at 367): "The question with which I charge myself, is, can fair minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equa nimity and call it reasonable, just and fair, regard it as that ' equal treatment and protection in the defence of liberties which is expected of a sovereign democratic repub lic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad. " In Bachan Singh case, Sarkaria, J., affirming this view said (at 730): "No person shall be deprived of his life br personal liberty except according to fair, just and reasonable procedure estab lished by valid law." In Mithu vs State of Punjab, ; Chandra chud. C.J., said (at 284): " . that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is the for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving a person of his life or liberty is fair, just and reasonable." In Sher Singh vs State of Punjab, [1983] 2 SCC 582 Chandrachud, C.J. again explained (at 593): 546 "The horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. So long as life lasts, so long shall it be the duty and endea vour of this Court to give to the provisions of our Constitution a meaning which will prevent human suffering and degradation. Therefore, Article 21 is as much relevant at the stage of execution of the death sentence as it is in the interregnum between the impo sition of that sentence and its execution. The essence of the matter is that all procedure no matter the stage, must be fair, just and reasonable." Article 21 thus received a creative connotation. It demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. The procedural fairness is required to be observed at every stage and till the last breath of the life. In Vaitheeswaran the court thought that the delay of two years would make it unreasonable under Article 21 to execute death sentence. The court did not attach importance to the cause of delay. The Cause of delay was immaterial. The accused himself may be responsible for the delay. The court said that the appropriate relief would be to vacate the death sentence and substitute life imprisonment instead. The learned counsel for the petitioners argued that if two years period of delay set out in Vaitheeswaran does not present favourably, we may fix any other period but we should not disturb the basis of the decision. He invited our attention to a number of authorities where courts have awarded life imprisonment on the ground of delay in disposal of cases. In Vivian Rodrick vs The State of West Bengal, ; six years delay was considered sufficient for impos ing a lesser sentence of imprisonment for life. In State of U.P. vs Paras Nath Singh & Ors., , the Court, while reversing the order of acquittal awarded life imprisonment on the ground that the accused was under sen tence of death till he was acquitted by the High Court. Similar was the view taken in State of Bihar vs Pashupati Singh, ; ; State of U.P. vs Suresh, at 643 and State of U.P. vs Sahai, In State of U.P.v. Suresh, the accused was given life imprisonment in view of the fact that seven years had elapsed after the date of murder. In Ram Adhar vs State of U.P., at 777, the 547 delay of six years from the date of occurrence was held sufficient to commute the sentence of death to life impris onment. The court also observed that the accused was not responsible in any manner for the lapse of time that has occurred. In Nethi Sreeramulu vs State of A. P., 14 the Court while disposing of the appeal in 1973 commuted the sentence of death given in 1971 to life imprisonment. In State of U.P.v. Lalla Singh & Ors., six years delay from the date of judgment of the trial court was a consideration for not giving the death sentence. In Sadhu Singh vs State of U.P., about three years and seven months during which the accused was under spectre of death sentence, was one of the relevant factors to reduce the sentence to life imprisonment. There are equally other decisions where in spite of the delay in disposal of the case, the Court has awarded the death sentence. In Nachhittar Singh vs State of Punjab, , the court refused to consider the question of delay as a mitigating circumstances. In Maghar Sing vs State of Punjab, [19751 4 SCC 234, the court said that delay does not appear to be good ground to commute to life impris onment in view of the pre planned, cold blooded and dastard ly murder committed by the accused. In Lajar Mashi vs State of U.P., , the court while confirming the death sentence observed (at 809): "The value of such delay as a miti gating factor depends upon the features of a particular case. It cannot be divorced from the diabolical circumstances of the crime itself, which, in the instant case fully justify the award of capital sentence for the murder of the deceased. We, therefore, uphold the award of the capital sentence to the appellant and dismiss his appeal. " All these decisions are of little use to determine the constitutionality of execution of the death sentence on the relevance of delay. These decisions relate to the sentencing discretion of courts with which we are not concerned. We are concerned with the right of the accused to demand life imprisonment after the final verdict of death sentence with every justification to impose it. The demand for life imprisonment herein as solely based on the ground of prolonged delay in the execution. The delay which is sought 548 tO be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceed ings. It is the time that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency. I start with the first part of the delay. In Vaitheeswa ran this part of the delay was expressly taken into consid eration. It was observed that the period of two years as prolonged detention would include the time necessary for appeal from the sentence of death and consideration of reprieve. In Sher Singh, this period has not been accepted as good measure. The court said that the fixation of time limit of two years did not accord with the common experience of time normally consumed by the litigative process and the proceedings before the Government. Mr. Parasaran, learned Attorney General has altogether a different approach and in my opinion very rightly. He argued that the time spent by the courts in judicial proceedings was intended to ensure a fair trial to the accused and cannot be relied upon by the same accused to impeach the execution of the death sentence. The relevant provisions in the Indian Penal Code, the Criminal Procedure Code, the Evidence Act and the Rules made by the High Courts and the Supreme Court governing the trial, appeal, execution of sentence, etc., were all highlighted. According to learned Attorney, these provisions are meant to examine the guilt or innocence of the accused and to have an appropriate sentence commensurate with the gravity of the crime. They constitute reasonable procedure, established by law. I entirely agree. The time taken in the judicial pro ceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sentencing or the appellate court while dispos ing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into ac count every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence save by way of review. There cannot be a second trial on the validity of sentence based on Article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment 549 with the sentence awarded is valid and binding, it falls to be executed in accordance with law since it is a part of the procedure established by law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be, in my opinion, wholly inappro priate to fall back upon the same delay to impeach the execution. If the delay in passing the sentence render the execu tion unconstitutional, the delay subsequent thereof cannot also render it unconstitutional. Much less any fixed period of delay could be held to make the sentence inexecutable. It would be arbitrary to fix any period of limitation for execution on the ground that it would be a denial of fair ness in procedure under Article 21. With respect, I, am unable to agree with the view taken in Vatheeswaram case on this aspect. Under Article 72 of the Constitution, the President shall have the power to "grant pardons, deprives, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted in an offence". Under Article 161 of the Constitution, similar is the power of the Governor to give relief to any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions sub mitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for .disposal Of even for mercy petitions. It is, however, necessary to point out that Article 21 is relevant at all stages. This Court has emphasized that "the speedy trial in criminal cases though not a specific fundamental right, is implicit in the broad sweep and con tent of Article 21". (See: Hussainara Khatoon vs The State of Bihar, [1979] 3 SCR 169 and ; Speedy trial is a part of one 's fundamental right to life and liberty. (See Kadra Pahadiya vs State of Bihar, and This principle, in my opinion, is no less important for disposal of mercy petition. It has been uni versally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison as stated in Sunil Batra vs Delhi Administration, , but nobody could succeed in giving him peace of mind. 550 Chita Chinta Dwayoormadhya, Chinta tatra gariyasi, Chita Dahati Nirjivam, Chinta dahati Sajeevakam. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire bums only the dead body while the mental worry burns the living One. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned pris oner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed. What should be done by the Court is the next point for consideration. It is necessary to emphasise that the juris diction of the Court at this stage is extremely limited. If the Court wants to have a look at the grievance as to delay, it is needless to state, that there should not be any delay either in listing or in disposal of the matter. The person who complains about the delay in the execution should not be put to further delay. The matter, therefore, must be expedi tiously and on top priority basis, disposed of. The Court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. The Court has still to consider as observed in Sher Singh case (at 596): "The nature of the offence, the diverse circum stances attendant upon it, its impact upon the contemporary society and the question whether the motivation and pattern of 551 the crime are such as are likely to lead to its repetition, if the death sentence is vacated, are matters which must enter into the verdict as to whether the sentence should be vacated for the reason that its execution is delayed. " The last contention urged for the petitioners that the accused should not be executed if he was since improved is unavailable since it seeks to substitute a new procedure which the Code does not provide for. We have already considered all these cases in the light of these principles and disposed them of by our earlier unanimous order.

The accused were convicted under section 302 I.P.C. and sentenced to death by the trial court. The High Court con firmed their conviction and 510 sentence. This Court dismissed their special leave peti tions/appeals and subsequent review petitions. Their mercy petitions to the President and/ or Governor were also re jected. Therefore, they approached this Court by way of Writ Petitions for setting aside the death sentence and substi tuting it by a sentence of life imprisonment on the ground of prolonged delay in the execution. They contended that the dehumanising factor of prolonged delay with the mental torture in confinement in jail had rendered the execution unconstitutional. In view of the conflicting decisions of this Court in T.V. Vaitheeswaran vs State of Tamil Nadu, and Sher Singh & Ors. vs The State of Punjab, ; and observations in Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra; , on the question of delay, the writ petitions were referred to a five judges Bench. While a Bench of two Judges held in Vaitheeswaran 's case that two years delay in execution of the sentence after the judgment of the trial court would entitle the condemned prisoner to ask for commutation of his sentence of death to imprisonment for life, a three Judges ' Bench held, in Sher Singh 's case, that delay alone is not good enough for commu tation and two year 's rule could not be laid down in the cases of delay and that the Court in the context of the nature of the offence and delay, could consider the question of commutation of death sentence. In Javed 's case this Court observed that where the condemned man had suffered more than two years and nine months and was repenting and there was nothing adverse against him in the jail records, this period of two years and nine months with the sentence of death heavily weighing on his mind, would entitle him for commuta tion of sentence of death into imprisonment for life. The questions for consideration in these cases were: (a) whether prolonged delay in execution of the sentence of death rendered it inexecutable and entitled the accused to demand the alternate sentence of imprisonment for life, (b) what should be the starting point for computing this delay, (c) what were the rights of a condemned prisoner who had been sentenced to death but not executed, and (d) what could be the circumstances which should be considered along with the time that had been taken before the sentence is execut ed. On October 11, 1988 this Court dismissed all the writ petitions, except Writ Petition No. 1566 of 1985, which was partly allowed and the sentence of death awarded to the accused was substituted by the sen 511 tence of imprisonment. Over ruling the decision in Vaithees warans case that two years ' delay would make the sentence of death inexecutable, this Court held that undue long delay in execution of the sentence of death would entitle the condem ned person to approach this Court under Article 32 but this Court would only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and would have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death, that this Court, might consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of the sentence should be carried out or should be altered into imprisonment for life and that no fixed period of delay would be held to make the sentence of death inexe cutable. Reasons for the judgment were to follow. Giving the reasons for the Judgment, HELD: Majority: Oza, Murari Mohon Dutt, Singh and Sharma JJ. Per Oza, J: 1.1 The delay which could be considered while consider ing the question of commutation of sentence of death into one of life imprisonment could only be from .the date the judgment by the apex Court is pronounced i.e when the judi cial process has come to an end. [528E F] 1.2 The condemned prisoner knows that the judgment pronounced by the Sessions Court in the case of capital punishment is not final unless confirmed by the High Court. All the delay upto the final judicial process is taken care of while the judgment is finally pronounced, and in a number of cases the time that has elapsed from the date of offence till the final decision, has weighed with the courts and lesser sentence awarded only on this account. [526E, H; 527A] State of Uttar Pradesh vs Lalla Singh and others, ; Sadhu Singh vs State of U.P., AIR 1978 SC 1506; State of U.P.v. Sahai, AIR 1981 SC 1442 and Joseph Peter vs State of Goa, Daman & Diu, ; , referred to. Piare Dusadh and others vs The King Emperor, [1944] Federal Court Reports 61, referred to. 1.3 Practically, in all the High Courts a confirmation case i.e. a 512 case where the sentence of death is awarded by the Sessions Court and is pending in the High Court for confirmation in the High Court a time bound programme is provided in the rules and, except on some rare occasions, the High Court has disposed of a confirmation case between six months to one year. At the Sessions level also, the normal procedure of the sessions trial is that it is taken up day today and it is expected that such a sessions case should be given top priority and it is expected that such trials must continue day to day till it is concluded. Even in this Court, al though there is no specific rule, normally these matters are given top priority, and ordinarily, it is expected that these matters will be given top priority and shall be heard and disposed of as expeditiously as possible. Therefore, as long as the matter is pending in any Court before any final adjudication, even the person who has been condemned or sentenced to death has a ray of hope. Therefore, it could not be contended that he suffers that mental torture which a person suffers when he knows that he is to be hanged but waits for the Dooms day. [527G H; 528C E] 1.4 After the matter is finally decided judicially, it is open to the person to approach the President or the Governor as the case may be with a mercy petition. It is no doubt true that sometimes such mercy petition and review petitions are filed repeatedly causing delay, but a legiti mate remedy if available in law, a person is entitled to seek it and it would, therefore, be proper that if there has been undue and prolonged delay, that alone will be a matter attracting the jurisdiction of this Court, to consider the question of execution of the sentence. However, while con sidering the question of delay after the final verdict is pronounced, the time spent on petitions for review and repeated mercy petitions at the instance of convicted person himself shall not be considered. [528F, G; 529A] 1.5 The only delay which would be material for consider ation will be the delay in disposal of the mercy petitions or delays occurring at the instance of the Executive. [529B] 1.6 When petitions under article 72 or 161 are received by the authorities concerned, it is expected that these peti tions shall be disposed of expeditiously. [529C] T.V. Vaitheeswaran vs State of Tamil Nadu, , over ruled. Sher Singh & Others vs The State of Punjab, ; , affirmed. 513 Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; , referred to. 2.1 A judgment of the Court can never be challenged under article 14 or 21 and, therefore, the judgment of the court awarding the sentence of death is not open to chal lenge as violating article 14 or 21. [531G H] Naresh Shridhar Mirajkar and Ors. vs State of Maharash tra and Anr. ; , and A.R. Antulay vs R.S. Nayak and another; , , relied on. 2.2 The only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judi cial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court. [532A B] 2.3 It will not be open to this Court in exercise of jurisdiction under article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circum stances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. [532B D] 2.4 The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also. [532D] 3.1 Before 1955, sentence of death was the rule, the alternative sentence had to be explained by reasons. There after, it was left to the discretion of the court to inflict either of the sentences and ultimately in the 1973 Code normal sentence is imprisonment for life except that for the special reasons to be recorded sentence of death could be passed. This indicates a trend against sentence of death but this coupled with the decisions wherein sentence of death has been accepted as constitu 514 tional, show that although there is a shift from sentence of death to lesser sentence, there is a clear intention of maintaining this sentence to meet the ends of justice in appropriate cases. Therefore, in spite of the divergent trends in the various parts of the world there is a consist ent thought of maintaining the sentence of death on the statute book for some offences and in certain circumstances where it may be thought necessary to award this extreme penalty. It is awarded in the rarest of rare cases and this is the accepted position of law. [524B D] Bachan Singh etc. vs State of Punjab etc. ; , and Machhi Singh and others vs State of Punjab, referred to. 3.2 The circumstances in which the extreme penalty should be inflicted cannot be enumerated in view of complex situation in society and the possibilities in which the offence could be committed and the Legislature was, there fore, right in leaving it to the discretion of the judicial decision as to what should be the sentence in particular circumstances of the case. But the Legislature has put a further rider that when the extreme penalty is inflicted it is necessary for the court to give special reasons thereof. [525H; 526A B] 4. The prisoner, who is sentenced and kept in jail custody under a warrant under section 366(2) of the Criminal Procedure Code is neither suffering rigorous imprisonment nor simple imprisonment. In substance, he is in jail so that he is kept safe and protected with the purpose that he may be available for execution of the sentence which has been awarded. Hence this will not amount to double jeopardy. [53 1E] The life of the condemned prisoner in jail awaiting execution of sentence must be such which is not like a prisoner suffering the sentence, and it is essential that he must be kept safe. [531F] Sunil Batra vs Delhi Administration, ; re ferred to. Per Jagannatha Shetty, J (Concurring): 5. Article 21 demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till the last breath of the life. [546C] 515 Maneka Gandhi vs Union of India, [1978] 1 SCC 248; The State of West Bengal vs Anwar Ali, ; ; Bachan Singh vs State of Punjab ; Mithu vs State of Punjab, ; and Sher Singh vs State of Punjab, [1983] 2 SCC 582, relied on. 6.1 The delay which is sought to be relied upon by the accused consists of two parts. The first part covers the time taken in the judicial proceedings. It is the time that the parties have spent for trial, appeal, further appeal and review. The second part takes into fold the time utilized by the executive in the exercise of its prerogative clemency. [547H; 548A B] 6.2 The time taken in the judicial proceedings by way of trial and appeal was for the benefit of the accused. It was intended to ensure a fair trial to the accused and to avoid hurry up justice. The time is spent in the public interest for proper administration of justice. If there is inordinate delay in disposal of the case, the trial court while sen tencing or the appellate court while disposing of the appeal may consider the delay and the cause thereof along with other circumstances. The court before sentencing is bound to hear the parties and take into account every circumstance for and against the accused. If the court awards death sentence, notwithstanding the delay in disposal of the case, there cannot be a second look at the sentence, save by way of review. [548F H] 6.3 There cannot be a second trial on the validity of sentence based on article 21. The execution which is impugned is execution of a judgment and not apart from judgment. If the judgment with the sentence awarded is valid and binding, it fails to be executed in accordance with law. Therefore, if the delay in disposal of the case is not a mitigating circumstance for lesser sentence, it would be wholly inap propriate to fail back upon the same delay to impeach the execution. [548H; 549A B] 6.4 If the delay in passing the sentence cannot render the execution unconstitutional, the delay subsequent thereof cannot also render it unconstitutional Much less any fixed period of delay could be held to make the sentence inexe cutable. It would be arbitrary to fix any period of limita tion for execution on the ground that it would be a denial of fairness in procedure under Article 21. [549B C] T.V. Vaitheeswaran vs State of Tamil Nadu, , over ruled. 516 6.5 The time taken by the executive for disposal of mercy petitions may depend upon the nature of the case and the scope of enquiry to be made. It may also depend upon the number of mercy petitions submitted by or on behalf of the accused. The Court, therefore, cannot prescribe a time limit for disposal of even mercy petitions. However, Article 21 is relevant at all stages, and the principle that speedy trial is a part of one 's fundamental right to life and liberty is no less important for disposal of mercy petition. [549E F] Hussainara Khatoon vs The State of Bihar, [1979] 3 SCR 169 and ; and Kadra Pahadiya vs State of Bihar, and relied on. 6.6 It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture. He may be provided with amenities of ordinary inmates in the prison. But nobody could succeed in giving him peace of mind. [549G H] Sunil Batra vs Delhi Administration, ; re ferred to. As between funeral fire and mental worry, it is the latter which is more devastating, for, funeral fire burns only the dead body while the mental worry burns the living one. This mental torment may become acute when the judicial verdict is finally set against the accused. Earlier to it, there was every reason for him to hope for acquittal. That hope is extinguished after the final verdict. If, therefore, there is inordinate delay in execution, the condemned pris oner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed. [550C] 6.7 The jurisdiction of the Court at this stage, is extremely limited. The Court, while examining the matter, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The Court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under article 226 or under article 32 of the Constitution after the final judgment affirming the conviction and sentence. The Court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. Though the inordinate delay may be a significant factor, but that by itself cannot render the execution uncon 517 stitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself. [550D G] T.V. Vaitheeswaran vs State of Tamil Nadu, over ruled. Sher Singh vs State of Punjab, ; affirmed. Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; ; Vivian Rodrick vs The State of West Bengal, ; ; State of U.P. vs Paras Nath Singh & Ors., ; Bihar vs Pashupati Singh, ; ; State of U.P. vs Suresh, at 643; State ofU. P. vs Sahai, ; Ram Adhar vs State of U.P., at 777; State of U.P. vs Lalla Singh ; Nachhittar Singh vs State of Punjab, ; Maghar Singh vs State of Punjab, ; Lajar Mashi vs State of U.P., ; Hussainara Khatoon vs The State of Bihar, [1979] 3 SCR 169 and ; and Kadra Pahadiya vs State of Bihar, and referred to. 6.8 If the Court wants to have a look at the grievance as to delay then there should not be any delay either in listing or in disposal of the matter. The person who com plaints about the delay in the execution should not be put to further delay. The matter, therefore, must be expedi tiously and on top priority basis, disposed of. [550D E] 6.9 The contention that the accused should not be exe cuted if he has since improved is unavailable, since it seeks to substitute a new procedure which the Code does not provide for. [551B] 7. The judicial verdict pronounced by court in relation to a matter cannot be challenged on the ground that it violates one 's fundamental right. The judgment of a court cannot be said to affect the fundamental rights of citizens. [534A B] Naresh Sridhar Mirajkar, relied on. It is now obligatory for the court to state reasons for the sentence awarded for the offence of murder. The court cannot award death sentence without giving special reasons and only in exceptional cases and not in the usual run of murders. There are just six offences carrying death penalty and that too as an alternate sentence. [543E F] 518 9. The criminal law always keeps pace with the develop ment of society. The punishment which meets the unanimous approval in one generation, may rank as the most reprehensi ble form of cruelty in the next. The representatives of the people are cognizant of the contemporary social needs. The legislative amendments brought about from time to time are indicative of their awareness. The penal law cannot remain isolated and untouched. It will be profoundly influenced by philosophy prevailing. Time may reach for the representa tives of people to consider that death penalty even as an alternate sentence for murder is uncalled for and unneces sary. There is nothing in our Constitution to preclude them from deleting that alternate sentence. [540C; 542H; 543H; 544A] Bachan Singh vs State of Punjab, and Mithu vs State of Punjab, ; , referred to. The practice prevailing over the years had been that a larger bench straightaway considers the correctness of and, if necessary, overrules the view of a smaller bench. This practice has been held to be the crystallised rule of law in a recent decision by a special bench of seven judges of this Court. This must be regarded as a final seal to the controversy, and it is now not open to any one to contend that a bench of two judges cannot be overruled by a bench of three judges. [536H; 537E] A.R. Antulay vs R.S. Nayak, AIR 2988 SC 1532, followed.

eference No. 1 of 1951. The circumstances which led to this Special Reference by the President and the questions referred appear from the full text of the reference dated 7th January, 1951, which is reproduced below : "WHEREAS in the year 1912 the Governor General of India in Council acting in his legislative capacity enacted the , section 7 of which conferred power on the Central Government by notification to extend to the Province of Delhi (that is to say, the present State of Delhi) or any part thereof, with such restrictions and modifications as it thought fit, any enactment which wag in force in any part of British India at the date of such notification; "AND WHEREAS in 1947 the Dominion Legislature enacted the Ajmer Merwara (Extension of Laws) Act, 1947, section 2 of which conferred power on the Central Government by notifica tion to extend to the Province of Ajmer Merwara (that is to say, the present State of Ajmer), with such restrictions and modifications as it thought fit, any enactment which was in force in any other Province at the date of such notifica tion; 753 "AND WHEREAS, by virtue of the powers conferred by the said sections of the said Acts, notifications were issued by the Central Government from time to time extending a number of Acts in force in the Governors ' Provinces to the Province of Delhi and the Province of Ajmer Merwara, sometimes with, and sometimes without, restrictions and modifications, and the Acts so extended and the orders,rules, by laws and other instruments issued under such Acts were and are re garded as valid law in force in the Province (now State) of Delhi and in the Province of Ajmer Merwara (now State of Ajmer), as the case may be, and rights and privileges have been created, obligations and liabilities have been in curred and penalties, forfeitures and punishments have been incurred or imposed under such Acts and instruments; "AND WHEREAS Parliament with the object inter alia of making a uniform provision for extension of laws with regard to all Part C States except Coorg and the Andaman and Nico bar Islands enacted the Part C States (Laws) Act, 1950, section 2, of which confers power on the Central Government by notification to extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and also confers the power on the Central Government to make provision in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State; "AND WHEREAS section 4 of the Part C States (Laws) Act, 1950 has repealed section 7 of the , and the Ajmer Merwara (Extension of Laws)Act, 1947, but the effect of the provisos to the said section is, notwithstand ing the said repeals, to continue, inter alia in force the Acts extended to the Provinces of Delhi and Ajmer Merwara or the States of Delhi and Ajmer under the provisions repealed by the said section; "AND WHEREAS notifications have been issued by the Central (Government from time to time under section 9, of the States (Laws) Act, 1950, extending Acts in force in Part A States to various Part C States sometimes with, and sometimes without, restrictions and modifications; "AND WHEREAS the Federal Court of India in Jatindra Nath Gupta vs Province of Bihar(1) held by a majority that (1)[1949] F.C.R. 595. 754 the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires of the Bihar Legislature inter alia on the ground that the said proviso conferred power on the Provincial Government to modify an Act of the Provincial Legislature and thus amounted to a delegation of legislative power; "AND WHEREAS, as a result of the said decision of the Federal Court, doubts have arisen regarding the validity of Section 7 of the , Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and Section 2 of the Part C States (Laws) Act, 1950, and of the Acts extended to the Provinces of Delhi and Ajmer Merwara and various Part C States under the said sections respectively, and of the orders and other instruments issued under the Acts so extended: "AND WHEREAS the validity of Section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and of the Acts extended by virtue of the powers conferred by the said sections has been challenged in some cases pending at present before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District Court and the Subordinate Courts in Delhi; "AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have. arisen and are of such nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon; Now, THEREFORE, in exercise of the powers conferred upon me by clause (1) of article 143 of the Constitution, I, Rajendra Prasad, President of India, hereby refer the said questions to the Supreme Court of India for consideration and report thereon, namely : "(1) Was section 7 of the , or any of the provisions thereof and in what particular or particu lars or to what extent ultra vires the Legislature which passed the said Act ? "(2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ? "(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament?" 755 Arguments were heard on the 9th, 10th, 11th, 12th, 16th, 17th, 18th, 19th, 20th, 23rd, 24th, 25th, 26th, 27th and 30th days of April, 1951. M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for the President of India. C.K. Daphtary, Advocate General of Bombay (G. N. Joshi, with him) for the State of Bombay. (R. Ganapathy lyer, for the State of Madras. M.L. Saxena,for the State of Uttar Pradesh. A.R. Somanatha lyer, Advocate General of Mysore (R. Ganapathy lyer, with him) for the State of Mysore. P.S. Safeer, for Captain Deep Chand. N.S. Bindra, for Pt. Amarnath Bharadwaj. M.M. Gharakhan, for the Ajmer Electric Supply Co. Ltd. N.C. Chatterjee, (G. C. Mathur, Basant Chandra Ghose, and Tilak Raj Bhasin, with him) for the Maidens Hotel. Jessaram Banasingh, for Runglal Nasirabad. Jyoti Sarup Gupta and K.B. Asthana, for the Municipal Committee, Ajmer. Din Dayal Kapur, for Shri Munshilal and two others. May 23. The following judgments were delivered. KANIA C.J. This is a reference made by the President of India under article 143 of the Constitution asking the Court 's opinion on the three questions submitted for its consideration and report. The three questions are as fol lows: "(1) Was section 7 of the , or any of the provisions thereof and in what particular or particu lars or to what exent ultra vires the Legislature which passed the said Act ?" Section 7 of the , mentioned in question, runs as follows : 756 "The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifi cations as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification. " "(2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particu lar or particulars or to what extent ultra vires the Legis lature which passed the said Act ?" Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, runs as follows: ' 'Extension of Enactments to Ajmer Merwara. The Cen tral Government may, by notification in the official ga zette, extend to the Province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enact ment which is in force in any other Province at the date of such notification. " "(3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particu lar or particulars or to what extent ultra vires the Parlia ment ?" Section 2 of the Part C States (Laws) Act, 1950, runs as follows : "Power to extend enactments to certain Part C States. The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amend ment. of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State. " The three sections referred to in the three questions are all in respect of what is described as the delegation of. legislative power and the three particular Acts are selected to raise the question in respect of the three main stages in the constitutional development of India. 757 The first covers the legislative powers of the Indian Legis lature during the period prior to the Government of India Act, 1915. The second is in respect of its legislative power after the Government of India Act, 1935, as amended by the Indian Independence Act of 1947. 'The last is in respect of the power of the Indian Parliament under the present Consti tution of 1950. It is therefore necessary to have an idea of the legislative powers of the Indian Legislature during those three periods. Without going into unnecessary details, it will not be out of place to know the historical back ground. The East India Company first started its operations as a trading company in India and gradually acquired politi cal influence. The Crown in England became the legislative authority in respect of areas which had come under the control of the East India Company. The Indian Councils Act of 1861, section 22, gave power to the Governor General in Council, with additional nominated members, to make laws. The constitutional position therefore was that the British Parliament was the sovereign body which passed the Indian Councils Act. It gave the Governor General in Council in his legislative capacity powers to make laws over the territo ries in India under the governance of the Crown. Under the English Constitution the British Parliament with its legis lative authority in the King and the two Houses of Parlia ment is supreme and its sovereignty cannot be challenged anywhere. It has no written Charter to define or limit its power and authority. Its powers are a result of convention but are now recognised as completely absolute, uncontrolled and unfettered. Sir Cecil Cart in his book on English Admin istrative Law at page 15 observes: "A more basic difference between the Constitutions of the United States and Britain is the notorious fact that Britain has no written Constitu tion, no fundamental statute which serves as a touchstone for all other legislation and which cannot be altered save by. some specially solemn and dilatory process. In Britain the King in Parliament is all powerful. There is no Act which cannot be passed and will not be valid within 758 the ordinary limits of judicial interpretation . . Even Magna Carts is not inviolate . . The efficient secret of the English Constitution was the close union and nearly complete fusion of the executive and legislative powers. In other words by the system of Cabinet Government the executive authority is entrusted to a committee consisting of members of the dominant party in the legisla ture and in the country." In Halsbury 's Laws of England, Vol. VI, Article 429, it is further stated that it is for this reason that there is no law which the King in Parliament cannot make or unmake whether relating to the Constitution itself or otherwise; there is no necessity as in States whose Constitutions are drawn up in a fixed and rigid form and contained in written documents for the existence of a judicial body to determine whether any particular legislative Act is within the consti tutional powers of Parliament or not; and laws affecting the Constitution itself may be enacted with the same ease and subject to the same procedure as ordinary laws. In England, when occasions of conferment of powers on subordinate bodies became frequent and assumed larger scope, questions about the advisability of that procedure were raised and a Commit tee on the Minister 's Powers, what is generally described as the Donoughmore Committee was appointed. The Committee recommended that certain cautions should be observed by the Parliament in the matter of confermen of such powers on subordinate bodies. This is natural because of the well recognised doctrine of the English Constitution that Parlia ment is supreme and absolute and no legislation can control its powers. Such a legislative body which is supreme has thus cer tain principal characteristics. It is improper to use the word "constitutional" in respect of laws passed by such a sovereign body. The question of constitutionality can arise only if there is some touchstone by which the question could be decided. In respect of a sovereign body like the British Parliament there is no 759 touchstone. They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws. Such laws are changed by the same body with the same ease as any other law. What law follows from this is that no court or authority has any right to pronounce that any Act of Parliament is unconstitutional. In Dicey 's Law of the Constitution, 9th Edition, in considering the Constitution of France,it was observed that the supreme legislative power under the Republic was not vested in the ordinary Parliament of two Chambers, but in a National Assembly or Congress composed of the Chamber of Deputies and the Senate sitting together. The Constitutions of France which in this respect were similar to those of Continental polities exhibited as compared with the expansiveness or flexibility of English institutions that characteristic which was described by the author as rigid. A flexible constitution was one under which every law of every description can legally be changed with the same ease and in the same manner by one and the same body. The flexibility of the British Constitution consists in the right of the Crown and the two Houses to modify or repeal any law whatever. They can modify or.repeal in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London. Therefore, in England laws are called constitutional because they refer to subjects proposed to affect the fundamental institutions of the State and not because they are legally more sacred or difficult to change than other laws. Under the circumstances the term "constitutional law or enactment" is rarely applied to any English statute to give a definite description to its character. Under a rigid constitution, the term "consti tutional" means that a particular enactment belongs to the articles of the constitution and cannot be legally changed with the same ease and in the same manner as ordinary laws, and it is because of this characteristic that courts are invested with powers to determine whether a particular legislation is permitted or not by the constitution. Such a question can 760 never arise in respect of an enactment of the British Parliament. As against this, the Governor General in Council with legislative powers established under the Indian Councils Act stood in a different position. Its charter was the Indian Councils Act. Its powers were there necessarily defined and limited. That power, again, at any time could be withdrawn, altered and expanded or further curtailed. Moreover, as the powers were conferred by an Act of the British parliament, the question whether the action of the Governor General in Council in his legislative capacity was within or without its legislative power was always capable of being raised and decided by a court of law. In Dicey 's Law of the Constitution, 9th Edition the author has distin guished the position of a sovereign legislature and a subordinate law making body. The distinction is drawn from the fact that the subordinate legislatures have a limited power of making laws. At page 99, he has specifically considered the position of the legislative Council of British India prior to 1915 and stated as follows: "Laws are made for British India by a Legislative Council having very wide powers of Legislation. This Council, or, as it is technically expressed, the Governor General in Council, can pass laws as important as any Acts passed by the Brit ish Parliament. But the authority of the Council in the way of law making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North Western Railway Company to make bye laws . Now observe, that under these Acts the Indian Council is in the strictest sense a non sovereign legisla tive body, and this independently of the fact that the laws or regulations made by the Governor General in Council can be annulled or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination. (1) The Council is bound by a large number of rules which cannot be changed by the Indian legislative body itself and which can be changed by the superior power of the Imperial parliament. 761 (2) The Acts themselves, from which the Council derives its authority, cannot be changed by the Council and. they stand in marked contrast with the laws or regulations which the Council is empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legis late . (3) The courts in India . may, when the occasion arises, pronounce upon the validity or constitu tionality of laws made by the Indian Council. " It is there fore clear that the Indian Legislature in 1861 and upto 1915 was a subordinate legislature and not a sovereign legisla ture. At this stage it may again be noticed that the Govern ment was unitary and not federal. There was no distribution of legislative powers as between the Centre and the differ ent Provinces. Another important factor to be borne in mind is that while the British Parliament was supreme, its execu tive Government came into power and remained in power so long only as the Parliament allowed it to remain and the Parliament itself was not dissolved. The result is that the executive government was a part of the legislature and the legislature controlled the actions of the executive. Indeed, the legislature was thus supreme and was in a position effectively to direct the actions of the executive govern ment. In India the position was quite different if not the reverse. The Governor General was appointed by the Crown and even after the expansion of the legislative body before the Government of India Act of 1915 in numbers, it had no con trol over the executive. In respect of the Indian Legisla ture functioning prior to the Government of India Act of 1915 the control from the Secretary of State was justified on the ground that the Provincial Legislatures were but an enlargement of the executive government for the purpose of making laws and were no more than mere advisory bodies without any semblance of power. The executive Government of India was not responsible to the Indian Legislature and the composition of the Indian Legislature was such that the executive officers 762 together with the nominated members constituted the majority in the Legislature. The result was that the Legislative Council was practically a creature of the executive Govern ment of India and its functions were practically limited to registering the decrees of the executive government. It would not be wrong, according to Mr. Cowell in his lecture on "Courts and Legislative Authorities in India," to de scribe the laws made in the Legislative Councils as in reality the orders of Government. Every Bill passed by the Governor General 's Council required his assent to become an Act. The Indian Councils Act of 1892 empowered the Governor General in Council, with the approval of the Secre tary of State in Council, to make regulations as to the conditions under which nomination of the additional members should be made. The word `election ' was carefully avoided. The existence of a strong official block in the Councils was the important feature of the Act. As noticed by a writer on Indian Constitution, the Government maintained a tight and close control over the conduct of official members in the Legislature and they were not allowed to vote as they pleased. They were not expected to ask questions or move resolutions or (in some Councils) to intervene in debate without Government 's approval. Their main function was to vote to vote with the Government. However eloquent the non official speakers might talk and however reasonable and weighty their arguments might be, when the time for voting came the silent official flanks stepped in and decided the matter against them. All these factors contributed to the unreality of the proceedings in the Council because the number of elected members was small and the issue was often known beforehand. Speaking in the. House of Lords in Decem ber 1908 on the Bill which resulted in the Government of India Act of 1909, Lord Morley, the then Secretary of State for India, declared: "If I were attempting to set up a Parliamentary system in India, or if it could be said that this chapter of rules led directly or necessarily up to the establishment of a Parliamentary system in India. I for one would have 763 nothing at all to do with it . . A Parliamentary system is not at all the goal to which I would for one moment aspire. " The constitution of the Central Legislative Council under the Regulation of November, 1909, as revised in 1912, was this: Ordinary members of the Governor Gene ral 's Council, The Commander in Chief and the Lt. Governor . 8 Nominated members of whom not more than 28 must be officials . 33 Elected members, . 27 and The Governor General . 1 69 The executive government was thus supreme and was not bound to obey or carry out the mandates of the legislature. Instances where Finance Bills were rejected and other Bills were backed by the popular feeling and which decisions the Governor General overruled, are well known. The Indian Legislature was powerless to do anything in the matter. Without the consent of the executive government no Bill could be made into an Act nor an Act could be amended or repealed without its consent. The possibility of the Legis lature recalling the power given tinder an Act to the execu tive against the latter 's consent was therefore nil. Once an Act giving such power (like the ) was passed, practically the power was irrevocable. In my opinion, it is quite improper to compare the power and position of the Indian Legislature so established and functioning with the supreme and sovereign character of the British Parliament. The legislative power of the Indian Legislature came to be changed as a result of the Act of 1915 by the creation of Provincial legislatures. I do not propose to go into the details of the changes, except to the extent they are di rectly material for the discussion of the questions submit ted for the Court 's opinion, Diarchy 764 was thus created but there was no federation under the Act of 1915. Under the Government of India Act, 1935, the legis lative powers were distributed between the Central legisla ture and the Provincial legislature, each being given exclu sive powers in respect of certain items mentioned in Lists I and II of the Seventh Schedule. List III contained subjects on which it was open to the Centre or the Province to legis late and the residuary power of legislation was controlled by section 104. This Act however was still passed by the British Parliament and therefore the powers of the Indian Central legislature as well as the Provincial legislatures were capable of being altered, expanded or limited according to the desire of the British Parliament without the Indian legislature or the people of India having any voice in the matter. Even under this Act, the executive government was not responsible to the Central Legislature or the Provincial Legislature, as the case may be. I emphasize this aspect because it shows that there was no fusion of legislative and executive powers as was the case with the Constitution in England. The result of the Indian Independence Act, 1947, was to remove the authority of the British Parliament to make any laws for India. The Indian Central Legislature was given power to convert itself into a Constituent Assembly to frame a Constitution for India, including the power to amend or repeal the Government of India Act, 1935, which till the new Constitution was adopted, was to be the Constitution of the country. Even with that change it may be noticed that the executive government was not responsible to the Central Legislature. In fact with the removal of the control of the Parliament it ceased to be responsible to anyone. Under the Constitution of India as adopted on the 26th of January, 1950, the executive government of the Union is vested in the President acting on the advice of the Minis ters. A Parliament is established to make laws and a Su preme Court is established with the powers defined in dif ferent articles of the Constitution. The executive, legislative and judicial 765 functions of the Government, which have to be discharged, were thus distributed but the articles giving power to these bodies do not vest the legislative or judicial powers in these bodies expressly. Under the Constitution of India, the Ministers are responsible to the legislatures and to that extent the scheme of the British Parliament is adopted in the Constitution. While however that characteristic of the British Parliament is given to the Indian Legislature, the principal point of distinction between the British Parlia ment and the Indian Parliament remains and that is that the Indian Parliament is the creature of the Constitution of India and its powers, rights, privileges and obligations have to be found in the relevant articles of the Constitu tion of India. It is not a sovereign body, uncontrolled with unlimited powers. The Constitution of India has con ferred on the Indian Parliament powers to make laws in respect of matters specified in the appropriate places and Schedules, and curtailed its rights and powers under certain other articles and in particular by the articles found in Chapter 111 dealing with Fundamental Rights. In case of emergency where the safety of the Union of India is in danger, the President is given express power to suspend the Constitution and assume all legislative powers. Similarly. in the event of the breaking.down of the administrative machinery of a State, the President is given powers under article 257 to assume both legislative and executive powers in the manner and to the extent found in the article. There can be no doubt that subject to all these limitations and controls, within the scope of its powers and on the subjects on which it is empowered to make law% the Legislature is supreme and its powers are plenary. The important question underlying the three questions submitted for the Court 's consideration is what is described as the delegation of legislative powers. A legislative body which is sovereign like an autocratic ruler has power to do anything. It may, like a Ruler, by an individual decision, direct that a certain person may be put to death or a cer tain property may be 766 taken over by the State. A body of such character may have power to nominate someone who can exercise all its powers and make all its decisions. This is possible to be done because there is no authority or tribunal which can question the right or power of the authority to do so. The contentions urged on behalf of the President of India are that legislative power carries with it a power of delegation to any person the legislature may choose to appoint. Whether sovereign or subordinate, the legislative authority can so delegate its function if the delegation can stand three tests. (1) It must be a delegation in respect of a subject or matter which is within the scope of the legis lative power of the body making the delegation. (2) Such power of delegation is not negatived by the instrument by which the legislative body is created or established. And (3) it does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body it self. It was urged that in the ease of an unwritten consti tution, like the British Parliament there can De no affirm ative limitation or negative prohibition against delegation and therefore the power of delegation is included to the fullest extent within the power of legislation. The British Parliament can efface itself or even abdicate because it has a power to pass the next day a law repealing or annulling the previous day 's legislation. When the British Parliament established legislative bodies in India, Canada and Austra lia by Acts of the British Parliament, the legislatures so established, although in a sense subordinate, because their existence depended on the Acts of the British Parliament and which existence could be terminated or further let tered by an Act of the British Parliament, neverthe less are supreme with plenary powers of the same nature as the British Parliament, on the subjects and matters within their respective legislative authority. As the power of delegation is 767 included in the power of legislation, these legislative bodies have also, subject to the three limitations mentioned above, full power of delegation in their turn. These legis lative bodies were not agents of the British Parliament. Not being agents or delegates of the British Parliament, the doctrine delegata potestas non potest delegare cannot apply to their actions and if these legislatures delegate powers to some other authority to make rules or regulations, or authorise the executive government to enforce laws made by them or other legislatures wholly or in part and with or without restrictions or modifications, the legislatures are perfectly competent to do so. The history of legislation in England and India and the other Dominions supports this contention. It is recognised as a legislative practice and is seen in several Acts passed by the legislatures of the Dominions and in India. Such delegation of the legislative functions has been recognised over a series of years by the Judicial Committee of the Privy Council and it is too late to contest the validity of such delegation. It was lastly contended that the observations of the Federal Court in Jatindra Nath Gupta vs Province of Bihar(1), tending to show that delegation was not permissible, required to be recon sidered. Before considering these arguments in detail, I think it is essential to appreciate clearly what is conveyed by the word "delegation ' '. That word is not used, either in discus sions or even in some decisions of the courts, with the same meaning. When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. These essentials are the characteristics of a legislature by itself. It has nothing to do with the principle of division of powers found in the Constitution of the United States of America. Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, (1) 768 it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enact ments into operation and effect may be done by the legisla ture or may be left to another subordinate agency or to some executive officer. While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct. I find that the word "delega tion" is quite often used without bearing this fundamental distinction in mind. While the so called delegation, which empowers the making of rules and regulations, has been recognised as ancillary to the power to define legislative policy and formulate the rule of conduct, the important question raised by the Attorney General is in respect of the right of the legislature to delegate the legislative func tions strictly so called. In support of his contention that the legislative power of the Indian Legislature carried with it the power of delegation, the Attorney General relied on several decisions of the Judicial Committee of the Privy Council and decisions of the Supreme Court of Canada and Australia. The first is The Queen vs Burah(1). Act XXII of 1869 of the Council of the Governor General of India for making laws and regula tions was an Act to remove the Garo Hills from the jurisdic tion of the tribunals established under the General Regula tions and Acts passed by any legislature in British India and provided that "no Act hereafter passed by the Council of the Governor General for making laws and regulations shall be deemed to extend to any part of the said territory unless the same was specifically named therein. " The administration of civil and criminal justice within the said territory was vested in such officers as the Lieutenant Governor may from time to time appoint. Sections 8 and 9 of the said Act provided as follows : (1) 51. A. 178, 769 "Section 8. The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor General ,or of the said Lieutenant Governor. for making laws and regulations, and may on making such exten sion direct by whom any powers of duties incident to the provisions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation." "Section 9. The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Nags Hills, and to such portion of the Khasi Hills as for the time being forms part of British India. Every such notification shall specify the boundaries of the territories to which it applies. " The Lieutenant Governor of Bengal issued a notification in exercise of the power conferred on him by section 9 and extended the provisions of the said Act to the territory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the ordinary civil and criminal courts. By a majority judgment the Calcutta High Court decided that the said notification had no legal force or effect. In the Calcutta High Court, Mr. Kennedy, counsel for the Crown, boldly claimed for the Indian Legislative Council the power to transfer legislative functions to the Lieutenant Governor of Bengal and Markby J. framed the question for decision as follows: "Can the Legislature confer on the Lieutenant Governor legislative power?" Answer: "It is a general prin ciple of law in India that any substantial delegation of legislative authority by the Legislature of this country is void." Lord Selbourne after agreeing with the High Court that Act XXII of 1869 was within the legislative 770 power of the Governor General in Council, considered the limited question whether consistently with that view the 9th section of that Act ought nevertheless to be held void and of no effect. The Board noticed that the majority of the Judges of the Calcutta High Court based their decision on the view that the 9th section was not legislation but was a delegation of legislative power. They noticed that in the leading judgment Markby J. the principle of agency was relied upon and the Indian Legislature seemed to be regarded an agent delegate, acting under a man.date from the Imperial Parliament. They rejected this view. They observed: "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament. which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not. in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature as those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they. can properly do. so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirm ative words which give the power, and if it violates no express condition or restriction by which that power is limited . it is not for any court of justice to inquire further, or to enlarge constructively those condi tions and restrictions. "Their Lordships agree that the Governor General in Council could not, by any form of enactment, create in India and arm with general legislative authority, a new legislative power not created or authorised by the Councils Act. Nothing of that kind has, in their Lordships opinion, been done or attempted in the present case. What has been done is this. The Governor General in Council has deter mined in the 771 due and ordinary course of legislation, to remove a particu lar district from the jurisdiction of the ordinary courts and offices, and to place it under new courts and offices, to be appointed by and responsible to the Lieut. Governor of Bengal; leaving it to the Lieut. Governor to say at what time that change shall take place; and also enabling him not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, or from time to time might be, in force by proper legislative authority, in the other territories subject to his gov ernment. The legislature determined that, so far, a certain change should take place; but that it was expedi ent to leave the time and the manner of carrying it into effect to the discretion of the Lieut. Governor; and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieut. Governor. This having been done as to the Garo Hills, what was done as to the Khasi and. Jaintia Hills ? The legislature decided that it was fit and proper that the adjoining district of the Khasi and Jaintia Hills should also be removed from the jurisdiction of the existing courts and brought under the same provisions with the Garo Hills . if and when the Lieut. Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district; and accordingly the legislature entrusted for these purposes also a discretionary power to the Lieut. Governor. " The important part of the decision, dealing with the the question before them was in these terms : "Their Lordships think that it is a fallacy to speak of the 772 powers thus conferred upon the Lieut. Governor (large as they undoubtedly are) as if, when they were exercised the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor Gener al in Council. Their whole operation is directly and imme diately under and by virtue of this Act (XXI of 1869) it self. The proper legislature has exercised its judgment as to place, person, laws powers and the result of that judg ment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legisla tion is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships judgment) be well exercised, either absolutely or condition ally. Legislation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrust ed by the legislature to persons in whom it places confi dence, is no uncommon thing;and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it: and it cannot be supposed that the Imperial Parliament did not, when constituting the Indian Legislature, contemplate this kind of conditional legisla tion as within the scope of the legislative powers which is from time to time conferred. It certainly used no words to exclude it." (The italics are mine). They then mentioned by way of illustrations the power given to the Governor General in Council (not in his legislative capacity) to extend the Code of Civil Procedure and Code of Criminal Procedure by section 385, Civil Procedure Code. and section 445, Criminal Procedure Code, to different territories. They held that a different conclusion will be casting doubt upon the validity of a long series of legislation, appropriate, as far as they can judge, to the peculiar circumstances of India; great part of which belongs to the period antecedent to the year 1861, and must therefore be presumed to have been known to and in the view of, the Imperial Parliament, when the Coun cils Act of that year was passed. For such doubt their Lordships were unable 773 to discover any foundation either in the affirmative or in the negative words of the Act before them. I have quoted in extenso extracts from this judgment because it is considered the foundation for the argument advanced by the learned Attorney General. In my opinion this judgment does not support the contention as urged. The Privy Council noted the following:(1) That the Garo Hills were removed by the Act from the jurisdiction of the ordi nary courts. (2) That in respect of the Khasi and Jaintia Hills the same position had been arrived at. (:3) That the power was to be exercised over areas which, notwithstanding the Act, remained under the administrative control of the Lieut. Governor. (4) That the authority given to the Lieut. Governor was not to pass new laws but only to extend Acts which were passed by the Lieut. Governor. or the Gover nor General in respect of the Province both being competent legislatures for the area in question. He was not given any power to modify any law. (5) They rejected the view of the majority of the Judges of the Calcutta High Court that the Indian Legislature was a delegate or an agent of the British Parliament. (6) That within the powers conferred on the Indian Legislature it was supreme and its powers were as plenary and of the same nature as the British Parliament. (7) That by the legislation the Indian Parliament had not created a legislative body with all the powers which it had. (8) The objection on the ground of delegation was rejected because what was done was not delegation at all but it was conditional legislation. Throughout the judgment it is nowhere suggested that the answer of Markby J. to the ques tion framed by him (and quoted earlier in this judgment) was incorrect. (9) It emphasized that the order of the Lieut Governor derived its sanction from the Act of the Governor General and not because it was an order of the Lieut. Gover nor. (10) That in the legislation of the Governor General in Council (legislative) all that was necessary to consti tute legislation was found. This applied equally to future laws as the appropriate legislative body for the area was 774 the same. This decision therefore carefully and deliberate ly did not endorse the contention that the power of delega tion was contained in the power of legislation. The Board after affirming that what was done was no delegation at all held that the legislation was only conditional legislation. In Emperor vs Benoari Lal Sarma and others (1), the question arose about the Special Criminal Courts Ordinance 1I of 1942, issued by the Governor General under the powers vested in him on the declaration of an emergency on the outbreak of war. The validity of that Ordinance was chal lenged in India either (1) because the language of the section showed that the Governor General, notwithstanding the preamble, did not consider that an emergency existed but was making provision in case one should arise in future, or (2) else because the section amounted to what was called delegated legislation by which the Governor General without legal authority sought to pass the decision as to whether an emergency existed, to the Provincial Government instead of deciding it for himself. The relevant provision of the Government of India Act, 1935, was in these terms: "72. The Governor General may, in cases of emergency, make and promulgate ordinances for the peace and good gov ernment of British India or any part thereof, and any Ordi nance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature;but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature and may be controlled or superseded by any such Act. " In rejecting this second objection, their Lordships observed that under paragraph 72 of Schedule 9, the Gover nor General himself must discharge the duty of (I) 72 I.A. 27. 775 legislation and cannot transfer it to other authorities. But the Governor General had not delegated his legislative powers at all. After stating again that what was done was not delegated legislation at all, but was. merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity, their Lordships disagreed with the majority view of the Federal Court that what was done was delegation of legislative functions. If the power of delegation was contained in the power of legislation as wide as contended by the Attorney General, there appears no reason why the Privy Council should have rejected the argument that the Act was an act of delegation and upheld its validity on the ground that it was conditional legislation. Moreover they reaffirmed the following passage from Russell vs The Queen (1): "The short answer to this objection (against delegation of legislative power) is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority electors does not confer on these persons powers to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency." (The italics are mine). Support for this last mentioned statement was found in the decision of the Privy Council in The Queen vs Burah(2). It is clear that this decision does not carry the matter further. Even though this was a war measure the Board emphasized that the Governor General must himself discharge the duty of legislation and cannot transfer it to other authorities. They examined the impugned Act and (1) 7 App. (2) 5 I.A. 178. 776 came to the conclusion that it contained within itself the whole legislation on the matters with which it dealt and there was no delegation of legislative functions. A close scrutiny of these decisions and the observations contained therein, in my opinion, clearly discloses that instead of supporting the proposition urged by the Attorney General impliedly that contention is negatived. While the Judicial Committee has pointed out chat the Indian Legislature had plenary powers to legislate on the subjects falling within its powers and that those powers were of the same nature and as supreme as the British Parliament, they do not endorse the contention that the Indian Legislature, except that it could not create another body with the same powers as it has, or in other words, efface itself, had unlimited powers of delegation. When the argument of the power of the Indian Legislature to delegate legislative powers in that manner to subordinate bodies was directly urged before the Privy Council, in each one of their deci sions the Judicial Committee has repudiated the suggestion and held that what was done was not delegation but was subsidiary legislation or conditional legislation. Thus while the Board has reiterated its views that the powers of the Indian Legislature were "as plenary and of the same nature as the British Parliament" no one, in no case, and in no circumstances, during the last seventy years, has stated that the Indian Legislature has power of delegation (as contended in this case) and which would have been a direct, plain, obvious and conclusive answer to the argument. Instead of that, they have examined the impugned legislation in each case and pronounced on its validity on the ground that it was conditional or subsidiary legislation. The same attitude is adopted by the Privy Council in respect of the Canadian Constitution. The expressions "subsidiary" or "conditional legislation" are used to indicate that the powers conferred on the subordinate bodies were not powers of legislation but powers conferred only to carry the enact ment into operation and effect, or that the Legislature having discharged legislative functions had specified the basic conclusions of fact upon 777 ascertainment of which, from relevant data by a designated administrative agency, that body was permitted to bring the statute into operation. Even in such cases the Board has expressly pointed out that the force of. these rules, regu lations or enactments does not arise out of the decision of the administrative or executive authority to bring into operation the enactment or the rules framed thereunder. The authoritative force and binding nature of the same are found in the enactment passed by the legislature itself. Therefore, a correct reading of these decisions does not support the contention urged by the Attorney General. Some decisions of the Privy Council on appeal from the Supreme Court of Canada and some decisions of the Supreme Court of Canada, on the point under discussion, on which the learned Attorney General relied for his contention, may be noticed next. In Hodge vs The Queen(1), which was an appeal from the Court of Appeal, Ontario, Canada, a question about the validity of the Liquor Licences Act arose. After hold ing that the temperance laws were under section 92 of the British North America Act for "the good government", their Lordships considered the objection that the Imperial Parlia ment had conferred no authority on the local legislature to delegate those powers to the Licence Commissioners. In other words, it was argued that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body and by that body alone. The maxim delegata potestas non potest delegare was relied upon to support the objection. Their Lordships observed: "The objection thus raised by the appellants was founded on an entire misconception of the true character and position of the Provincial Legislatures. They are in no sense delegates of, or acting under mandate from, the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario and that its Legislative Assem bly should have exclusive authority to make laws for the Province and for Provincial purposes in relation to the matters (1) 9 App. Cas.117. 778 enumerated in section 92, it conferred powers, not in any sense to be exercised by delegation from, or as agents of, the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme and has the same authority as the Imperial Parliament, or the Parliament of the Domin ion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make byelaws or resolutions as to subjects specified the enactment, and with the object of carrying the enactment into operation and effect. It is obvious that such authority is ancillary to legislation ' and without it an attempt to provide for vary ing details and machinery to carry them out might become oppressive or absolutely fail . It was argued at the Bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its power intact and can whenever. it pleases de stroy the agency it has created and set up another or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies and how long it shall continue them are matters for the legislature and not for the courts of law to decide." (The italics are mine.) As regards the creation of new offences, their Lordships ob served that if byelaws or resolutions are warranted the power to enforce them seemed necessary and equally lawful. This case also does not help the Attorney General. It recognises only the grant of power to make regulations which are "ancillary to legislation". In In re The Initiative and Referendum Act(1), the Act of the Legislative Assembly of Manitoba was held outside the scope of section 92 of the British North America Act inas much as it rendered the Lieut Governor powerless to prevent the Act from becoming actual law, if approved by the voters, even without his consent. Their Lordships observed: "Section 92 of the (1) 779 Act of 1867 entrusts the legislative power in a Province to its legislature and to that legislature only. No doubt a body with power of legislation on the subjects entrusted to it.so ample as that enjoyed by a Provincial Legislature in Canada could, while preserving its own capacity intact, seek the assistance of subordinate agencies as had been done in Hodge vs The Queen(1), but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own exist ence. " In In re George Edwin Gray(2), the question of delega tion of powers in respect of the War Measures Act, 19 14, came for consideration. The provisions there were very similar to the Defence of India Act and the Rules made thereunder in India during the World War I. In delivering judgment Sir Charles Fitzpatrick C.J. observed as follows: "The practice of authorising administrative bodies to make regulations to carry out the object of an Act instead of setting out all the details of the Act itself is well known and its legality is unquestioned. ' ' He rejected the argument that such power cannot be granted to the extent as to enable the express provisions of a statute to be amended or re pealed, as under the Constitution, Parliament alone is to make laws under the Canadian Constitution. He observed that Parliament cannot indeed abdicate its function but within reasonable limits at any rate it can delegate its powers to the executive government. Such powers must necessarily be subject to determination at any time by Parliament. He observed: "I cannot however find anything in that Constitu tional Act which would impose any limitation on the authori ty of the Parliament of Canada to which the Imperial Parlia ment is not subject." Against the objection that such wide discretion should not be left to the executive he observed that this objection should have been urged when the regula tions were submitted to Parliament for its approval or better still when the War Measures Act was being discussed. The Parliament was the delegating authority and it was for that body to put any (1) 9 App. (2) 57 S.C.R. Canada 150. 780 limitations on the powers conferred upon the executive. He then stated: "Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country was the supreme law against which no other law can prevail. It is clearly our duty to give effect to their patriotic intentions." In the Chemical Reference case(D, Duff C.J. set out the true effect of the decision in the War Measures Act. He held that the decision of the Privy Council in the Fort Frances ' case(2) had decided the validity of the War Measures Act and no further question remained in that respect. He stated: "In In re Gray(3) was involved the principle, which must be taken in this Court to be settled, that an Order in Council in conformity with the conditions prescribed by, and the provisions of, the War Measures Act may have the effect of an Act of Parliament." The Court considered that the regu lations framed by the Governor General in Council to safe guard the supreme interests of the State were made by the Governor General in Council "who was conferred subordinate legislative authority." He stated: "The judgment of the Privy Council in the Fort Frances ' case(2), laid down the principle that in an emergency, such as war, the authority of the Dominion in respect of legislation relating to the peace, order and good government of Canada may, in view of the necessities arising from the emergency, disable or over bear the authority of the Provinces in relation to a vast field in which the Provinces would otherwise have exclusive jurisdiction. It must not however be taken for granted that every matter within the jurisdiction of the Parliament of Canada even in ordinary times could be validly committed by Parliament to the executive for legislative action in the case of an emergency. " Unlike the Indian Constitution, in the British North America Act there is no power to suspend the Constitution or enlarge the legislative powers in an emergency like war. The Courts therefore stretched the langugage of the sections to meet the emergen cy in (1) [1943] S.C.R. Canada 1. (3) [1918] 57 S.C.R, Canada 150. (2) 781 the highest interest of the country but it also emphasized that such action was not permissible in ordinary times. The War Measures Acts were thus considered by the z Supreme Court of Canada on a different footing. The question was of competence but owing to the unusual circumstances and exigencies what was stated in the legislation was considered a sufficient statement of the legislative policy. It ap pears to be thought that the same test cannot be applied in respect of legislation made in normal times, in respect of a permanent statute which is not of limited duration. The discussion in Benaori Lal Sarma 's case(1) in the judgment of the Privy Council mentioned above may be usefully noted in this connection as the legislation in that case was also a war measure but was held valid as conditional legislation. In so far as the observations in the Canadian decisions go beyond what is held in the Privy Council decisions, with respect, I am unable to agree. It appears that the word "delegation" has been given an extended meaning in some observations of the Canadian courts, beyond what is found in the Privy Council decisions. It is important to notice that in all the judgments of the Privy Council, the word "delega tion" as meaning conferment of_legislative functions strict ly, is not used at all in respect of the impugned legisla tion and has been deliberately avoided. Their validity was upheld on the ground that the legislation was either conditional or subsidiary or ancillary legislation. An important decision of the Supreme Court of Australia may be noticed next. In the Victorian Stevedoring and Gener al Contracting Company Proprietary Ltd. vs Dignan(2), the question whether delegation of legislative power was accord ing to the Constitution came to be examined by the High Court of Australia. It was argued that section 3 of the Act in question was ultra vires and void in so far as it pur ported to authorise the Governor General to make regulations which (nothwithstanding anything in any other Act) shall have (1) 72 I.A. 27. (2) 782 the force of law. In the judgment of Gavan Duffy C.J. and Starke J. it was stated: "The attack upon the Act itself was based upon the American Constitutional doctrine that no legislative body can delegate to another department of the Government or to any other authority the power either gener ally or specially to enact laws. This high prerogative has been entrusted to its own wisdom, judgment and patriotism and not to those of other persons and it will act ultra vires ii it undertakes to delegate the trust instead of executing it. (Cooley 's Principles of Constitutional Law, 3rd Edition, p. 111). Roche vs Kronheimer(1) was an authori ty for the proposition that an authority of subordinate law making may be invested in the executive. Whatever ,may be said for or against that decision I think we should not now depart from it." Mr. Justice Dixon considered the argu ment fully in these terms: "The validity of this provision is now attacked upon the ground that it is an attempt to grant to the executive a portion of the legislative power vested by the Constitution in the Parliament which is incon sistent with the distribution made by the Constitution of legislative, executive and judicial powers. In support of the rule that Congress cannot invest another organ of gov ernment with legislative power a second doctrine is relied upon in America but it has no application to the Australian Constitution. Because the powers of Government are consid ered to be derived from the authority of the people of the Union no agency to whom the people have confided a power may delegate its exercise. The well known maxim delegata potesta non potest delegare applicable to the law of agency in the general and Common Law is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private laws. No similar doc trine has existed in respect of British Colonial legisla tures, whether erected in virtue the prerogative or by Imperial Statute. It is important to observe that in Ameri ca the intrusion of the doctrines of agency into Constitu tional interpretation (1) (1921) 29 Corn. L.R. 329. 783 has in no way obscured the operation of the separation of powers. In the opinion of the Judicial Committee a general power of legislation belonging to a legislature constituted under a rigid Constitution does not enable it by any form of enactment to create and arm with general legislative authority a new legislative power not created or authorized by the instrument by which it is established. " In respect of the legislation passed during the emergency of war and where the power was strongly relied upon, Dixon J. observed: "It might be considered that the exigencies which must be dealt with under the defence power are so many, so great and so urgent and are so much the proper concern of the execu tive that from its very nature the power appears by neces sary intendment to authorise a delegation otherwise general ly forbidden to the legislature . . I think it certain that such a provision would be supported in America and the passage in Burah 's case appears to apply to it in which the Judicial Committee deny that in fact any delega tion there took place . . This does not mean that a law confiding authority to the executive will be followed, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of federal power. Nor does it mean that the distribution of powers can supply no considerations or weight affecting the validity . . It may be acknowledged that the manner in which the Constitution accomplishes the separation of power itself logically and theoretically makes the Par liament the executive repository of the legislative power of the Commonwealth. The existence in Parliament of power to authorise subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law . . Such subordinate legislation remains under Parliamentary control and is lacking in the independent and unqualified authority which is an attribute of true legisla tive power." He concludes: " But whatever it may be, we should now adhere to the interpretation 784 which results from the decision of Roche vs Kronheimer(1). This whole discussion shows that the learned Judge 12,was refuting the argument that because under the Consti tution of U.S.A. such conferment of power would be invalid it should be held invalid under the Canadian Constitution also. He was not dealing with the question raised before us. Ultimately he said that Roche vs Kronheimer(1) was conclu sive. Mr. Justice Evatt stated that in dealing with the doctrine of the separation of legislative and executive powers "it must be remembered that underlying the Common wealth frame of government there is the notion of the British system of an executive which is responsible to Parliament. That system is not in operation under the United States ' Constitution. He formulated the larger proposition that every grant by the Commonwealth Parliament of authority to make rules and regulations, whether the grantee is the executive government or some such authority, is itself a grant of legislative power. The true nature and quality of the legislative power of the Commonwealth Parlia ment involves as a part of its content power to confer law making powers upon authorities other than Parliament itself. If such power to issue binding commands may lawfully be granted by Parliament to the executive or other agencies an increase in the extent of such power cannot of itself inval idate the grant. It is true that the extent of the power granted will often be a very material circumstance in the examination of the validity of the legislation conferring the grant. " In this paragraph the learned Judge appears certainly to have gone much beyond what had been held in any previous decision but he seems to have made the observations in those terms because (as he himself had stated just previ ously) in his view every conferment of power whether it was by conditional legislation or ancillary legislation was a delegation of legislative power. He concluded however as follows:"On final analysis therefore the (1) (1921) 29 Corn. L.R. 329. 785 Parliament of the Commonwealth is not competent to abdicate its powers of legislation. This is not because Parliament is bound to perform any or all of its legislative powers or functions for it may elect not to do so and not because the doctrine of the separation of powers prevents Parliament from granting authority to other bodies to make laws or byelaws and thereby exercise legislative power for it does so in almost every statute but because each and every one of the laws passed by Parliament must answer the description of law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gives all its lawmaking authority to another body would be bad merely because it would fail to pass the test last mentioned. "Read properly, these judgments therefore do not support the contention of the learned Attorney General. The decisions of the Privy Council on appeal from Canada do not carry the matter further. In the judgments of the two decisions of the Supreme Court of Canada and the deci sion of the Supreme Court of Australia there are observa tions which may appear to go beyond the limit mentioned above. These observations have to be read in the light of the facts of the case and the particular regulation or enactment before the court in each case. These decisions also uniformly reiterate that the legislature must perform its functions and cannot leave that to any other authority. Moreover the word "delegation" as stated by Evatt J. in his judgment is understood by some Judges to cover what is described as subsidiary or conditional legislation also. Therefore because at some places in these judgments the word "delegation" is used it need not be assumed that the word necessarily means delegation of legislative functions, as understood in the strict sense of the word. The actual decisions were on the ground that they were subordinate legislation or conditional legislation. Again, in respect of the Constitutions of the Dominions of Canada and Austra lia I may observe that the legislatures of those Dominions were not packed, as in India, and their Constitution was 786 on democratic lines. The principle of fusion of powers between the Legislature and Executive can well be considered in operation in those Dominions, while as I have pointed out above there was no such fusion at all so far as the Indian Constitution in force till 1935 was concerned. Conclusions therefore based on the fusion of legislative and executive powers are not properly applicable to the Indian Constitu tion. In my opinion therefore to the extent the observa tions in the Canadian and Australian decisions go beyond what is clearly decided by the Privy Council in respect of the Indian Legislature, they do not furnish a useful guide to determine the powers of the Indian Legislature to dele gate legislative functions to administrative or executive authorities. The Canadian and Australian Constitutions are both based on Acts of the British Parliament and therefore are crea tures of written instruments. To that extent they are rigid. Moreover in the Australian Constitution in distribut ing the powers among the legislative and executive authori ties, the word "vest" is used as in the Constitution of the U.S.A. To that extent the two Constitutions have common features. There is however no clear. separation of powers between the legislature and executive so as to be mutually and completely exclusive and there is fusion of power so that the Ministers are themselves members of the legisla ture. Our attention was drawn to several decisions of the Supreme Court of the United States of America mostly to draw a distinction between the legislative powers of the Congress in the United States of America and the legislative powers of the legislature under Constitutions prepared on the British Parliament pattern. It was conceded that as the Constitution itself provided that the legislative and execu tive powers were to vest exclusively in the legislature and the executive authority mentioned in the Constitution, it was not permissible for one body to delegate this authority and functions to another body. It may be noticed that several decisions of the Supreme Court of U.S.A, 787 are based on the incompetence of the delegate to receive the power sought to be conferred on it. Its competence to function as the executive body is expressly set out in the Constitution, and it has been thought that impliedly the Constitution has thereby prevented such body from receiving from the legislative body other powers. In view of my final conclusion I shall very briefly notice the position accord ing to the U.S.A. Constitution. In Crawford on Statutory Construction, it is stated as follows: "So far however as the delegation of any power to an executive official or Administrative Board is concerned, the legislature must declare the policy of the law and fix the legal principles which are to control in given cases and must provide a standard to guide the official or the ,Board empowered to execute the law. This standard must not be too indefinite or general. It may be laid down in broad general terms. It is sufficient if the legislature will lay down an intelligible principle to guide the executive or administra tive official . From these difficult criteria it is apparent that the Congress exercises considerable liberali ty towards upholding legislative delegations if a standard is established. Such delegations are not subject to the objection that the legislative power has been unlawfully delegated. The filling in mere matters of details within the policy of, and according to, the legal principles and stand ards, established by the Legislature, is essentially minis terial rather than legislative in character, even ' if considerable discretion is conferred upon the delegated authority. " In Hampton & Co. vs United States(1), Taft C.J. ob served: "It is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President or to the judicial branch or if by law it attempts to invest itself or its members with either execu tive or judicial power. This is not to say that the three branches are not co ordinate parts of one Government and that each in the field of duties (1) ; , 406 & 407. 788 may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch . The field of Congress involves all and many varieties of legislative action and Congress has found it frequently necessary to use officers of the executive branch within defined limits to secure the exact effect intended by its act of legislation by vesting discretion in such officers to make public regulations, interpreting a statute and direct ing the details of its executive even to the extent of providing for penalizing a preach of such regulations . . Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an executive. " He agreed with the often cited passage from the judgment of Ranny J. of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. vs Clin ton County Commissioners (1), viz., "The true distinction therefore is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. " In Locke 's Appeal(2), it. is slated: "The proper dis tinction is this. The legislature cannot delegate its power to make a law but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which useful legislation must depend, which cannot be known to the law making power, and must therefore be a subject of enquiry and determination outside the halls of legislature." In Panama Refining Co. vs Ryan (s), it was observed by Hughes C.J. "The Congress is not permitted to (1) (3) ; (2) , 789 abdicate or transfer to others the essential legislative functions with which it is vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the National Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibil ity and practicality which will enable it to perform its function in laying down policies and establish standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the policy as declared by the legislature is to apply. Without capacity to give authori sations of that sort we should have the anomaly of a legis lative power which in many circumstances calling for its exertion would be but a futility but the constant recogni tion of the necessity and validity of such provisions and the wide range of administrative authority which has been declared by means of them cannot be allowed to obscure the limitations of the authority to delegate if our constitu tional system is to be maintained. Similarly, in Schechter vs United States (1), it is stated: "So long as the policy is laid down and standard established by a statuten no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the policy as declared by the legislature is to apply. " The complexity of this question of delegation of power and the consideration of the various decisions in which its application has led to the support or invalidation of Acts has been somewhat aptly put by Schwartz on American Adminis trative Law. After quoting from Wayman vs Southend (2) the observations of Marshall C.J. that the line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself from those of less interest in which a general provision may be made and power given to those who are to (1) (2) ; U.S. 1825. 790 act under such general provision to fill up details, the author points out that the resulting judicial dilemma, when the American courts finally were squarely confronted with delegation cases, was resolved by the judicious choice of words to describe the word "delegated power". The authority transferred was, in Justice Holmes ' felicitous phrase, "softened by a quasi", and the courts were thus able to grant the fact of delegated legislation and still to deny the name. This result is well put in Prof. Cushman 's syllo gism: "Major premise: Legislative power cannot be constitu tionally delegated by Congress. Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commis sions. Conclusions: Therefore the powers thus delegated are not legislative powers. They are instead administrative or quasi legislative powers. ' ' It was argued on behalf of the President that the legis lative practice in India for over eighty years has recog nised this kind of delegation and as that is one of the principles which the court has to bear in mind in deciding the validity of Acts of the legislature, this Court should uphold that practice. In support of this contention a sched ule annexed to the case filed on behalf of the President, containing a list of Acts, is relied upon. In my opinion, out of those, the very few Acts which on a close scrutiny may be cited as instances, do not establish any such prac tice. A few of the instances can be supported as falling under the description of conditional legislation or subsid iary legislation. I do not discuss this in greater detail because unless the legislative practice is overwhelmingly clear, tolerance or acquiescence in the existence of an Act without a dispute about its validity being raised in a court of law for some years cannot be considered binding, when a question about the validity of such practice is raised and comes for decision before the Court. In my opinion, there fore; this broad 791 contention of the Attorney General that the Indian Legisla ture prior to 1935 had power to delegate legislative func tions in the sense contended by him is neither supported by judicial decisions nor by legislative practice. A fair and close reading and analysis of all these decisions of the Privy Council, the judgments of the Supreme Courts of Canada and Australia without stretching and straining the words and expressions used therein lead me. to the conclusion that while a legislature, as a part of its legislative functions, can confer powers to make rules and regulations for carrying the enactment into operation and effect, and while a legislature has power to lay down the policy and principles providing the rule of conduct, and while it may further provide that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is de scribed as conditional legislation, the power to delegate legislative functions generally is not warranted under the Constitution of India at any stage. In cases of emergency, like war where a large latitude has to be necessarily left in the matter of enforcing regulations to the executive, the scope of the power to make regulations is very wide, but. in those cases the suggestion that there was delega tion of "legislative functions" has been repudiated. Simi larly, varying according to the necessities of the case and the nature of the legislation, the doctrine of conditional legislation or subsidiary legislation or ancillary legisla tion is equally upheld under all the Constitutions. In my opinion, therefore, the contention urged by the learned Attorney General that legislative power carries with it a general power to delegate legislative functions, so that the legislature may not define its policy at all and may lay down no rule of conduct but that whole thing may be left either to the executive authority or administrative or other body, is unsound and not supported by the authorities on which he relies. I do not think that apart from the sover eign character of 792 the British Parliament which is established as a matter of convention and whose powers are also therefore absolute and unlimited, in any legislature of any other country such general powers of delegation as claimed by the Attorney General for a legislature, have been recognised or permit ted. It was contended by the learned Attorney General that under the power of delegation the legislative body cannot abdicate or efface itself. That was its limit. It was argued that so long as the legislature had power to control the actions of the body to which power was delegated, that so long as the actions of such body were capable of being revoked there was no abdication or effacement. In support of this argument some reliance was placed on certain obser vations in the judgments of the Privy Council in the cases mentioned above. It should be noticed that the Board was expressing its views to support the conclusion that the particular piece of legislation under consideration was either a conditional legislation or that the legislation derived its force and sanction from what the legislature had done and not from what the delegate had done. I do not think that those observations lead to the conclusion that up to that limit legislative delegation was permitted. The true test in respect of ' 'abdication" or "effacement" appears to be whether in conferring the power to the delegate, the legislature, in the words used to confer the power, retained its control. Does the decision of the delegate derive sanc tion from the act of the delegate or has it got the sanction from what the legislature has enacted and decided ? Every power given to a delegate can be normally called back. There can hardly be a case where this cannot be done because the legislative body which confers power on the delegate has always the power to revoke that authority and it appears difficult to visualize a situation in which such power can be irrevocably lost. It has been recognised that a legisla tive body established under an Act of the British Parliament by its very establishment has not the right to create anoth er legislative body with the same junctions and 793 powers and authority. Such power can be only in the British Parliament and not in the legislature established by an Act of the British Parliament. Therefore, to say that the true test of effacement is that the authority which confers power on the subordinate body should not be able to withdraw the power appears to be meaningless. In my opinion, therefore, the question whether there is "abdication" and "effacement" or not has to be decided on the meaning of the words used in the instrument by which the power is conferred on the au thority. Abdication, according to the Oxford Dictionary, means abandonment, either formal or virtual, of sovereignty. Abdication by a legislative body need not necessarily amount to a complete effacement of it. Abdication may be partial or complete. When in respect of a subject in the Legisla tive List the legislature says that it shall not legislate on that subject but would leave it to somebody else to legislate on it, why does it not amount to abdication or effacement ? If full powers to do anything and everything which the legislature can do are conferred on the subordi nate authority, although the legislature has power to control the action of the subordinate authority, by recall ing such power or repealing the Acts passed by the subordi nate authority, the power conferred by the instrument, in my opinion, amounts to an abdication or effacement of the legislature conferring such power. The power to modify an Act in its extension by the order of the subordinate authority has also come in for considera ble discussion. Originally when power was conferred on the subordinate authority to apply existing legislation to specified areas it was given only to apply the whole or a portion thereof. That power was further expanded by giving a power to restrict its application also. In the next stage power was given to modify "so as to adapt the same" to local conditions. It is obvious that till this stage the clear intention was that the delegate on whom power was con ferred was only left with the discretion to apply what was Considered suitable, as a whole or in part, 794 and to make adaptations which became necessary because of local conditions and nothing more. Only in recent years in some Acts power of modification is given without any words of limitation on that power. The learned Attorney General contended that the word "modify" according to the Oxford Dictionary means to limit, restrain, to assuage, to make less severe, rigorous, or decisive ;to tone down. " It is also given the meaning "to make partial changes in;to alter without radical transformation." He therefore contended that if the done of the power exceeded the limits of the power of modification beyond that sense, that would be exceeding the limits of the power and to that extent the exercise of the power may be declared invalid. He claimed no larger power under the term "modification. " On the other hand, in Rowland Burrows ' "Words and Phrases ", the word "modify" has been defined as meaning" vary, extend or enlarge, limit or restrict. " It has been held that modification implies an alteration. It may narrow or enlarge the provisions of the former Act. It has been pointed out that under the powers conferred by the , the Central Government has extended the application of the Bombay Debtors ' Relief Act to Delhi. The Bombay Act limits its application to poor agriculturists whose agricultural income is less than Rs. SO0. Under the power of modification conferred on it by the , the Central Government has removed this limit on the income, with the result that the principles, policy and machinery to give relief to poor peasants or agriculturists with an income of less than Rs. 500 is made applicable in Delhi to big landowners even with an income of 20 lakhs. This shows how the word ' 'modification" is understood and applied by the Central Government and acqui esced in by the Indian Legislature. I do not think such power of modification as actually exercised by the Central Government is permitted in law. If power of modification so understood is permitted, it will be open to the Central Legislature in effect to change the whole basis of the legislation and the reason for making the 795 law. That will be a complete delegation of legislative power, because in the event of the exercise of the power in that manner the Indian legislature has not applied its mind either to the policy under which relief should be given nor the class of persons, nor the circumstances nor the machin ery by which relief is to be given. The provisions of the Rent Restriction Act in different Provinces are an equally good example to show how dangerous it is to confer the power of modification on the executive government. Having considered all the decisions which were cited before us and giving anxious consideration to the elaborate and detailed arguments advanced by the learned Attorney General in the discussion of this case, I adhere to what I stated in Jatindra Nath Gupta 's case(1) that the power of delegation, in the sense of the legislature conferring power, on either the executive government or another author ity, "to lay down the policy underlying a rule of conduct" is not permitted. The word "delegation ", as I have pointed out, has been somewhat loosely used in the course of discus sion and even by some Judges in expressing their views. As I have pointed out throughout the decisions of the Privy Council the word "delegation" is used so as not to cover what is described as conditional legislation or subsidiary or ancillary legislation, which means the power to make rules and regulations to bring into operation and effect the enactment. Giving "delegation" the meaning which has always been given to it in the decisions of the Privy Council, what I stated in Jatindra Nath Gupta 's case, as the legisla ture not having the power of delegation is, in my opinion, correct. Under the new Constitution of 1950, the British Parlia ment, i.e. an outside authority, has no more control over the Indian Legislature. That Legislature 's powers are de fined and controlled and the limitations thereon prescribed only by the Constitution of India. But the scope of its legislative power has not become (1) 796 enlarged by the provisions found in the Constitution of India. While the Constitution creates the Parliament and although it does not in terms expressly vest the legislative powers in the Parliament exclusively, the whole scheme of the Constitution is based on the concept that the legisla tive functions of the Union will be discharged by the Par liament and by no other body. The essential of the legisla tive functions, viz., the determination of the legislative policy and its formulation as a rule of conduct, are still in the Parliament or the State Legislatures as the case may be and nowhere else. I take that view.because of the provi sions of article 357 and article 22 (4) of the Constitution of India. Article 356 provides against the contingency of the failure of the constitutional machinery in the States. On a proclamation to that effect being issued, it is provid ed in article 357 (1) (a) that the power of the legislature of the State shall be exercisable by or under the authority of the Parliament, and it shall be competent for the Parlia ment to confer on the President the power of the legislature of the State to make laws "and to authorise the President to delegate, subject to such conditions as he may think fit to impose. the powers so conferred to any other authority to be specified by him in that behalf. " Sub clause (b) runs as follows : " For Parliament, or for the President or other authority in whom such power to make laws is vested under sub cl. (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and author ities thereof. " It was contended that on the breakdown of such machinery authority had to be given to the Parliament or the President, firstly, to make laws in respect of sub jects on which the State Legislature alone could otherwise make laws and, secondly, to empower the Parliament or the President to make the executive officers of the State Gov ernment to act in accordance with the laws which the Parlia ment or the President may pass in such emergency. It was argued that for this purpose the word "to delegate" is used. I do not think this argument is sound. Sub clause (2) re lates to the power 797 of the President to use the State executive officers. But under clause (a) Parliament is given power to confer on the President the power of the legislature of the State to make laws. Article 357 (1) (a) thus expressly gives power to the Parliament to authorise the President to delegate his legis lative powers. If powers of legislation include the power of delegation to any authority there was no occasion to make this additional provision in the article at all. The word ing of this clause therefore supports the contention that normally a power of legislation does not include the power of delegation. Article 22 (4) again is very important in this connec tion. It deals with preventive detention and provides that no law shall be valid which will permit preventive detention of a person for a period over three months, unless the conditions laid down in article 22 (4) (a) are complied with. The exception to this is in respect of an Act of the Parliament made on the conditions mentioned in article 22 (4) (b). According to that, the Parliament has to pass an Act consistently with the provisions of article 22 (7). The important point is that in respect of this fundamental right given to a person limiting the period of his detention up to three months, an exception is made in favour of the Parlia ment by the article. It appears to me a violation of the provisions of this article on fundamental rights to suggest that the Parliament having the power to make a legislation within the terms of article 22(7) has the power to delegate that right in favour of the executive government. In my opinion, therefore the argument that under the Constitution of 1950 the power of legislation carries with it the power of delegation, in the larger sense, as contended by the Attorney General cannot be accepted. Having regard to the position of the British Parliament, the question whether it can validly delegate its legislative functions cannot be raised in a court of law. Therefore from the fact that the British Parliament has delegated legisla tive powers it does not follow. that the power of delegation is recognised in law as necessarily included in the power of legislation, Although 798 in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. Is it then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making laws is primarily cast on the legislatures ? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies, executive or judicial, are not intended to discharge legislative functions ? I am unable to read the decisions to which our attention has been drawn as laying down that once a legislature observes the procedure prescribed for passing a bill into an Act, it becomes a valid law, unless it is outside the Legislative Lists in the Seventh Schedule prescribing its respective powers. I do not read articles 245 and 246 as covering the question of delegation of legislative powers. In my opinion, on a true construction of articles 245 and 246 and the Lists in the Seventh Schedule, construed in the light of the judicial decisions mentioned above, legislation delegating legislative powers on some other bodies is not a law on any of the subjects or entries mentioned in the Legislative Lists. It amounts to a law which states that instead of the legislature passing laws on any subject covered by the entries, it confers on the body mentioned in the legislation the power to lay down the policy of the law and make a rule of conduct binding on the persons covered by the law. As a result of considering all these decisions together it seems to me that the legislature in India, Canada, Aus tralia and the U.S.A. has to discharge its legislative functions, i.e., to lay down a rule of conduct. In doing so it may, in addition, lay down conditions, or state facts which on being fulfilled or ascertained according to the decision of another body or the executive authority, the legislation may become applicable to a particular area. This is described as conditional legislation. The legislature may also, in laying down the rule of conduct, express itself generally if the conditions and circumstances so require. The extent of the 799 specific and detailed lines of the rule of conduct to be laid down may vary according to the circumstances or exigen cies, of each case. The result will be that if, owing to unusual circumstances or exigencies, the legislature does not choose to lay down detailed rules or regulations, that work may be left to another body which is then deemed to have subordinate legislative powers. Having regard to the distinction noticed above between the power of delegation of legislative functions and the authority to confer powers which enables the donee of the power to make regulations or rules to bring into effect or operation the law and the power of the legislature to make conditional legislation, I shall proceed to consider the three specific questions mentioned in the Reference. It may be noticed that occasions to make legislation of the type covered by the three sections mentioned in the three ques tions began in the early stages of the occupation of India where small bits of territories were acquired and in respect of which there was no regular legislative body. It was thought convenient to apply to these small areas laws which were made by competent ' legislature in contiguous areas. That practice was adopted to avoid setting up a separate, sometimes inconvenient and sometimes costly, machinery of legislation for the small area. Nor might it have been considered possible for the Governor General in Council to enact laws for the day to day administration of such bits of territory or for all their needs having regard to different local conditions. As local conditions may differ to a cer tain extent, it appears to have been considered also conven ient to confer powers on the administrator to apply the law either in whole or in part or to restrict its operation even to a limited portion of such newly acquired area. This aspect of legislation is prominently noticed in Act XXII of 1869 discussed in The Queen vs Burah(1). Under section 22 of the Indian Councils Act of 1861, the Governor General in Council was given power to make laws for all persons and for all places and things whatever within British India. The Province of Delhi was carved out of the Province of Punjab and was put (1) 5 I.A. 178. 800 under a Chief Commissioner and by section 2 of the the laws in force in the Punjab continued to be operative in the newly created Province of Delhi. The Province of Delhi had not its legislative body and so far as this Chief Commissioner 's Province is concerned it is not disputed that the power to legislate was in the Governor General in Council in his legislative capacity. The first question as worded has to be answered according to the powers and position of the legislature in 1912. Section 7 of the enables the Government (executive) to extend by notification with such restrictions and modifica tions as it thinks fit, to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India, at the date of such notification, i.e., a law which was in force not necessarily in the Province of Punjab only, from which the Province of Delhi was carved out, but any Central or provincial law in force in any Province. Again, the Government is given power to extend any such law with such restrictions and modifications as it thinks fit. Moreover it enables the Provincial Government to extend an Act which is in force "at the date of such notification. " Those words therefore permit extension of future laws which may be passed either by the Central or any Provincial legis lature, also with such restrictions and modifications as the Provincial Government may think fit. At this stage, sections 8 and 9 of Act XXII of 1869 under which powers were given to the Lieut. Governor in The Queen vs Burah(1) may be com pared. They permitted the extension of Acts which were or might be made by the Governor General in Council (legisla tive) or the Lieut. Governor, both of whom were the competent legislative authorities for the whole area under the admin istrative jurisdiction of the Lieut. Governor. The power was confined to extend only those Acts, over the area specified in Act XXII of 1869, although that area was declared by Act XXII of 1869 as not subject to the laws of the Province, unless the area was specifically mentioned in the particular Act. On (1) 5 I.A. 178. 801 the authority of that decision therefore, so far as section 7 of the gives power to the executive (Cen tral) Government to extend Acts passed by the Central Legis lature to the Province of Delhi, the same may be upheld. The question then remains in respect of the power of the executive government to extend Acts of other Provincial legislatures (with or without restrictions or modifications) to the Chief Commissioner 's Province. It is obvious that in respect of these Acts the Central Legislature has not ap plied its mind at all. It has not considered whether the Province of Delhi requires the rule of conduct laid down in those Acts, as necessary or beneficial for the welfare of the people of the Province or for its government. They are passed by other Provincial legislatures according to their needs and circumstances. The effect of section 7 of the therefore in permitting the Central Govern ment to apply such Provincial Acts to the Province of Delhi is that, instead of the Central Legislature making up its mind as to the desirability or necessity of making laws on certain subjects in respect of the Province of Delhi, that duty and right are conferred on the executive government. For example, the question whether a rent act, or an excise act, or what may be generally described as a prohibition act, or a debt relief act is desirable or necessary, as a matter of policy for the Province of Delhi is not considered and decided by the Central Legislature which, in my opinion, has to perform that duty, but that duty and function without any reservation is transferred over to the executive govern ment. Section 7 of the thus contains an entirely different quality of power from the quality of power conferred by sections 8 and 9 of Act XXII of 1869. All the decisions of the Privy Council unequivocally affirm that it is not competent for the Indian Legislature to create a body possessing the same powers as the Central Legislature itself. It is stated that the legislature cannot efface itself. One may well ask, if section 7 of the has done 802 anything else. The Privy Council decisions emphasize two aspects in respect of this question. The first is whether the new body is empowered to make laws. The second is, does the sanction flow from the legislation made by the legisla ture or from the decision of the newly created body. As regards the first, it is obvious that in principle there is no difference if the newly created body itself writes out on a sheet of paper different sections of an Act or states that the Act will be what is written or printed on another clear ly identifiable paper. Therefore if such new body says that the law in Delhi will be the same as Bombay or Madras Act so and so of such and such year it has made the law. Moreover it may be remembered that in doing so the new body may re strict or modify the provisions of such Act also. On the second aspect the sanction flows clearly from the notifica tion of the newly created body that Bombay or Madras Act so and so with such modifications as may be mentioned, will be the law. That has not been the will or decision of the legis lature. The legislature has not applied its mind and said "Bombay Act . . . is the law of this Province". In my opinion, it is futile to contend that the sanction flows from the statement of the legislature that the law will be what the newly created body decides or specifies, for that statement only indicates the new body and says that we confer on it power to select a law of another province. The illustrations of the extension of the Civil and Criminal Procedure Codes, mentioned in the judgment in The Queen vs Burah(1) have to be considered along with the fact that at that time the Governor General in Council, in its legislative capacity, had power of legislation over the whole of India on all subjects. The Civil and Criminal Procedure Codes were enacted by the Central Legislature and it could have made the same applicable at once to the whole of India. But having passed the laws, it laid down a condi tion that its application may be referred to certain areas until the particular Provincial Government (executive) considered it convenient for these Codes to be made (1) 5 I.A. 178, 803 applicable to its individual area. A Provincial Govern ment, e.g., of Bombay, was not empowered to lay down any policy in respect of the Civil Procedure Code or the Crimi nal Procedure Code nor was it authorised to select, if it liked, a law passed by the Legislature of Madras for its application to the Province of Bombay. If it wanted to do so, the Legislature of the Province of Bombay had to exer cise its judgment and decision and pass the law which would be enforceable in the Province of Bombay. It may be noticed that the power to extend, mutatis mutandis, the laws as contained in sections 8 and 9 of Act XXII of 1869 brings in t.he idea of adaptation by modification, but so far only as it is necessary for the purpose. In my opinion, therefore, to the extent section 7 of the permits the Central executive government to apply any law passed by a Provincial legislature to the Province of Delhi, the same is ultra vires the Central Legislature. To that extent the Central Legislature has abdicated its functions and there fore the Act to the extent is invalid. Question 2 relates to Ajmer Merwara (Extension of Laws) Act. Till the Government of India Act, 1915, there was unitary government in India. By the Act of 1915, Provincial legislatures were given powers of legislation but there was no distribution of legislative powers between the Centre and the Provinces. That was brought about only by the Govern ment of India Act, 1935. Section 94 of that Act enumerates the Chief Commissioner 's Provinces. They include the Prov inces of Delhi and Ajmer Merwara. Under sections 99 and 100 there was a distribution of legislative powers between Provinces and Centre, but the word "Province" did not in clude a Chief Commissioner 's Province and therefore the Central Legislature was the only law making authority for the Chief Commissioner 's Provinces. The Ajmer Merwara Act was passed under the Government of India Act as adapted by the Indian Independence Act. Although by that Act the control of British Parliament over the Government of India 804 and the Central Legislature was removed, the powers of the Central Legislature were still as those found in the Govern ment of India Act, 1935. The Independence Act therefore made no difference on the question whether the power of delega tion was contained in the legislative power. The result is that to the extent to which section 7 of the is held ultra vires, section 2 of the Ajmer Merwara Act, 1947, should also be held ultra vires. This brings me to Question 3. section 2 of the Part C States (Laws) Act, 1950, is passed by the Indian Parliament. Under article 239 of the Constitution of India, the powers for the administration of Part C States are all vested in the President. Under article 240 the Parliament is empowered to create or continue for any State specified in Part C, and administered through a Chief Commissioner or Lieutenant Governor; (a) a body whether nominated or elected or partly nominated or partly elected, to function as a legislature for the State, or (b) a Council of Advisers or Ministers. It is common ground that no law creating such bodies has been passed by the Parliament so far. Article 246 deals with the distribution of legislative powers between the Centre and the States but Part C States are outside its operation. Therefore on any subject affecting Part C States, Parliament is the sole and exclusive legislature until it passes an Act creating a legislature or a Council in terms of article 240. Proceeding on the footing that a power of legislation does not carry with it the power of delegation (as claimed by the Attorney General), the question is whether section 2 of the Part C States (Laws) Act is valid or not. By that section the Parliament has given power to the Central Government by notification to extend to any part of such State (Part C State), with such restrictions and modifications as it thinks fit, any enactment which is in force in Part A State at the date of the.notification. The section although framed on the lines of the and the Ajmer Merwara Act is restricted in 805 its scope as the executive government is empowered to extend only an Act which is in force in any of the Part A States. For the reasons I have considered certain parts of the two sections covered by Questions 1 and 2 ultra rites, that part of section 2 of the Part C States (Laws) Act, 1950, which empowers the Central Government to extend laws passed by any Legislature of Part A State, will also be ultra vires. To the extent the Central Legislature or Parliament has passed Acts which are applicable to Part A States, there can be no objection to the Central Government extending, if necessary, the operation of those Acts to the Province of Delhi, be cause the Parliament is the competent legislature for that Province. To the extent however the section permits the Central Government to extend laws made by any legislature of Part A State to the Province of Delhi, the section is ultra vires. In view of my conclusion in respect of the first part of section 2 of the Part C States (Laws) Act, 1950, I do not think it necessary to deal with separately the other part of the section relating to the power to repeal or amend a corresponding law for the time being applicable to that Part C State. Before concluding, I must record the appreciation of the Court in the help the learned Attorney General and the counsel appearing in the Reference have rendered to the Court by their industry in collecting all relevant materials and putting the same before the Court in an extremely fair manner. My answers to the questions are that all the three sections mentioned in the three questions are ultra vires the Legislatures, functioning at the relevant dates, to the extent power is given to the Government (executive) to extend Acts other than Acts of the Central Legislature as mentioned in the judgment. FAZL ALI J. The answer to the three questions which have been referred by the President under article 143 of the Constitution of India, depends upon the proper answer to another question which was the 806 subject of very elaborate arguments before us and which may be stated thus: Can a legislature which is sovereign or has plenary powers within the field assigned to it, delegate its legislative functions to an executive authority or to anoth er agency, and, if so. to what extent it can do so ? In dealing with this question, three possible answers may be considered. They are : (1) A legislature which is sovereign in a particular field has unlimited power of delegation and the content of its power must necessarily include the power to delegate legislative functions; (2) Delegated legislation is permissible only within certain limits; and (3) Delegated legislation is not permissible at all by reason of certain principles of law which are wellknown and well recognised. I will first consider the last alternative, but I should state that in doing so I will be using the expressions, "delegated legislation," and "delegation of legislative authority," in the loose and popular sense and not in the strict sense which I shall explain later. One of the principles on which reliance was placed to show that legislative power cannot be delegated is said to be embodied in the well known maxim, delegatus non potest delegare, which in simple language means that a delegated authority cannot be redelegated, or, in other words, one agent cannot lawfully appoint another to perform the duties of agency. This maxim however has a limited application even in the domain of the law of contract or agency wherein it is frequently invoked and is limited to those cases where the contract of agency is of a confidential character and where authority is coupled with discretion or confidence. Thus, auctioneers, brokers, directors, factors, liquidators and other persons holding a fiduciary position have generally no implied authority to employ deputies or sub agents. The rule is so stated in Broom 's Legal Maxims, and many other books, and it is also stated that in a number of cases the authority to employ 807 agents is implied. In applying the maxim to the act of a legislative body, we have necessarily to ask "who is the principal and who is the delegater" In some cases where the question of the power of the Indian or a colonial legisla ture came up for consideration of the courts, it was sug gested that such a legislature was a delegate of the British Parliament by which it had been vested with authority to legislate. But this view has been rightly repelled by the Privy Council on more than one occasion, as will appear from the following extracts from two of the leading cases on the subject: "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of course do nothing beyond the limits which circum scribe these powers. But when acting within those limits it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself. " Reg. vs Burah (1). "It appears to their Lordships, however, that the objec tion thus raised by the appellants is founded on an entire misconception of the true character and position of the Provincial Legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a Legislature for Ontario, and that its Legislative Assembly should have exclusive authority to make laws for the Province and for Provincial purposes in relation to the matters enumerated in section 92, it conferred powers, not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample, within the limits prescribed by section 92, as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and areas the Local Legislature is supreme, and has the same authority as the Imperial Parliament.": Hodge vs The Queen (2). (1) 3 App. (2) 9 App. 117. 808 It has also been suggested by some writers that the legislature is a delegate of the people or the electors. This view again has not been accepted by some constitutional writers, and Dicey dealing with the powers of the British Parliament with reference to the Septennial Act, states as follows : "That Act proves to demonstration that in a legal point of view Parliament is neither the agent of the electors nor in any sense a trustee for its constituents. It is legally the sovereign legislative power in the state, and the Sep tennial Act is at once the result and the standing proof of such Parliamentary sovereignty." (1) The same learned author further observes: "The Judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the elec tors." (2) There can be no doubt that members of a legislature represent the majority of their electors, but the legisla ture as a body cannot be said to be an agency of the elec torate as a whole. The individual members may and often do represent different parties and different shades of opinion, but the composite legislature which legislates, does so on its own authority or power which it derives from the Consti tution, and its acts cannot be questioned by the electorate, nor can the latter withdraw its power to legislate on any particular matter. As has been pointed out by Dicey, "the sole legal right of electors under the English Constitution is to elect members of Parliament. Electors have no legal right of initiating, of sanctioning, or of repealing the legislation of Parliament." (3) It seems to me therefore that it will not be quite accurate to say that the legislature being an agent of (1) Dicey 's:"Law of the Constitution", 8th edn., p. 45. (2) Ibid, p. 72. (3) Dicey 's "Law of the Constitution", 8th edn., p. 57. 809 its constituents, its powers are subject to the restrictions implied in the Latin maxim referred to. I shall however advert to this subject again when I deal with another principle which is somewhat akin to the principle underlying the maxim. The second principle on which reliance was placed was said to be founded on the well known doctrine of "separation of powers. " It is an old doctrine which is said to have originated from Aristotle, but, as is well known, it was given great prominence by Locke and Montesquieu. The doc trine may be stated in Montesquieu 's own words: "In every government there are three sorts of power, the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law . When the legislative and the executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may rise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judi ciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to abritrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There should be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolu tions, and of trying the causes of individuals. "(1) The doctrine found many enthusiasts in America and was virtually elevated to a legal principle in that country. Washington, in his farewell address, said : "The spirit of enroachment tends to consolidate the powers of all governments in one, and thus to (1) Montesquieu 's Spirit of Laws, Vol. 1 by J. V. Pritchard, 1914 edn, pp. 162 3. 810 create, whatever the form of government, a real despotism." John Adams wrote on similar lines as follows:" It is by balancing one of these three powers against the other two that the efforts in human nature toward tyranny can alone be checked and restrained and any degree of free dom preserved." (1) These sentiments are fully reflected in the Constitu tions of the individual States as well as in the Federal Constitution of America. Massachusetts in her Constitution, adopted in 1780, provided that "in the govern ment of this commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise legislative and judicial powers or either of them; the judicial shall never exercise legislative and executive powers or either of them; to the end that it may be a government of laws and not of men. "(2) The Constitutions of 39 other States were drafted on similar lines, and so far as the Federal Constitution of the United States was concerned, though it does not express ly create a separation of governmental powers, yet from the three articles stating that the legislative power vests in Congress, the judicial power in the Supreme Court and the executive power in the President, the rule has been deduced that the power vested in each branch of the Government cannot be vested in any other branch. nor can one branch interfere with the power possessed by any other branch. This rule has been stated by Sutherland J. in Springer vs Government of the Philiipine Islands(s) in these words : "It may be stated then, as a general rule inherent in the American constitutional system, that unless otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise either executive or judicial power; the Executive (1) Vide, Works, Vol. 1, p. 186. (2) Willoughby 's Constitution of the United States, Vol. III, 1616. (3) ; at 201, 811 cannot exercise either legislative or judicial power; the Judiciary cannot exercise either executive or legislative power. " From the rule so stated, the next step was to deduce the rule against delegation of legislative power which has so often been stressed in the earlier American decisions. It was however soon realized that the absolute rule against delegation of legislative power could not be sustained in practice, and as early as 1825, Marshall C.J. openly stated that the rule was subject to limitations and asserted that Congress "may certainly delegate to others powers which the Legislature may rightfully exercise itself ,,(1). In course of time, notwithstanding the maxim against delegation, the extent of delegation had become so great that an American writer wrote in 1916 that "because of the rise of the admin istrative process, the old doctrine prohibiting the delega tion of legislative power has virtually retired from the field and given up the fight".(2) This is in one sense an over statement, because the American Judges have never ceased to be vigilant to check any undue or excessive au thority being delegated to the executive as will appear from the comparatively recent decisions of the American Supreme Court in Panama Refining Co. vs Ryan (3) and Schechter Poultry Corp. vs United States(4). In the latter case, it was held that the National Industrial Recovery Act, in so far as it purported to confer upon the President the author ity to adopt and make effective codes of fair competition and impose the same upon members of each industry for which such a code is approved, was void because it was an uncon stitutional delegation of legislative power. Dealing with the matter, Cardozo J. observed as follows : ' "The delegated power of legislation which has found expression in this code is not canalized within (1) Wayman vs Southard (2) 41 American Bar Asscn. Reports, 356 at 368. (3) ; (4) ; 812 banks that keep it from overflowing. It is unconfined and vagrant . Here, in the case before us, is an attempt ed delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils upon discovery to correct them . This is delegation running riot. No such plenitude of power is capable of transfer. "(1) The fact however remains that the American courts have upheld the so called delegated legislation in numerous instances, and there is now a wide gulf between the theoret ical doctrine and its application in practice. How numerous are the exceptions engrafted on the rule will appear on a reference to a very elaborate and informing note appended to the report of the case of Panama Refining Co. vs Ryan in 79, Lawyer 's Edition at page 448. In this note, the learned authors have classified instances of delegation upheld in America under the following 8 heads, with numerous sub heads : 1. Delegation of power to determine facts or conditions on which operation of statute is contingent. Delegation of non legislative or administrative functions. Delegation of power to make administrative rules and regulations. Delegation to municipalities and local bodies. Delegation by Congress to territorial legislature or commission. Delegation to private or non official persons or corporations. Vesting discretion in judiciary. Adopting law or rule of another jurisdiction. The learned American Judges in laying down exceptions to the general rule from time to time, have offered various expla nations, a few of which may be quoted as samples: (1) ; at 551. 813 " . however we may disguise it by veiling words we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far from believ ing that it is, or that the Constitution requires. " [Per Holmes J. in Springer vs The Government of Phillipine Is lands(1)] " . too much effort to detail and particularize, so as to dispense with the administrative or fact finding assist ance, would cause great confusion in the laws, and would result in laws deficient in both provision and execution." [Mutual Film Corporation vs Industrial Commission(2)] "If the legislature ' 'were ' strictly required to make provision for all the minutiae of regulation, it would, in effect, be deprived of the power to enact effective legisla tion on subjects over which it has undoubted power." "The true distinction. is this. The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. "(3) "The true distinction is between the delegation of power to make the law which necessarily involves a discretion as to what it shall be. and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." [Per Ranney J. in Cincinnati W. & Z.R. Co. vs Clinton County Commissioners(4)]. (1) ; (31 Locke 's Appeal, (2) ; (4) 814 "Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of law." [Moore v.Reading(1)] "Congress may declare its will and, after fixing a primary standard, devolve upon administrative officers the power to fill up the details by prescribing administrative rules and regulations." [United States vs Shreveport Grain & E. Co.(2)] . . . . "The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality which will enable it to perform its functions in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordi nate rules within the prescribed limits, the determination of facts to which the policy as declared by the legislature is to apply. Without capacity to give authorizations of that sort, we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility." [Per Hughes C.J. in Panama Refining Co. Ryan(3)] "This is not to say that the three branches are not co ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch." [Per Taft C.J. in J.W. Hampton Jr. & Co. vs U. S.(4)] I have quoted these extracts at the risk of encumbering my opinion for 2 reasons:firstly, because they (1) (3) ; (2) (4) ; 815 show that notwithstanding the prevalence of the doctrine of separation of powers in America, the rule against delega tion of legislative power is by no means an inelastic one in that country, and many eminent Judges there have tried to give a practical trend to it so as to bring it in line with the needs of the present day administration, and secondly, because they show that the rule against delegation is not a necessary corollary from the doctrine of separation of powers. It is to be noted that though the principle of separa tion of powers is also the basis of the Australian Constitu tion, the objection that the delegation of legislative power was not permissible because of.the distribution of powers contained in the Constitution has been raised in that Com monwealth only in a few cases and in all those cases it has been negatived. The first case in which this objection was raised was Baxter vs Ah Way(1). In that case, the validity of section 52 of the Customs Act, 1901, was challenged. That section after enumerating certain prohibited imports provid ed for the inclusion of "all goods the importation of which may be prohibited by proclamation. " Section 56 of the Act provided that "the power of prohibiting importation of goods shall authorise prohibition subject to any specified condition or restriction and goods imported contrary to any such condition or restriction shall be prohibited imports. " The ground on which these provisions were chal lenged was that they amounted to delegation of legislative power which had been vested by the Constitution in the Federal Parliament. Griffith C.J. however rejected the contention and in doing so relied on Queen vs Burah(2) and other cases, observing : " . . . unless the legislature is prepared to lay down at once and for all time, or for so far into the future as they may think fit, a list of prohibited goods, they must have power to make a prohibition depending upon a condition, and that condition may be the coming into exist ence or the discovery of some fact (1) ; (2) 3 App. 889. 816 . . And if that fact is to be the condition upon which the liberty to import the goods is to depend, there must be some means of ascertaining that fact, some person with power to ascertain it; and the Governor in Council is the authority appointed to ascertain and declare the fact. " The other cases in which a similar objection was taken, are Welebach Light Co. of Australasia Ltd. vs The Common wealth(1), Roche vs Kronheimer(2), and Victorian Stevedor ing and General Contracting Co. Pry. Ltd. and Meakes vs Dignan(3). In the last mentioned case in which the matter has been dealt with at great length, Dixon J. observed thus : " . . the time has passed for assigning to the constitutional distribution of powers among the separate organs of government, an operation which confined the legis lative power to the Parliament so as to restrain it from reposing in the Executive an authority of an essentially legislative character. "(4) In England, the doctrine of separation of powers has exer cised very little influence on the course of judicial deci sions or in shaping the Constitution, notwithstanding the fact that distinguished writers like Locke and Blackstone strongly advocated it in the 17th and 18th centuries. Locke in his treatise on Civil Government wrote as follows : "The legislature cannot transfer the power of making laws to any other hands; for it being a delegated power from the people, they who have it cannot pass it over to others. (g 141). Blackstone endorsed this view in these words : Wherever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty. "(5) Again, Montesquieu, when he enunciated the doctrine of sepa ration of powers, thought that it represented the (1) ; (3) (1931) 46C.L.R. 73. (2) (4) Ibid, p. 100. (5) Commentaries on the Laws of England, 1765. 817 quintessence of the British Constitution for which he had great admiration. The doctrine had undoubtedly attracted considerable attention in England in the 17th and 18th centuries, but in course of time it came to have a very different meaning there from what it had acquired in the United States of America. In the United States, the empha sis was on the mutual independence of the three departments of Government. But, in England, the doctrine means only the independence of the judiciary, whereas the emergence of the Cabinet system forms a ]ink between the executive and the legislature. How the Cabinet system works differently from the so called non parliamentary system which obtains in the United States, may be stated very shortly. In the United States, the executive power is vested in the Presi dent, to whom, and not to the Congress, the members of the Cabinet are personally responsible and neither the President nor the members of the Cabinet can sit or vote in Congress, and they have no responsibility for initiating bills or seeking their passage through Congress. In England, the Cabinet is a body consisting of members of Parliament chosen from the party possessing a majority in the House of Com mons. It has a decisive voice in the legislative activities of Parliament and initiates all the important legislation through one or other of the Ministers, with the result that "while Parliament is supreme in that it can make or unmake Government, the Government once in power tends to control the Parliament. " The conclusion which I wish to express may now be stated briefly. It seems to me that though the rule against delega tion of legislative power has been assumed in America to be a corollary from the doctrine of separation of powers, it is strictly speaking not a necessary or inevitable corollary. The extent to which the rule has been relaxed in America and the elaborate explanations which have been offered to justi fy departure from the rule, confirm this view, and it is also supported by the fact that the trend of decisions in Australia, notwithstanding the fact that its Constitution 818 is at least theoretically based on the principle of separa tion of powers, is that the principle does not stand in the way of delegation in suitable circumstances. The division of the powers of Government is now a normal feature of all civilised constitutions, and, as pointed out by Rich J. in New South. Wales vs Commonwealth.(1), ,, it is "well known in all British communities ; yet, except m the United States, nowhere it has been held that by itself it forbids delegation of legislative power. It seems to me that the American jurists have gone too far in holding that the rule against delegation was a direct corollary from the separa tion of powers. I will now deal with the third principle, which, in my opinion, is the true principle upon which the rule against delegation may be founded. It has been stated in Cooley 's Constitutional Limitations, Volume 1 at page 224 in these words : "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been in trusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be de volved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust. " The same learned author observes thus in his wellknown book on Constitutional Law (4th Edition, page 138): "No legislative body can delegate to another depart ment of the government, or to any other authority, the power, either generally or specially, to enact (1) ; at 108. 819 laws. The reason is found in the very existence of its own powers. This high prerogative has been intrusted to its own wisdom, judgment, and patriotism, and not to those of other persons, and it will act ultra vires if it undertakes to delegate the trust, instead of executing it. " This rule in a broad sense involves the principle underly ing the maxim, delegatus non potest delegare, but it is apt to be misunderstood and has been misunderstood. In my judg ment, all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted. This rule has been recognized both in America and in England, and Hughes C.J. has enunciated it in these words : "The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative func tions with which it is thus vested. "(1) The matter is again dealt with by Evatt J. in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Neakes vs Dignan(2), in these words : "On final analysis therefore, the Parliament of the Commonwealth is not competent to 'abdicate ' its powers of legislation. This is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation of powers prevents Parliament from granting authority to other bodies to make laws or bye laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters.stated in the Con stitution. A law by which Parliament gave all its lawmaking authority to another body would be bad merely because it would fail to pass the test last mentioned." (1) , (2) at 121, 820 I think that the correct legal position has been compre hensively summed up by Lord Haldane in In re the Initiative and Referendum Act(3): "No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as has been done when in Hodge vs The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relat ing to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. " What constitutes abdication and what class of cases will be covered by that expression will always be a question of fact, and it is by no means easy to lay down any comprehen sive formula to define it, but it should be recognized that the rule against abdication does not prohibit the Legisla ture from employing any subordinate agency of its own choice for doing such subsidiary acts as may be necessary to make its legislation effective, useful and complete. Having considered the three principles which are said to negative delegation of powers, I will now proceed to consid er the argument put forward by the learned Attorney General that the power of delegation is implicit in the power of legislation. This argument is based on the principle of sovereignty of the legislature within its appointed field. Sovereignty has been variously described by constitutional writers, and sometimes distinction is drawn between legal sovereignty and political sovereignty. One of the writers describes it as the power to make laws and enforce them by means of coercion it cares to employ, and he pro ceeds to say that in England the legal sovereign, i.e., the person or persons who according to the law of the land legislate and administer the Government, is the King in Parliament, whereas the political (1) at 945. 821 or the constitutional sovereign, i.e., the body of persons in whom power ultimately resides, is the electorate or the voting public(1). Dicey states that the legal conception of sovereignty simply means the power of law making unrestrict ed by any legal limit, and if the term "sovereignty" is thus used, the sovereign power under the English Constitution is the Parliament. The main attribute of such sovereignty is stated by him in in these words : "There is no law which Parliament cannot change (or to put the same thing somewhat differently, fundamental or so called constitutional laws are under our Constitution changed by the same body and in the same manner as other laws, namely, by Parliament acting in its ordinary legisla tive character) and any enactment passed by it cannot be declared to be void. According to the same writer, the characteristics of a non sovereign law making body are : ( 1 ) the existence of laws which such body must obey and cannot change;(2) the formation of a marked distinction between ordinary laws and fundamental laws;and (3) the existence of some person or persons, judicial or otherwise, having authority to pro nounce upon the validity or constitutionality of laws passed by such law making body. Dealing with the Indian or the colonial legislature, the learned writer characterizes it as a non sovereign legislature and proceeds to observe that its authority to make laws is as completely subordinate to and as much dependent upon Acts of Parliament as is the power of London and NorthWestern Railway Co. to make byelaws. This is undoubtedly an overstatement and is certainly not ap plicable to the Indian Parliament of today. Our present Parliament, though it may not be as sovereign as the Parlia ment of Great Britain, is certainly as sovereign as the Congress of the United States of America and the Legisla tures of other independent countries having a Federal Con stitution. But what is more relevant (1) Modern Political Constitutions, by Strong. 822 to our purpose is that Dicey himself, dealing with colonial and other similar legislatures, says that "they are in short within their own sphere copies of the Imperial Parlia ment, they are within their own sphere sovereign bodies, but their freedom of action is controlled by their subordination to the Parliament of the United Kingdom. " These remarks undoubtedly applied to the Legislative Council of 1912 which passed the , and they apply to the present Parliament also with this very material modification that its freedom of action is no longer controlled by subor dination to the British Parliament but is controlled by the Indian Constitution. At this stage, it will be useful to refer to certain cases decided by the Privy Council in England in which the question of the ambit of power exercised by the Indian and colonial legislatures directly arose. The leading case on the subject is Queen vs Burah(1), which has been cited by this court on more than one ' occasion and has been accepted as good authority. In that case, the question arose whether a section of Act No. XXII of 1869 which conferred upon the Lieutenant Governor of Bengal the power to determine whether a law or any part thereof should be applied to a certain territory was or was not ultra vires. While holding that the impugned provision was intra vires, the Privy Council made certain observations which have been quoted again and again and deserve to be quoted once more. Having held that the Indian Legislature was not a delegate of the Imperial Parliament and hence the maxim, delegatus non potest dele gare, did not apply (see ante for the passage dealing with this point), their Lordships proceeded to state as follows:. "Their Lordships agree that the Governor General in Council could not by any form of enactment, create in India, and arm with general legislative authority, a new legisla tive power, not created or authorized by the Councils Act. Nothing of that kind has, in their Lordships ' opinion, been done or attempted in the (1) 5 I.A. 178. 823 present case. What has been done is this. The Governor General in Council has determined, in the due and ordinary course of legislation, to remove a particular district from the jurisdiction of the ordinary Courts and offices, and to place it under new Courts and offices., to be appointed by and responsible to the Lieutenant Governor of Bengal, leav ing it to the Lieutenant Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, or from time to time might be, in force, by proper legislative authority, 'in the other territories subject to his government '. " Then, later they added : "The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a provin cial legislature, they may (in their Lordships judgment) be well exercised, either absolutely or conditionally. Legis lation, conditional on the use of particular powers, or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute Book abounds with examples of it; and it cannot be supposed that the Imperial Parlia ment did not, when constituting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legislative powers which it from time to time conferred. " The next case on the subject is Russell vs The Queen (1). In that case, the Canadian Temperance Act, 1878, was challenged on the ground that it was (1) 7 App, Cas. 824 ultra vires the Parliament of Canada. The Act was to be brought into force in any county or city if on vote of the majority of the electors of that county city favouring such a course, the Governor General in Council declared the relative part of the Act to be on force. It was held by the Privy Council that this provision did not amount to a dele gation of legislative power to a majority of the voters in a city or county. The passage in which this is made clear, runs as follows: "The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer on these persons power to legis late. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases con venient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada when he subject of legislation is within its competency. If authority on. this point were necessary, it will be found in the case of Queen vs Burah, lately before this Board. The same doctrine was laid down in the case of lodge vs The Queen (1), where the question arose as to whether the legislature of Ontario had or had not the power of entrust ing to a local authority the Board of Commissioners the power of making regulations with respect to the Liquor Licence Act, 1877, which among other things created offences for the breach of hose regulations and annexed penalties thereto. their Lordships held that the Ontario Legislature had that power, and after reiterating that the Legislature which passed the Act was not a delegate, they observed as follows : "When the British North America Act enacted that there should be a legislature for Ontario, and that (1) 9 App. 825 its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in section 92, it con ferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its powers possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make byelaws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect." Another case which may be usefully cited is Powell vs Apollo Candle Co. (1). The question which arose in that case was whether section 133 of the Customs Regulations Act of 1879 of New South Wales was or was not ultra rites the colonial legislature. That section provided that "when any article of merchandise then unknown to the collector is imported, which, in the opinion of the collector or the commissioners, is apparently a substitute for any known dutiable article, or is apparently designed to evade duty, but possesses properties in the whole or in part which can be used or were intended to be applied for a similar purpose as such dutiable article, it shall be lawful for the Gover nor to direct that a duty be levied on such article at a rate to be fixed in proportion to the degree in which such unknown article approximates in its qualities or uses to such dutiable article. " Having repelled the contention that the colonial legislature was a delegate of the Imperial Parliament and having held that it was not acting as an agent or a delegate, the Privy Council proceeded to deal with the question raised in the following manner : (1) 10App. 826 "It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature. " Several other eases were cited at the Bar in which the supremacy of a legislature (which would be nonsovereign according to the tests laid down by Dicey) within the field ascribed to its operation, were affirmed, but it is unnec essary to multiply instances illustrative of that princi ple. I might however quote the pronouncement of the Privy Council in the comparatively recent case of Shannon vs Lower Mainland Dairy Products Board (1), which runs as follows : "The third objection is that it is not within the powers of the Provincial Legislature to delegate so called legislative powers to the Lieutenant Governor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the constitution has granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament; and it is unnecessary to try to enu merate the innumerable occasions on which Legislatures, Provincial, Dominion and Imperial, have entrusted var ious persons and bodies with similar powers to those con tained in this Act. " I must pause here to note briefly certain important principles which can be extracted from the cases (1) at 722. 827 decided by the Privy Council which I have so far cited, apart from the principle that the Indian and colonial legis latures are supreme in their own field and that the maxim, delegatus non potest delegare, does not apply to them. In the first place, it seems quite clear that the Privy Council never liked to commit themselves to the statement that delegated legislation was permissible. It was easy for them to have said so and disposed of the cases before them, but they were at pains to show that the provisions impugned before them were not instances of delegation of legislative authority but they were instances of conditional legislation which, they thought, the legislatures concerned were compe tent to enact, or that the giving of such authority as was entrusted in some cases to subordinate agencies was ancil lary to legislation and without it "an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail. " They also laid down: (1) that it will be not correct to describe conditional legislation and other forms of legislation which they were called upon to consider in several cases which have been cited as legislation through another agency. Each Act or enactment which was impugned before them as being delegated legislation, contained within itself the whole legislation on the matter which it dealt with, laying down the condition and everything which was to follow on the condition being fulfilled; (2) that legislative power could not be said to have been parted with if the legislature retained its power intact and could whenever it pleased destroy the agency it had created and set up another or take the matter directly into its own hands; (3) that the question as to the extent to which the aid of subordinate agencies could be sought by the legislatures and as to how long they should continue them were matters for each legislature and not for the court of law to decide; (4) that a legislature in committing important regulations to others does not efface itself; and (5) that the legislature, like the Governor General in Council, could not by any form of enactment create, and arm with legislative 828 authority, a new legislative power not created or authorised by the Councils Act to which it (the Governor General in Council) owes its existence. I have already indicated that the expressions "delegated legislation" and "delegating legislative power" are some times used in a loose sense, and sometimes in a strict sense. These expressions have been used in the loose or popular sense in the various treatises or reports dealing with the so called delegated legislation; and if we apply that sense to the facts before the Privy Council, there can be no doubt that every one of the cases would be an instance of delegated legislation or delegation of legislative au thority. But the Privy Council have throughout repelled the suggestion that the cases before them were instances of delegated legislation or delegation of legislative authori ty. There can be no doubt that if the legislature completely abdicates its functions and sets up a parallel legislature transferring all its power to it, that would undoubtedly be a real instance of delegation of its power. In other words, there will be delegation in the strict sense if legislative power with all its attributes is transferred to another authority. But the Privy Council have repeatedly pointed out that when the legislature retains its dominant power intact and can whenever it pleases destroy the agency it has created and set up another or take the matter directly into its own hands, it has not parted with its own legislative power. They have also pointed out that the act of the subordinate authority does not possess the true legislative attribute, if the efficacy of the act done by it is not derived from the subordinate authority but from the legisla ture by which the subordinate authority was entrusted with the power to do the act. In some of the cases to which reference has been made, the Privy Council have referred to the nature and principles of legislation and pointed out that conditional legislation simply amounts to entrusting a limited discretionary authority to others, and that to seek the aid of subordinate agencies in carrying out the object of the legislation is ancillary to legislation and properly 829 lies within the scope of the powers which every legislature must possess to function effectively. There is a mass of literature in America also about the socalled delegated legislation, but if the judgments of the eminent American Judges are carefully studied, it will be found that, though in some cases they have used the expression in the popular sense, yet in many cases they have been as careful as the Privy Council in laying down the principles and whenever they have upheld any provision impugned before them on the ground that it was delegation of legislative authority they have rested their conclusion upon the fact that there was in law no such delegation. The learned Attorney General has relied on the authority of Evatt J. for the proposition that "the true nature and scope of the legislative power of the Parliament involves as part of its content power to confer law making power upon authorities other than Parliament itself"(1). It is undoubt edly true that a legislature which is sovereign within its own sphere must necessarily have very great freedom of action, but it seems to me that in strict point of law the dictum of Evatt J. is not a precise or an accurate state ment. The first question which it raises is what is meant by law making power and whether such power in the true sense of the term can be delegated at all. Another difficulty which it raises is that once it is held as a general proposition that delegation of lawmaking power is implicit in the power of legislation, it will be difficult to draw the line at the precise point where the legislature should stop and it will be permissible to ask whether the legislature is competent to delegate 1, 10 or 99 per cent of its legislative power, and whether the strictly logical conclusion will not be that the legislature can delegate the full content of its power in certain cases. It seems to me that the correct and the strictly legal way of putting the matter is as the Privy Council have put it in several cases. The legislature in order to function effectively, has to call for sufficient data, has to (1) See the Victorian Stevedoring case: 830 legislate for the future as well as for the present and has to provide for a multiplicity of varying situations which may be sometimes difficult to foresee. In order to achieve its object, it has to resort to various types and forms of legislation, entrusting suitable agencies with the power to fill in details and adapt legislation to varying circum stances. Hence, what is known as conditional legislation, an expression which has been very fully explained and de scribed in a series of judgments, and what is known as subordinate legislation, which involves giving power to subordinate authorities to make rules and regulations to effectuate the object and purpose for which a certain law is enacted, have been recognized to be permissible forms. of legislation on the principle that a legislature can do everything which is ancillary to or necessary for effective legislation. Once this is conceded, it follows that the legislature can resort to any other form of legislation on the same principle, provided that it acts within the limits of its power, whether imposed from without or conditioned by the nature of the duties it is called upon to perform. The conclusions at which I have arrived so far may now be summed up : (1) The legislature must normally discharge its primary legislative function itself and not through others. (2) Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law, and that it may utilize any outside agency to any extent it finds neces sary for doing things which it is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation. (3) It cannot abdicate its legislative functions, and therefore while entrusting power to an outside 831 agency, it must see that such agency, acts as a subordinate authority and does not become a parallel legislature. (4) The doctrine of separation of powers and the judi cial interpretation it has received in America ever since the American Constitution was framed, enables the American courts to check undue and excessive delegation but the courts of this country are not committed to that doctrine and cannot apply it in the same way as it has been applied in America. Therefore, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to "abdicacation and self effacement". I will now deal with the three specific questions with which we are concerned in this Reference, these being as follows : (1) Was section 7 of the , or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act ? (2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act ? (3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the Parliament ? Before attempting to answer these questions, it will be Useful to state briefly a few salient facts about the compo sition and power of the Indian Legislature at the dates on which the three Acts in question were passed. It appears that formerly it was the executive Government which was empowered to make regulations and ordinances for "the good government of the factories and territories acquired in India", and up to 1833, the laws used to be passed by the Governor General in Council or by the Governors of Madras and 832 Bombay in Council, in the form of regulations. By the Charter Act of 1833, the Governor General 's Council was extended by the inclusion of a fourth member who was not entitled to sit or vote except at meetings for making laws and regulations. The Governor General in Council was by this Act empowered to make laws and regulations for the whole of India and the legislative powers which vested in the Governors of Madras and Bombay were withdrawn, though they were allowed to propose draft schemes. The Acts passed by the Governor General in Council were required to be laid before the British Parliament and they were to have the same force as an Act of Parliament. In 1853, the strength of the Council of the Governor General was further increased to 12 members, by including the fourth member as an ordinary member and 6 special members for the purpose of legislation only. Then came the Councils Act of 1861, by which the power of legislation was restored to the Governors of Madras and Bombay in Council, and a legislative council was ap pointed for Bengal; but the Governor General in Council was still competent to exercise legislative authority over the whole of India and could make laws for "all persons and all places and things", and for legislative purposes the Council was further remodelled so as to include 6 to 12 members nominated for a period of 2 years by the Governor General, of whom not less than one half were to be non officials. In this Council, no measure relating to certain topics could be introduced without the sanction of the Governor General, and no law was to be valid until the Governor General had given his assent to it and the ultimate power of disallowing a law was reserved to the Crown. Further, local legislatures were constituted for Madras and Bombay, wherein half the members were to be non officials nominated by the Governors, and the assent of the Governor as well as that of the Governor General was necessary to give validity to any law passed by the local legislature. A similar legislature was directed to be constituted for the lower Provinces of Bengal, 833 and powers were given to constitute legislative councils for certain other Provinces. In 1892, the Indian Councils Act was passed, by which the legislative councils were further expanded and certain fresh rights were given to the members. In 1909, came the MorleyMinto scheme under which the strength of the legislative council was increased by the inclusion of 60 additional members of whom 27 were elected and 33 nominated. Soon after this, in 1912, the was passed, and the points which may be noticed in connection with the legislature which functioned at that time are: firstly, within its ambit, its powers were as plenary as those of the legislature of 1861, whose powers came up for consideration before the Privy Council in Bu rah 's case, and secondly, considering the composition of the legislative council in which the non official and the executive elements predominated, there was no room for the application of the doctrine of separation of powers in its full import, nor could it be said that by reason of that doctrine the legislature could not invest the GovernorGener al with the powers which we find him invested with under the . It should be stated that in section 7 of that Act as it originally stood, the Governor General was mentioned as the authority who could by notification extend any enactment which was in force in any part of British India at the date of such notification, The "Provincial Government" was substituted for the "Governor General" subsequently. Coming to the second Act, namely, the Ajmer Merwara (Extension of Laws) Act, 1947, we find that when it was enacted on the 31st December, 1947, the Government of India Act, 1935, as adapted by the India (Provisional Constitu tion) Order, 1947, issued under the Indian Independence Act, 1947, was in force. Under that Act, there were three Legis lative Lists, called the Federal, Provincial and Concurrent Legislative Lists. Lists I and II contained a list of sub jects on which the Central Legislature and the Provincial Legislature could respectively legislate, and List III contained subjects on which both the Central and the 834 Provincial Legislatures could legislate. Section 100(4) of the Act provided that "the Dominion Legislature has power to make laws with ' respect to matters enumerated in the Provin cial Legislative List except for a Province or any part thereof. " Section 46 (3) stated that the word "Province", unless the context otherwise required, meant a Governor 's Province. Therefore, section 100 (4) read with the defini tion of "Province", empowered the Dominion Legislature to make laws with respect to subjects mentioned in all the three Lists for Ajmer Merwara, which was not a Governor 's Province. The Central Legislature was thus competent to legislate for Ajmer Merwara in regard to any subject, and it had also plenary powers in the entire legislative field allotted to it. Further, at the time the Act in question was passed, the Dominion Legislature was simultaneously functioning as the Constituent Assembly and had the power to frame the Constitution. The third Act with which we are concerned was passed after the present Constitution had come into force. Article 245 of the Constitution lays down that "subject to the provisions of this Constitution, Parliament may make laws from the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. " On the pattern of the Government of India Act, 1935, Lists I and II in the Seventh Schedule of the Constitution enumerate the subjects on which the Parlia ment and the State Legislatures can respectively legislate, while List 11 enumerates subjects on which both the Parlia ment and the State Legislatures can legislate. Under article 246 (4), "Parliament has power to make laws with respect to any matter for any part of the territory of India not in cluded in Part A or Part B of the First Schedule notwith standing that such matter is a matter enumerated in the State List. " The points to be noted in connection with the Part C States (Laws) Act, 1950, are : (1) The present Parliament derives its authority from the Constitution which has been framed by the 835 people of India through their Constituent Assembly, and not from any external authority, and within its own field it is as supreme as the legislature of any other country possess ing a written federal Constitution. (2) The Parliament has full power to legislate for the Part C States in regard to any subject. (3) Though there is some kind of separation of govern mental functions under the Constitution, yet the Cabinet system, which is the most notable characteristic of the British Constitution, is also one of the features of our Constitution and the doctrine of separation of powers, which never acquired that hold or significance in this country as it has in America, cannot dominate the interpretation of any of the Constitutional provisions. I may here refer to an argument which is founded on articles 353 (b) and 357 (a) and (b) of the Constitution. Under article 353 (b), when a Proclamation of Emergency is made by the President " the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumer ated in the Union List. " Under article 357, when there is a failure of constitu tional machinery in a State, "it shall be competent (a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to autho rise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf; (b) for Parliament, or for the President or other au thority in whom such power to make laws is vested under sub clause (a), to make laws conferring powers and imposing duties, or authorising the Conferring of 108 836 powers and the imposition of duties, upon the Union or officers and authorities thereof. In both these articles, the power of delegation is ex pressly conferred, and it is argued that if delegation was contemplated in normal legislation, there would have been an express power given to the ' Parliament, similar to the power given in articles 353(b) and 357(a) and (b). In other words, the absence of an express provision has been used as an argument for absence of the power to delegate. It should however be noticed that these are emergency provisions and give no assistance in deciding the question under considera tion. So far as article 353(b) is concerned, it is enough to say that a specific provision was necessary to empower the Parliament to make laws in respect of matters included in the State List upon which the Parliament was not otherwise competent to legislate. When the Parliament was specially empowered to legislate in a field in which it could not normally legislate, it was necessary to state all the powers it could exercise. Again, article 357(a) deals with complete transfer of legislative power to the President, while clause (b) is incidental to the powers conferred on the Parliament and the President to legislate for a State in case of fail ure of constitutional machinery in that State. These provi sions do not at all bear out the conclusion that is sought to be drawn from them. Indeed, the Attorney General drew from them the opposite inference, namely, that by these provisions the Constitution makers have recognized that delegation of power is permissible on occasions when it is found to be necessary. In my opinion, neither of these conclusions can be held to be sound. I will now deal with the three provisions in regard to which the answer is required in this Reference. They are as follows: Section 7 of the . "The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifi cations as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in 837 force in any part of British India at the date of such notification. " Section 2 of the Ajmer Merwara (Extension of Laws). Act, 1947. "The Central Government may, by notification in the official gazette, extend to the Province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enactment which is in force in any other Province at the date of such notification. " Section 2 of the Part C States (Laws) Act, 1950. "The Central Government may, by notification in the official Gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amend ment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State. " At the first sight, these provisions appear to be very wide, their most striking features being these : 1. There is no specification in the Act by way of a list or schedule of the laws out of which the selection is to be made by the Provincial or the Central Government, as the case may be, but the Government has been given complete discretion to adopt any law whatsoever passed in any part of the country, whether by the Central or the Provincial Legis lature. The provisions are not confined merely to the laws in existence at the dates of the enactment of these Acts but extend to future laws also. The Government concerned has been empowered not only to extend or adopt the laws but also to introduce such restrictions and modifications as it thinks fit; and in the Part C States (Laws) Act, 1950, power has been given to the Central Government to make a provision in the enactment extended under the Act for the repeal or amendment of any corresponding law 838 (other than a Central Act) which is for the time being applicable to the Part C State concerned. There can be no doubt that the powers which have been granted to the Government are very extensive and the three Acts go farther than any Act in England or America, but, in my judgment, nothwithstanding the somewhat unusual features to which reference has been made, the provisions in question cannot be held to be invalid. Let us overlook for the time being the power to intro duce modifications with which I shall deal later, and care fully consider the main provision in the three Acts. The situation with which the respective legislatures were faced when these Acts were passed, was that there were certain State or States with no local legislature and a whole bundle of laws had to be enacted for them. It is clear that the legislatures concerned, before passing the Acts, applied their mind and decided firstly, that the situation would be met by the adoption of laws applicable to the other Prov inces inasmuch as they covered a wide range of subjects approached from a variety of points of view and hence the requirements of the State or States for which the laws had to be framed could not go beyond those for which laws had already been framed by the various legislatures, and second ly, that the matter should be entrusted to an authority which was expected to be familiar and could easily make itself familiar with the needs and conditions of the State or States for which the laws were to be made. Thus, everyone of the Acts so enacted was a complete law, because it em bodied a policy, defined a standard, and directed the au thority chosen to act within certain prescribed limits and not to go beyond them. Each Act was a complete expression of the will of the legislature to act in a particular way and of its command as to how its will should be carried out. The legislature decided that in the circumstances of the case that was the best way to legislate on the subject and it so legislated. It will be a misnomer to describe such legisla tion as amounting to abdication of powers, because from the very nature of the legislation 839 it is manifest that the legislature had the power at any moment of withdrawing or altering any power with which the authority chosen was entrusted, and could change or repeal the laws which the authority was required to make applica ble to the State or States concerned. What is even more important is that in each case the agency selected was not empowered to enact laws, but it could only adapt and extend laws enacted by responsible and competent legislatures. Thus, the power given to the Governments in those Acts was more in the nature of ministerial than in the nature of legislative power. The power given was ministerial, because all that the Government had to do was to study the laws and make selections out of them. That such legislation is neither unwarranted on princi ple nor without precedent, will be clear from what follows: 1. The facts of the case of Queen vs Burah(1) are so familiar that they need not be reproduced, but for the purpose of understanding the point under discussion, it will be necessary to refer to section 8 of Act XXII of 1869 and some of the observations of the Privy Council which obvious ly bear on that section. The section runs as follows : "The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Governor General, or of the said Lieutenant Governor, for making laws and regulations, and may on making such extension direct by whom any powers or duties incident to the provi sions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation. " In their judgment, the Privy Council do not quote this section, but evidently they had it in mind when they made the following observations : (1) 5 I.A. 178. 840 "The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time and the manner, of carrying it into effect to the discretion of the Lieutenant Governor; and also, that the laws which were or might be in force in the other territo ries subject to the same Government were such as it might be fit and proper to apply to this district also; but that,.as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant Governor. " The language used here can be easily adapted in the following manner so as to cover the laws in question: "The legislature determined that . . the laws which were or might be in force in the other territories . . (omitting the words "subject to the same Government" for reasons to be stated presently) were such as it might be fit and proper to apply to this State also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Central or Provincial Government. " It seems to me that this line of reasoning fully fits in with the facts before us. The words "territories sub ject to the same Government" are not in my opinon material, because in Burah 's case only such laws as were in force in the other territories subject to the same Government were to be extended. We are not to lay undue emphasis on isolated words but look at the principle underlying the decision in that case. In the as originally enacted, the agency which was to adapt the laws was the Governor General. In the other two Acts, the agency was the Central Govern ment. In 1912, the Governor General exercised jurisdiction over the whole of the territories the laws of which were to be adapted for Delhi. The same remark applies to the Central Government, while dealing with the other two Acts. As I have already 841 stated, Burah 's case has been accepted by this Court as having been correctly decided, and we may well say that the impugned Acts are mere larger editions of Act XXII of 1869 which was in question in Burah 's case. It is now well settled in England and in America that a legislature can pass an Act to allow a Government or a local body or some other agency to make regulations consist ently with the provisions of the Act. At no stage of the arguments, it was contended before us that such a power cannot be granted by the legislature to another body. We have known instances in which regulations have been made creating offences and imposing penalties and they have been held to be valid. It seems to me that the making of many of these regulations involves the exercise of much more legis lative power and discretion than the selection of appropri ate laws out of a mass of ready made enactments. The fol lowing observations in a well known American case, which furnish legal justification for empowering a subordinate authority to make regulations, seem to me pertinent : "It is well settled that the delegation by a State legislature to a municipal corporation of the power to legislate, subject to the paramount law, concerning local affairs, does not violate the inhibition against the delega tion of the legislative function. It is a cardinal principle of our system of government that local affairs shall be managed by local authorities, and general affairs by the central authority, and hence, while the rule is also fundamental that the power to make laws cannot be delegated, the creation of municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribe local regulations, according to immemorial practice, subject, of course, to the interposition of the superior in cases of necessity." (Per Fuller J. in Stoutenburgh vs Hennick(1). (1) ; 842 3. A point which was somewhat similar to the one raised before us arose in the case of Sprigg vs Sigcau(1). In that case, section 2 of the Pondoland Annexation Act, 1894, was brought into question. That section gave authority to the Governor to add to the existing laws in force in the terri tories annexed, such laws as he shall from time to time by Proclamation declare to be in force in such territories. Dealing with this provision, the Privy Council observed as follows : "The legislative authority delegated to the Governor by the Pondoland Annexation Act is very cautiously expressed, and is very limited in its scope. There is not a word in the Act to suggest that it was intended to make the Governor a dictator, or even to clothe him with the full legislative powers of the Cape Parliament. His only authority, after the date of the Act, is to add to the laws, statutes and ordi nances which had already been proclaimed and were in force at its date, such laws, statutes and ordinances as he 'shall from time to time by proclamation declare to be in force in such territories '. In the opinion of their Lordships, these words do not import any power in the Governor to make "new laws" in the widest sense of that term; they do no more than authorise him to transplant to the new territories, and enact there, laws, statutes and ordinances which already exist, and are operative in other parts of the Colony. It was argued for the appellant that the expression "all such laws made" occurring in the proviso, indicates authority to make new laws which are not elsewhere in force; but these words cannot control the plain meaning of the enactment upon which they are a proviso; and, besides that enactment is left to explain the meaning of the proviso by the reference back which is implied in the word "such" (pp. 247 8). Following the line of reasoning in the case cited, it may be legitimately stated that what the Central or the Provincial Government has been asked to do under the Acts in question is not to enact "new laws" but to transplant" to the territory concerned laws operative (1) , 843 in other parts of the country. I notice that in section 2 of the Pondoland Annexation Act, 1894, there was a proviso requiring that "all such laws made under or by virtue of this Act shall be ]aid before both Houses of Parliament within fourteen days after the beginning of the Session of Parliament next after the proclamation thereof as aforesaid, and shall be effectual, unless in so far as the same shall be repealed, altered, or varied by Act of Parliament." This provision however does not affect the principle. It was made only as a matter of caution and to ensure the superin tendence of Parliament, for the laws were good laws until they were repealed, altered or varied by Parliament. If the Privy Council have correctly stated the principle that the legislature in enacting subordinate or conditional legisla tion does not part with its perfect control and has the power at any moment of withdrawing or altering the power entrusted to another authority, its power of superintendence must be taken to be implicit in all such legislation. Refer ence may also be made here to the somewhat unusual case of Dorr vs United States(1), where delegation by Congress to a commission appointed by the President of the power to legis late for the Phillipine Islands was held valid. There are also some American cases in which the adopt ing of a law or rule of another jurisdiction has been per mitted, and one of the cases illustrative of the rule is Re Lasswell(2), where a California Act declaring the existence of an emergency and providing that where the Federal author ities fixed a Code for the government of any industry, that Code automatically became the State Code therefor, and fixing a penalty for violation of such Codes, was held to be constitutional and valid, as against the contention that it was an unlawful delegation of authority by the State legis lature to the Federal government and its administrative agencies. This case has no direct bearing on the points before us, but it shows that application of laws made (1) ; (2) (1934) 1 Cal. (2d), 183. 109 844 by another legislature has in some cases been held to be permissible. There are many enactments in India, which are not without their parallel in England, in which it is stated that the provisions of the Act concerned shall apply to certain areas in the first instance and that they may be extended by the Provincial Government or appropriate author ity to the whole or any part of a Province. The , is an instance of such enactment, as section 1 thereof provides as follows : "It (the Act) extends in the first instance to all the Provinces of India except Bombay, East Punjab and Delhi. But this Act or any part thereof may by notification in the official Gazette be extended to the whole or any part of the said Provinces by the Provincial Government concerned. " It is obvious that if instead of making similar provi sions in 50 or more Acts individually, a single provision is made in any one Act enabling the Provincial Governments to extend all or any of the 50 or more Acts, in which provision might have been but has not been made for extension to the whole or any part of the Provinces concerned there would be no difference in principle between the two alternatives. It was pointed out to us that in the Acts with which we are concerned, power has been given to extend not only Acts of the Central Legislature, which is the author of the Acts in question, but also those of the Provincial Legislatures. But it seems to me that the distinction so made does not affect the principle involved. The real question is: Can authority be given by a legislature to an outside agency, to extend an Act or series of Acts to a particular area ? This really brings us back to the principle of conditional legislation which is too deeply rooted in our legal system to be ques tioned now. Our attention has been drawn to several Acts con taining provisions similar to the Acts 845 which are the subject of the Reference, these being : 1. Sections 1 and 2 of Act I of 1865. Sections 5 and 5A of the Scheduled Districts Act, 1874 (Act XIV of 1874). The Burma Laws Act, 1898 (Act XIII of 1898). section 10 (1). Section 4 of the (Act XLVII of 1947). The Merchant Shipping Laws (Extension to Acceding States and Amendment) Act, 1949 (Act XVIII of 1949), section 4. The relevant provisions of two of these Acts, which were passed before the Acts in question, may be quoted, to bring out the close analogy. The Scheduled Districts Act, 1874. "The Local Government, with the previous sanction of the Governor General in Council, may, from time to time by notification in the Gazette of India and also in the local Gazette (if any), extend to any of the Scheduled Districts, or to any part of any such District, any enactment which is in force in any part of British India at the date of such extension. In declaring an enactment in force in a Scheduled District or part thereof under section 3 of this Act, or in extending an enactment to a Scheduled District or part thereof under section 5 of this Act, the Local Government with the previous sanction of the Governor General in Coun cil, may declare the operation of the enactment to be sub ject to such restrictions and modifications as that Govern ment think fit. " The Burma Laws Act, 1898. 10(1). "The Local Government, with the previous sanction of the Governor General in Council, may, by notification in the Burma Gazette, extend, with such restrictions and modi fications as it thinks fit, to all or any of the Shan States, or to any specified local area in the Shan State any enactment which is in force 846 in any part of Upper Burma at the date of the extension. " It is hard to say that any firm legislative practice had been established before the and other Acts we are concerned with were enacted, but one may presume that the legislature had made several experiments before the passing of these Acts and found that they had worked well and achieved the object for which they were intended. I will now deal with the power of modification which de pends on the meaning of the words "with such modifications as it thinks fit. " These are not unfamiliar words and they are often used by careful draftsmen to enable laws which are applicable to one place or object to be so adapted as to apply to another. The power of introducing necessary re strictions and modifications is incidental to the power to apply or adapt the law, and in the context in which the provision as to modification occurs, it cannot bear the sinister sense attributed to it. The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essential purpose to be served by it. The power to modify certainly involves a discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. The provision empowering an extraneous authority to introduce modifications in an Act has been nicknamed in England as "Henry VIII clause", because that monarch is regarded popu larly as the personification of executive autocracy. Sir Thomas Carr, who bad considerable experience of dealing with legislation of the character we are concerned with, refers to "Henry VIII clause" in this way in his book "Concerning English Administrative Law" at page 44: "Of all the types of orders which alter statutes, the so called 'Henry VIII clause ' sometimes inserted in big and complicated Acts, has probably caused the greatest flutter in England. It enables the Minister 847 by order to modify the Act itself so far as necessary for bringing it into operation. Any one who will look to see what sort of orders have been made under this power will find them surprisingly innocuous. The device is partly a draftsman 's insurance policy, in case he has overlooked something, and is partly due to the immense body of local Acts in England creating special difficulties in particular areas. These local Acts are very hard to trace, and the draftsman could never be confident that he has examined them all in advance. The Henry VIII clause ought, of course, to be effective for a short time only. " It is to be borne in mind that the discretion given to modify a statute is by no means absolute or irrevocable in strict legal sense, with which aspect alone we are princi pally concerned in dealing with a purely legal question. As was pointed out by Garth C.J. in Empress vs Burah(1), the legislature is " 'always in a position to see how the powers, which it has conferred, are being exercised, and if they are exercised injudiciously, or otherwise than in accordance with its intentions, or if, having been exercised, the result is in any degree inconvenient, it can always by another Act recall its powers, or rectify the inconvenience." The learned Chief Justice, while referring to the Civil Procedure Code of 1861, pointed out that it went further than the Act impugned before him, because "it gave the Local Governments a power to alter or modify the Code in any way they might think proper, and so as to intro duce a different law into their respective Provinces from that which was in force in the Regulation Provinces." Nevertheless, the Privy Council considered the Civil Proce dure Code of 1861 to be a good example of valid conditional legislation. In the course of the arguments, we were sup plied with a list of statutes passed by the Central and some of the Provincil Legislatures giving express power of modi fication to certain authorities, and judging from the number of instances included in it, it is not an unimpressive list. A few of the Acts which may be mentioned by (1) I.L.R. S Cal. 63 at 140. 848 way of illustration are: The Scheduled Districts Act, 1874, The Burma Laws Act, 1898, The Bombay Prevention of Prostitu tion Act, 1928, The Madras City Improvement Trust Act, 1945, The Madras Public Health Act, 1939, U.P. Kand Revenue Act, 1901. There are also many instances of such legislation in England, of which only a few may be mentioned below to show that such Acts are by no means confined to this coun try. In 1929, a Bill was proposed to carry out the policy of having fewer and bigger local authority in Scotland. During the debate, it was suddenly decided to create a new kind of body called the district council. There was no time to work out details for electing the new district councillors, and the Bill therefore applied to them the statutory provisions relating to the election of county councillors in rural areas "subject to such modifications and adaptations as the Secretary of State may by order prescribe." In 1925, the Parliament passed the Rating and Valua tion Act, and section 67 thereof provided that if any diffi culty arose in connection with its application to any excep tional area, or the preparation of the first valuation list for any area, the Minister "may by order remove the diffi culty. " It was also provided that "any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect." In 1929, a new Local Government Bill was introduced in Parliament, and section 120 thereof provided that "the Minister may make such order for removing difficulties as he may judge necessary. . and any such order may modify the provisions of this Act. " Section 1(2) of the Road Transport Lighting Act, 1927, provided that" the Minister of Transport may exempt wholly or partially, vehicles of particular kinds from the require ments of the Act," and sub section (3) empowered him to "add to or vary such requirements" by regulations. 849 By section 1 of the Trade Boards Act, 1918, "the Minis ter of Labour may, by special order, extend the provisions of the Trade Boards Act, 1909, to new trades. . and may alter or amend the Schedule to the Act. " The Unemployment Insurance Act, 1920, by sec tion 45 provided that "if any difficulty arises with respect to the constitution of special or supplementary schemes. . the Minister of Labour. . may by order do anything which appears to him to be necessary or expedient. . and any such order may modify the provi sions of this Act. . " Similar instances may be multiplied, but that will serve no useful purpose. The main justification for a provision empowering modifications to be made, is said to be that, but for it, the Bills would take longer to be made ready, and the operation of important and wholesome measures would be delayed, and that once the Act became operative, any defect in its provisions cannot be removed until amending legisla tion is passed. It is also pointed out that the power to modify within certain circumscribed limits does not go as far as many other powers which are vested by the legislature in high officials and public bodies through whom it decides to act in certain matters. It seems to me that it is now too late to hold that the Acts in question are ultra vires, merely because, while giving the power to the Government to extend an Act, the legislatures have also given power to the Government to subject it to such modifications and restric tions as it thinks fit. It must, however, be recognised that what is popularly known as the "Henry VIII clause" has from time to time provoked unfavourable comment in England, and the Committee on Ministers ' Powers, while admitting that it must be occasionally used, have added:" . . we are clear in our opinion, first, that the adoption of such a clause ought on each occasion when it is, on the initiative of the Minister in charge of the Bill, proposed to Parliament to be justified by him up to the essential. It can only be essential for the limited purpose of 850 bringing an Act into operation and it should accordingly be in most precise language restricted to those purely machin ery arrangements vitally requisite for that purpose;and the clause should always contain a maximum time limit of one year after which the powers should lapse. If in the event the time limit proves too short which is unlikely the Government should then come back to Parliament with a one clause Bill to extend it. " It may also be stated that in England "delegated legislation" often requires the regula tions or provisions made by the delegate authority to be laid before the Parliament either in draft form or with the condition that they are not to operate till approved by Parliament or with no further direction. The Acts before us are certainly open to the comment that this valuable safe guard has not been observed, but it seems to me that however desirable the adoption of this safeguard and other safe guards which have been suggested from time to time may be, the validity of the Acts, which has to be determined on purely legal considerations, cannot be affected by their absence. I will now deal with section 2 of the Part C States (Laws) Act, 1950, in so far as it gives power to the Central Government to make a provision in the enactment extended under the Act for the repeal or amendment of any correspond ing law which is for the time being applicable to the Part C State concerned. No doubt this power is a far reaching and unusual one, but, on a careful analysis, it will be found to be only a concomitant of the power of transplantation and modification. If a new law is to be made applicable, it may have to replace some existing law which may have become out of date or ceased to serve any useful purpose, and the agency which is to apply the new law must be in a position to say that the old law would cease to apply. The nearest parallel that I can find to this provision, is to be found in the Church of England Assembly (Powers) Act, 1919. By that Act, the Church Assembly is empowered to propose legislation touching matters concerning the Church of England, and 851 the legislation proposed may extend to the repeal or amend ment of Acts of Parliament including the Church Assembly Act itself. It should however be noticed that it is not until Parliament itself gives it legislative force on an affirma tive address of each House that the measure is converted into legislation. There is thus no real analogy between that Act and the Act before us. However, the provision has to be upheld, because, though it goes to the farthest limits, it is difficult to hold that it was beyond the powers of a legislature which is supreme in its own field; and all we can say is what Lord Hewart said in King vs Minister of Health(1), namely, that the particular Act may be regarded as "indicating the high water mark of legislative provisions of this character," and that, unless the legislature acts with restraint, a stage may be reached when legislation may amount to abdication of legislative powers. Before I conclude, I wish to make a few general observa tions here on the subject of "delegated legislation" and its limits, using the expression once again in the popular sense. This form of legislation has become a present day necessity, and it has come to stay it is both inevitable and indispensable. The legislature has now to make so many laws that it has no time to devote to all the legislative details, and sometimes the subject on which it has to legis late is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject. Again, when complex schemes of reform are to be the subject of legislation, it is difficult to bring out a selfcontained and complete Act straightaway, since it is not possible to foresee all the contingencies and envisage all the local requirements for which provision is to be made. Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again. The advantage of such a course is that it enables the delegate authority (1) at 236. 110 852 to consult interests likely to be affected by a particular law, make actual experiments when necessary, and utilize the results of its investigations and experiments in the best way possible. There may also arise emergencies and urgent situations requiring prompt action and the entrustment of large powers to authorities who have to deal with the var ious situations as they arise. There are examples in the Statute books of England and other countries, of laws, a reference to which will be sufficient to justify the need for delegated legislation. The British Gold Standard (Amendment) Act, 1931, empowered the Treasury to make and from time to time vary orders authorising the taking of such measures in relation to the Exchanges and otherwise as they may consider expedient for meeting difficulties arising in connection with the suspension of the Gold Standard. The National Economy Act, 1931, of England, empowered "His Majesty to make Orders in Council effecting economies in respect of the services specified in the schedule" and proved that the Minister designated in any such Order might make regulations for giving effect to the Order. The Food stuffs (Prevention of Exploitation) Act, 1931, authorised the Board of Trade to take exceptional measures for prevent ing or remedying shortages in certain articles of food and drink. It is obvious that to achieve the objects which were intended to be achieved by these Acts, they could not have been framed in any other way than that in which they were framed. I have referred to these instances to show that the complexity of modern administration and the expansion of the functions of the State to the economic and social sphere have rendered it necessary to resort to new forms of legis lation and to give wide powers to various authorities on suitable occasions. But while emphasizing that delegation is in these days inevitable, one should not omit to refer to the dangers attendant upon the injudicious exercise of the power of delegation by the legislature. The dangers in volved in defining the delegated power so loosely that the area it is intended to cover cannot be clearly ascertained, and in giving 853 wide delegated powers to executive authorities and at the same time depriving a citizen of protection by the courts against harsh and unreasonable exercise of powers, are too obvious to require elaborate discussion. For the reasons I have set out, I hold that none of the provisions which are the subject of the three questions referred to us by the President is ultra vires and I would answer those questions accordingly. PATANJALI SASTRI J. The President of India by an order, dated the 7th January, 1951, has been pleased to refer to this Court, under article 14:3 (1) of the Constitution, for consideration and report the following questions: 1. Was section 7 of the , or any of the provisions thereof and in what particular or particu lars or to what extent ultra vires the legislature which passed the said Act ? 2. Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars or to what extent ultra vires the legislature which passed the said Act ? 3. Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof and in what particular or particulars or to what extent ultra rites the Parliament ? The reasons for making the reference are thus set out in the letter of reference: "And whereas the Federal Court of India in Jatindra Nath Gupta vs The Province of Bihar(1) held by a majority that the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, was ultra vires the Bihar Legislature inter alia on the ground that the said proviso conferred power on the Provincial Government to modify an act of the Provincial Legislature and thus amounted to a delegation of legislative power; And whereas as a result of the said decision of the Federal Court, doubts have arisen regarding (1) 854 the validity of section 7 of the , section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950, and of the Acts extended to the Provinces of Delhi and Ajmer Merwara and various Part C States under the said sections respectively, and of the orders and other instru ments issued under the Acts so extended; And whereas the validity of section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) 'Act, 1947, and of the Acts extended by virtue of the powers conferred by the said sections has been challenged in some cases pending at present before the Punjab High Court, the Court of the Judicial Commissioner of Ajmer, and the District Court and the Subordinate Courts in Delhi. " The provisions referred to above are as follows: Section 7 of the : The Provincial Government may, by notification in the official Gazette, extend with such restrictions and modifi cations as it thinks fit to the Province of Delhi or any part thereof, any enactment which is in force in any part of British India at the date of such notification. " Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947: "Extension of enactments to Ajmer Merwara. The Central Government may, by notification in the official Gazette, extend to the Province of Ajmer Merwara with such restric tons and modifications as it thinks fit any enactment which is in force in any other Province at the date of such noti fication. Section 2 of the Part C States (Laws) Act 1950: "Power to extend enactments to certain Part C States. The Central Government may, by notification in the official Gazette, extend to any Fart C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any 855 enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State. " The Central Legislature, which enacted these provisions, had, at all material times, the power to make laws itself for the designated territories. But, instead of exercising that power, it empowered the Provincial Government in the first mentioned case, and the Central Government in the others, to extend, by notification in the official Gazette, to the designated territories laws made by Provincial Legis latures all over India for territories within their respec tive jurisdiction. The principal features of the authority thus delegated to the executive are as follows: (1) The laws thus to be extended by the executive are laws made not by the delegating authority itself, namely, the Central Legislature, but by different Provincial Legis latures for their respective territories. (2) In extending such laws the executive is to have the power of restricting or modifying those laws as it thinks fit. (3) The law to be extended is to be a law in force at the time of the notification of extension, that is to say, the executive is empowered not only to extend laws in force at the time when the impugned provisions were enacted, which the Central Legislature could be supposed to have examined and found suitable for extension to the territories in question, but also laws to be made in future by Provincial Legislatures for their respective territories which the Central Legislature could possibly have no means of judging as to their suitability for such extension. (4) The power conferred on the executive by the enact ments referred to in Question No. a is not only to extend to the designated territories laws made by other legislatures but also to repeal or amend any corresponding law in force in the designated territories. 856 The question is: Was the delegation of such sweeping discretionary power to pick and choose laws made by other legislatures to operate elsewhere and to apply them to the territories in question within the competence of the Central Legislature ? In Jatindra Nath Gupta vs The Province of Bihar (1), which has led to this reference, the Federal Court of India held by a majority (Kania C.J., Mahajan and Mukher jea JJ.) that the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1937, pur porting to authorise the Provincial Government, on cer tain conditions which are not material here, to extend by notification, the operation of the Act for a further speci fied period after its expiry with or without modifications amounted to a delegation of legislative power and as such was beyond the competence of the legislature. The deci sion proceeded to some extent on the concession by counsel that delegation of legislative power was incom petent though it must be admitted there are observations in the judgments of their Lordships lending the weight of their authority in support of that view. Fazl Ali J. in a dissenting judgment held that the power to extend and the power to modify were separate powers and as the Provincial Government had in fact extended the operation of the Act without making any modification in it, the proviso operated as valid conditional legislation. While agreeing with the conclusion of the majority that the detention of the petitioners in that case was unlawful, 1 preferred to rest my decision on a narrower ground which has no rele vancy in the present discussion. In the light of the fuller arguments addressed to us in the present case, I am unable to agree with the majority view. The Attorney General, appearing on behalf of the Presi dent, vigorously attacked the majority view in Jatindra Nath Gupta 's case(1) as being opposed alike to sound con stitutional principles and the weight of authority. He cited numerous decisions of the Privy (1) 857 Council and of the American, Australian and Canadian Courts and also called attention to the views expressed by various writers on the subject in support of his contention that legislative power involves as part of its content a power to delegate it to other authorities and that a legislative body empowered to make laws on certain subjects and for a certain territory is competent, while acting within its appointed limits, to delegate the whole of its legislative power to any other person or body short of divesting itself completely of such power. It is now a commonplace of constitutional law that a legislature created by a written constitution must act within the ambit of its powers as defined by the constitu tion and subject to the limitations prescribed thereby, and that every legislative act done contrary the provisions of the constitution is void. In England no such problem can arise as there is no constitutional limitation on the powers of Parliament, which, in the eye of the law, is sovereign and supreme. It can, by its ordinary legislative procedure, alter the constitution, so that no proceedings passed by it can be challenged on constitutional grounds in a court of law. But India, at all material times, in 1912, 1947 and 1950 when the impugned enactments were passed had a written constitution, and it is undoubtedly the function of the courts to keep the Indian legislatures within their consti tutional bounds. Hence, the proper approach to questions of constitutional validity is "to look to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they were restrict ed. If what has been done is legislation within the general scope of the affirmative words which gave the power and if it violates no express condition or restriction by which the power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it) it is not for any court of justice to inquire further or, to enlarge constructively those conditions and restrictions.": Empress vs Burah(1). We (1) s I.A. 178. 858 have,therefore, to examine Whether the delegation of author ity made in each of the impugned enactments is contrary to the tenor of the constitution under which the enactment itself was passed. No provision is to be found in the relevant constitutions authorising or prohibiting in express terms the delegation of legislative power. Can a prohibi tion against delegation be derived inferentially from the terms of the constitution and, if so, is there anything in those terms from which such a prohibition can be implied ? Before examining the relevant constitutions to find an answer to the question, it will be useful to refer to the two main theories of constitutional law regarding what has been called delegated legislation. Though, as already explained, no question of constitutionality of such legisla tion could arise in England itself, such problems have frequently arisen in the British commonwealth countries which have written constitutions, and British Judges, trained in the tradition of parliamentary omnipotence, have evolved the doctrine that every legislature created by an Act of Parliament, though bound to act within the limits of the subject and area marked out for it, is, while acting within such limits, as supreme and sovereign as Parliament itself. Such legislatures are in no sense delegates of the Imperial Parliament and, therefore, the maxim delegatus non potest delegare is not applicable to them. A delegation of legislative functions by them, however extensive, so long as they preserve their own capacity, cannot be challenged as unconstitutional. These propositions were laid down in no uncertain terms in the leading case of Hodge vs Queen(1) decided by the Privy Council in 1883. Upholding the validity of an enactment by a Provincial Legislature in Canada where by authority was entrusted to a Boar6 of Commissioners to make regulations in the nature of bylaws or municipal regu lations for the good government of taverns and thereby to create offences and annex penalties thereto, their Lordships observed as follows: (1) 9 App. 117 859 "It was further contended that the Imperial Parliament had conferred no authority on the local legislature to delegate those powers to the Licence Commissioners, or any other persons. In other words, that the power conferred by the Imperial Parliament on the local legislature should be exercised in full by that body, and by that body alone. The maxim delegatus non potest delegare was relied on. It appears to their Lordships, however, that the objection thus raised by the appellant is founded on an entire misconcep tion of the true character and position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Prov ince and for provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme. . . It was argued at the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands. How far it can seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature, and not for courts of law, to decide. Here is a clear enunciation of the English doctrine of what may be called "supremacy within limits"; that is to say, within the circumscribed limits of its legislative power, a subordinate legislature can do what the Imperial Parliament can do, and no constitutional limit on its power to delegate can be imported (1) 9 App. Cas. 117 131, 111 860 on the strength of the maxim delegatus non potest delegare, because it is not a delegate. The last few words of the quotation are significant. They insist, as does the pas sage already quoted from Burah 's case(1), that the scope of the enquiry when such an issue is presented to the court is strictly limited to seeing whether the legislature is acting within the bounds of its legislative power. The remarks about "authority ancillary to legislation" and "abundance of precedents for this. legislation entrusting a limited des cretionary authority to others " have, obviously, reference to the particular authority delegated on the facts of that case which was to regulate taverns by issuing licences, and those remarks cannot be taken to detract from or to qualify in any way the breadth of the general principles so unmis takably laid down in the passages quoted. The same doctrine was affirmed in Powell vs Apollo Candle Co. Ltd.(2), where, after referring to Burah 's case (1) and Hodge 's case(3), their Lordships categorically stated: "These two cases have put an end to a doctrine which appears at one time to have had some currency, that a Colo nial Legislature is a delegate of the Imperial Legislature. It is a legislature restricted in the area of its powers, but within that area unrestricted, and not acting as an agent or a delegate. " An objection that the legislature of New South Wales alone had power to impose the tax in ques tion and it could not delegate that power to the Governor, was answered by saying "But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him"(4). If Hodge 's ease(3) did not involve an extensive dele gation of legislative power, Shannon 's case(5) did. (1) 5 I.A. 178. (4) 10 App. 282, 291. (2) 10 App. (5) (3) 9 App. 861 A provincial legislature in Canada had passed a compulsory Marketing Act providing for the setting up of Marketing Boards but leaving it to the Government to determine what powers and functions should be given to those Boards. One of the objections raised to the legislation was that it was only a "skeleton of an Act" and that the legislature had practically "surrendered its legislative responsibility to another body." Lord Haldane 's dictum in what is known as the Referendum case(1) (to which a more detailed reference will be made presently) suggesting a doubt as to a provin cial legislature 's power to "create and endow with its own capacity a new legislative power not created by the Act to which it owes its existence" was cited in support of the objection. The objection, however, was summarily repelled without calling upon Government counsel for an answer. Their Lordships contented themselves with reiterating the English doctrine of "plenary powers of delegation within constitu tional limits" and said: "This objection appears to their Lordships subversive of the rights which the provincial legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the constitu tion has granted legislative powers. Within its appointed sphere the provincial legislature is as supreme as any other parliament. . Martin C.J. appears to have disposed of this objection very satisfactorily in his judgment on the reference, and their Lordships find no occasion to add to what he there said. " What Martin C.J. said is to be found in Re Natural Products Marketing (B.C.) Act(2). He said "1 shall not, however, pursue at length this subject (delega tion of legislative powers) because, to use the language of the Privy Council in Queen vs Burah(3), 'The British Statute book abounds with examples of it ' and a consideration for several days of our early and late 'statute book ' discloses such a surprising number of delegations to various persons and bodies in all sorts of subject matters that it would (1) (3) 3 App. Cas. 889, 906. (2) , 310. 862 take several pages even to enumerate them, and it would also bring about a constitutional debacle to invalidate them. I must, therefore, content myself by selecting four statutes only." The learned Judge then proceeded to refer, among others, to a statute whereby "carte blanche powers were delegated over affected fruit lands areas to cope with a pest", and to another "whereby power was conferred upon the Lieutenant Governor in Council to make rules of the widest scope" and the first importance in our system of jurisprudence whereby our whole civil practice and proce dure, appellate and trial, are regulated and constituted to such an extent that even the sittings we hold are thereto subjected. " This recent pronouncement of the Privy Council on the Eng lish view of the delegability of legislative power is, in my opinion, of special interest for the following reasons : (1) The case involved such an extensive delegation of legislative power counsel thought the ' 'limit" had been reached that it squarely raised the question of the constitutional validity of surrender or abdication of such power and Lord Haldane 's dictum in the Referendum case(1) was relied upon. (2) Nevertheless, the objection was considered so plainly unsustainable that Government counsel was not called upon to answer, their Lordships having regarded the objection as "subversive" of well established constitutional princi ples. (3) Martin C.J. 's instances of "carte blanche delegation" were approved and were considered as disposing of the objection "very satisfactorily. " (4) All that was considered necessary to repel the objection was a plain and simple statement of the English doctrine, namely, within its appointed sphere the provin cial legislature was as supreme as any other parliament, or, in other words, as there can be no legal limit to Parliament 's power to delegate, so can there (1) 863 be none to the power of the provincial legislature to dele gate legislative authority to others. Thus, the English approach to the problem of delegation of legislative power is characterised by a refusal to regard legislation by a duly constituted legislature as exercise of a delegated power, and it emphatically repudiates the application of the maximum delegatus non potest delegate. It recognises the sovereignty of legislative bodies within the limits of the constitutions by which they are created and concedes plenary powers of delegation to them within such limits. It regards delegation as a revocable entrustment of the power to legis late to an appointed agent whose act derives its validity and legal force from the delegating statute and not as a relinquishment by the delegating body of its own capacity to legislate. On the other hand, the American courts have approached the problem along wholly different lines which are no less the outcome of their own environment and tradition. The American political scene in the eighteenth century was dominated by the ideas of Montesque and Locke that concen tration of legislative, executive and judicial powers in the hands of a single organ of the State spelt tyranny, and many State constitutions had explicitly provided that each of the great departments of State, the legislature, the executive and the judiciary, shall not exercise the powers of the others. Though the Federal Constitution contained no such explicit provision, it was construed, against the background of the separatist ideology, as embodying the principle of separation of powers, and a juristic basis for the conse quent non delegability of its power by one of the depart ments to the others was found in the old familiar maxim of the private law of agency delegatuts non potest delegare which soon established itself as a traditional dogma of American constitutional law. But the swift progress of the nation in the industrial and economic fields and the result ing complexities of administration forced the realisation on the American Judges of the unavoidable necessity for 864 large scale delegation of legislative powers to administra tive bodies, and it was soon recognised that to deny this would be "to stop the wheels of government. " The result has been that American decisions on this branch of the law consist largely of attempts to disguise delegation "by veiling words" or "by softening it by a quasi" (per Holmes J. in Springer vs Government of the Phillipine Islands(1). "This result", says a recent writer on the subject, "is well put in Prof. Cushman 's syllogism ' Major premise: Legislative power cannot be constitu tionally delegated by Congress. Minor premise: It is essential that certain powers be delegated to administrative officers and regulatory commis sions. Conclusion: Therefore the powers thus delegated are not legislative powers. " They are instead "administrative"or "quasi legisla tive" (American Administrative Law by Bernard Schwartz, p. 20). After considerable confusion and fluctuation of opin ion as to what are "essentially" legislative powers which cannot be delegated and what are mere "administrative" or "ancillary" powers, the delegation of which is permissible, the recent decisions of the Supreme Court would seem to place the dividing line between laying down a policy or establishing a standard in respect of the subject legislated upon on the one hand and implementing that policy and en forcing that standard by appropriate rules and regulations on the other: (vide Schechter Poultry Corpn. vs United States(2) and Panama Refining Co. vs Ryan(3)), a test which inevitably gives rise to considerable divergence of judicial opinion as applied to the facts of a given case. I will now turn to the questions in issue. The first question which relates to the validity of section 7 of the . has to be determined with reference to the competency of "the legislature which (1) ; (3) ; (2) ; 865 passed the said Act", that is, with reference to the consti tution then in force. It may be mentioned her, e that the , as well as the AjmerMerwara (Extension of Laws) Act, 1947, to which the second question relates, were repealed by section 4 of the Part C States (Laws) Act, 1950, but the Acts already extended under the repealed provisions have been continued in force and hence the neces sity for a pronouncement on the constitutional validity of the repealed provisions. In 1912 the Indian Legislature was the Governor General in Council, and his law making powers were derived from section 22 of the Indian Councils Act, 1861 (24 and 25 Vic. Ch. 7) which conferred power "to make laws and regulations for repealing, amending or altering any laws or regulations whatever now in force or hereafter to be in force in the Indian territories now under the dominion of Her Majesty and to make laws and regulations for all persons whether British or native, foreigners or others, and for all courts of justice whatever and for all places and things whatever within the said territories," subject to certain conditions and restrictions which do not affect the impugned provi sions. The composition and powers of the Governor General in Council were altered in other respects by the Councils Acts of 1892 and 1909, but his law making powers remained essentially the same in 1912. The question accordingly arises whether section 7 of the , was within the ambit of the legislative powers conferred on himby section 22 of the Indian Councils Act, 1861. As the power is defined in very wide terms " for all persons. . and for all places and things whatever " within the Indian territories the issue of competency reduces itself to the question whether section 7 was a "law" within the meaning of section 22 of the Indian Councils Act of 1861. This question is, in my opinion, concluded by the decision of the Privy Council in Empress vs Burah(1). (1) 5 I.A. 178. 866 That was an appeal by the Government from a judgment of the majority of a Full Bench of the Calcutta High Court holding that sections 8 and 9 of Act XXII of 1869 were ultra vires the Governor General in Council as being an unautho rised delegation of legislative power to the Lieutenant Governor of Bengal. The combined effect of those provisions was to authorise the Lieutenant Governor to extend to cer tain districts by notification in the Calcutta Gazette "any law or any portion of any law now in force in the other territories subject to his government or which may hereafter be enacted by the Council of the Governor General or of the said Lieutenant Governor, for making laws and regulations. . "Markby J., who delivered the leading judgment of the majority, held (1) that section 9 amounted to a delegation of legislative authority to the Lieutenant Governor by the Indian Legislature which, having been en trusted with such authority as a delegate of the Imperial Parliament, had no power in its turn to delegate it to another, and (2) the Indian Legislature could not "change the legislative machinery in India without affecting the provisions of the Acts of Parliament which created that machinery and if it does in any way affect them, then ex consensu omnium its Acts are void." The learned Judge referred to the argument of Government counsel, namely, "where Parliament has conferred upon a legislature the general power to make laws, the only question can be 'Is the disputed Act a law '. If it is, then it is valid unless it falls within some prohibition." The learned Judge remarked that this argument was "sound", but met it by holding that "it was clearly intended to restrict the Legislative Council to the exercise of functions which are properly legislative, that is, to the making of laws, which (to use Blackstone 's expression)are rules of action prescribed by a superior to an inferior or of laws made in furtherance of those rules. The English Parliament is not so restricted. It is not only a legislative but a paramount sovereign body. The Legislative Council, when it merely grants permission 867 to another person to legislate, does not make a law within the meaning of the Act from which it derives its authority"(1) The learned Judge rejected the argument based on previous legislative practice as the instances relied on were not "clear and undisputed instances of a transfer of legislative authority. " Garth C.J. in his dissenting opinion pointed out that "by the Act of 1833 the legislative powers which were then conferred upon the Governor General in Council were in the same language, and (for the purposes of the present case) to the same effect, as those given by the Councils Act in 1861; and from the time when that Act was passed, the Governor General in Council has constantly been in the habit of exercising those powers through the instru mentality of high officials and public bodies, in whom a large discretion has been vested for that purpose. "(2) It could not therefore be supposed that "the Imperial Parlia ment would have renewed in the Councils Act of 1861 the legislative powers which the Governor General in Council had so long exercised, if they had disapproved of the course of action which the Legislature had been pursuing. The fact that with the knowledge of the circumstances which they must be assumed to have possessed, Parliament did in the Councils Act renew the powers which were given by the Act of 1833, appears to me to amount to a statutory acknowledgment that the course of action which had been pursued by the legisla ture in the exercise of those powers was one which the Act had authorised. "(3) The learned Chief Justice accordingly came to the conclusion that Act XXII of 1869 was a law "which the legislature was justified in passing. " I have referred at some length to the reasoning and conclusions of the learned Judges in the High Court as I think they will be helpful in understanding the full import of the judgment of the Privy Council. It will be seen, in the first place, that the line of approach adopted by Government counsel in the High (1)I.L.R. at 90, 91. (3) Ibid 144. (2) Ibid, 140. 112 868 Court was endorsed by their Lordships as the correct ap proach to the problem, that is to say, the court has to see whether "what has been done is legislation within the gener al scope of affirmative words which give the power, and if it violates no express condition by which that power is limited it is not for any court to inquire further or to enlarge constructively those conditions and restrictions" (italics mine). This passage clearly lays down [what we have already seen was reiterated in Hodge 's case(1)]: (1) that the scope of judicial review in such cases is limited only to determining whether the impugned enactment is within the law making power conferred on the legislature and wheth er it violates any express condition limiting that power, and (2) that in determining the latter question the court should have regard only to express conditions and should not enlarge them inferentially by a process of interpretation. In the second place, their Lordships repudiated the doctrine [as they did also in respect of a provincial legislature in Canada in Hodge 's case(1)] that the Indian Legislature is in any sense an agent or delegate of the Imperial Parliament, and that the rule against delegation by an agent applies to the situation. Thirdly, the distinction made by Markby J. between Parliament and the Indian Legislature that the latter is "restricted to the. making of laws" in the sense defined by Blackstone, while Parliament was not so restricted, or, in other words, that while Parliament could make a "law" delegating its legislative power, the Indian Legislature could not make such a "law, ' was rejected, and the English doctrine of supremacy within limits was laid down specifically in regard to the Indian. Legislature, which, when acting within the limits circumscribing its legislative power "has and was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself" (italics mine). It must follow that it is as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and qualitatively, as it is for (1) 9 App. 117. 869 Parliament to do so, provided, of course, it acts within the circumscribed limits. Fourthly, their Lordships "agree that the Governor General in Council could not by any form of enactment create in India and arm with general legisla tive authority a new legislative power not created or autho rised by the Councils Act. Nothing of that kind has in their Lordships ' opinion been done or attempted in the present case." Mr. Chatterjee, on behalf of the opposite party, submit ted that the remark regarding the incompetency of the Gover nor General in Council to create in India a new legislative power had reference to the subordinate agency or instrumen tality to which the legislative authority was to be delegat ed and thus negatived the legislature 's right to delegate. The context, however, makes it clear that their Lordships were expressing agreement on this point with Markby J. who, as we have seen, had stated that the Indian Legislature could not "change the legislative machinery in India without affecting the provisions of the Acts of Parliament which created that machinery." This shows that their Lordships were envisaging the setting up of a new legislative machin ery not authorised by the Councils Act, that is, a new legislature in the sense in which the Central and Provincial Legislatures in the country were legislatures. While they agreed that that could not. be done (because it would be a contravention of the Act of Parliament which confers no power to create such legislatures) their Lordships proceeded to point out that that was not what was done by the impugned Act and that Markby J. fell into an error in thinking that it was. Their Lordships gave two reasons: first, because "it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) ' as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act (No. XXll of 1869) itself." Here, indeed, their Lordships touch the core of the problem by indicating 870 the true nature of delegated legislation as distinct from creating a new legislative body. The point is developed to its logical consequence in later cases as will be seen presently, but here they expose to view the not uncommon "fallacy" of treating the one as of the same nature and as having constitutionally the same consequence as the other, a fallacy which perhaps accounts for much of the confusion of thought on the subject. It will be recalled that in Hodge 's case(1) it was made clear that in delegated legislation the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instrumentality of its choice. There is no finality about this arrangement, the delegating body being free to "destroy the agency it has created and set up another or take the matter directly into its own hands. " In Burah 's case(2) their Lordships emphatically stated one consequence of that view, namely, that the act done by the authority to which legislative power is delegat ed derives its whole force and efficacy from the delegating legislature, that is to say, when the delegate acts under the delegated authority, it is the legislature that really acts through its appointed instrumentality. On the other hand, in the creation of a new legislative body with general legislative authority and functioning in its own right, there is no delegation of power to subordinate units, but a grant of power to an independent and co ordinate body to make laws operating of their own force. In the first case, according to English constitutional law, no express provi sion authorising delegation is required. In the absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legislative power intact. In the second case, a positive enabling provision in the constitutional document is required. The second reason why their Lordships regarded the majority view as erroneous was that Act XXII of 1869 was, in truth, nothing more than conditional legislation (1) 9 App. (2) 5 I.A. 178. 871 and there was no question of delegating legislative power. Their Lordships were of opinion that neither in fixing the time for commencement of the Act nor in enlarging the area of its operation was the Lieutenant Governor exercising "an act of legislation." "The proper legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been ful filled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provincial Legislature, they may (in their Lordships ' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers or on the exercise of a limited discretion, entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when consti tuting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legisla tive powers which it from time to time conferred. It cer tainly used no words to exclude it. " Their Lordships finally proceeded to refer to the legis lative practice in this country of delegating to the execu tive government a discretionary power of extending enact ments to new territories subject in certain cases to such "restriction, limitation or proviso" as the Government may think proper, and they expressed their approval of the reasoning of Garth C.J. based on such practice. "If their Lordships," they said, "were to adopt the view of the major ity of the High Court they would (unless distinction were made on grounds beyond the competency of the judicial of fice) be casting doubt upon the validity of a long course of legislation appropriate, as far as they can judge to the peculiar circumstances of India. . For such doubt their Lordships are unable to discover any foundation either in the affirmative or the negative words of that Act" 872 (Indian Councils Act, 1861). The parenthetic remark (which I have italicised) is significant. It is not com petent for the court, according to their Lordships, to dis criminate between degrees of delegation. It might be extensive in some cases and slight in others. Its validity must, however, be founded "on the affirmative or the nega tive words" of the Constitution Act. Another logical consequence of the British theory of dele gation has been worked out in Co operative Committee on Japanese Canadians vs Attorney General for Canada(1), where the question arose as to whether an order made by the Governor in Council pursuant to authority delegated by the Parliament of Canada was a law made by the Parliament of Canada within the meaning of the Statute of Westminster and, if so, whether it was such a law made after the pass ing of that Statute. The delegation of authority to the Governor was made before that Statute was passed but the Governor 's order was promulgated after the Statute. Holding that the order was a "law" made by the Parliament of Canada after the Statute of Westminster their Lordships observed: "Undoubtedly, the law as embodied in an order or regulation is made at the date when the power conferred by the Parlia ment of the Dominion is exercised. Is it made after that date by the parliament of the Dominion ? That Parliament is the only legislative authority for the Dominion as a whole and it has chosen to make the law through machinery set up and continued by it for that purpose. The Governor in Council has no independent status as a law making body. The legislative activity of Parliament is still resent at the time when the orders are made, and these orders are" law". In their Lordships ' opinion they are law made by the Parlia ment at the date of their promulgation. "(2) Mr. Chatterice has urged that in Burah 's case(3) the Privy Council did no more than hold that the type of legis lation which their Lordships there called conditional legis lation was within the competence of the (1) (3) S I.A. 178. (2) Ibid 106 107. 873 Indian legislature and was valid, and that the con siderations adverted to 'by their Lordships in upholding such legislation have no relevancy in determining the validity of the provisions impugned in the present case. It is true that the kind of legislation here in question does not belong to that category, for the operation of the impugned Acts is not made to depend upon the exercise of a discretion by an external authority, but it is not correct to say that Burah 's case(1) has application only to facts involving conditional legislation. As I have endeavoured to show, it lays down general principles of far reaching importance. It was regarded in Powell 's case(2) referred to above as "laying down the general law" and as "putting an end" to the false doctrine that a subordinate legislature acts as an agent or a delegate. Mr. Chatterjee next relied on the dictum of Lord Haldane in the Referendum case. (3) In that case their Lordships held that the Initiative and Referendum Act of Manitoba (Canada) was, in so far as it compelled the Lieutenant Governor to submit a proposed law to a body of voters total ly distinct from the legislature of which he was the consti tutional head and rendered him powerless to prevent it from becoming an actual law if approved by those voters, ultra vires the Provincial Legislature, as the power to amend the Constitution of the Province conferred upon that Legislature by the British North America Act, 1867, excluded from its scope "the office of the Lieutenant Governor ". Lord Hal dane, however, proceeded to make the following observations: "Section 92 of the Act of 1867 entrusts the legislative power in a Province to its Legislature, and to that Legisla ture only. No doubt, a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge vs The Queen(4) the Legislature of Ontario was (1) 5 I.A. 178. (3) (2) 10 App. (4) 9 App. Cas. 117, 874 held entitled to entrust to a Board of Commissioners au thority to enact regulations relating to taverns; but it does not follow that it can create and endow with, its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise. "(1) Mr. Chatterjee submitted that the grave constitutional question, to which Lord Haldane drew attention, arose in the present case. I do not think so. The dictum, like the obser vation of Lord Selborne in Burah 's case(2) regarding the power of the Governor General in Council "to create in India and arm with general legislative authority a new legislative power," to which reference has been made, seems to envisage the unauthorised creation of a new legislature with an independent status as a law making body, which, for reasons already indicated, is quite different from delegation of legislative power, and my remarks in connection with that observation equally apply here. The only other decision of the Privy Council to which reference need be made is King Emperor vs Benoari Lal Sarma. (3) It was an appeal from a judgment of the majority of the Federal Court of India (reported in holding, inter alia, that sections 5, 10 and 16 of the Special Criminal Courts Ordinance (No. II of 1942) passed by the Governor General in exercise of his emergency powers were ultra vires and invalid. The ground of decision was that although the powers of the High Court were taken away in form by section 26 of the Ordinance, they were, in fact, taken away by the order of the executive officer to whom it was left by sections 5, 10 and 16 to direct what offences or classes of offences and what cases or classes of cases should be tried by the special courts established under the Ordinance. In so far as these sections thus purported to confer on the executive officers absolute and uncontrolled discretion without any legislative provision or direction laying down (1) , 945. (2) 5 I.A. 178. (3) 72 I.A. 57. 875 the policy or conditions with reference to which that power was to be exercised, they were beyond the competence of the Governor General. Varadachariar C.J., with whom Zafrulla Khan J. concurred, went elaborately into the whole question of delegation of legislative powers, and while conceding, in view of the Privy Council decisions already referred to, that the Governor General (whose legislative power in emer gencies was co extensive with that of the Indian Legisla ture) could not be regarded as a delegate of the Imperial Parliament and that, therefore, the maxim delegatus non potest delegare had no application, nevertheless expressed the opinion that "there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American author ity which the Advocate General of India proposed to adopt as his own argument. " That principle was this: "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done, to the latter no valid objection can be made :" (per Judge Ranney of the Supreme Court of Ohio, often cited in American decisions). The learned Chief Justice then proceeded to examine the American decisions bearing upon the delegation of powers and the opinions expressed by writers on administrative law and came to the following conclusion : "As we have already observed, the considerations and safeguards suggested in the foregoing passages may be no more than considerations of policy or expediency under the English Constitution. But under Constitutions like the Indian and the American, where the constitutionality of legislation is examinable in a court of law, these consider ations are, in our opinion, an integral and essential part of the limitation on the extent of delegation of responsi bility by the legislature to the executive. In the present case, it is impossible to deny that the Ordinance making 113 876 authority has wholly evaded the responsibility of laying down any rules or conditions or even enunciating the policy with reference to which cases are to be assigned to the ordinary criminal courts and to the special courts respec tively and left the whole matter to the unguided and uncontrolled action of the executive authorities. This is not a criticism of the policy of the law as counsel for the Crown would make it appear but a complaint that the law has laid down no policy or principle to guide and control the exercise of the undefined powers entrusted to the execu tive authorities by sections 5, 10 and 16 of the Ordinance. "(1) I have set out at some length the reasoning and conclu sion of the learned Chief Justice because it summarises and accepts most of what has been said before us by Mr. Chatter jee in support of his contention that the American rule as to delegation of legislative powers should be followed in this country in preference to the views of English Judges on the point and that the delegation of a too wide and uncon trolled power must be held to be bad. The Privy Council, however, rejected the reasoning and conclusion of the major ity of the 'Court in a clear and emphatic pronouncement. Their Lordships scouted the idea that what might be no more than considerations of policy or expediency under the Brit ish Constitution could, in India, as in America, become. constitutional limitations on the delegation of legislative responsibility merely because the constitutionality of legislation was open to judicial review under the constitu tion of this country. They said: "With the greatest respect to these eminent Judges, their Lordships feel bound to point out that the question whether the Ordinance is intra vires or ultra vires does not depend on considerations of juris prudence or of policy. It depends simply on examining the language of the Government Of India Act and of comparing the legislative authority conferred on the Governor General with the provisions of the ordinance by which he is 'purporting to exercise that authority" the old traditional approach, "It (1) , 139 140, 877 may be that as a matter of wise and well framed legislation it is better, if circumstances permit, to frame a statute in such a way that the offender may,know in advance before what court he will be brought if he is charged with a given crime; but that is a question of policy, not of law. There is nothing of which their Lordships are aware in the Indian constitution to render invalid a statute, whether passed by the Central legislature or under the Governor General 's emergency powers, which does not accord with this principle. There is not, of course, the slightest doubt that the Parliament of Westminster could validly enact that the choice of courts should rest with an executive authori ty, and their Lordships are unable to discover any valid reason why the same discretion should not be conferred 'in India by the law making authority, whether that authority is the legislature or the Governor General, as an exercise of the discretion conferred on the authority to make laws for the peace order, ' and good government of India. "(1) The English doctrine of supremacy within limits is here asserted once again, and its corollary is applied as the determining test: "What the British Parliament could do, the Indian legislature and the Governor General legislating within their appointed sphere could also do. " There was here a 'delegation of an "unguided and uncontrolled" discretion ary power affecting the liberty of the subject. In the lan guage of an American Judge,it was "unconfined and vagrant" and was not "canalised within banks that kept it from over flowing :"(per Cardozo J. in Panama Refining Co. vs Ryan.(2) Yet, the delegation was upheld. Why? Because "their Lordships are unable to find any such constitutional limita tion is imposed. " There is, however, a passage in the judgment of their Lordships, which, torn from its context, may appear, at first blush, to accept the maxim of delegatus non potest delegare as a principle of English constitutional law, notwithstanding its consistent repudiationby the same tribu nal in the previous decisions already (1) 72 I.A. 57, 70 72. (2) ; 878 referred to, and Mr. Chatterjee was not slow to seize on it as making a veering round to the American point of view. I do not think that their Lordships meant anything so revolutionary. The passage is this: "It is undoubtedly true that the Governor General, acting under section 72 of Schedule IX, must himself discharge the duty of legislation there cast on him, and cannot transfer it to other authorities"(1) (italics mine). This was said, however, in answering the "second objection" which was that section 1 (3) of the Ordinance "amounted to what was called delegated legislation by which the Governor Gener al, without legal authority, sought to pass the decision whether an emergency existed to the Provincial Governmen tinstead of deciding it for himself. " Now, the opening words of section 72 of Schedule IX of the Government of India Act declare: "The Governor General may, in case of an emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof." The ordinance was thus passed avowedly in exercise of a special power to legislate to meet an emergency, and the argument was that the very basis of this ordinance making power must be an exercise of per sonal judgment and discretion by the Governor General which he could not delegate to the Provincial Government or its officers. Their Lordships accepted the major premise of this argument but went on to point out that there was no delegation of his legislative power by the Governor General at all and that "what was done is only conditional legislation. " It was with reference to this special ordinance making power to meet emergencies that their Lordships said that the Governor General must himself exercise it and could not transfer it to other authorities. The words "acting under section 72 of Sched ule IX" and "there, cast on him" make their meaning clear, and the passage relied on by Mr. Chatterjee lends no support to his argument regarding the nondelegability of legislative power in general. In the light of the authorities discussed above and adopting the line of approach laid down there, I am 879 of opinion that section 7 of the , fell within the general scope of the affirmative words of section 22 of the Indian Councils Act, 1861, which conferred the law making power on the Governor. General in Council and that the provision did not violate any of the clauses by which, negatively, that power was restricted. The same line of approach leads me to the conclusion that section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, was also constitutional and valid. This Act was passed by the Dominion Legislature of India, and the governing constitutional provision was section 99 (1) of the Govern ment of India Act, 1935. The Indian Independence Act, 1947, authorised the removal of certain restrictions on the law making powers of the Central Legislature and section 108 of the Constitution Act was omitted; but the material words in section 99 (1) which granted the legislative power remained the same, namely, "may make laws for the whole or any part of the Dominion. " No doubt, as between the Dominion and the Provinces there was a distribution of legislative power according to the Lists in Schedule VII, but such distribu tion did not affect the power of the Dominion Legislature to make laws for what are known as Chief Commissioners ' Prov inces, of which Ajmer Merwara is one. This was made clear by section 100 (4) read with section 46. Section 2 of the impugned Act was, therefore a "law" which the Dominion Legislature was competent to make and the restrictive words "subject to the provisions of this Act" had no application to the case, as no provision was brought to our notice which affected the validity of the law. There was some discussion as to the scope and meaning of the words "restrictions" and "modifications". It was sug gested by Mr. Chatterjee that these words occurring in the impugned provisions would enable the executive authority to alter or amend any law which it had decided to apply to the territories in question and that a power of such undefined amplitude could not be validly delegated by the legislature. On 880 the other hand, the Attorney General submitted that in such context "modification" was usually taken to connote "making a change without altering the essential nature of the thing changed," and that the use of the word would make no difference to the delegability or otherwise of the legislative power. He drew attention to an instance men tioned by the Privy Council in Burah 's case, where their Lordships thought that the power given to the local govern ment by Act XXIII of 1861 to extend the Civil Procedure Code of 1859 "subject to any restriction, limitation or proviso". which it may think proper was not bad. In the view I have expressed above, however wide a meaning may be attributed to the expression, it would not affect the constitutionality of the delegating statute, because no constitutional limitation on the delegation of legislative power to a subordinate unit is ' to be found in either of the constitutions discussed above. That, I apprehend, is also the reason why the Privy Council too attached no importance to the words in section 39 of Act XXIII of 1861 referred to above. Turning next to section 2 of the Part C States (Laws) Act, 1950, it is framed on the same lines as the other two impugned provisions save for the addition of a clause empow ering repeal or amendment of any corresponding law (other than a Central Act) which is for the time being in force in the State. This additional clause, however, need not detain us, for, if there is no constitutional inhibition against delegation of legislative power under the present Constitu tion, delegation can as Well extend to the power of repeal as to the power of modification and the Court cannot hold such ' delegation to be ultra vires. The Constitutional validity of the additional clause thus stands or falls with that of the first part of the section and the only question is: What is the position in regard to delegated legislation under the present Constitution ? Here we do not have the advantage of Privy Council decisions bearing on the question as we had in Burah 's case (1) on the Indian Councils Act, 1861, and Benoari Lal (1) 5 I.A. 178. 881 Sarma 's case(1) on the Government of India Act, 1935. But the line of approach laid down in those cases and in numer ous others, to which reference has been made, must be fol lowed, not because of the binding force of those decisions, but because it is indubitably the correct approach to prob lems of this kind. Indeed, there is no difference between the English and the American decisions on this point. In both countries it is recognised that the correct way of resolving such problems is to look to the terms of the constitutional instrument, and to find out whether the impugned enactment falls within the ambit of the lawmaking power conferred on the legislature which passed the enact ment and, if so, whether it transgresses any restrictions and limitations imposed on such power. If the enactment in question satisfies this double test, then it must be held to be constitutional. We therefore begin by looking to the terms of the Con stitution and we find that article 245 confers lawmaking power on Parliament in the same general terms as in the other two cases discussed above. The article says "subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India. "Then we have the scheme of distribution of legislative powers worked out in article 246 as between Parliament and the legislatures of the States specified in Part A and Part B of the First Schedule, which, however, does not affect the question we have to determine, for article 246 (4), like section 100 (4) of the Government of India Act, 1935, provides that Parliament has power to make laws with respect to any matter for any part of the.territo ry of India not included in Part A or Part B notwithstanding that such matter is a matter enumerated in the State List. The position, therefore, is substantially similar to that under the Indian Councils Act, 1861, and the Government of India Act, 1935, so far as the words conferring law making power are concerned. Is then this impugned enact ment, which merely purports to (1) 72 I.A. 57. 882 delegate law making power to the Central Government for Part C ,States, a "law" within the meaning of article 245 (1) ? There can be no question but that the Act was passed by Parliament in accordance with the prescribed legislative procedure, and I can see no reason why it should not be regarded as a law. It will be recalled that the restricted interpretation which Markby J. (1) put on the word in sec tion 22 of the Indian Councils Act in accordance with Black stone 's definition (formulation of a binding rule of conduct for the subject) was not accepted by the Privy Council in Burah 's case. Even if a mere delegation of power to legis late were not regarded as a law ' 'with respect to" one or other of the "matters" mentioned in the three Lists, it would be a law made in exercise of the residuary powers under article 248. The question next arises whether there is anything in the Constitution which prohibits the making of such a law. The main restrictions and limitations on the legislative power of Parliament or of the States are those contained in Part III of the Constitution relating to Fundamental Rights. Our attention has not been called to any specific provision in that Part or elsewhere in the Constitution which prohib its or has the effect of prohibiting the making of a law delegating legislative power to a subordinate agency of Parliament 's choice. What Mr. Chatterjee strenuously urged was that, having regard to the Preamble to the Constitution, whereby the people of India resolved, in exercise of their sovereign right, "to adopt, enact and to give to themselves the Constitution," Parliament, which is charged with the duty of making laws for the territories of the Union, must, as in the American Constitution, be deemed to be a delegate of the people, and that this fundamental conception, which approximates to the conception ' underlying the American Constitution, attracts the application of the maxim delega tus non potest delegare, and operates as an implied prohibi tion against the delegation of legislative power by Parlia ment or, for that matter, by any other legislature (1) I.L.R. , 91, 883 in the country. It is true to say that, in a sense, the people delegated to the legislative, executive and the judicial organs of the State their respective powers while reserving to themselves the fundamental right which they made paramount by providing that the State shall not make any law which takes away or abridges the rights con ferred by that Part. To this extent the Indian Constitution may be said to have been based on the American model, but this is far from making the principle of separation of powers, as interpreted by the American courts, an essential part of the Indian Constitution or making the Indian Legis latures the delegates of the people so as to attract the application of the maxim. As already stated, the historical background and the political environment which influenced the making of the American Constitution were entirely absent here, and beyond the creation of the three organs of the State to exercise their respective functions as a matter of convenient governmental mechanism, which is a common feature of most modern civilised governments, there ' is not the least indication that the framers of the Indian Constitution made the American doctrine of separation of powers, namely, that in their absolute separation and vesting in different hands lay the basis of liberty, an integral and basic fea ture of the Indian Constitution. On the contrary, by provid ing that there shall be a Council of Ministers to aid and advise the President in the exercise of his functions and that the Council shall be collectively responsible to the House of the People, the Constitution following the British model has effected a fusion of legislative and executive powers which spells the negation of any clear cut division of governmental power into three branches which is the basic doctrine of American constitutional law. Without such a doctrine being incorporated in the Constitution and made its structural foundation, the maxim delegatus non potest dele gare could nave no constitutional status but could only have the force of a political precept to be acted upon by legis latures in a 884 democratic polity consisting of elected representatives of the people in the discharge of their function of making laws, but cannot be enforced by the court as a rule of constitutional law when such function is shirked or evaded. The American courts are able to enforce the maxim because it has been made by the process of judicial construction an integral part of the American Constitution as a necessary corollary of the doctrine of separation of powers. But the position in India, as pointed out above, is entirely differ ent, and the courts in this country cannot strike down an Act of Parliament as unconstitutional merely because Parlia ment decides in a particular instance to entrust its legis lative power to another in whom it has confidence, or, in other words to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the democratic process. What may be regarded as politi cally undesirable is constitutionally competent. Mr. Chatterjee also attempted to spell out an implied prohibition against delegation on the strength of article 357 (1) (a) which provides specifically for delegation by the President of the law making powers conferred on him by Parliament in case of failure of constitutional machinery in States. This express provision, it is claimed, shows that whenever the makers of the Constitution wanted to authorise delegation of legislative powers they have made specific provision in that behalf and, in the absence of any such provision in other cases, no delegation of such powers is permissible. I see no force in this argument. Merely be cause in a particular instance of rare and extraordinary occurrence an express provision authorising the President to delegate to another the law making powers conferred on him by Parliament is made in the Constitution, it is not reason able to infer that it was intended to prohibit the delega tion of powers in all other cases. The maxim expressio unius est exclusio alterius is not one of universal applica tion, and it is inconceivable that the framers of the Con stitution could have intended to deny to the Indian Legisla tures 885 a power which, as we have seen, has been recognised on all hands as a desirable, if not, a necessary con comitant of legislative activity in modern States America, having started with a rule against delegation as a necessary corollary of the constitutional doctrine of separation of powers, has made and is making numerous inroads on the rule, and English constitutional law has allowed, as we have seen, even to subordinate legislatures, the widest latitude to delegate their legislative powers so long as they retain their own law making capacity intact. In such circumstances, a provision for express delegation in a remote contingency is far too flimsy a ground for infer ring a general prohibition against delegation of legislative power in all other eases. In this connection, it will be useful to recall Lord Selborne 's observation in Burah 's case that all that the court has to see in adjudging an enactment constitutional is "that it violates no express condition or restriction by which the law making power conferred on the legislature is limited, and that it is not for the court to enlarge constructively those conditions and restrictions," and as recently as 1944, the Privy Council, as we have seen in Benoari Lal Sharma 's case referred to what has always been regarded as an established doctrine of English consti tutional law, namely, that the Indian legislature could do, in the matter of delegating its legislative powers, what the British Parliament could do. It would indeed be strange if, in framing the constitution of the Independent Republic of India at the present day, its makers were to ignore the experience of legislative bodies all the world over and to deny to Parliament a power which its predecessors unques tionably possessed. I have no hesitation in rejecting this argument. In the result, I hold that section 7 of the , section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, and section 2 of the Part C States (Laws) Act, 1950, are in their entirety constitutional and valid and I answer the reference accordingly. 886 MAHAJAN J. In exercise of the powers conferred by clause (1) of article 143 of the Constitution the Presi dent of India has referred the following questions to this Court for its opinion : (1) Was section 7 of the , or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the legislature which passed the said Act ? (2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the legislature which passed the said Act ? (a) Was section 2 of Part C States (Laws)Act, 1950, or any of the provisions thereof and in what particular or particulars and to what extent ultra vires the Parliament ? The reference raises questions of great importance concerning the administration of the affairs of the Republic and is the first one of the kind since the inauguration of the new constitution. The only point canvassed in the reference is as to the vires of the laws mentioned therein. It was contended by the learned Attorney General that legis lative power without authority or power to delegate is a futility and that unless legislative power includes. the power to delegate, power to administer will be ineffective. It was suggested that the true nature and scope of the legislative power of Parliament involves as part of its content power to confer law making powers upon authorities other than Parliament itself and that this is a natural consequence of the doctrine of the supremacy of Parliament. It was said that the Indian legislature when acting within the ambit of its legislative power has plenary powers of legislation as large and of the same nature as the British Parliament and unless the prescribed limits are exceeded, no question of ultra vires can possibly arise, that the proper approach to the question is "Look at the terms of the in strument by which affirmatively the legislative powers are created and by which negatively they are restricted. If what 887 has been done is legislation within the general scope of the affirmative words which give the power and if it violates no express condition or restriction by which the power is limited, it is not for any court of justice, to enquire or to enlarge constructively those conditions and restrictions. "(1) Reliance was also placed on the legisla tive practice in India and other countries of the the Com monwealth sanctioning constitutionality of statutes drawn up in the same form as the impugned enactments. The questions referred cover 'three distinct periods of legislation in the constitutional and political history of this country. The first question relates to the period when the government of this country was unitary in form and was constituted under the Indian Councils Act, 1861, as amended from time to time up to the stage of the introduction of the Morley Minto Reforms, when the Indian Legislature achieved the status of a political debating society and when as a result of the undoing of the partition of Bengal the capital of India was transferred from Calcutta to Delhi. The unitary form of government was changed after the different Round Table Conferences in London into a Federation by the Consti tution Act 'of 1935. This Act with certain adaptations remained in force till 26th January, 1950, when the new constitution was inaugurated. Under the Independence Act, 1947, India became a Dominion of the British Empire but the legislative power of the Parliament of the Dominion remained within the ambit of the Constitution Act of 1935, though the Parliament as a Constituent Assembly was conferred unlimited powers like that of a sovereign. The federal form of govern ment that had been adopted 'by the Constitution Act of 1935 was also adopted by the framers of the new constitution. The second question relates to the period when India had at tained the status of a dominion under the Indian Independ ence Act, while the last question concerns the legislative competency of Parliament under the new constitution of the Republic of India. (1) Queen vs Burah, 5 I.A. 178. 888 It is futile to ask in the year of grace 1951 whether delegated legislation is necessary or not. This kind of legislation is only a special aspect of the problem of administrative discretion. The necessity of delegating rule making power on the largest scale to administrative authorities is as much a basic fact of modern industrial society as the assumption by the State of certain obliga tions of social welfare. The problem, however, is how dele gated legislation and administrative discretion are confined and controlled so as to comply with the elementary princi ples of law in a democratic society. The answer to the problem has to be found within the ambit of the constitution of the country concerned and on the construction that a lawyer or a jurist would place on it with a constructive and not a purely legalistic approach. In this back ground it is instructive to see how the question has been solved in other countries. It was customary for the mother of Parliaments told ele gate minor legislative power to subordinate authorities and bodies. Some people took the view that such delegation was wholly unwise and should be dispensed with. Prof. Dicey, however, pointed out that it was futile for Parliament to endeavour to work out details of large legislative changes and that such anendeavour would result in cumbersome and prolix statutes. Blackstone remarked that power of this kind were essential to the effective conduct of the government. Constitutional practice grew up gradually as and when the need arose in Parliament, without a logical system, and power was delegated by Parliament for various reasons: because 'the topic required much detail, or because it was technical, or because of pressure of other demands on par liamentary time. The Parliament being supreme and its power being unlimited, it did what it thought was right. The doctrine of ultra vires has no roots whatever in a country where the doctrine of supremacy of Parliament holds the field. The sovereignty of Parliament is an idea fundamental ly inconsistent with the notions which govern inflexible and rigid constitutions existing in countries 889 which have adopted any scheme of representative government. In England supremacy of law only means the right of judges to control the executive and it has no greater constitution al value than that. The basis of power in England is the legal supremacy of Parliament and its unrestricted power to make law. In the words of Coke, "It is so transcendent and absolute as it cannot be confined either for causes or persons within any bounds," or again, as Blackstone put it, "An act of Parliament is the exercise of the highest author ity that this kingdom acknowledges upon earth. It hath power to bind every subject in the land, and the dominions there unto belonging; nay, even the King himself, if particularly named therein. And it cannot be altered amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of Parliament." (1). The Parliament being a legal omnipotent despot, apart from being a legislature simpliciter, it can in exercise of its sovereign power delegate its legislative functions or even create new bodies conferring on them power to make laws. The power of delegation is not necessarily implicit in its power to make laws but it may well be implicit in its omnipotence as an absolute sovereign. Whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it. 'The assertion therefore that this power Parliament exercises in its purely legisla tive capacity has no greater value than that of an ipse dixit. For these reasons I am in respectful agreement with the view of that eminent judge and jurist, Varadachariar J., expressed in Benoari Lal arma 's case(2) that the constitu tional position in India approximates more closely to the American model than to the English model and on this subject the decisions of the United States so far as they lay down any principle are a valuable guide on this question. (1) Vide Allen "Law in the Making " 3rd Edn., p. 367. (2) 890 This view finds support also from the circumstance that the constitutions of the two countries are fundamentally different in kind and character. They fail in two distinct classes having different characteristics. England has a unitary form of ' government with a flexible constitution, while in India we have always had a rigid constitution and since 1935 it is federal in form. It is unsafe, therefore, to make any deductions from the legislative power exercised under a system of government which is basically different in kind and not merely in degree from the other on the question of its legislative competency and reach conclusions on the basis of such deductions. In my opinion, search for a solu tion of the problem referred to us in that direction is bound to produce no results. I have, therefore, no hesita tion in rejecting the contention of the learned Attorney General that the answer to the questions referred to us should be returned by reference to, the exercise of power of Parliament in the matter of delegation of legislative power to the executive. It may, however, be observed that in spite of the widest powers possessed by the British Parliament, it has adopted a policy of self abnegation in the matter of delegated legis lation. A committee was appointed to report on the Minis ters ' powers, popularly known as the Donoughmore Committee. It made its recommendations and stated the limits within which power of delegated legislation should be exercised. Means were later on adopted for keeping a watchful eye on such legislation. The Donoughmore Committee discovered a few instances of cases where delegation had gone to the extent of giving a limited power of modifying Parliamentary statutes. One of these instances was in section 20 of the Mental Treatment Act, 1930 (20 & 21 Geo. V, c. 23). It empowered the Minister of Health by order to modify the wording of an enactment so far as was necessary to bring it into conformity with the provisions of the section. The whole section related to terminology, its intention being to replace certain statutory expressions in previous use by others which at the moment were regarded less 891 offensive. The other instance was found in section 76 of the Local Government Scotland Act, 1929, (19 & 20 Geo. V, c. 25). By this section the Secretary of State was empowered between 16th May, 1929, and 31st December, 1930, by order to make any adaptation or modification in the provisions of any Act necessary to bring these provisions in conformity with the provisions of other Acts. Such a clause in a statute bore the nickname "Henry VIII clause". Concerning it the Committee made the following recommendation: "The use of the so called Henry VIII clause conferring power on a Minister to modify the provisions of Acts of Parliament (hitherto limited to such amendments as may appear to him to be neces sary for the purpose of bringing the statute into operation) should be abandoned in all but most exceptional cases and should not be permitted by Parliament except upon special grounds stated in a ministerial memorandum to the bill. Henry VIII clause should never be used except for the sole purpose of bringing the Act into operation but subject to the limit of one year. " The language in which this recommendation is couched clearly indicates that even in a country where Parliament is supreme the power of modifying Parliamentary statutes has never been exercised except in the manner indicated in the above recommendation, and even as regards that limited power the recommendation was that the exercise of it should be abandoned. It is significant that since then Henry VIII clause has not been used by Parliament. The Dominion of Canada has a written constitution, The British North Amercia Act (30 & 31 Vict., c. 31). It is not modelled on the doctrine of exclusive division of power between the departments of State, legislative, executive and judicial. It does not place them in three water tight compartments and it is somewhat similar in shape in this respect to the British constitution where the King is still a part of the legislature, the House of Lords still a part of the judicial as well as legislative and where all parts of government form 892 a mutual check upon each other. This similarity, however, does not mean that the legislature in Canada is of the same kind as the British Parliament. It falls in the class of non sovereign legislatures, like all colonial parliaments. The decisions of Canadian courts are by no means uniform on the power of the Canadian Parliament to delegate legislative power. Those cited to us of recent date seem to have been given under the pressure of the two world wars and under the provisions of the War Measures Act. With great respect and in all humility, I am constrained to observe that in these decisions, to establish the vires of the powers delegated, arguments have been pressed into service which are by no means convincing or which can be said to be based on sound juristic principles. They can only be justified on the ground that during a period of emergency and danger to the State the dominion parliament can make laws which in peace time it has no competency to enact. There are a number of Privy Council decisions which have concerned themselves with the vires of legislative enactments in Canada which purported to transfer legislative power to outside authorities and it seems to me that these decisions furnish a better guide to the solution of the problem before us than the later decisions of the Supreme Court of Canada which seemingly derive support from these Privy Council decisions for the rules stated therein. The first of these decisions is in the case of Russell vs The Queen(1) decided in 1882. Two questions were raised in the appeal. The first was as to the validity of the Canada Temperance Act, 1878. It was urged that having regard to the provisions of the British North America Act, 1867, relating to the distribution of legislative powers it was not competent for the Parliament of Canada to pass the Act in question. The second question was that even if the Dominion Parliament possessed the powers which it assumed to exercise by the Act, it had no power to delegate them (1) 7 App. Cas. 829, 893 and to give local authorities the right to say whether the provisions of the Act should be operative or not. It is the second question which is relevant to the present enquiry the mode of bringing the second part of the Act into force, stating it succinctly, was as follows: "On a petition to the Governor in Council, signed by not less than one fourth in number of the electors of any county or city in the Dominion qualified to vote at the election of a member of the House of Commons, praying that the second part of the Act should be in force and take effect in such county or city, and that the votes of all the electors be taken for or against the adoption of the petition, the GovernorGeneral, after certain prescribed notices and evi dence, may issue a proclamation, embodying such petition, with a view to a poll of the electors being taken for or against its adoption. When any petition has been adopted by the electors of the county or city named in it, the Gover nor General in Council may, after the expiration of sixty days from the day on which the petition was adopted, by Order in Council published in the Gazette, declare that the second part of the Act shall be in force and take effect in such county or city, and the same is then to become of force and take effect accordingly. " It was urged before their Lordships that assuming that the Parliament of Canada had authority to pass a law for prohibiting and regulating the sale of intoxicating liquors, it could not delegate its powers, and that it had done so by delegating the power to bring into force the prohibitory and penal provisions of the Act to a majority of the electors of counties and cities. Their Lordships ' answer to the coun sel 's contention was in these words : "The short answer to this objection is that the Act does not delegate any legislative powers whatever. It contains within itself the whole legislation on the matters with which it deals. The provision that certain parts of the Act shall come into operation only 894 on the petition of a majority of electors does not confer on these persons power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient, and is certainly not unusual, and the power so to legislate cannot be denied to the Parliament of Canada, when the subject of legislation is within its competency. Their Lordships entirely agree with the opinion of Chief Justice Ritchie on this objection. If authority on the point were necessary, it will be found in the case of Queen vs Burah(1), lately before this Board. " It seems to me that their Lordships acquiesced and assented in the proposition urged by the learned counsel that delegation of legislative power was not permissible when they combated his arguments with the remark that the Act does not delegate any legislative power whatever. Otherwise, the short answer to the objection was that dele gation of legislative power was implicit within the power of legislation possessed by the legislature. It was not neces sary to base the decision on the ground of conditional legislation. Though Queen vs Burgh(1) was an appeal from the High Court of Bengal, a reference was made to it and the decision therein was mentioned as laying down an apposite rule for the decision of cases arising under the British North Ameri ca Act, 1867. In order to appreciate and apprehend the rule to which their Lordships gave approval in the above men tioned case, it seems necessary to state precisely what Queen vs Burgh(1) decided. Act XXII of 1869 of the Council of the Governor General of India which is entitled "An Act to remove the Garo Hills from the jurisdiction of the tribu nals established under the General Regulations and Acts, and for other purposes" among other things provided as follows : "Sec. 4. Save as hereinafter provided, the territory known as the Garo Hills. is hereby removed from the jurisdiction of the Courts of Civil and (1) 5 I.A, 178. 895 Criminal Judicature, and from the control of the offices of revenue constituted by the Regulations of the Bengal Code and the Acts passed by any legislature now or heretofore established in British India, as well from the law pre scribed for the said courts and offices by the Regulations and Acts aforesaid. And no Act hereafter passed by the Council of the Governor General for making Laws and Regula tions shall be deemed to extend to any part of the said territory, unless the same be specially named therein. Sec. 5. The administration of civil and criminal jus tice, and the superintendence of the settlement and realiza tion of the public revenue, and of all matters relating to rent, within the said territory, are hereby vested in such officers as the said Lieutenant Governor may, for the pur pose of tribunals of first instance or of reference and appeal, from time to time appoint. The officers so appointed shall, in the matter of the administration and superin tendence aforesaid, be subject to the direction and con trol of the said Lieutenant Governor and be guided by such instructions as he may from time to time issue. Sec. 8. The said Lieutenant Governor may from time to time by notification in the Calcutta Gazette, extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government, or which may hereafter be enacted by the Council of the Gover nor General, or of the said Lieutenant Governor, for making laws and regulations, and may on making such extension direct by whom any powers or duties incident to the provi sions so extended shall be exercised or performed, and make any order which he shall deem requisite for carrying such provisions into operation. Sec. 9. The said Lieutenant Governor may from time to time, by notification in the Calcutta Gazette extend mutatis mutandis all or any of the provisions contained in the other sections of this Act to the Jaintia Hills, the Naga Hills, and to such portion of the Khasi Hills as for the time being forms part of British India. " 896 Under the provisions of the Act the Lieutenant Governor of Bengal on the 14th October, 1871, issued a notification and in exercise of the powers conferred upon him by section 9, he extended the provisions of the said Act to the terri tory known as the Khasi and Jaintia Hills and excluded therefrom the jurisdiction of the Courts of Civil and Crimi nal Judicature, and specified in the notification the bound aries of the said territory. The notification extended all the provisions of the Act to the districts of Khasi and Jaintia Hills. The Lieutenant Governor did not exercise the power of selecting parts of these Acts for purposes of local application. Section 9 of the Act did not empower the Lieu tenant Governor to modify any of the provisions of the Act. The High Court of Bengal by a majority judgment held that the notification had no legal force or effect in removing the said territories from the jurisdiction which the High Court had previously possessed over it, inasmuch as the Council of the Governor General of India for making laws and regulations had under its constitution, by the Councils Act, 1861, no power to delegate such authority to the Lieutenant Governor as it had by Act XXII of 1869 in fact purported to delegate. The Indian Councils Act, 1861, 24 & 25 Vict. c. 67, by section 22, gave the Governor General in Council power for the purpose of making laws and regulation$, power for repealing, amending or altering any laws or regulations whatever then in force or thereafter to be in force and to make laws and regulations for all per sons, whether British or native, foreigners or others, and for all courts of justice whatever, and for all places and things whatever within the said territories, and for all servants of the Government of India within the dominions of princes and states, provided always that the said Governor General in Council shall not have the power of making any laws or regulations which shall repeal or in any way affect any of the provisions of the Act. As regards section 9 of the Act their Lordships made the following observations : 897 "The ground of the decision to that effect of the major ity of the Judges of the High Court was, that the 9th section was not legislation, but was a delegation of legis lative power. In the leading judgment of Mr. Justice Mark by, the principles of the doctrine of agency are relied on; and the Indian Legislature seems to be regarded as, in effect, an agent or delegate, acting under a mandate from the Imperial Parliament, which must in all cases be executed directly by itself. "Their Lordships cannot but observe that, if the princi ple thus suggested were correct, and justified the conclu sion drawn from it, they would be unable to follow the distinction made by the majority of the Judges between the power conferred upon the Lieutenant Governor of Bengal by the 2nd and that conferred on him by the 9th section. If, by the 9th section, it is left to the Lieutenant Governor to determine whether the Act, or any part of it, shall be applied to a certain district, by the 2nd section it is also left to him to determine at what time that Act shall take effect as law anywhere. Legislation which does not directly fix the period for its own commencement, but leaves that to be done by an external authority, may with quite as much reason be called incomplete, as that which does not itself immediately determine the whole area to which it is to be applied, but leaves this to be done by the same external authority. If it is an act of legislation on the part of the external authority so trusted to enlarge the area within which a law actually in operation is to be applied, it would seem a fortiori to be an act of legislation to bring the law originally into operation by fixing the time for its com mencement. "But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legisla ture, and indeed of the nature and principles of legisla tion. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do 898 nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large and of the same nature as those of Parliament itself. The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions. " The learned Attorney General placed considerable reli ance on these observations in support of his proposition that if the legislation is within the ambit of the field prescribed for exercise of legislative power, then from it it follows that within that field power can be exercised to delegate to the widest extent. This quotation, however, cannot be torn off from the context and read by itself. Meaning can only be given to these observations in the light of the observations that follow the quotation cited above and which are in these terms : " "Their Lordships agree that the Governor General in Council could not, by any form of enactment, create ' in India, and arm with general legislative authority a new legislative power not created or authorised by the Councils Act. Nothing of that kind has, in their Lordships ' opinion, been done or attempted in the present case. What has been done is this. The Governor General in Council has deter mined, in the due and ordinary course of legislation, to remove a particular district from the 899 jurisdiction of the ordinary courts and offices, and to place it under new courts and offices, to be appointed by and responsible to the Lieutenant Governor of Bengal; leav ing it to the Lieutenant Governor to say at what time that change shall take place; and also enabling him, not to make what law he pleases for that or any other district, but to apply by public notification to that district any law, or part of law, which either already was, or from time to time might be, in force, by proper legislative authority, in the other territories subject to his government. The legisla ture determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner of carrying it into effect to the discretion of the Lieutenant Governor; and also, that the laws which were or might be in force in the other territories subject to the same government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant Gover nor. "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority than that of the Governor General in Council. Their whole operation is, directly and immediately, under and by virtue of this Act (XXII of 1869) itself. The proper legislature has exercised its judgment as to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been ful filled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a provincial legislature, they may (in their Lordships ' judgment) be well exercised, either absolutely or conditionally. Legislation, conditional on the use of particular powers, or on the exercise of a limit ed 116 900 discretion, entrusted by the legislature to persons in whom it places confidence, is no uncommon thing; and, in many circumstances, it may be highly convenient. The British Statute book abounds with examples of it; and it cannot be supposed that the Imperial Parliament did not, when consti tuting the Indian Legislature, contemplate this kind of conditional legislation as within the scope of the legisla tive powers which it from time to time conferred. It cer tainly used no words to exclude it. " Towards the close of the judgment certain illustrations were mentioned of legislation in India described as condi tional legislation. Reference was made to the Codes of Civil and Criminal Procedure and particularly, section 39 of Act XXIII of 1861 which authorised the Local Government with the previous sanction of the Governor General in Council (not in his legislative capacity) to extend the provisions of the Act "subject to any restriction, limitation or proviso which the Local Government may think 'proper. " In my opinion, in this case their Lordships did not affirmatively assent to the proposition that the Indian Legislature had full power of delegation within the ambit of its legislative field and they did not dissent from the conclusion of Markby J. in the concluding part of the judg ment that under general principles of law in India any substantial delegation of legislative power by the legisla ture of the country was void. On the other hand, they re marked that legislation of this kind was conditional legis lation and it only becomes complete on the fulfilment of those conditions and that the determination of those condi tions could be left to an external authority. In spite of expressing their disapproval of the view of the majority of the Full Bench in applying the principles of the doctrine of agency and in treating the Indian Legislature as an agent of the Imperial Parliament, their Lordships clearly expressed the opinion that the exercise of the legislative will and judgment could not be transferred to an external authority and that it was for the proper legislature to exercise its own judgment as to the. 901 place, persons, laws and powers. It seems to me that though their Lordships were not prepared to assent to the proposi tion that the matter should be dealt with on principles deducible from the doctrine of the law of agency, they were also not prepared to depart from the rule that apart from the doctrine of the law of agency a person to whom an office or duty is assigned or entrusted by reason of a special qualification cannot lawfully devolve that duty upon another unless expressly authorised so to do. Public func tionaries charged with the performance of public duties have to execute them according to their own judgment and discre tion except to the extent that it is necessary to employ ministerial officers to effectively discharge those duties. For the reasons given above presumably the Privy Council was not prepared to lay down that delegation of legislative power was a content of the power itself. It contented itself by holding the law valid under the name and style of condi tional legislation. It is difficult to conceive that the Privy Council would have hesitated in saying so if it felt that delegation of legislative power was a content of the power itself. Reference in this connection may be made to a passage in the judgment of Markby J. which reads thus : The various Parliamentary statutes nowhere confer any express power upon the Indian Legislature to change the machinery of legislation in India. But they do confer that power subject to important restrictions upon the executive government. Mr. Kennedy boldly claimed for the Indian Legislative Council the power to transfer legislative func tions to the Lieutenant Governor of Bengal. Indeed as I understand him, the only restriction he would attempt was that the Legislative Council could not destroy its own power to legislate though I see no reason why he should stop there. The Advocate General did not go so far. There are no words in the Acts of Parliament upon which the legislative authority could be made transferable in one class of cases and not in others because I do not 902 for a moment suggest that every time a discretion is en trusted to others there is the transfer of legislative authority. Every Act of the legislature abounds with exam ples of discretion entrusted to judicial and executive officers of government, the legality of which no one would think of questioning. 'the broad question, however, is ' Can the legislature confer on the Lieutenant Governor legisla tive power? ' Answer: 'It is a general principle of law in India that any substantial delegation of legislative author ity by the legislature of this country is void '. " It was then contended that the illustration cited in the concluding part of the judgment of their Lordships suggests their approval of the proposition that the legislative power could be delegated conferring power to modify a statute passed by the legislature itself. This contention seems to be based on a misapprehension of what their Lordships decid ed. In the Full Bench decision of the Calcutta High Court in Empress vs Burgh & Book Singh(1) Markby J. made the following observations while dealing with these illustra tions : "Lastly it was argued that the Indian Legislature had done so (delegated power) for a long series of years, and a long list of Acts passed between 1845 and 1868 has been handed in to us, all of which, it is said, must be treated as instances of delegation of legislative authority and Act XXII of 1869 should be so treated. The Acts contained in the list do not appear to me to afford (as was asserted) so many clear and undisputed instances of transfer of legisla tive authority. I may observe that as to the provisions which these and many other Acts contain for the making of rules by executive government in conformity with the Act we have the highest authority in Biddie vs Tariney Churn Baner jee(2) that the power to make such rules may be conferred without delegation of legislative authority. . The list of Acts does not seem to me to show any clear practice of transferring legislative authority. " (1) I.L.R. (2) 1 Tay. & Bell, 390. 903 Ainslie J. specifically considered the provisions of section 39 of Act XXIII of 1861 and the meaning of the words "reservations ", "limitations" and "provisos" and said as follows : "The provisions of section 39, Act XXIII of 1861, do not affect my view of this matter. This section allows a local Government, with the previous sanction of the Governor General in Council, to annex any restriction, limitation, or proviso it may think proper when extending the Code of Civil Procedure to any territory not subject to the general regu lations; but this is merely another form of delaying the full extension of the Code. So far as the Code obtains operation, it is still, because the extension is pro tanto, a carrying out of the intention of the superior legislature that this shall be sooner or later the law in the particular tract of country. As I read the section, no power is given to amend the law itself; it is only a power to keep some portion in abeyance or to make its operation contingent on something external to it, which again is only another form of postponing its full operation." No doubt was cast on this construction of the language of section 39 either in the minority judgment of the High Court or in the judgment of their Lordships of the Privy Council. In view of this clear expression of opinion of Ainslie J. as to the meaning of the language used in section 39 and not disapproved by their Lordships of the Privy Council it cannot with any force be contended that their Lordships in Burahs case(1) gave approval to the proposition that the power of conditional legislation included the power of amendment or modification of the Act of the legis lature itself. In my opinion, the result of the decision in Burah 's case(1) is that it was decided that the Indian Legislature had power to conditionally legislate. This case is no authority for the proposition that it could delegate the exercise of its judgment on the question as to what the law should be to an external agency. This case does not support the (1) 5 I.A. 178. 904 proposition that amendment of a statute of the legislature itself is a matter which could form the subject of delegated legislation. The expression that Indian Legislature could not arm with legislative power a new legislative body not created by the Indian Councils Act only means that it must function itself in making laws and not confer this power on any other body. In other words, it could not create a person having co extensive power of legislation and could not clothe it with its own capacity of law making, that is in laying down principles and policies. The possession of plenary powers within the ambit laid down only means that within that particular field it can make any laws on those subjects, but it does not mean that it can shirk its duty in enacting laws within the field by making a law that it shall not itself operate on that field but somebody else will operate on its behalf. In my opinion, their Lordships ' judgment amounts to saying that though within the field prescribed it has the largest power of legislation, yet at the same time it is subject to the condition that it cannot abandon formally or virtually its high trust. Hodge vs The Queen(1) was the next Canadian case decid ed by the Privy Council in 1883. The appellant Hodge, was the holder of a liquor licence issued on 25th April, 1881, by the Board of Licence Commissioners for the City of Toron to under the Liquor Licence Act of the Province of Ontario in respect of the St. James Hotel. He was also the holder of a licence under the authority of the Municipal Act, authorising him to carry on the business or calling of a keeper of a billiard saloon with one table for hire. The appellant did on the 7th May, 1881, unlawfully permit and suffer a billiard table to be used and a game of billiards to be played thereon, in his tavern during the time prohib ited by the Liquor Licence Act for sale of liquor therein. It was urged that the Ontario Assembly was not competent to legislate in regard to licences for the sale of liquor and that even if the Ontario legislature could, it could not delegate its power to Licence Commissioners. ( 1) 9 App. 905 The local legislature had assigned to three officials the power to define offences and impose penalties. This conten tion was met with the plea that there was no delegation of legislative authority but only of the power to make by laws. The Court of the King 's Bench Division held that the local legislature had no power to delegate in the matter and that such power could be exercised by the legislature alone. The Court of Appeal reversed this decision and it was upheld by their Lordships of the Privy Council. It was found that sections 4 and 5 of the Liquor Licence Act were intra vires the constitution. In the course of their judgment their Lordships made the following observations: "It appears to their Lordships, however, that the objec tion thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures. They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in section 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by section 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Domin ion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect. It is obvious that such an authority is ancillary to legislation, and without it an attempt for varying details and machinery to carry them out might 906 become oppressive, or absolutely fail, The very full and very elaborate judgment of the Court of Appeal con tains abundance of precedents for this legislation, entrusting a limited discretionary authority to others, and has many illustrations of its necessity and convenience. It was argued at 'the bar that a legislature committing important regulations to agents or delegates effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legis to decide. "lature, and not for courts of law This case, in my opinion, decided the following points : (1) Power to make by laws or regulations as to subjects specified in the enactment and with the object of carrying that enactment into operation and effect can be transferred to municipal 'institutions or local bodies. (2) Such an authority is ancillary to legislation. (3) Giving such power of making regulations to agents and delegates does not amount to an effacement of the legislature itself. The case does not sanction the proposition that power to amend or to modify a statute passed by the legislature itself can be delegated. Power of amending a statute or altering it cannot be described as ancillary to legislation, nor is such a power within the armit of the doctrine of subsidiary legis lation. It is significant, that their Lordships of the Privy Council never gave their approval to the wide propo sition that what the legislature itself can do, it can employ an agent with coextensive powers for doing the Same. They have been careful in saying to what extent and in what measure delegation was permissible. All that they sactioned was delegation of authority ancillary to legislation or delegation to municipal institutions to make regulations and by laws and no more. It was not held by their Lordships that power to declare what the law shall be could ever be delegated or that such delegation will be intra vires the Parliament of Canada or of the 907 Indian Legislature. It was contended that by implication their Lordships held in this case that short of effacing itself the legislature could delegate. In my opinion, there is no justification for placing such a construction on the language used by their Lordships while they were combat ing an argument that was placed before them by the learned counsel. In re The Initiative and Referendum Act (1) is the third Canadian case decided by the Privy Council. By the Initia tive and Referendum Act of Manitoba the Legislative Assembly sought to provide that the laws of the province will be made and repealed by the direct vote of the electors instead of only by the Legislative Assembly whose members they elect. It was held that the powers conferred on a provin cial legislature by section 92 include the power of amend ment of the constitution of the province except as regards the office of the Lieutenant Governor and that the Initia tive and Referendum Act of Manitoba excludes the Lieu tenant Governor wholly from the new legislative authority set up and that this was ultra rites the provincial legisla ture. The Act was therefore held void. Lord Haldane who delivered the opinion of the Privy Council, after having found that the Act was ultra vires the legislature, made the following observations: "Having said so much, their Lordships, following their usual practice of not deciding more than is strictly neces sary, will not deal finally with another difficulty which those who contend for the validity of this Act have to meet. But they think it right, as the point has been raised in the court below, to advert to it. Section 92 of the Act of 1867 entrusts the legislative power in a province to its legisla ture and to that legislature only. No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a provincial legislature in Canada, could, while preserving its own capacity intact, seek (1) 117 908 the assistance of subordinate agencies as had been done when in Hodge vs The Queen (1) the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise. " These observations reiterate the ratio of the decision in Hodge vs The Queen(1) and they do not amount to saying that power to amend or modify Acts of the legislature itself could be given by delegation of legislative power. It is, however, important that their Lordships in clear and unam biguous language laid it down that section 92 entrusts legislative power to its legislature and to that legisla ture only and to no other. The principle underlying Lord Haldane 's remarks is thus stated in Street 's book on the Doctrine of Ultra Vires, at page 430: "The decision in this case, that the statute was ultra vires, did not turn precisely on the ground of delegation, but these remarks suggest that a legislature will not ordi narily be permitted to shift the onus of legislation, though it may legislate as to main principles and leave details to subordinate agencies. " Reference may also be made to the case of King vs Nat Bell Liquors Ltd.(2) The Liquor Act (6 Geo. V, c. 4, Alber ta) was held intra vires the power of the province under the British North America Act, 1867, and it was found that it was not ultra vires by reason of being passed pursuant to a popular vote under the Direct Legislation Act (4 Geo. V, c. 3, Alberta). Here the law was made by the provincial legis lature itself and it was passed in accordance with the regular procedure of the Houses of Legislature. This case is no authority for the contention raised by the learned Attorney General. Il) 9 App. 117 (21 909 The next Canadian case decided by the Privy Council is reported in Croft vs Dunphy(1). Antismuggling provisions enacted operating beyond territorial limits which had long formed part of Imperial customs legislation and presumably were regarded as necessary for its efficacy were held valid and within the ambit of the constitutional powers. This case does not suggest any new line of thought, not already con sidered in Queen vs Burah(2), or Hodge vs The Queen(3). Shannon vs Lower Mainland Dairy Products Board (4) is a case in which the question arose whether Natural Products Market ing Legislation Scheme of control or regulation and imposi tion of licence fees were intra vires the provincial legis lature. It was argued that it was not within the powers of the provincial legislature to delegate legislative power to the Lieutenant Governor in Council or to give him further power of delegation. This contention was met with the fol lowing observations : "The objection seems subversive of the rights which the provincial legislature enjoys while dealing with matters within its ambit. It is unnecessary to enumerate the innu merable occasions on which legislature has entrusted similar powers to various persons and bodies. On the basis of past practice the delegation was upheld. " So far as I have been able to ascertain, the past prac tice was in respect of conferring necessary and ancillary powers to carry on the policy of a statute. Reference was also made to Powell vs Apollo Candle Co. (5) decided in the year 1885. There the question arose as to the validity of section 133 of the Customs Regulating Act of 1879 which authorizes the levy of certain duties under an Order in Council. The section was held intra vires the constitution. It was argued that the power given to the colonial legislature to impose duties was to be executed by themselves (1) (4) (2) 5 I.A. 178. (5) 10 App. (3) 9 App. 117. 910 only and could not be entrusted wholly or in part to the Governor or anybody else. This objection was answered in the following way "The duties levied under the Order in Council are really levied by authority of the Act under which the order was issued. The legislature has not parted with its perfect control of the Governor and has the power of withdrawing or altering the power entrusted. " On this construction of the power delegated, that what the delegate was doing was done under the authority of the Act no question of delegation of lawmaking power arises. Fort Frances Pulp & Power Co. vs Manitoba Free Press (1), Co operative Committee on Japanese Canadians vs Attorney General for Canada (2), and Cooperative Committee vs Attorney General of Canada (3) cited at the Bar are not helpful in giving an opinion on the present matter. Four recent Canadian cases were cited for the extreme view that short of effacing itself Parliament or a legisla ture has the widest power of delegation and that it acts intra vires the constitution in doing so. The first of these cases is In re George Edwin Gray(4). The case was under section 6 of the War Measures Act, 1914, which con ferred very wide powers on the Governor General in Council for the efficient prosecution of the war. The decision was given by a majority of four to two and in the majority judgment the following observations occur : "The practice of authorizing administrative bodies to make regulations to carry out the objectives of an act instead of setting out all details in the Act itself is well known and its legality is unquestioned but it is said that the power to make such regulations could not constitu tionally be granted to such an extent as to enable the express provisions of the statute to be amended or repealed; that under the constitution (1) (3) (2) (4) 57 S.C.R. (Canada) 150. 911 Parliament alone is to make laws, the Governor General to execute them and the court to interpret them, then it fol lows that no one of the fundamental branches of government can constitutionally either delegate or accept the function of any other branch. In view of Rex vs Halliday(1), I do not think this broad proposition can be maintained. Parliament cannot indeed abdicate its functions, within reasonable limits at any rate it can delegate its power to execute government orders. Such powers must necessarily be subject to determination at any rate by Parliament and needless to say that the acts of the executive under its delegated authority must fall within the ambit of the legislative pronouncement by which this authority is measured. It is true that Lord Dunedin in Rex vs Halliday(1) said that the British Constitution has entrusted to the two Houses of Parliament subject to assent by the King an absolute power untrammelled by any other circumstance, obedience to which may be compelled by a judicial body. That undoubtedly is not the case in this country. Nothing in the Act imposes any limitations on the authority of the Parliament. " To the proposition stated in the opening part of the quotation there can be no possible objection. But when the learned Judges proceed to lay down the rule that in the absence of any limitations in the constitution Parliament can delegate the power to amend and repeal laws made by itself to an external authority unless it amounts to an abdication of its functions does not in my humble opinion seem to be sound. In the first instance, these observations seem inconsistent with the fundamental proposition that a duty entrusted to a particular body of persons and which is to be performed according to certain procedure by that body can be entrusted to an external agency which is not con trolled by any rules of procedure in the performance of that duty and which would never have been entrusted to perform it. Moreover, abdication by a legislative body need not necessarily amount to a (1) ; 912 complete effacement of it. Abdication may be partial or complete. It would certainly amount to abdication when in respect of a subject of legislative list that body says it shall not legislate on that subject but would leave it to somebody else to legislate on it. That would be delegation of the law making power which is not authorized. There is no justification for the assumption that the expression "abdi cation" is only applicable when there is a total effacement or a legal extinction of such a body. In my opinion, it is the abdication of the power to legislate when a legislature refuses to perform its duty of legislating on a particular subject and entrusts somebody else to perform that function for it. "Abdication" according to the Oxford Dictionary means abandonment, either formal or virtual, of sovereignty or other high trust. It is virtual abandonment of the high trust when the person charged with the trust says to some body else that the functions entrusted to him in part or whole be performed by that other person. Be that as it may, the point of view contained in the above quotation cannot be supported on the decisions of their Lordships of the Privy Council discussed in the earlier part of this judgment. Duff J. stated his view in the following way : "The true view of the effect of this type of legisla tion is that the subordinate body in which a lawmaking authority is vested by it is intended to act as the agent or the organ of the legislature and that the acts of the agent take effect by virtue of the antecedent declaration that they shall have the force of law." These observations, in my opinion, and I speak with great respect cannot again be justified on any juristic principle. In the matter of making law there cannot be an anticipatory sanction of a law not yet born or even con ceived. Moreover, an organ of the legislature for making laws can only be created by the constitution and not by the legislature which is itself confided with that power by the constitution. The learned dissenting Judge in this case observed that a wholesale surrender of the will of the people to any 913 autocratic power would not be justified either in cons titutional law or by the past history of their ancestors. These observations were made in respect to the power of amendment or repeal conferred on the delegate. As I have pointed out earlier in this judgment, such a power has not even been exercised by the British Parliament and the Do noughmore Committee recommended that its exercise as far as possible should be abandoned. The decision in this case, in my opinion, is not an apposite authority for arriving at a correct conclusion on the questions involved in the refer ence. The next case to which our attention was drawn is Ref. re Regulations (Chemicals)(1). This case arose in connection with the regulations respecting chemicals made pursuant to powers conferred by the Department of Munitions and Supply Act and by the War Measures Act. The question was whether these regulations were ultra vires the constitution. It was held that except in one part the regulations were intra rites, and it was observed that the War Measures Act does not attempt to transform the executive government into a legislature in the sense in which the Parliament of Canada and the legislatures of provinces are legislatures and that the regulations derive legal force solely from the War Measures Act. Reliance was placed on Queen vs Burah(2) and Hodge vs The Queen(3). One of the learned Judges observed that the maxim delegatus non potest delegare is a rule of the law of agency and has no applica tion to Acts of a legislature, that the power of delegation being absolutely essential in the circumstances for which the War Measures Act has been enacted so as to prove a workable Act, power must be deemed to form part of the powers conferred by Parliament in that Act. Another learned Judge observed that the maxim was not confined to the law of agency alone but that it had no application to legislation. A third learned Judge, however, said that the maxim quoted above also had application to grants of legislative power but that the Parliament has not (1) [1943] S.C.R. (Canada) 1 (3) 9 App. Cas. 117, (2) 5 I.A. 178. 914 effaced itself, in the ultimate analysis it had full power to amend or repeal the War Measures Act. In my opinion, for the reasons already stated, the observations in this case also go beyond the rule laid down by their Lordships of the Privy Council in Queen vs Burah(1) and Hodge vs The Queen(s), and are not a true guide to the solution of the problem. Our attention was also drawn to Attorney General of Nova Scotia vs Attorney General of Canada(3). This case does not lend full support to the view taken in the cases cited above. Therein it was laid down that neither the Parliament of Canada nor the legislature of any province can delegate one to the other any of the legislative authority respec tively conferred upon them by the British North America Act, especially by sections 91 and 92 thereof. The legislative authority conferred upon Parliament and upon a provincial legislature is exclusive and in consequence, neither can bestow upon or accept power from the other, ' although each may delegate to subordinate agencies. On the question of delegation of legislative power, the learned Chief Justice remarked that "delegations such as were dealt with in In re George Edwin Gray(4) and in Ref. re Regulations (Chemicals)(5) under the War Measures Act were delegations to a body subordinate to Parliament and were of a character different from the delegation meant by the bill now submit ted to the courts." In this case on the general question of delegation the Supreme Court did not proceed beyond the rule enunciated in In re The Initiative and Referendum Act (6), or what was stated in Hodge vs The Queen(7). Lastly reference may also be made to the case of Oimuit vs Bazi (8). The learned Attorney General placed reliance on certain obiter dicta of Davies J. to the effect that the Parliament of Canada could delegate its legislative power and such delegation was within its power. The learned Chief Justice did not express (1) 5 I.A. 178. (5) (2) 9 App. (6) (3) (1950)4 D.L.R 369. ' (7) 9 App. 57 S.C.R. 150 (8) 46 S.C.R.L. (Canada)502. 915 any opinion on the point, while Idington J. was not prepared to subscribe to this view. The other Judges did not consid er the point at all. In my opinion, these remarks, the soundness of which was doubted by other Judges, are not of much assistance to us in this case. Having examined the Canadian cases on this subject it seems pertinent at this stage to refer to a passage from Street on the Doctrine of Ultra Vires, which states the true position of colonial legislatures and appositely brings out the meaning of the language used by the Privy Council in the cases that the legislatures are not the agents of the Imperial Parliament : "However true it may be that colonial legislatures are not mere agents of the Imperial Government, it is also true that they are not unfettered principals. Within the terms of their constitution they are limited at least as to subjects and area, and, to the extent suggested, perhaps also as to power of delegation. If an ultra vires colonial ' statute may be ratified by the Imperial Parliament, there is an implica tion of agency. To do anything outside the scope of their constitution as when the Dominion of Canada established the Province of Manitoba(1), an imperial statute is required. It would appear that a legislature cannot, as an ordinary principal, ratify acts purporting to be done under its authority (2). Taking a broad view, non sovereign legisla tures are, and so long as they do not repudiate their con stitutions must remain, delegates of the Imperial Parlia ment. They have been so regarded by the Privy Council(3). But just as in the case of the prerogative it would be impolitic to apply a formula too strictly, so also the law of agency must be accommodated to meet the solid fact that the colonies, or the most important of them, enjoy real independence. " The decisions of American courts on the constitutionality of delegation of legislative power are, as in (1) 34 Vict. c. 28. (2) Commonwealth vs Colonial Ammunition Co. ; , 221. (3) [1906] A.C. 542; , 254. 118 916 the case of other countries, by no means uniform. Judicial opinion has sometimes taken a strict view against the valid ity of such delegation and on other occasions it has liber ally upheld it as constitutional on grounds which again by no means are based on logical deductions from any juristic principle, but generally on grounds of convenience or under the doctrine of "determining conditions" and sometimes on historical considerations. The Supreme Court of America has, however, never departed from the doctrine that legislative power cannot be delegated to other branches of government or to independent bodies or even back to the people. The rule against delegation of legislative power is not based merely on the doctrine of separation of powers between the three state departments, legislative, executive and judicial, evolved by the constitution. This doctrine puts a restraint on delegation to other branches of government. Prohibition against delegation to independent bodies and commissions rests on Coke 's maxim, delegatus non potest delegare. The maxim, though usually held applicable to the law of agency embodies a sound juristic principle applicable to the case of persons entrusted with the performance of public duties and the discharge of high trusts. The restraint on delega tion back to the people is tied up with some notion of representative democracy. Reference was made to a number of decisions of, the Supreme Court during the arguments and quotations from several books on constitutional law were cited. It is not useful to refer to all of them in my opinion, but a few important ones may be mentioned. The first American case that needs mention is Waman vs Southard (1), a decision of Marshall C.J. given in the year 1825. The question concerned the validity of certain rules framed by the courts. The learned Chief Justice observed that it could not be contended that Congress could delegate to courts or to any other tribunal powers which are strictly or exclusively legislative. (1) 6 Law. Edn. 262. 917 In Killbourn vs Thompson (1), it was held that judicial power could not be exercised by the legislative department. Field vs Clark C) is one of the leading cases in America on this subject. In this case power had been delegated to the executive to impose certain duties. Delegation of power was upheld on the ground that the policy of the law having been determined by the legislature, working out of the details could be left to the President who could not be said to be exercising any legislative will but was merely authorised to execute the law as an agent of the legislature in execut ing its policy. It was asserted that it was a principle universally recognised as vital to the maintenance of the system of government that Congress could not delegate legislative power to the President. In Springer vs Phillipine Islands C), the same view was expressed. On similar lines is the decision in U.S. vs Gravenport etc. Co. (4). It was observed that after fixing a primary standard, power to fill up details could be devolved by appropriate legislation. The provision attacked there was held as not delegation of legislative power but merely giving power to make administrative rules. O 'Donouhue vs U.S. (5) concerned the question of compensation payable to Judges of the Supreme Court and it was held that it could not be lawfully diminished. It was remarked that the object of the creation of the three departments of government was not a mere matter of convenience but was basic to avoid commingling of duties so that acts of each may not be called to have been done under the coercive influence of the other departments. The decision in Hampton & Co. vs U.S.(6) is the oft quoted judgment of Taft C.J. The following extracts from that judgment may be quoted with advantage : "It is a breach of the national fundamental law if Congress gives up its legislative power and transfers it to the President, or to the judicial branch, or, if by ; (4) (2) ; (5) ; (3) (8) ; 918 law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co ordinate parts of one govern ment and that each in the field of duties may not invoke the action of the other two branches in so far as the action invoked shall not be an assumption of the constitu tional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to commonsense and the inherent necessities of governmental co ordination. The field of Congress involves all and many varieties of legislative action and Congress has found it frequently necessary to use officers of the executive branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting direction in such officers to make public regulations inter preting a statute and directing the details of its execu tion, even to the extent of providing for penalizing a breach of such regulations. . Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an executive, or, as often happens in matters of State legislation, it may be left to a popular vote of the residents of a district to be affected by legislation. " Panama Refining Co. vs U.S. (1) is another leading decision of the Supreme Court on this subject. In Benoari Lal Sarma 's ease (2) considerable reliance was placed by Varadachariar J. on this decision for arriving at his con clusion against non delegation of power in India. The following observations from the judgment of Hughes C.J. may appositely be cited : The Congress is not permitted to abdicate, or to trans fer to others, the essential legislative functions with which it is vested. Undoubtedly, legislation must often be adapted to complex conditions involving (1) 293 U.S. a88. (2) 919 a host of details with which the national legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibil ity and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the policy as declared by the legislature is to apply. " Cardozo J. observed as follows :"An attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to standards is in effect a roving commission. " In Opp Cotton Mills vs Administrator (1), it was said that essential legislative power could not be delegated but fact finding agencies could be created. Yakus vs U.S. C) is to the same effect. In Lichter vs U.S. (3) it was held that a constitutional power implies a power of delegation of authority under it sufficient to effect its purpose. This power is especially significant in connection with war powers under which the exercise of discretion as to methods to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the admin istrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise specification. These decisions seem to indicate that judicial opinion in America is against delegation of essential powers of legislation by the Congress to administrative bodies or even to independent commissions. It is unnecessary to refer to all the passages that were quoted from the different text books which apart from the opinions of the text book writers merely sum up (1) ; (3) ; (2) ; 920 the result of the decisions given by the various courts on this point. This result has been, in my opinion, very accurately summarized by Crawford in his book on Construc tion of Statutes at pages 215, 26 in the following words and represents the present state of constitutional law in that country on this subject : "Legislative power has been delegated, as a general rule, not so often as an effort to break down the triparte theory of the separation of powers, but from necessity and for the sake of convenience. More and more with a social system steadily becoming increasingly complex, the legisla ture has been obliged in order to legislate effectively, efficiently and expeditiously, to delegate some of its functions: not purely legislative in character, to other agencies, particularly to administrative officials and boards. Most prominent among the powers thus delegated have been the power to ascertain facts, and the power to promul gate rules and regulations. Many of the other delegated powers, upon analysis, fall within one of these two major or basic classifications. "So far, however, as the delegation of any power to an executive official or administrative board is concerned, the legislature must declare the policy of the law and fix the legal principles which are to control in given cases and must provide a standard to guide the official or the board empowered to execute the law. This standard must not be too indefinite or general. It may be laid down in broad general terms. It is sufficient if the legislature will lay down an intelligible principle to guide the executive or administra tive official. From these typical criterions, it is apparent that the courts exercise considerable liberality towards upholding legislative delegations, if a standard is established. Such delegations are not subject to the objec tion that legislative power has been unlawfully delegated. The filling in of mere matters of detail within the policy of, and according to, the legal principles and standards established by the legislature is essentially ministerial rather than legislative in character, even if considerable 921 discretion is conferred upon the delegated authority. In fact, the method and manner of enforcing a law must be left to the reasonable discretion of administrative officers, under legislative standards. " On one point, however, there is uniformity of judicial decisions in the American courts and even amongst the text book writers. Delegation of general power to make and repeal laws has uniformly been held as unconstitutional: [vide observations of Dixon J. in Victoria etc. Co. & Meakes vs Dignam(1)]. It was there pointed out that no instance could be cited of a decision of the Supreme Court of America in which Congress had allowed or empowered the executive to make regulations or ordinances which may overreach existing statutes. In Moses vs Guaranteed Mortgage Co. of New York(2) a section of the Emergency Banking Law of 1933 was held uncon stitutional delegation of power. There a banking board was given power to adapt, rescind, alter or amend rules and regulations inconsistent with and in contravention of any law. In his second edition on Administrative Law, at p. 110, Walter Gellhorn states as follows : "Delegations of power to alter or modify statutes are, in effect, nothing more than delegations of the dispensing, suspending or rule making powers, or a combination thereof. Yet the mere use of the terms 'alter ' or 'modify ' in the statute, has brought unexpected repercussions from courts and commentators. " In a number of decisions mentioned in this book the courts have held that delegation of power to alter or modify a statute is unconstitutional delegation of power. As observed by Prof. Salmond (Jurisprudence 10th Edn. p. 159), a legislative Act passed by the supreme legislature cannot be amended by any other body than the supreme legislature itself. In Rowland Burrow 's Words and Phrases, the word "modify" has been defined as meaning "vary, extend or en large, limit or restrict. " In Oxford Dictionary, one of the (1) ; (2) 239 App. 703, 922 meanings of this word is "the making of partial changes or altering without radical transformation." The same diction ary gives the following meaning to the word "modification": ' 'the result of such alteration, a modified form or varie ty. " In Stevens vs General Steam Navigation Co. Ltd.(1) it was stated that modification implies an alteration. It may narrow or enlarge the provisions of a former Act. In my opinion, the view taken in American decisions that delega tion of authority to modify an Act of the Congress is uncon stitutional is fully borne out by the meaning of the expres sion "modify", though this view is not liked by Walter Gellhorn. Before concluding, it is apposite to quote a passage from Baker 's Fundamental Law which states the prin ciple on which the American decisions are based and which coincides with my own opinion in respect of those decisions. The passage runs thus: "The division of our American government into three co ordinate branches necessarily prevents either of the three departments from delegating its authority to the other two or to either of them, but there are other reasons why the legislative power cannot be delegated. Representative government ' vests in the persons chosen to exercise the power of voting taxes and enacting laws, the most important and sacred trust known to civil government. The representa tives of the people are required to exercise wise discretion and sound judgment, having due regard for the purposes and needs of the executive and judicial departments, the ability of the tax payers to respond and the general public welfare. It follows as a self evident proposition that a representa tive legislative assembly must exercise its own judgment; that in giving its consent to a tax levied it must distinct ly and affirmatively determine the amount of the tax by fixing a definite and certain rate or by fixing an aggregate amount on the tax payers and that in enacting a law it must so far express itself that the Act when it leaves the legis lative department is a complete law. It is therefore a maxim of constitutional law that a legislative body (1) 923 cannot delegate its power. If it was competent for a repre sentative legislative body to delegate its power it would be open to make the delegation to the executive which would be destructive of representative government and a return to despotism. Not only the nature of the legislative power but the very existence of representative government depends upon the doctrine that this power cannot be transferred. " The Australian Constitution follows the American model (63 & 64, Vic., c. 12, passed in July 1900). The legislative power of the Commonwealth is vested in a Federal Parliament. The executive power is vested in the Queen, while the judicial power is vested exclusively in the courts. The extent of the legislative power is stated in sections 51 and 52 of the Constitution Act. The residuary powers vest in the States. The first Australian case cited to us is Baxter vs Ah Way(1). This was decided in the year 1909. It was held that section 52, sub section (g), of the Customs Act of 1901, which provides that all goods the importation of which shall be prohibited by proclamation shall be prohibited imports, is not a delegation of legislative power but conditional legislation and is within the power conferred on Parliament by section 51 of the Constitution. It was further held that prohibition of importation is a legislative act of the Parliament itself, the effect of sub section (g) being to confer upon the Governor General in Council the discretion to declare to what class of goods the prohibition will apply. In the course of his judgment the learned Chief Justice observed as follows : "The foundation of the argument that this power cannot be delegated by the legislature is to be found in the case of. . It is of course obvious that every legislature does in one sense delegate some of its functions. . Nor is it to the purpose to say that the legislature could have done the thing itself. Of course, it could. In one sense this is delegation of authority because it authorizes another body to do (1) ; 119 924 something which it might have done itself. It is too late in the day to contend that such a delegation,if it is a delegation is objectionable m any sense. The objection cannot be supported on the maxim delegatus non potest dele gate or on any other ground. . There being no objec tion to conditional legislation being passed, this is a case of that sort. " O 'Connor J. said as follows : "Power is given in section 51 in respect of trade and commerce with other countries on taxation and there is also power to make laws incidental to the exercise of any power vested in Parliament. It is a fundamental principle of the constitution that everything necessary to the exercise of a power is included in the grant of a power. Everything necessary to the effective exercise of the power of legisla tion must be taken to be conferred by the constitution with that power. . Exercise of such discretion cannot be said to be making of the law." Higgins J. said : "According to my view, there is not here in fact any delegation of the law making power." This case rests on the principle that legislative power cannot be delegated and it was for that reason that the impugned statute was justi fied on the ground of conditional legislation. If delega tion of legislative power was permissible, it was wholly unnecessary to justify the enactment as a form of condition al legislation. Roche vs Kronheimer(1), decided in the year 1921, was argued by Dixon (as he then was). The question in that case concerned the validity of the Treaty of Peace Act, 1919, which by section 2 authorized the making of regulations conferring the delegation of powers on certain persons. The legislation was held constitutional. In the argument by Mr. Dixon, its validity was attacked on the following grounds: "It is not conditional legislation as in the case of. Baxter vs Ah Way(2), but it bestows on the executive full ; (2) 925 legislative power upon a particular subject. Vesting of legislative power to any other hands than Parliament is prohibited. The making of a law that another body may make laws upon a particular subject matter is not making a law on that subject. " The decision was given in these terms : It was said that if Parliament had authority to legis late, it had no power to confer that authority on the Gover nor General. On this topic we were referred to Hodge vs The Queen (1) and Rex vs Halliday(2) and In re The Initiative and Referendum Act(3), and much interesting argument was devoted to the real meaning and effect of the first of those cases. It is enough to say that the validity of legislation in this form has been upheld in Farey vs Burvett(4); Pank hurst vs Kierman(5); Ferrando vs Pearce(6); and Sickerdick vs Ashton(D, and we do not propose to enter into any inquiry as to the correctness of those decisions. " This case therefore was decided on the ground of cursus curiae, and the point raised by Mr. Dixon remained unan swered. In the year 1931 two cases came before the Supreme Court, one of which was decided in February, 1931, and the other in November, 1931. The first of these is the case of Huddart Parker Ltd. vs The Commonwealth(3), in which Dixon J. was one of the presiding Judges. The question in that ease concerned the validity of section 33 of the Transport Workers Act which empowered the Governor General to make regulations in respect of transport workers. The learned Judge observed that Roche vs Kronheimer(9) had decided that a statute conferring on the executive power to legislate upon some matters, is law with respect to that subject. On this construction of the decision in Roche vs Kronheimer(9) the case was decided. (1) 9 App. (6) ; 12} ; (7) ; (3) iI919] A.C. 935. t8) ; (4) ; (9) ; (5) ; 926 So far as I have been able to see, Roche vs Kronhei mer(1) decided nothing and it was based on the rule of stare decisis. Victorian etc. Co. & Meakes vs Dignan(2) was decided in November, 1931. The question in that case was whether section 3 of the Transport Workers Act was intra rites the constitution inasmuch as it delegated power of making regu lations notwithstanding anything else contained in other Acts. The delegation was under the name and style of confer ring "regulative power. " The appellants in that case were informed that they were guilty of an offence against the Waterside Employment rights, picking up for work as a water side worker at Melbournea person not a member of the Water side Workers ' Federation, while transport workers who were members of the Federation were available for being picked up for the work at the said port. The attack on the Act itself was based on the American constitutional doctrine that no legislative body can delegate to another department of government or to any other authority the power, either generally or specially, to enact laws. The reason, it was said, was to be found in the very existence of its own powers '. This high prerogative having been entrusted to its own wisdom, judgment and patriotism and not to those of other persons, it will act ultra rites if it undertakes to delegate the trust instead of executing it. It was, however, said that this principle did not preclude conferring local powers of government upon local authorities. The defence was that the Act did not impinge upon the doctrine because in it the Parliament confined the regulating power on certain specific matters within the ambit of the trade and commerce power and accordingly merely exercised its own legislative power within that ambit, and did not delegate any part of it. Reference was made to the decision of Higgins J. in Baxter vs Ah Way(3), in which it was observed that the Federal Parliament had within its ambit full power to frame its own laws in any fashion using any agent, any agency, any machinery that in its wisdom it thinks (1) ; (2) ; (3) 927 fit for the peace, order and good government of the Common wealth. Rich 3. held that the authority of subordinate law making may be invested in the executive. Reference was made to Roche vs Kronheimer(1) The learned Attorney General placed considerable reliance on the judgment of Dixon J. The learned Judge expressed his opinion on the American decisions in these words : "But in what does the distinction lie between the law of Congress requiring compliance with direction upon some specified subject which the administration thinks proper to give and a law investing the administration with authority to legislate upon the same subject? The answer which the decisions of the Supreme Court supply to this question is formulated in the opinion of that Court delivered by Taft C.J. in Hampton & Co: v.U.S.(2). The courts in America had never had any criterion as to the validity of statutes except that of reasonableness, the common refuge of thought and expression in the face of undeveloped or unascertainable standards. " The learned Judge then reached the conclusion that no judicial power could be given or delegated, but from that it did not follow that Parliament was restrained from transfer ring any power essentially legislative to another organ or body. In an earlier decision the learned Judge had ex pressed the opinion that time had passed for assigning to the constitutional distribution of powers among.the separate organs of government, an operation which confined the legis lative power to the Parliament so as to restrain it from reposing in the executive an authority essentially legisla tive in character and he remarked that he was not prepared to change that opinion or his expression to the effect that Roche vs Kronheirner(1) did decide that a statute conferring upon the executive a power to legislate on some matters contained within one of the subjects of the legislative power of Parliament is a law with respect to that subject and the distribution of powers (1) ; (2) ; , 406. 928 does not restrain Parliament to make the law. The learned Judge then proceeded to say: "This does not mean that a law confiding authority " to the executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of federal power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity. It may be acknowledged that the manner in which the constitution accomplished the separation of power does logically or theoretically make the Parliament the exclusive repository of the legislative power of the Commonwealth. The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. Such subordinate legislation remains under Parliamen tary control and is lacking in the independent and unquali fied authority which is an attribute to true legislative power. " It seems to me that in its ultimate analysis the judgment of the learned Judge proceeded, as pointed out by him, upon the history and the usages of British legislation and theories of English law and not on the strict construction of the Australian Constitution with respect to which the learned Judge frankly conceded that logically or theoretically the power of delegation of the quality held valid in that case could not be justified on the framework of the constitution. I have also not been able precisely to follow the distinction drawn by the learned Judge that delegation held justified by him did not include delegation in the fullest extent of any matter falling within the boundaries of federal power. After a careful consideration of the observations of this very learned and eminent Judge I venture to think that these are not a safe guide for deci sion of the present reference. Not only were the constitu tional limitations of the written constitution over reached, but the decision was based on the theories of British legis lation and English law which could 929 hardly be applied to a written constitution with a complete separation of power. Mr. Justice Evatt in this case stated the rule differ ently. He observed "every grant by the Parliament of author ity to make regulations is itself a grant of legislative power and the true nature and quality of legislative power of the Commonwealth Parliament involves as part of its contents power to confer law making powers upon author ities other than the Parliament itself." The theory that legislative power has a content of delegation in it, to my mind, is not based on any principles of jurisprudence or of legislation and I venture to think that it is inconsistent with the fundamental principle that when a high trust is confided to the wisdom of a particular body which has to be discharged according to the procedure prescribed, such trust must be discharged by that person in whom it is confided and by no other. This decision is moreover inconsistent with the decisions of the Privy Council above mentioned. If the mere existence of power of legislation in a legislature automati cally authorized it to delegate that power, then there was hardly any necessity for their Lordships of the Privy Coun cil to justify delegation in the cases referred to above on the ground of conditional legislation and to state affirma tively that the cases considered by them were not cases of delegation of legislative authority. This view is certainly in conflict with the observations of the Privy Council in Benoari Lal Sarma 's case (1), given under the Government of India Act, 1935, wherein their Lordships said: "It is true that the Governor General acting under section 72 of Sched ule IX himself must discharge the duty of legislation there cast on him and cannot transfer it to any other authority. " Evatt J. after enunciating the rule discussed above remarked : "It is true that the extent of the power granted will often be a material circumstance in the examination of the validity of the legislation conferring the grant. . The nature of the legislative power of the (1) 930 Commonwealth authority is plenary, but it must be possible to predicate of every law passed by the Parliament that it is a law with respect to one or other of the specific subject matters mentioned in sections 51 and 52 of the constitution." After referring to a number of circumstances considered by the learned Judge material in reaching at a result as to the constitutionality of a statute, he observed as follows: "As a final analysis the Parliament of the Commonwealth is not competent to abdicate its powers of legislation. This is not because Parliament is bound to perform all or any of its legislative functions though it may elect not to do so, or because of the doctrine of sepa ration of powers, but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the con stitution. A law by which Parliament gave all its law making authority to another body will be bad because it will fail to pass the test last mentioned. " Frankly speaking, I have not been able to apprehend on what principles, if any, of construction, the relevancy of the matters considered by the learned Judge as material circumstances in judging the validity of an Act so far as the question of the vires of the Act is concerned could be justified. Another Australian case cited is Wishart vs Fraser(1). There the attack was on section 5 of the National Security Act, 1939 40, which empowered the making of regulations for securing public safety and defence of the Commonwealth etc. It proceeds on the same line as the earlier case discussed above. In my opinion, the decision in Baxter vs Ah Way(2) is based on a correct construction of the provisions of the Australian Constitution and the later decisions cannot be considered as any guide. in this country for a decision of the point involved m the reference. The argument pressed by Mr. Dixon, as he then was, in (1) ; (2) ; 931 Roche vs Kronheirner(1) in my opinion, states the principle correctly. The decisions of their Lordships of the Privy Council from India are not many. The first and the earliest of these is in Queen vs Burah(2), which has already been dis cussed at considerable length in the earlier part of this judgment and as stated already, it is no authority for the proposition that the Indian Legislature constituted under the Indian Councils Act, 1861, had power to delegate author ity to the executive authorising them to modify or amend the provisions of an Act passed by the legislature itself. King Emperor vs Benoari Lal Sarma(3) is the last Indian decision of the Privy Council on this subject. Conviction of fifteen individuals made by a special magistrate purporting to act under Ordinance II of 1942, promulgated by the Gover nor General on the 2nd January, 1942, was set aside by a special Bench of the High Court at Calcutta and this deci sion was affirmed by the majority of the Federal Court of India. The ground on which the conviction was set aside was that the Ordinance was ultra vires. In appeal before their Lordships of the Privy Council it was contended that the Ordinance was valid. The Ordinance did not itself set up any of the special courts but provided by sub section (3) of section 1 that the Ordinance "shall come into force in any Province only if the Provincial Government, being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbour ing on India or from the imminence of such an attack, by notification in the official gazette, declare it to be in force in the Province and shall cease to be in force when such notification is rescinded." In view of this last provision it was contended that the Ordinance was invalid either because the language showed that the Governor General notwithstanding the preamble did not consider that an emergency existed but was making provi sion in case one should arise in ; (2) 5 I.A. 178, (3) 120 932 future, or else because the section amounted to what was called "delegated legislation" by which the Governor General without legal authority sought to pass the deci sion whether an emergency existed to the Provincial Govern ment instead of deciding it for himself. On this last point their Lordships observed as follows : "It is undoubtedly true that the Governor General acting under section 72 of Schedule IX, must himself discharge the duty of legislation there cast on him, and cannot trans fer it to other authorities. But the Governor General has not delegated his legislative powers at all. His powers in this respect, in cases of emergency, are as wide as the powers of the Indian legislature which, as already pointed out, in view of the proclamation under section 102, had power to make laws for a province even in respect of matters which would otherwise be reserved to the Provincial legislature. Their Lordships are unable to see that there was any valid objection, in point of legality, to the Governor General 's ordinance taking the form that the actual setting up of a special court under the terms of the ordinance should take place at the time and within the limits judged to be neces sary by the provincial government specially concerned. This is not delegated legislation at all. It is merely an exam ple of the not uncommon legislative arrangement by which the local application of the provision of a statute is deter mined by the judgment of a local administrative body as to its necessity. Their Lordships are in entire agreement with the view of the Chief Justice of Bengal and of Khundkar J. on this part of the case. The latter Judge appositely quotes a passage from the judgment of the Privy Council in the well known decision in Russell vs The Queen(1). " This case brings out the extent to which conditional legislation can go, but it is no authority justifying dele gation of legislative power authorising an external authori ty to modify the provisions of a legislative enactment. It may be pointed out that the opening part of the passage quoted above seems to approve the view (1) 7 App. 933 of the Federal Court expressed by Varadachariar J. in that case when his Lordship relying on a passage from Street on the Doctrine of Ultra Vires observed that a legislature will not ordinarily be permitted to shift the onus of legisla tion though it may legislate as to main principles and leave the details to subordinate agencies. The decision of the Federal Court in Jatindra Nath Gupta vs The Province of Bihar and Others(1) to which I was a party and wherein I was in respectful agreement with the judgment of the learned Chief Justice and my brother Mukher jea, in my opinion, correctly states the rule on the subject of delegation of legislative power. The Bihar Maintenance of Public Order Act, 1947, in sub section (3) of section 1 provided as follows : "It shall remain in force for a period of one year from the date of its commencement. Provided that the Provincial Government may, by notifi cation, on a resolution passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council, direct that this Act shall remain in force for a further period of one year with such modifications, if any, as may be specified in the notification. " Acting under the proviso the Provincial Government on the 11th March, 1948, extended by notification the life of the Act by one year. The validity of the proviso to sub section (3) of section 1 of the Act was attacked on the ground that it amounted to delegation of legislative power by the Provincial Legislature and this it was not competent to do. On the authority of the decision of the Privy Council in Benoari Lal Sarma 's case (2) I held the proviso void. The question was posed by me in the following way : "It may be asked what does the proviso purport to do in terms and in substance ? The answer is that it empowers the Provincial Government to issue a notification saying that the Provincial Act shall remain (1) (2) 934 in force for a further period of one year with such modifi cations, if any, as may be specified in the notification. As stated in the earlier part of this judgment, unless the power of the Provincial Government is co extensive with the power of the Provincial Legislature, it is difficult to see how it can have the power to modify a statute passed by that legislature, Modification of statute amounts to re enacting it partially. It involves the power to say that certain parts of it are no longer parts of the statute and that a statute with X sections is now enacted with Y sections. In the act of modification is involved a legislative power as a discretion has to be exercised whether certain parts of the statute are to remain law in future or not or have to be deleted from it. The power to modify may even involve a power to repeal parts of it. A modified statute is not the same original statute. It is a new Act and logically speak ing, it amounts to enacting a new law. The dictionary mean ing of the word 'modify ' is to make something existing much less severe or to tone it down or to make partial changes in it. What modifications are to be made in a statute or whether any are necessary is an exercise of law making power and cannot amount merely to an act of execution of a power already conferred by the statute. The extent of changes is left to external authority, i.e., the Provincial Government. Nothing is here being done in pursuance of any law. What is being delegated is the power to determine whether a law shall be in force after its normal life has ended and if so, what that law will be, whether what was originally enacted or something different. The body appointed as a delegate for declaring whether a penal Act of this character shall have longer life than originally contemplated by the legislature and if so, with what modification, is a new kind of legisla ture than that entrusted with the duty under the Government of India Act, 1935. " I still maintain the view that the question of the life of an Act is a matter for the judgment of the competent legislature. It is a matter of policy whether a certain enactment is to be on the statute 935 book permanently or temporarily. Such a question does not fall within conditional legislation as it concerns the extension of the life of a temporary Act. Such an Act dies a natural death when the period fixed for its duration ex pires. It automatically ceases to operate and there is no real analogy between conditional legislation which author izes a known authority to determine the commencement or termination of an Act and an act done in exercise of any power conferred by the Act itself. It was said by the learned Attorney General that this decision had created considerable difficulties and that the various High Courts in India on its authority had held certain enactments void, the validity of which had never been questioned before this decision was given. In my humble judgment, there is nothing whatever in that decision which m any way unsettled the law as settled by their Lordships of the Privy Council in Bu rah 's case(1). This decision did not lay down that the Indian legislature did not possess power of delegation necessary for effectively carrying out its legislative functions. All that it held was and I think rightly that essential legislative function could not be delegated to an external authority and that the legislature could not shirk its own duty and lay the burden of discharging that duty on others. If I was convinced that the decision laid down a wrong rule of law, I would have required no sugar coated phrases to own the error. Our attention is not drawn to a single decision of their Lordships of the Privy Council during the whole administration of this country by the British in which the highest court in the land upheld the contention urged by the learned Attorney General. On the other hand, learned Judges in this country of the eminence of Markby J. and Varadachariar J. in very clear and unambig uous terms affirmed the rule that delegation of essential legislative power was not within the competence of the Indian legislatures. Reference may also be made to the case of The State of Bombay vs Narottamdas(2), decided recently and to (1) 5 IA. (2) ; 936 which I was a party. Therein it was explained that Jatindra Nath Gupta 's case(1) was no authority prohibiting delegation of legislative power in case where the principle and policy of the law had been declared in the enactment itself and ancillary powers had been delegated to the provincial gov ernment for bringing into operation the provisions of an Act. To sum up, judicial opinion on this subject is still in a fluid state and it is impossible to reconcile all the judgments cited to us on the basis of any rigid principles of constitutional law. In England the Parliament is for the time being following the recommendations of the Donough more Committee. In America the doctrine against delegation of legislative power still holds the field. In Canada as well as.in India the rule laid down by their Lordships of the Privy Council in Burah 's case(2) has never been departed from in theory. The same view was maintained in the earlier Australian decisions. Recently Australian decisions however have gone to the length of holding that even essential legislative power can be delegated so long as the principal does not completely efface itself. In my opinion, the true solution of the problem of delegation of legislative power is to be found in the oft quoted passage from the judgment of Ranney J. of the Supreme Court of Ohio in Cincinnati W. & Z.R. Co. vs Clinton County Comrs.(3). This quotation is in these terms: "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. " The decision in Locke 's Appeal(4) is also based on this rule. There it was said : (1) (3) 5 I,A. 178. (4) , 937 "To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the legislature of the power to act wisely for the public wel fare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossi ble to fully know. " The proper distinction the court said was this: "The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. 'To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation. " The Federal Court of India in its opinion, expressed by Varadachariar J. in Benoari Lal Sarma 's case(1) considered a contention of the Advocate General of India made to it based on the above quotation of Ranney J. and observed as follows: "We are of the opinion that there is nothing in the above decisions of their Lordships that can be said to be inconsistent with the principle laid down in the passage from the American authority which the Advocate General of India proposed to adopt as his own argument. " The majority of the court approved the rule stated by Chief Justice Hughes in Panama Refining Co. vs U.S.(2), and it was stated that the rule therein held had nothing whatev er to do with maxim delegatus non potest delegate, but was only the amplification of what was referred to by the Judi cial Committee in Burah 's case(3) as "the nature and princi ples of legislation. " The question can be posed thus: Why is delegation pecul iarly a content of legislative power and not of judicial power ? In my judgment, it is a content of none of the three State powers, legislative, judicial or executive. It is, on the other hand, incidental to the (1) (2) ; (3) 5 I.A. 178. 938 exercise of all power inasmuch as it is necessary to dele gate for the proper discharge of all these three public duties. No public functionary can himself perform all the duties he is privileged to perform unaided by agents and delegates, but from this circumstance it does not follow that he can delegate the exercise of his judgment and dis cretion to others. One may well ask, why is a legislature formed with such meticulous care by all constitution makers ? Why do they take pains to lay down the procedure to be followed by an elected legislature in its function of law making ? Why do they define its different functions and lay down the methods by which it shall act ? The only answer that reasonably can be given to these queries is: "Because the constitution trusts to the judgment of the body consti tuted in the manner indicated in the constitution and to the exercise of its discretion by following the procedure pre scribed therein. " On the same principle the judges are not allowed to surrender their judgment to others. It is they and they alone who are trusted with the decision of a case. They can, however, delegate ancillary powers to others, for instance, in a suit for accounts and in a Suit for dissolu tion of partnership, commissioners can be entrusted with powers authorising them to give decisions on points of difference between parties as to items in the account. Again it may be enquired why cannot other public functionaries entrusted in the matter of appointment of public servants delegate this particular duty to others. The answer again is found in the same principle. I put this query to the learned Attorney General but I could not elicit any very satisfactory answer. He contented himself by saying that possibly there was something in the nature of the power itself which requires the personal attention of the authori ties concerned and that therefore delegation was there impliedly forbidden. To my mind, the same principle forbids delegation of essential legislative power. It is inherent in the nature of the power that has to be exercised by the legislature elected for the purpose subject to the qualifi cations already stated, It would be a breach of 939 the constitutional duty to bestow this power on someone else. In the words of Sir John Salmond, "In general, in deed, the power of legislation is far too important to be committed to any person or body of persons save the incor porate community itself. The great bulk of enacted law is promulgated by the state in its own person. But in excep tional cases it has been found possible and expedient to entrust this power to private hands. " In the words of Mr. Dixon (as he then was), the making of a law that another body may make laws upon a particular subject matter is not making a law on that subject. The quotation cited in the earlier part of this judgment from Baker 's book appositely states the rule when it says: "It is an axiom of constitu tional law that representative legislative bodies cannot delegate legislative power because representative government vests in the persons chosen to exercise the power of voting taxes and enacting laws, :the most important and sacred trust known to civil government. " In the words of another jurist, "Legislation is the formal utterance by the legisla tive organ of the society and by no others. Its words constitute the law and not the words of the delegate. " In private law the rule is well settled that an arbitra tor cannot lawfully devolve his duty on another unless so expressly authorized. The nature of the duty itself is such that it demands exercise of his own judgment and discretion. It is again well settled that fiduciary duties cannot be made the subject of delegation, though trustees in order to discharge certain functions can use machinery or subordinate agencies for effectively carrying on the duties which attach to their constitution. Delegation is permissible in cases where there is a legal or physical necessity to do so be cause without trusting some person or persons it would be impossible efficiently to discharge the duties. It cannot be denied that municipal and other corporations cannot delegate the by law making power to the executive officers. It is so because power is entrusted to them in their corporate capac ity and has to be exercised in that capacity. I am not able to apprehend 121 940 why this principle which is well settled in. private law cannot appositely be applied to the discharge of duties by public functionaries and by a legislature. It seems to me that the nature of the duty is such that it is implicit within it that it should be discharged by the person en trusted with it and by no others. In other words, the nature of the public duty itself demands it and the principles of legislation require it. For the reasons given above I cannot accept the proposi tion contended for by the learned Attorney General that in the absence of an express or implied provision in the con stitution legislative authority can be bestowed on other persons. In my opinion, the correct proposition, on the other hand, is that unless expressly or impliedly author ized, such delegation is not permissible. The exceptions to this rule fall in two classes which have been stated in the quotation from Crawford 's book earlier cited in this judg ment. It is now convenient to examine the provisions of our Constitution in order to appreciate the contention of the learned Attorney General that it has been modelled on the British system and that the Parliament of India is as omnip otent as in England and that in the matter of delegation of legislative power it is in an analogous situation. In my opinion, our Constitution is a judicious combination of the American model with the British Parliamentary system. In its main scheme it follows the Government of India Act, 1935, which provides for a federation of States and provides for an executive responsible to the legislature. As a matter of fact, the framers of the constitution, though they have borrowed ideas from other constitutions, have not rigidly adhered to any particular model. Certain provisions in our constitution are such for which there is no precedent in the constitution of any other country. It seems to ,me that they were as much alive to the doctrine of administrative convenience as to the dangers of a system which permits delegation of unfettered legislative power to the execu tive. The country had recently emerged from the bonds of a bureaucratic system which had killed 941 its very soul and they. apparently did not wish it to get engulfed again m the rigours of that system. Bureaucratic rule is a necessary corollary to the existence of unfettered delegation of legislative power. To avoid this, the consti tution makers made detailed provision in the Constitution on all matters. It has to be emphasized that no country in the world has such an elaborate and comprehensive constitution as we have in this country and it would not be proper to construe such a constitution with the help of decisions given elsewhere on the construction of constitutions shaped differently. It is only after a consideration of all the provisions of the Constitution and its whole scheme that it has to be decided whether delegation of power legislative, executive or judicial is implict in the grant of any of these powers or has been expressly provided for, to the extent it was considered necessary on grounds of administra tive convenience in peace or war time and therefore confer ment of this power by implication cannot be upheld on its true construction. It has also to be borne in mind that our Constitution is fundamentally different from the British system inasmuch as the doctrine of supremacy of Parliament has its limitations here. The courts are empowered to declare Acts of Parliament unconstitutional if they are inconsistent with Part III of the Constitu tion or when they trespass on fields demarcated for State legislatures. Obviously, it is implict in the demarcation of legislative fields that one legislature cannot by delega tion of subjects that are exclusively within its field clothe the other with legislative capacity to make laws on that subject as it will amount to an infringement of the Constitution itself. It seems clear, therefore, that dele gation of legislative power to that extent is prohibited by the Constitution. Illustratively, defence is a Union sub ject, while law and order is a State subject. Can it be argued with any reason that by delegation Parliament can arm a State legislature with the law making power on the subject of defence and that a State legislature can arm Parliament with 942 power to make law on the subject of law and order ? In my opinion, any argument on those lines has to be negatived on the ground that the delegation of such power would be contrary to the Constitution itself and that this kind of transfer of power is outside its contemplation. For a simi lar reason if such transfer of power is not possible in the case of one legislature to the other, it is difficult to justify it if the transfer is made in favour of the execu tive except to the extent allowed by the Constitution or to the extent that it had already been recognised under the designation "conditional legislation" or "rule making power", of which presumably the constitution makers were fully aware. I have again no hesitation in holding that our constitution makers accepted the American doctrine against delegation of legislative power, and on grounds of adminis trative convenience and to meet particular circumstances they carefully made express provisions within the Constitu tion for devolution of power in those eventualities. Article 53 of the Constitution concerns the executive power of the Union. It is vested in the President and in express terms it is stated in that article that it shall be exercised by him either directly or through officers subor dinate to him in accordance with this Constitution. The Parliament is authorized by law to confer functions on authorities other than the President. A careful reading of this article shows that an elaborate provision has been made in the Constitution for employing agencies and machinery for the exercise of the executive power of the Union. The President is vested with the supreme command of the Defence Forces and in addition to this power, power of delegation has been conferred on Parliament even in its executive field in article 53 (3) (b). Similar provision has been made in regard to the executive power of each State:(vide article 154). In article 77 provision has been made as to how the business of the Government of India has to be conducted. The President has been conferred the power of making rules for the more convenient transaction of the business 943 of the Government of India and for the allocation among Ministers of the said business. Such a detailed provision regarding the exercise of executive power does not exist in the other constitutions to which our attention was drawn. Article 79 provides that there shall be a Parliament for the Union. Provision has then been made in the various articles how the Parliament has to be constituted and how it has to conduct its business, what officers and secretariat it can employ and with what powers. Articles 107 to 119 relate to legislative procedure. It is implicit in these elaborate provisions that the Constitution bestowed the lawmaking powers on the body thus constituted by it, and it was this body in its corporate capacity that had to exercise its judgment and discretion in enacting laws and voting taxes and that judgment had to be arrived at by following the rules of procedure expressly laid down therein. Article 123 confers legislative power on the President when Parlia ment is not in session and this power is co extensive with the legislative power of the Parliament itself. Article 124 deals with the Union judiciary. It prescribes the number of Judges and the method of their appointment and it lays down the procedure that the President has the power in making the appointments. In article 140 provision has been made under which Parliament can confer on the Supreme Court such sup plemental powers as may appear to be necessary for the purpose of enabling the court more effectively to exercise the jurisdiction conferred upon it by or under this Consti tution. An express provision of this kind, in my opinion, very clearly negatives the proposition which the learned Attorney General has been contending for. If the power of delegation of legislative powers is implict in the power of legislation itself, the constitution makers would not have made an express provision in article 140 bestowing authority on Parliament for conferment of ancillary powers on the Supreme Court. Parliament obviously had authority to legis late on "Supreme Court" as it is one of the subjects in the Union List. Article 145 (1) (a)again very strongly 944 negatives the proposition of the learned Attorney General. The constitution has authorized the Supreme Court to make rules as to the persons practising before the court. This is one of the subjects in the Union List and this conferment of power by the Constitution on the Supreme Court is subject to the provision of any law made by the Parliament. In other words, Parliament has been given express power to take away this power or supplement it by making a law. In my judgment, such a provision is quite foreign to a constitution in which delegation of law making powers is implicit. Detailed provi sion has been made for the appointment of High Court Judges in article 217, and rule making powers have been given to the High Courts under article 227. In article 243 the Presi dent has been given the power to make regulations for the peace and good government of territories enumerated in Part D of the First Schedule and in exercise of that power he can repeal or amend any law made by Parliament or an existing law. The Constitution itself has delegated the powers of the Parliament to the President wherever it thought that such delegation was necessary. Articles 245 and 246 demarcate the field of legislation between the Parliament and the State legislature and in article 248 provision has been made that residuary powers of legislation remain in the Parliament. Article 250 makes provision for cases of emergency. Parlia ment in that event has power to make laws for the whole or any part of the territory of India with respect to any matters enumerated in the State lists. Article 252 is a somewhat peculiar provision. Under it Parliament can legis late for two or more States with their consent. This is a form of exercise of legislative power by Parliament as a delegate of the State as by its consent alone Parliament gets the power of legislation. By article 258 the President has been authorized with the consent of the Government of a State to entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union ex tends. In that article provision has also been made. for 945 delegation of powers by a law made by Parliament. By article 349 the power of the Parliament to enact laws in respect of language has been restricted. Article 353 states the effect of a proclamation of emergency and provides that the execu tive power of the Union in such a case shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. Clause (2) of this article requires emphasis. It provides that the power of Parliament to make laws with respect to any matters shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and he imposition of duties, upon the Union, or officers and authorities of the Union, as respects that matter, notwith standing that it is one which is not enumerated in the Union List. Parliament in an emergency under article 250 has full power to make laws on subjects within the State List and is certainly entitled to delegate that power if that power is a content of legislative power but the constitution makers thought otherwise and made an express provision for delega tion of power in such a situation. Article 357 provides that where by proclamation issued under clause (1) of article 356, it has been declared that the powers of the legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent for Parliament to confer on the President the power of the legislature of the State to make laws, and to authorize the President to dele gate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf. This is the only article by which the Constitution has authorized the delegation of essential legislative power. Possibly it was thought that in that contingency it was necessary that Parliament should have power to confer legislative power on the executive and to clothe it with its own legislative capacity in the State field and further to authorize the President to delegate that legislative power to any other authority specified by him. A reference to the entries in the three Lists of the Seventh Schedule further 946 illustrates this point. Entry 93 of List I is Offences against laws with respect to any of the matters in this List. " Entry 94 is "Inquiries, surveys and statistics for the purpose of any of the matters in this List. ' ' Entry 96 is "Fees in respect of any of the matters in this List, but not including fees taken in any court. " Entry 95 is "Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List. " All these entries are instances of subjects incidental and ancillary to the main subjects of legislation contained in the List. Similar entries are to be found in Lists II and III as well. The Constitution seems to have taken care to confer legislative power in express terms even regarding incidental matters and it is therefore unnecessary to read by implication and introduce by this process within such a constitution any matter not expressly provided therein. I am satisfied that the constitution makers considered all aspects of the question of delegation of power, whether executive, legislative or judicial, and expressly provided for it whenever it was thought necessary to do so in great detail. In this situation there is no scope for the applica tion of the doctrine contended for by the learned Attorney General and it must be held that in the absence of express powers of delegation allowed by the Constitution, the Par liament has no power to delegate its essential legislative functions to others, whether State legislatures or executive authorities, except, of course, functions which really in their true nature are ministerial, The scheme of the Consti tution and of the Government of India Act, 1935, is that it expressly entrusted with legislative capacity certain bodies and persons and it also authorised the creation of law making bodies wherever it thought necessary but gave no authority to create a new law making body not created by itself. It even created the executive as a legislature in certain contingencies. In these circumstances it is not possible to add to the list of legislative authorities by a process of delegation. As pointed out by Crawford on Statu tory 947 Construction, at page 333. "If a statute enumerates the things upon which it is to operate, everything else must necessarily and by implication be excluded from its opera tion and effect. So if a statute directs certain acts to be done in a specified manner by certain persons, their per formance in any other manner than{ that specified, or by any other person than is there named, is impliedly prohibited. " The ordinary rule is that if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of the act authorised under other circumstances than those as defined. Under the Government of India Act, 1935, the executive enjoyed a larger power of legislation than is contained in the new constitution. It seems to have been cut down to a certain extent. The new constitution confers authority on Parliament to make laws for the State of Delhi. It also authorizes it to create a legislature for that State. The Constitution therefore has made ample provision indicating bodies who would be competent to make laws for the State of Delhi. In my opinion, therefore, delegation of legislative power to the executive in matters essential is unconstitutional. Any legislative practice adopted during the pre constitution period for undeveloped and excluded areas can have no rele vancy in the determination of this point. Having examined the provisions of the new constitution, the constitutional position of the Indian legislature under the Indian Councils Act of 1861 and of the Government of India Act, 1935, as subsequently adapted by the Indian Independence Act, 1947, may now be examined. As already stated, the Government of India Act, 1935, envisaged a federal constitution for India with a demarca tion of the legislative field between the Federation and the States and it is the scheme of this Act which has been adopted in the new constitution. I have already expressed my respectful agreement with the view expressed by Varadachari ar J. in Benoari Lal Sarrna 's case(1) that the constitution al (1) 122 948 position in India under this Act approximates more closely to the American model than to the English model and it seems to me that delegation of legislative power in its essenti ality is not allowed by its provisions. During a period of emergency the Governor General could himself under his own proclamation become the executive as well as the legislature and the necessities of administrative convenience were not a compelling circumstance for introducing into the scheme of the Act by implication, authority in Parliament for the delegation of legislative power. This Act also contains detailed provisions authorizing delegation of power both in the executive and legislative field wherever it was consid ered necessary to confer such power. The Indian Independence Act by section 6 conferred the power of legislation on the Dominion Parliament within the ambit of the Act of 1935. By other provisions of the Indian Independence Act it made the Dominion Parliament a Constituent Assembly for the purpose of making the new constitution for India and it also gave it authority to repeal Acts of Parliament. For the purpose of ordinary law making it had the same powers as the legisla tures in India enjoyed under the Government of India Act, 1935, and the question referred to us in regard to the Ajmer Merwara Act, 1947, has to be answered on the provi sions of the constitution contained in the Constitution Act of 1935. The constitutional position in India prior to the Act of 1935 may now be briefly stated. Before the Charter Act of 1833 there was a division of legislative power between the Governor General and the Presidencies. By that Act the power of the Presidencies as legislatures was terminated and the whole law making power was vested in the Governor General in Council. Mr. Macaulay was added as a legislative member to the executive council without a right to vote. In sub stance the executive and the legislative functions were performed by the same body, of course, with the help and advice of Mr. Macaulay. With slight modifications the situation remained the same till the Indian Councils Act, 1861. Under this Act the 949 Governor General in Council in legislative meetings could legislate for the whole of India and local legislatures could also legislate for the provinces. By section 10 of the Act the legislative power was vested in the Governor General in Council. In section 15 it was laid down how that power was to be exercised. For conduct of the legislative business power was given to the Governor General to make rules in section 18. Section 22 laid down the ambit of the legislative power. Section 23 bestowed power on the Gover nor General in emergencies to make ordinances. Section 44 empowered the Governor General to create local legislatures and confer on them legislative power. It appears that the scheme of the Councils Act was that whenever Parliament wanted the Governor General in Council to have power to create legislatures or to make rules or regulations, that power was conferred in express terms. By another statute in the year 1870 summary power to make law was conferred on the Governor General in his executive capacity in respect to less advanced areas, i.e., non regulation provinces. Another charter would not have been necessary if the Governor Gener al could arm himself with legislative power by a process of delegation from his own Council. In my opinion, the consti tution as envisaged by the Indian Councils Act, 1861, does not authorize the delegation of essential legislative power by any of the legislative authorities brought into existence by that Act to the executive and it was for this reason that their Lordships of the Privy Council in Burgh 's case(1) did not base their decision on this ground but merely upheld the enactment as intra vires on the ground of conditional legis lation. I am in respectful agreement with the opinion of Markby J. expressed in the year 1877 in these terms:" that any substantial delegation of legislative authority by the legislature of this country is void. " The Privy Council on appeal did not dissent from this view. It was argued that legislative practice in India since a long time has been such as would validate statutes (1) 5 I.A. 178. 950 designed on the model of the three statutes under reference to us. Reference was made to the following observations in U.S.v. Curriss Wright(1) : "Uniform, long continued and undisputed legislative practice resting on an admissible view of the constitution goes a long way to the direction of proving the presence of unas sailable grounds for the constitutionality of the prac tice. " In my opinion, there is no evidence in this case of any uniform, long continued and undisputed legislative practice for validating statutes which have been drafted on lines similar to the statutes in question. The material on which this argument was based is of a most meagre character and does not warrant the conclusion contended for. Annexure (A) annexed to the case stated on behalf of the President mentions two instances only before the year 1912 of this alleged long continued legislative practice, but even these instances are not analogous to the statutes which have been given in the reference, The scheme of those enact ments in vital matters is different from the enactments in question. The first instance of this legislative practice is said to be furnished by section 5(a) which was added to the Scheduled Districts Act, 1874, by Act XII of 1891. It pro vided that with the previous sanction of the Governor Gener al in Council in declaring an enactment in force in the scheduled districts or in extending an enactment to a sched uled district the Local Government may declare the applica tion of the Act subject to such restriction and modification as the Government may think fit. It is noticeable that,section 7 of the has not been drafted in the same terms as section 5(a) of the Scheduled Districts Act. Though constitutionally speaking, the Governor General discharged the executive and legislative functions in meet ings held separately for the two purposes and with the help of some additional members, for all practical purposes the Governor General was truly ; 951 speaking in both executive and legislative matters the real authority in this country, and if previous sanction of this authority was necessary before declaring the law even with modifications, this instance cannot be such as would constitute legislative practice for what has been enacted in section 7 of the . The second instance cited is of the Burma Laws Act, 1898. In section 10 of this Act it was provided that the Local Government may, with the previous sanction of the Governor General in Council by notification, with such restrictions and modifications as he thinks fit, extend certain Acts in force in any part of Upper Burma at the date of the extension to certain areas. In section 4 a schedule was given of all the Acts that were in force in Upper Burma at the time of the enactment. This instance also does not furnish evidence of legislative practice for the validation of section 7 of the in which there is no provision like the one contained in section 4 of the Burma Laws Act, 1898, and which also contains a provision similar to section 5(a) of the Scheduled Districts Act requiring the previous sanction of the Governor General in Council. Both these important things are lacking in the . Between 1861 and 1912, a period of over fifty years, two instances of this kind which occurred within seven years of each other cannot fail within the criterion laid down in the case cited above. After the year 1912 three other illustrations were men tioned. The first of these is in sections 68 and 73 of the Inland Steam Vessels Act, 1917. Section authorised modifica tion of an enactment for the purpose of adaptation. This certainly is no instance of the kind of legislation. con tained in the , section 7, or in the Ajmer Merwara Act, 1947. Section 68 authorized the extension of certain chapters to certain areas with modifications. The next instance mentioned was the . By section 9 of this Act it was provided that the Central Government may by notification exclude from the operation of any part of this Act the 952 whole or any part of a cantonment or direct that any provi sions of this Act shall in the case of any cantonment apply with such modifications as may be so specified. The third instance mentioned was in section 30 of the . Here it was provided that the Central Government may by notification apply all or any of the provisions of this Act with such modifications as it may think fit to any other dangerous inflammable substance. This is an instance of adding certain items to the schedule annexed to an Act. These three instances show that between the year 1917 and 1934, a period of seventeen years, three instances occurred of legislation, though not of the same kind as contained in the , but bearing some similarity to that kind of legislation. No conclusion from those instances of any uniform legislative practice can be drawn. The learned counsel appearing for the Government of Uttar Pradesh submitted a note in which an instance is mentioned of the Uttar Pradesh Land Revenue Act, III of 1901, which in section 1 of subsection (2) provided that the State Government may by notification extend the whole or any part of this Act to all or any of the areas so excepted subject to such exceptions or modifications as it thinks fit. This instance does not materially affect the situation. After the research of a fortnight the learned Attorney General gave us a supplementary list of instances in support of his contention. Two instances contained in this list are from sections 8 and 9 of Act XXII of 1869 discussed in Burah 's case(1). The third instance is from section 39 of Act XXIII of 1861, again considered in that case, and these have already been discussed in an earlier part of this judgment. The only new instance cited is from the Aircraft Act of 1934, which authorized modification in the specification of an aircraft. It confers no authority to modify any law. Two instances in ' this list are from the Airforce Act 1950, which was enacted subsequent to (1) 5 I.A. 178. 953 the enactment under reference to us and cannot be considered relevant on this subject. The last instance cited is from the Madras Local Boards Act, 1920, which authorizes the Governor to extend the Act with certain modifications to areas to which it originally had not been made applica ble. This instance of 1920 bears no relevancy for deter mining the validity of section 7 of the Act of 1912, enacted eight years before this instance came into existence. A seemingly similar instance to the enactment contained in section 7 of the is in section 8 of Act XXII of 1869, considered by the Privy Council in Burah 's case(1). That instance, however, when closely examined, has no real resemblance to section 7 of the . Act XXII of 1869 was enacted to remove the Garo Hills from the jurisdiction of tribunals established under the General Regulations. That was its limited purpose. By section 5 the administration of this part was vested in the officers appointed by the Lieutenant Governor of Bengal and those officers had to be under his control and were to work under his instructions. The executive administration of this territory was, therefore, vested in the Lieutenant Governor of Bengal. By section 8 of the Act, already cited, the Lieutenant Governor was authorized by notification in the Calcutta Gazette to extend to the excluded territories laws in force in the other territories subject to his government or laws which might thereafter be enacted by the Council of the Governor General or the Lieutenant Governor in respect of those territories. Both these authorities were competent to make laws for the province of Bengal. The validity of section 8 was not questioned in Burah 's case(1) and no argument was addressed about it. Regarding this section, however, the following observations occur in the judgment of their Lordships which were emphasized before us: "The Governor General in Council has determined, in the due and ordinary course of legislation, to remove (1) 5 t. A. 178 954 a particular district from the jurisdiction of the ordinary courts and offices, and to place it under new courts and offices, to be appointed by and responsible to the Lieu tenant Governor of Bengal; leaving it to the Lieutenant Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district but to apply by public notifica tion to that district any law, or part of a law, which either already was, or from time to time might be, in force, by proper legislative authority, in the other territories subject to his government. ' The legislature determined that, so far, a certain change should take place; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant Governor; and also, that the laws which were or might be in force in the other territories subject to the same Govern ment were such as it might be fit and proper to apply to this district also. " All that these observations mean is that a law 'having been made by a competent legislature for the territory under his jurisdiction could be made applicable to a district excluded for certain purposes by a notification of the LieutenantGovernor. As already pointed out, the Lieutenant Governor could make laws for the whole province of Bengal and similarly, the Governor General in Council could do so. The law having been made by a competent legislature for the territory for which it had power to legislate, the only power left in the Governor General was to extend that legis lation to an excluded area; but this is not what 'the had done. As will be shown later, the in section 7 has authorized the Governor General in his executive capacity to extend to Delhi laws made by legisla tures which had no jurisdiction or competence to make laws for Delhi. Having stated the principles on which answer has to be given to the questions referred to us, I now proceed to give my opinion on each of the three questions. 955 The first question relates to section 7 of the , and concerns its validity in whole or in part. The section as enacted in 1912 was in these terms : "The Governor General in Council may by notification in the official gazette extend with such restrictions and modifications as he thinks fit to the Province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification. " The section gives a carte blanche to the GovernorGeneral to extend to the newly formed province any enactment in force in any part of British India at the date of the noti fication and not necessarily any enactment in force in British India at the date of the passing of the . No schedule was annexed to the Act of the enactments that were in force in any part in British India at the date of the passing of the Act. As regards the enactments that may be in force in any part of British India at the date of any notification, there was no knowing what those laws would be. Laws that were to be made after 1912, their principle and policy could not be known to the legislature that enact ed section 7 of the . It seems obvious that the legislature could not have exercised its judgment, nor its discretion in respect of those laws. It also conferred on the Governor General power of modifying existing and future enactments passed by different legislatures in the country. The power of modification implies within it the power of amending those statutes. To use the words of a learned Judge, the section conferred a kind of a vague, wide, vagrant and uncanalised authority on the Governor General. There is no provision within the section by virtue of which the mind of the legislature could ever be applied to the amendments maple by the Governor General in the different statutes passed by different legislatures in India and extended to Delhi. 123 956 Illustratively, it may be pointed out that numerous rent control Acts have been passed by different legislatures in India, laying down basically different policies and princi ples. The Provincial Government under the is authorised to apply the policy of any one of these Acts to Delhi or the policy which it might evolve by combining different such statutes passed by different State legisla tures. Legislative policy in the matter of rent control had not been evolved by the year 1912. Another illustration may be taken from the law of prohibition. Different State gov ernments have adopted a policy of either complete prohibi tion or of local option. What policy is to be applied to Delhi and who is to decide that policy ? Obviously, under section 7 the Provincial Government can without going to the legislature adopt any policy it likes whether of partial or of complete prohibition and may apply to Delhi any law it thinks fit. It is obvious therefore that within the wide charter of delegated power given to the executive by section 7 of the it could exercise essential legisla tive functions and in effect it became the legislature for Delhi. It seems to me that by enacting section 7 the legis lature virtually abdicated its legislative power in favour of the executive. That, in my judgment, was not warranted by the Indian Councils Act, 1861, or by any decision of the Privy Council or on the basis of any legislative practice. The section therefore, in my opinion, is ultra vires the Indian Councils Act, 1861, in the following particulars: (i)inasmuch as it permits the executive to apply to Delhi laws enacted by legislatures not competent to make laws for Delhi and which these legislatures may make within their own legislative field, and (ii) inasmuch as it clothes the executive with co extensive legislative authority in the matter of modification of laws made by legislative bodies in India. If any list of the existing laws passed by the Governor General in Council in his legislative capacity and of laws adopted by it though passed by other legislatures was annexed to the Act, to that extent the delegation of power, but 957 without any power of modifications in favour of the execu tive, might have been valid, but that is not what was enact ed in section 7 of the . Power to extend laws made in the future by the GovernorGeneral in Council for the whole of India or adopted by it though passed later by other legislatures would also be intra vires, but farther than that the legislature could not go. If one may say so, sec tion 7 declares that the legislature has no policy of its own and that the Governor General in Council can declare it and can determine what laws would be in force in Delhi. The second question concerns section 2 of the Ajmer Mer wara (Extension of Laws) Act, 1947, which provides for extension of enactments to Ajmer Merwara. It says: "The Central Government may by notification in the official gazette extend to the province of AjmerMet warn with such restrictions and modifications as it thinks fit any enactment which is in force in any other province at the date of such notification. " For the reasons given for holding that section 7 of the is ultra vires the constitution in two par ticulars, this section also is ultra vires the Government of India Act, 193s, in those particulars. The section does not declare any law but gives the Central Government power to declare what the law shall be. The choice to select any enactment in force in any province at the date of such notification clearly shows that the legislature declared no principles or policies as regards the law to be made on any subject. It may be pointed out that under the Act of 1935 different provinces had the exclusive power of laying down their policies in respect to subjects within their own legiSlative field. What policy was to be adopted for Delhi, whether that adopted in the province of Punjab or of Bombay, was left to the Central Government. Illustratively, the mischief of such law making may be pointed out with refer ence to what happened in pursuance of this section in Ajmer Merwara. The Bombay Agricultural Debtors ' Relief Acco, 1947, has been 958 extended under cover of this section to Ajmer Merwara and under the power of modification by amending the definition of the word 'debtor ' the whole policy of the Bombay Act has been altered. Under the Bombay Act a person is a debtor who is indebted and whose annual income from sources other than agricultural and manly labour does not exceed 33 per cent of his total annual income or does not exceed Rs. 500, whichev er is greater. In the modified statute "debtor" means an agriculturist who owes a debt, and "agriculturist" means a person who earns his livelihood by agriculture and whose income from such source exceeds 66 per cent of his total income. The outside limit of Rs. 500 is removed. The exer cise of this power amounts to making a new law by a body which was not in the contemplation of the Constitution and was not authorized to enact any laws. Shortly stated, the question is, could the Indian legislature under the Act of 1935 enact that the executive could extend to Delhi laws that may be made hereinafter by a legislature in Timbuctoo or Soviet Russia with modifications. The answer would be in the negative because the policy of those laws could never be determined by the law making body entrusted with making laws for Delhi. The Provincial legislatures in India under the Constitution Act of 1935 qua Delhi constitutionally stood on no better footing than the legislatures of Timbuctoo and Soviet Russia though geographically and politically they were in a different situation. The third question concerns section 2 of the Part C States (Laws) Act, 1950, which provides that " The Central Government may by notification in the official gazette extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State, with such restrictions or modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State." 959 For reasons given for answering questions 1 and 2 that the enactments mentioned therein are ultra rites the consti tution in the particulars stated, this question is also answered similarly. It might, however, be observed that in this case express power to repeal or amend laws already applicable in Part C States has been conferred on the Cen tral Government. Power to repeal or amend laws is a power which can only be exercised by an authority that has the power to enact laws. It is a power co ordinate and co exten sive with the power of the legislature itself. In bestowing on the Central Government and clothing it with the same capacity as is possessed by the legislature itself the Parliament has acted unconstitutionally. In offering my opinion on the questions mentioned in the reference I have approached this matter with great caution and patient attention and having in mind the rule that the benefit of reasonable doubt on questions on the constitu tional validity of a statute has to be resolved in favour of legislative action. The legislative action, however, in the enactments which are the subject matter of the reference has been of such a drastic and wide and indefinite nature con sidered in its full amplitude that it is not possible to hold that in every particular these enactments are constitu tional. MUKHERJEA J. This is a reference made by the President of India, under article 143 (1) of the Constitution, invit ing this Court to consider and report to him its opinion on the three following questions : (1) Was section 7 of the , or any of the provisions thereof, and in what particular or particu lars or to what extent ultra vires the Legislature which passed the said Act ? (2) Was the Ajmer Merwara (Extension of Laws) Act, 1947, or any of the provisions thereof, and in what particular or particulars or to what extent ultra vires the Legislature which passed the said Act ? (3) Is section 2 of the Part C States (Laws) Act, 1950, or any of the provisions thereof, and in what 960 particular or particulars or to what extent ultra vires the Parliament ? The necessity of seeking the advisory opinion of this Court is stated to have arisen from the fact that because of the decision of the Federal Court in Jatindra Nath Gupta vs The Province of Bihar(1), which held the proviso to sub section (3) of section 1 of the Bihar Maintenance of Public Order Act, 1947, ultra vires the Bihar Provincial Legisla ture, by reason of its amounting to a delegation of its legislative powers to an extraneous authority, doubts have arisen regarding the validity of the three legislative provisions mentioned above, the legality of the first and the second being actually called in question in certain judicial proceedings which are pending before some of the High Courts in India. The , which is the earliest of the enactments referred to above, was passed in 1912 by the Governor General in Council at its legislative meeting, that being the legislature constituted for British India at that time, under the provisions of the group of statutes known as Indian Councils Acts (1861 1909). Delhi, which up till the 17th of September, 1912, was a part of the province of the Punjab, was created a Chief Commissioner 's Province on that date and on the following date the Governor General 's Legis lative Council enacted the (Act XIII) 1912 which came into force on and from the 1st of October, 1912. Section 7 of the Act, in regard to which the controversy has arisen, provides as follows : "The Provincial Government may, by notification in the official gazette, extend with such restrictions and modifi cations as it thinks fit, to the province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification. " The Ajmer Merwara (Extension of Laws) Act was enacted on the 31st December, 1947, by the Dominion (1) 961 Legislature of India under the provisions of the Government of India Act, 1935 (as adapted under the Indian Independence Act of 1947). Section 2 of the Act is in the following terms : "2. 'Extension of enactments to Ajmer Merwara. The Central Government may be notification in the official gazette extend to the province of Ajmer Merwara with such restrictions and modifications as it thinks fit any enact ment which is in force in any other province at the date of such notification. " Part C States (Laws) Act, 1950, has been enacted by the Indian Parliament after the new Constitution came into force and the provision of section 2 of the Act to which the dispute relates is worded thus: "2. Power to extend enactments to certain Part C States. The Central Government may, by notification in the official gazette, extend to any Part C State (other than Coorg and the Andaman and Nicobar Islands) or to any part of such State with such ' restrictions and modifications as it thinks fit any enactment which is in force in a Part A State at the date of the notification; and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being applicable to that Part C State. " It will be noticed that in all the three items of legis lation, mentioned above, there has been, what may be de scribed, as conferment by the legislatures, which passed the respective enactments, to an outside authority, of some of the powers which the legislative bodies themselves could exercise; and the authority in whose favour the delegation has been made has not only been empowered to extend to particular areas the laws which are in force in other parts of India but has also been given a right to introduce into such laws, any restrictions or modifications as it thinks fit. The controversy centres round the point as to whether such delegation was or is within the competency of the particular legislature which passed these enactments, 962 The contention of the learned Attorney General, who represents the President of, India, in substance is that a legislature which is competent to legislate on a particular subject has the competence also to delegate its legislative powers in respect of that subject to any agent or external authority as it thinks proper. The extent to which such delegation should be made is entirely a matter for consider ation by the legislature itself and a court of law has no say in the matter. There could be according to the learned Attorney General, only two possible limitations upon the exercise of such right of delegation by a competent legis lative body. One is that the legislature cannot abdicate or surrender its powers altogether or bring into existence a new legislative power not authorised by the constitutional instrument. The second is that if the constitutional docu ment has provided for distribution of powers amongst differ ent legislative bodies, one legislature cannot delegate to another, powers, which are vested in it, exclusively under the Constitution. It is argued that, save and except these two limitations, the doctrine of inhibition of delegation by legislative authority has no place in a Constitution mo delled on the English system which does not recognise the principle of separation of powers as obtains in the American system. These questions are of great constitutional impor tance and require careful consideration. In America the rule of inhibition against delegation of legislative powers is based primarily upon the traditional American doctrine of "separation of powers". Another principle is also called in to aid in support of the rule, which is expressed in the wellknown maxim of Private Law, "delegatus non potest delegare", the authority for the same, being based on one of the dieta of Sir Edward Coke. The modern doctrine of , 'separation of powers" was a leading tenet in the political philosophy of the 18th century. It was elaborated by Montesquieu in his "Lesprit des lois" in explanation of the English political doctrine and was adopt ed, in theory at least, in all its fulness and 963 rigidity by the constitution makers of America. The consti tution of America provides for the separation of the govern mental powers into three basic divisions the executive, the legislative, and the judicial and the powers appertaining to each department have been vested in a separate body of public servants. It is considered to be an essential princi ple(1) underlying the constitution that powers entrusted to one department should be exercised exclusively by that department without encroaching upon the powers confided to others. As is said by Cooley,(2) "The different classes of power have been apportioned to different departments; and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others. " The other doctrine that is invoked in support of the anti delegation rule is the well accepted principle of municipal law, which prevents a person upon whom a power has been conferred, or to whom a mandate has been given, from delegating his powers to other people. The legislature is supposed to be a delegate deriving its powers from the 'people ' who are the ultimate repository of all powers, and hence it is considered incapable of transferring such powers to any other authority. These doctrines, though well recognised in theory, have a restricted and limited application in actual practice. Mr. Justice Story said(3) "But when we speak of a separation of the three great departments of Government and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or depend ence, the one upon (1) See Kilbourn vs Thomson, ; at p. 190. i2) See Cooley 's "Constitutional Limitations", 7th Edition, page 126. (3) Story 's Constitution, section 525, 124 964 the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments: and that such exercise of the whole would subvert the principles of free constitu tion. " As regards the maxim delegatus non potest delegare, its origin and theoretical basis are undoubtedly different from those of the doctrine of separation of powers. But, for practical purposes, both these doctrines are linked together and are used as arguments against the Congress attempting to invest any other authority with legislative powers. Accord ing to Willis, the disability of the Congress to delegate its legislative powers to the executive, purports to be based upon the doctrine of separation of powers; while its incapacity to bestow its authority upon an independent body like a Board or Commission is said to rest on the maxim delegatus non potest delegare(1). As said above, a considerable amount of flexibility was allowed in the practical application of these theories even from early times. The vast complexities of social and eco nomic conditions of the modern age, and the ever growing amount of complicated legislation that is called for by the progressive social necessities, have made it practically impossible for the legislature to provide rules of law which are complete in all their details. Delegation of some sort, therefore, has become indispensable for making the law more effective and adaptable to the varying needs of society. Thus in America, despite the theory which prohibits delegation of legislative power, one comes across numerous rules and regulations passed by non legislative bodies in exercise of authority bestowed on them by the legislature in some shape or other. The legislature has always been deemed competent to create a municipal authority and empower it to make by laws. In fact, such legislation is based upon the immemorial (1) Willis on Constitutional Law, p. 965 Anglo Saxon practice of leaving to each local community the management and control of local affairs. The Congress can authorise a public officer to make regulations, or the Judges of the Court to frame rules of procedure which are binding in the same way as laws proper. It can authorise some other body to determine the conditions or contingencies under which a statute shall become operative and can empower administrative functionaries to determine facts and apply standards. "The separation of powers between the Congress and the Executive", thus observed Cardozo, J. in his dis senting judgment in Panama Refining Company vs Ryan(1), "is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical neces sities of Government which cannot foresee today the develop ments of tomorrow in their nearly infinite variety". In fact, the rule of non delegation has so many exceptions engrafted upon it that a well known writer(2) of constitu tional law has tersely expressed that it is difficult to decide whether the dogma or the exceptions state the rule correctly. It does not admit of any serious dispute that the doc trine of separation of powers has, strictly speaking, no place in the system of government that India has at the present day under her own Constitution or which she had during the British rule. Unlike the American and Australian Constitutions, the Indian Constitution does not expressly vest the different sets of powers in the different organs of the State. Under article 53(1), the executive power is indeed vested in the President, but there is no similar vesting provision regarding the legislative and the judicial powers. Our Constitution, though federal in its structure, is modelled on the British Parliamentary system, the essen tial feature of which is the responsibility of the executive to the legislature. The President, as the head of the executive, is to act on the advice of the Council of (1) ; at 440. (2) See Willis on Constitutional Law, p. 137, 966 Ministers, and this Council of Ministers, like the British Cabinet, is a "hyphen which joins, a buckle which fastens, the legislative part of the State to the executive part. " There could undoubtedly be no question of 'the executive being responsible to the legislature in the year 1912, when the Delhi Act X111 of 1912 was passed, but at that time it was the executive which really dominated the legislature, and the idea of a responsible government was altogether absent. It was the Executive Council of the GovernorGeneral which together with sixty additional members, of whom 33 were nominated, constituted the GovernorGeneral 's Legisla tive Council and had powers to legislate for the whole of British India. The local legislatures in the provinces were constituted in a similar manner. The first advance in the direction of responsible government was made by the Govern ment of India Act, 1919, which introduced dyarchy in the provinces. The Government of India Act, 1935, brought in Provincial autonomy, and ministerial responsibility was established in the provinces subject to certain reserved powers of the Governor. In the Centre the responsibility was still limited and apart from the discretionary powers of the Governor General the Defence and External Affairs were kept outside the purview of ministerial and legislative control. Thus whatever might have been the relation between the legislature and the executive in the different constitu tional set ups that existed at different periods of Indian history since the advent of British rule in this country, there has never been a rigid or institutional separation of powers in the form that exists in America. The maxim delegatus non potest delegare is sometimes spoken of as laying down a rule of the law of agency; its ambit is certainly wider than that and it is made use of in various fields of law as a doctrine which prohibits a person upon whom a duty or office has devolved or a trust has been imposed from delegating his duties or powers to other per sons. The 967 introduction of this maxim into the constitutional field cannot be said to be altogether unwarranted, though its basis rests upon a doubtful political doctrine. To attract the application of this maxim, it is essential that the authority attempting to delegate its powers must itself be a delegate of some other authority. The legislature, as it exists in India at the present day, undoubtedly is the creature of the Indian Constitution, which defines its powers and lays down its duties; and the Constitution itself is a gift of the people of India to themselves. But it is not a sound political theory, that the legislature acts merely as a delegate of the people. This theory once popula rised by Locke and eulogized by early American writers is not much in favour in modern times. With regard to the Indian Legislature as it existed in British days constitut ed under the Indian Councils Act, it was definitely held by the Judicial Committee in the well known case of Queen vs Burah (1) that it was in no sense a delegate of the British Parliament. In that case the question arose as to the validity of section 9 of Act XXII of 1869 passed by the Governor General 's Legislative Council. The Act provided that certain special laws, which had the effect of excluding the jurisdiction of the High Court, should apply to a cer tain district. known as Garo Hills, and section 9 empowered the Lieutenant Governor of Bengal to extend the operation of these laws to certain other areas if and when the Lieuten ant Governor, by notification in the Calcutta Gazette, would declare that they should be so applied. The majority of the Judges of the Calcutta High Court upheld the contention of the respondent, Burah, that the authority conferred on the Lieutenant Governor to extend the Act in this way was in excess of the powers of the Governor General in Council, and in support of this view, one of the learned Judges relied inter alia upon the principles of the law of agency. This view was negatived by the Judicial Committee, and Lord Selborne, in delivering the judgment, observed as follows: (1) 5 I.A. 178. 968 "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which cir cumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large and of the same nature as those of parliament itself." Practically the same observations were reiterated by the Judicial Committee in the case of Hodge vs The Queen(1) while describing the position of the Provincial Legislature under the Canadian Constitution and stress was laid upon the plenitude of power which such Legislature could exercise when acting within the limits prescribed for it by the Imperial Parliament. I am quite willing to concede that the doctrine of separation of powers cannot be of any assistance to us in the solution of the problems that require consideration in the present case. In my opinion, too much importance need not also be attached to the maxim delegatus non potest delegare, although as an epigrammatic saying it embodies a general principle that it is not irrelevant for our present purpose. But even then I am unable to agree with the broad proposition enunciated by the learned Attorney General that a legislative power per se includes within its ambit a right for the legislative body to delegate the exercise of that power in any manner it likes to another person or authority. I am unable also to accept his contention that in this respect the authority of the Indian Legislature is as ple nary as that of the British Parliament, and, provided the subject matter of legislation is not one outside the field of its legislative competence, the legislature in India is able to do through an agent anything which it could do itself. It is to be noted that so far as the British Parliament is concerned, there is no constitutional limitation upon its authority or power. In the words of Sir 9 App. 969 Edward Coke (1), "the power and jurisdiction of Parliament is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. . . . It hath sovereign and uncon trollable authority in the making, confirming, enlarging, abrogating, repealing, reviving and expounding of laws. . . . this being the place where that absolute despotic power which must in all governments reside somewhere is entrusted by the constitution of these king doms. " The British Parliament can not only legislate on any subject it likes and alter or repeal any law it likes, but being both "a legislative and a constituent assembly", it can change and modify the so called constitutional laws and they can be changed by the same body and in the same manner as ordinary laws; and no act of the Parliament can be held to be unconstitutional in a British Court of Law. (2) This sovereign character was not, and could not be, predicated of the Legislative Council of British India as it was constituted under the Indian Councils Act, even though it had very wide powers of legislation and within the scope of its authority could pass laws as important as those passed by the British Parliament (3). It is not present also in the Indian Parliament of the present day which is a creature of the Indian Constitution and has got to exercise its legislative powers within the limits laid down by the Constitution itself. Acting in its ordinary capacity as a legislative body, the Indian Parliament cannot go beyond the Constitution or touch any of the Constitutional or fundamen tal laws, and its acts can always be questioned in a court of law. Consequences of great constitutional importance flow from this difference and they have a material bearing on the question before us. The contention of the learned Attorney General in substance is that the power of delegation of legislative authority without any limitation as to its extent is (1) See Coke 's Fourth Institute, p. 36. (2) See Dicey 's Law of the Constitution, p. 88 (9th Edi tion.) (3) See Dicey 's Law of the Constitution, p. 99 (9th Edition). 970 implicit in the exercise of the power itself, and in support of his contention he refers to the unrestricted rights of delegation which are exercised by the British Parliament. But the validity or invalidity of a delegation of legisla tive power by the British Parliament is not and cannot be a constitutional question at all in the United Kingdom, for the Parliament being the omnipotent sovereign is legally competent to do anything it likes arid no objection to the constitutionality of its acts can be raised in a court of law. Therefore, from the mere fact that the British Parlia ment exercises unfettered rights of delegation in respect of its legislative powers, the conclusion does not follow that such right of delegation is an inseparable adjunct of the legislative power itself. The position simply is this that in England, no matter, to whichever department of the powers exercisable by the British Parliament the right of delega tion of legislative authority may be attributed and there is no dispute that all the sovereign powers are vested in the Parliament no objection can be taken to the legality of the exercise of such right. But in India the position even at the present day is different. There being a written constitution which defines and limits the rights of the legislature, the question whether the right of delegation, either limited or unlimited, is included within, and forms an integral part of, the right of legislation is a question which must be answered on a proper interpretation of the terms of the Constitution itself. We need not for this purpose pay any attention to the American doctrine of sepa ration of powers; we must look to the express language of our own Constitution and our approach should be to the essential principles underlying the process of law making which our Constitution envisages. According to the Indian Constitution, the power of law making can be exercised by the Union Parliament or a State Legislature which is to be constituted in a particular manner and the process of legis lation has been described in detail in various articles(1). Powers have been given to the President (1) Vide Articles 107 and 111; 196 to 200, 971 in article 123 and to the Governor of a State under article 213 to promulgate Ordinances during recess of the respective legislatures. Specific provisions have also been made for exercise of the legislative powers by the President on proclamation of emergency and in respect of Part D territo ries. Law making undoubtedly is a task of the highest impor tance and responsibility, and, as our Constitution has entrusted this task to particular bodies of persons chosen in particular ways, and not only does it set up a machinery for law making but regulates the methods by which it is to be exercised and makes specific provisions for cases where departure from the normal procedure has been sanctioned, the prima facie presumption must be that the intention of the Constitution is that the duty of law making is to be per formed primarily by the legislative body itself. The power of the Parliament to confer on the President legislative authority to make laws and also to authorise the President to delegate the power so conferred to any other authority has been recognised only as an emergency provision in arti cle 357 of ' the Constitution. Save and except this, there is no other provision in the Constitution under which the legislature has been expressly authorised to delegate its legislative powers. "It is a well known rule of construction that if a statute directs that certain acts shall be done in a specified manner or by certain persons, then performance in any other manner than that specified or by any other persons than those named is impliedly prohibited(1). " It has been observed by Baker in his treatise on "Fundamental Laws" that quite apart from the doctrine of separation of powers, there are other cogent reasons why legislative power cannot be delegated. "Representative government," thus observes the ]earned author,(2) "vests in the persons chosen to exercise the power of voting taxes and enacting laws, the most important and sacred trust known to civil government. The representatives of the people are (1) Vide Crawford 's Statutory Construction, p. 334. (2) Baker 's Fundamental Laws, Vol. I, p. 287. 125 972 required to exercise wise discretion and a sound judgment, having due regard for the purposes and the needs of the executive and judicial department, the ability of the tax payer to respond and the general public welfare. It follows as a self evident proposition that a responsible legis lative assembly must exercise its own judgment. " In the same strain are the observations made by Cooley in his "Constitutional Law ,,(1) that the reason against delegation of power by the legislature is found in the very existence of its own powers. "This high prerogative has been entrusted to its own wisdom, judgment and patriotism, and not to those of other persons, and it will act ultra vires if it under takes to delegate the trust instead of executing it. " The same considerations are applicable with regard to the legislative bodies which exercised the powers of law making at the relevant periods when the of 1912 and the Ajmer Merwara Act of 1947 were enacted. Under the Indian Councils Act, 1861, the power of making laws and regulations was expressly vested in a distinct body consist ing of the members of the Governor General 's Council and certain additional members who were nominated by the Governor General for a period of two years. The number of such additional members which was originally from 6 to 12 was increased by the subsequent amending Acts and under the Indian Councils Act 'of 1909, it was fixed at 60, of which 27 were elected and the rest nominated by the Governor General. It was this legislative body that was empowered by the Indian Councils Act to legislate for the whole of Brit ish India and there were certain local legislatures in addition to this in some of the provinces. Section 18 of the Indian Councils Act of 1861 empowered the Governor General to make rules for the conduct of busi ness at meetings of the Council for the purpose of making laws; section 15 prescribed the quorum necessary for such. meetings and further provided that the seniormost ordinary member could preside in the absence of the Governor General. This was (1) Vide Fourth Edition, p. 138, 973 the normal process of law making as laid down by the Indian Councils Act. Special provisions were made for exceptional cases when the normal procedure could be departed from. Thus section 23 of the Act of 1861 empowered the Governor General to make ordinances having the force of law in case of urgent necessity; and later on under section 1 of the Indian Councils Act of 1870 the executive government was given the power to make regulations for certain parts of India to which the provisions of the section were declared to be applicable by the Secretary of State. Besides these exceptions for which specific provisions were made, there is nothing in the parliamentary Acts passed during this period to suggest that legislative powers could be exercised by any other person or authority except the Legislative Councils mentioned above. The Ajmer Merwara Act was passed by the Dominion Legis lature constituted under the Government of India Act, 1935, as adapted under the Indian Independence Act of 1937. The provisions of the Constitution Act of 1945 in regard to the powers and functions of the legislative bodies were similar to those that exist under the present Constitution and no detailed reference to them is necessary. The point for consideration now is that if this is the correct position with regard to exercise of powers by the legislature, then no delegation of legislative function, however small it might be, would be permissible at all. The answer is that delegation of legislative authority could be permissible but only as ancillary to, or in aid of, the exercise of law making powers by the proper legislature, and not as a means to be used by the latter to relieve itself of its own responsibility or essential duties by devolving the same on some other agent or machinery. A constitutional power may be held to imply a power of delegation of authori ty which is necessary to effect its purpose; and to this extent delegation of a power may be taken to be implicit in the exercise of that power. This is on the principle "that everything necessary to the exercise of a power 974 is implied in the grant of the power. Everything necessary to the effective exercise of legislation must, therefore be taken to be conferred by the Constitution within that power. But it is not open to the legislature to strip itself of its essential legislative function and vest the same on an extraneous authority. The primary or essential duty of law making has got to be discharged by the legisla ture itself; delegation may be resorted to only as a second ary or ancillary measure. Quite apart from the decisions of American courts, to some of which I will refer presently, the soundness of the doctrine rests, as I have said already, upon the essential principles involved in our written Constitution. The work of law making should be done primarily by the authority to which that duty is entrusted, although such authority can employ an outside agency or machinery for the purpose of enabling it to discharge its duties properly and effectively; but it can on no account throw the responsibility which the Constitution imposes upon it on the shoulders of an agent or delegate and thereby practically abdicate its own powers. The learned Attorney General in support of the position he took up placed considerable reliance on the observations of the Judicial Committee in the case of Queen vs Burah(2), which I have referred to already and which have been repeat ed almost in identical language in more than one subse quent pronouncement of the Judicial Committee. The Privy Council made those observations for the purpose of clearing up a misconception which prevailed for a time in certain quarters that the Indian or the Colonial Legislatures were mere agents or delegates of the Imperial Parliament, and being in a sense holders of mandates from the latter, were bound to execute these mandates personally. This concep tion, the Privy Council pointed out, was wrong. The Indian Legislature, or for the matter of that the Colonial Parlia ment could, of course, do nothing beyond the limits (1) Per O 'Connor J. in Baxter vs Ah Way, ; at 637. (2) 5 IA. 975 prescribed for them by the British Parliament. But acting within these limits they were in no sense agents of another body and had plenary powers of legislation as large and of the same nature as those of the Parliament itself. It should be noted that the majority of the Judges of the Calcutta High Court in Queen vs Burgh(1) proceeded on the view that the impugned provision of Act XXII of 1869 was not a legislation but amounted to delegation of legislative power and Mr. Justice Markby in his judgment relied express ly upon the doctrine of agency. This view of Mr. Justice Markby was held to be wrong by the Privy Council in the observations mentioned above and as regards the first and the main point the Judicial Committee pointed out that the majority of the Judges of the High Court laboured under a mistaken view of the nature and principles of legislation, for as a matter of fact nothing like delegation of legisla tion was attempted in the case at all. It seems to me that the observations relied on by the Attorney General do not show that in the opinion of the Privy Council the Indian, Legislative Council had the same unrestricted rights of delegation of legislative powers as are possessed by the British Parliament. If that were so there was no necessity of proceeding any further and the case could have been disposed of on the simple point that even if there was any delegation of legislative powers made by the Indian Legisla tive Council it was quite within the ambit of its authority. In my opinion, the object of making the observations was to elucidate the character in which the Indian Legislative Council exercised its legislative powers. It exercised the powers in its own right and not as an agent or delegate of the British Parliament. If the doctrine of agency is to be imported, the act of the agent would be regarded as the act of the principal, but the legislation passed by the Indian Legislature was the act of the Legislature itself acting within the ambit of its authority and not of the British Parliament, although it derived its authority from the latter. This view has been clearly 5 I.A.78. 976 expressed by Rand J. of the Supreme Court of Canada while the learned Judge was speaking about the essential character of the legislation passed by the legislative bodies in Canada (1). The observations of the learned Judge are as follows : "The essential quality of legislation enacted by these bodies is that it is deemed to be the law of legislatures of Canada as a self governing political organization and not law of Imperial Parliament. It was law within the Empire and law within the Commonwealth, but it is not law as if enacted at Westminster, though its source or authority is derived from that Parliament. " It should be noted further that in their judgment in Burah 's case(2) the Privy Council while dealing with the matter of delegated authority was fully alive to the implications of a written constitution entrusting the exercise of legislative powers to a legisla ture constituted and defined in a particular manner and imposing a disability on such legislature to go beyond the specific constitutional provisions. Just after stating that the Indian Legislature was in no sense a delegate of the Imperial Parliament the Privy Council observed: "The Gover nor General in Council could not by any form of an enactment create in India and arm with legislative authority a new legislative power not created and authorised by the Coun cils Act." Almost in the same strain were the observations of the Judicial Committee in In re The Initiative and Referendum Act, 1919 (3); and while speaking about the powers of the Provincial Legislature under the Canadian Act of 1867 Lord Haldane said : "Section 92 of the Act of 1867 entrusts the legislative power in a province to its legislature and to that legisla ture only. No doubt a body with a power of legislation on the subjects entrusted to it so ample as that enjoyed by the provincial legislature in Canada could, while preserving its own capacity intact, seek (1) See Attorney General of Nova Scotia vs Attorney General of Canada, at p. 383. (2) 5 I.A. 178. (3) at p. 945. 977 the assistance of subordinate agencies as had been done when in Hodge vs Queen(1) the legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. " It is not correct to say that what these observations contemplate is a total effacement of the legislative body on surrender of all its powers in favour of another authority not recognised by the constitution. Such a thing is almost outside the range of practical consideration. The observa tions of Lord Haldane quoted above make it quite clear that his Lordship had in mind the distinction between "seeking the assistance of a subordinate agency in the framing of rules and regulations which are to become a part of the law," and "conferring on another body the essential legisla tive function which under the constitution should be exer cised by the legislature itself. " The word "abdication" is somewhat misleading, but if the word is to be used at all, it is not necessary in my opinion to constitute legal abdi cation that the legislature should extinguish itself com pletely and efface itself out of the pages of the constitu tion bequeathing all its rights to another authority which is to step into its shoes and succeed to its rights. The abdication contemplated here is the surrender of essential legislative authority even in respect of a particular sub ject matter of legislation in favour of another person or authority which is not empowered by the constitution to exercise this function. I will now attempt to set out in some detail the limits of permissible delegation, in the matter of making laws, with reference to decided authorities. For this purpose it will be necessary to advert to some of the more important cases on the, subject decided by the highest courts of America, Canada and Australia. We have also a number of pronouncements of the Judicial Committee in appeals from India and the Colonies. I confess that no uniform view can be gathered from (1) 9 App. 978 these decisions and none could possibly be expected in view of the fact that the pronouncements emanate from Judges in different countries acting under the influence of their respective traditional theories and the weight of opinion of their own courts on the subject. None of these authorities, however, are binding on this court and it is not necessary for us to make any attempt at reconciliation. We are free to accept the view which appears to us to be well founded on principle and based on sound juridical reasoning. Broadly speaking, the question of delegated legislation has come up for consideration before courts of law in two distinct classes of cases. One of these classes comprises what is known as cases of "conditional legislation," where according to the generally accepted view, the element of delegation that is present relates not to any legislative function at all, but to the determination of a contingency or event, upon the happening of which the legislative provi sions are made to operate. The other class comprises cases of delegation proper, where admittedly some portion of the legislative power has been conferred by the legislative body upon what is described as a subordinate agent or authority. I will take up for consideration these two types of cases one after the other. In a conditional legislation, the law is full and com plete when it leaves the legislative chamber, but the opera tion of the law is made dependent upon the fulfilment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. "The aim of all legislation", said O 'Connor J. in Baxter vs Ah Way (1) "is to project their minds as far as possible into the future and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore legislation from the very earnest times, and particularly in more (1) ; at 637, 979 modern times, has taken the form of conditional legis lation, leaving it to some specified authority to deter mine the circumstances in which the law shall be applied or to what its operation shall be extended, or the particular class of persons or goods or things to which it shall be applied. " In spite of the doctrine of separation of powers, this form of legislation is well recognised in the legisla tive practice of America, and is not considered as an en croachment upon the anti delegation rule at all. As stated in a leading Pennsylvania case (1), "the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Govern ment. There are many things upon which wise and useful legislation must depend, which cannot be known to the law making power and must, therefore, be a subject of inquiry and determination outside the halls of legislation. " One of the earliest pronouncements of the Judicial Committee on the subject of conditional legislation is to be found in Queen vs Burah(2). In that case, as said already, the Lieutenant Governor of Bengal was given the authority to extend all or any of the provisions contained in a statute to certain districts at such time he considered proper by notification in the official gazette. There was no legisla tive act to be performed by the Lieutenant Governor himself. The Judicial Committee observed in their judgment : "The proper legislature has exercised its judgment as to place, persons, laws, powers, and the result of that judg ment has been to legislate conditionally as to those things. The conditions being fulfilled, the legislation is now absolute." Just four years after this decision was given, the case of Russell vs The Queen(3) came up before the (1) Locke 's Appeal, (8) 7 App. 829 (2) 5 I.A. 178. 126 980 Judicial Committee. The subject matter of dispute in that case was the Canadian Temperance Act of 1878, the prohibito ry and penal provisions of which were to be operative in any county or city, only if upon a vote of the majority of the electors of that county or city favouring such a course the Governor General by Order in Council declared the relative part of the Act to be in force. One of the contentions raised before the Judicial Committee was that the provision was void as amounting to a delegation of legislative author ity to a majority of voters in the city or county. This contention was negatived by the Privy Council, and the decision in Queen vs Burah(1) was expressly relied upon. ', The short answer to this question," thus observed the Judi cial Committee, "is that the Act does not delegate any legislative powers whatsoever. It contains within itself the whole legislation on the matter with which it deals. The provision that certain parts of the Act shall come into operation only on the petition of a majority of electors does not confer authority or power to legislate. Parliament itself enacts the condition and everything which is to follow upon the condition being fulfilled. Conditional legislation of this kind is in many cases convenient and is certainly not unusual and the power so to legislate cannot be denied to the Parliament of Canada when the subject of legislation is within its competency. " The same principle was applied by the Judicial Commit tee in King vs Benoari Lal Sarma(2). In that case, the validity of an emergency ordinance by the Governor General of India was challenged inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the courts was left to the Provincial Governments which were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that "this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local appli cation of the provisions of a statute is determined (1) 5 I.A. 178. (2) 72 I.A. 57. 981 by the judgment of a local administrative body as to its necessity. " Thus, conditional legislation has all along been treated in judicial pronouncements not to be a species of delegated legislation at all. It comes under a separate category, and, if in a particular case all the elements of a conditional legislation exist, the question does not arise as to whether in leaving the task of determining the condition to an outside authority, the legislature acted beyond the scope of its powers. I now come to the other and more important group of cases where admittedly a. portion of the law making power of the legislature is conferred or bestowed upon a subordinate authority and the rules and regulations which are to be framed by the latter constitute an integral portion of the statute itself. As said already, it is within powers of Parliament or any competent legislative body when legislat ing within its legislative field, to confer subordinate administrative and legislative powers upon some other au thority. The question is what are the limits within which such conferment or bestowing of powers could be properly made? It is conceded by the learned Attorney General that the legislature cannot totally abdicate its functions and invest another authority with all the powers of legislation which it possesses. Subordinate legislation, it is not disputed, must operate under the control of the legislature from which it derives its authority, and on the continuing operation of which, its capacity to function rests. As was said by Dixon J. (1) "a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislative power. " It is pointed out by this learned Judge that several legal consequences flow from this doctrine of subordinate legislation. An offence against subordinate legislation is regarded as an offence against the statute and on the repeal of the statute the regulations automatically collapse. So far, the propositions cannot, and need not, be disputed. But, (1) Vide Victoria Stevedoring and General Contracting Company vs Dignan, ; at 102. 982 according to the learned Attorney General all that is neces sary in subordinate legislation is that the legislature should not totally abdicate its powers and that it should retain its control over the subordinate agency which it can destroy later at any time it likes. If this is proved to exist in a particular case, then the character or extent of the powers delegated to or conferred upon such subordinate agent is quite immaterial and into that question the courts have no jurisdiction to enter. This argument seems plausible at first sight, but on closer examination, I find myself unable to accept it as sound. In my opinion, it is not enough that the legislature retains control over the subor dinate agent and could recall him at any time it likes, to justify its arming the delegate with all the legislative powers in regard to a particular subject. Subordinate legis lation not only connotes the subordinate or dependent char acter of the agency which is entrusted with the power to legislate, but also implies the subordinate or ancillary character of the legislation itself, the making of which such agent is entrusted with. If the legislature hands over its essential legislative powers to an outside authority, that would, in my opinion, amount to a virtual abdication of its powers and such an act would be in excess of the limits of permissible delegation. The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as much details as it thinks proper and it may delegate the rest of the legis lative work to a subordinate authority who will work out the details within the framework of that policy. "So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determi nation of facts to which the legislation is to apply"(1). (1) Vide Schechter Poultry Corp. vs United States, 295 U.S. 495 983 The Supreme Court of America has held in more cases than one that the policy of the law making body and the standards to guide the administrative agency may be laid down in very broad and general terms. It is enough if the legislature lays down an intelligible principle which can be implemented by the subordinate authorities for specific cases or classes of cases(1). The Court has been exceedingly loath to find violation of this principle and in fact there are, only two cases, viz., Panama Refining Co. vs Ryan(2) and Schechter Poultry Corp. vs U.S.(3) where the federal legislation was held invalid on the ground that the standard laid down by the Congress for guiding administrative discretion was not sufficiently definite. In Panama Refining Co. vs Ryan(2) Chief Justice Hughes very clearly stated "that the Congress manifestly is not permitted to abdicate or transfer to others the essential legislative functions with which it is invested." "In every case" the learned Chief Justice contin ued," in which the question has been raised the court has recognised that there are limits of delegation which there is no constitutional authority to transcend. We think that section 9(c) goes beyond those limits; as to transpor tation of oil production in excess of state permission the Congress has declared no policy, has established no stand ard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited." Mr. Justice Cardozo differed from the majority view m this case and held that a reference express or implied to the policy of Con gress as declared in section 1 was a sufficient definition of a standard to make the statute valid. "Discretion is not unconfined and vagrant" thus observed the learned Judge. "It is confined within banks that keep it from overflowing. " It is interesting to note that in the later case of Schechter Poultry Corporation(3), where the legislative power was held to be unconstitutionally delegated by the provision of section 3 of the National Industrial (1) Vdie J. IV. Hampton vs U.S.; , (2) ; (3) ; 184 Recovery Act of 1933 as no definite standard was set up or indicated by the legislature, Cardozo J. agreed with the opinion of the Court and held that the delegated power of legislation which had found expression in that Code was not canalised within banks but was unconfined and vagrant. "Here in the case before us" thus observed the learned Judge, "is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. This is delegation running riot. No such plenitude of powers is capable of transfer. " As said above, these are the only two cases up till now in which the statutes of Congress have been de clared invalid because of delegation of essential legis lative powers. In the later cases the court has invari bly found the standard established by the Congress suffi ciently definite to satisfy the prohibition against delega tion of legislative powers, and in all such cases a most liberal construction has been put upon the enactment of the legislature(1). We are not concerned with the actual decisions in these cases. The decisions are to be valued in so far as they lay down any principles. The manner of applying the principles to the facts of a particular case is not at all material. The decisions referred to above clearly lay down that the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of ' conduct. A surrender of this essen tial function would amount to abdication of legislative powers in the eye of law. 'the policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. The Court can interfere if no policy is discernible at all or the delegation is of such an indef inite character as to amount to abdication, but as the discretion vests with the legislature in determining wheth er there is necessity (1) See Opp Cotton Mills vs Administrator of Wages, ; ; Yakus vs United States, ; ; American Pt. & Lt. Co. vs Securities and Exchange Commission, ; 985 for delegation or not, the exercise of such discretion is not to be disturbed by the court except in clear cases of abuse. These I consider to be the fundamental principles and in respect to the powers of the legislature the constitu tional position in India approximates more to the American than to the English pattern. There is a basic difference between the Indian and the British Parliament in this re spect. There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is lettered by a written constitution and it does not possess the sover eign powers of the British Parliament. The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and complete. It is said by Schwartz in his work on American Administrative Law "that these doctrines enable the American courts to ensure that the growth of executive power necessitated by the rise of the administrative process will not be an uncontrollable one. Delegation of powers must be limited ones limited either by legislative prescription of ends and means, or even of details or by limitations upon the area of the power delegated. The enabling legislation must, in other words, contain a framework within which the executive action must operate"(1). It would be worth while mentioning in this connection that the report of the Committee on Ministers ' Power recom mended something very much similar to this American doctrine as a proper check on delegated legislation. The report says that "the precise limits of a law making power which Parlia ment intends to confer on a Minister should always be ex pressly defined in clear language by the statute which confers it, when discretion is conferred its limits should be defined with (1) Schwartz 's American Administrative Law, p. 22. 986 equal clearness"(1). It is true that what in America is a question of vires and is subject to scrutiny by courts, in the United Kingdom it is a question of policy having a purely political significance. But the recommendation of the Committee would clearly indicate that the rules laid down and acted upon by the American Judges particularly in later years can be supported on perfectly clear and sound democratic principles. I will now advert to the leading Canadian and Australi an cases on the subject and see how far these decisions lend support to the principles set out above. Many of these Canadian cases, it may be noted, went up on appeal to the Judicial Committee. I will start with the case of Hodge vs The Queen(2) which came up before the Judicial Committee on appeal from the decision of the Court of Appeal for Ontario in the year 1883. The facts of the case are quite simple. The appellant was convicted for permitting and suffering a billiard table to be used and a game of billiard to be played thereon in violation of a resolution of the License Commissioners who were authorised by the Liquor License Act of 1877 to enact regulations regulating the use of taverns, with power to create offences and annex penalties there to. One of the questions raised was whether the Ontario Legisla ture could delegate powers to the License Commissioners to frame regulations by which new offences could be created. The Privy Council agreed with the High Court in holding that the legislature for Ontario was not in any sense exercising delegated authority from the Imperial Parliament and it had full authority to confide to a municipal institution or body of its own creation authority to make by laws or resolutions as to subjects specified in the enactment and with the object of carrying the enactment into operation and effect. It was observed : "Such an authority is ancillary to legislation;. the very full and very elaborate judgment of the (1) Vide Report, page 65. (2) 9 App, Cas, 117. 987 Court of Appeal contains abundance of precedents for the legislature entrusting a limited discretionary authority to others and as many illustrations of its necessity and con venience. " It will be seen that what was delegated by the Ontario Legislature to the License Commissioners was simply the power to regulate tavern licenses. There was no question of parting with substantial legislative powers in this case. But although the Privy Council stated clearly that the Ontario legislature was quite supreme within its own sphere and enjoyed the same authority as the Imperial or the Dominion Parliament, they described the power delegated as authority ancillary to legislation and expressly referred to the "abundance of precedents for the legislature entrusting a limited discretionary authority to others. " There was no necessity for the Privy Council to use the guarded language it used if in fact the Ontario legislature had the same right of delegating its powers as the British Parliament. It would be pertinent to note that Davey, Q.C., who appeared for the Crown in support of the judgment appealed against. did not contend before the Privy Council that the Ontario legislature had full rights of delegation like the British Parliament and consequently its acts could not be challenged as unconstitutional. His argument was that in this ease there was no delegation of legislative authority and what was delegated was only the power to make by laws. By legis lative authority the learned Counsel apparently meant the essential legislative function as distinguished from the power to make rules and regulations and the argument implied that the essential legislative powers could not be delegated at all. The case of Powell vs Appollo Candle Co. (1) is the next case in point of time which has a bearing on the question before us. That case came up on appeal from a decision of the Supreme Court of New South Wales, and the question arose whether section 133 of (1) 10 App. 127 988 the Customs Regulation Act of 1879of the Colony, was or was not ultra vires the Colonial legislature. The attack on the validity of the legislation was inter alia on the ground that it conferred upon the Government power to levy duty on certain articles which in the opinion of the Collector were substituted for other dutiable articles. The question was whether such power could be validly conferred. The Privy Council had no difficulty in holding that the provision was perfectly valid and it was quite within the competence of the Colonial legislature which was in no sense a delegate of the Imperial Parliament, to confer a discretion of this character on the executive for the purpose of making the statute properly effective. The policy of the law as well as the main principles were laid down in the Act itself. What was left to the executive was a power to enforce the provisions of the Act more properly and effectively by levying duties on articles which could be used for similar purposes as the dutiable articles mentioned in the statute. The legislature itself laid down the standard and it was sufficiently definite to guide the executive officers. I now come to the decision of the Supreme Court of Canada in In re Gray (1), which was decided during the first world war. The Dominion War Measures Act, 1914, passed by the Dominion Parliament of Canada empowered the Governor General to make "such regulations as he may, by reason of the existence of real or apprehended war. . deem necessary or advisable for the security, defence, peace, order and welfare of Canada"; and the question arose whether such transfer of power was permitted by the British North America Act. The Supreme Court decided by a majority of four to two that the Act was valid, though the Judges who adopted the majority view were not unanimous regarding the reasons upon which they purported to base their decision. The Chief Justice was of the opinion that there was nothing in the Constitutional Act which so far as material to the question (1) 57 S.C.R. 150. 989 under consideration would impose any limitation on the authority of the Parliament of Canada to which the Imperial Parliament was not subject. Anglin J. referred to the deci sion in Hodge vs The Queen(1) (supra) in the course of his judgment. He seemed to think that the British North America Act did not contemplate complete abdication of its legisla tive powers by the Dominion Parliament, but considered such abdication to be something so inconceivable that the consti tutionality of an attempt to do anything of that kind was outside the range of practical consideration. Apparently the learned Judge gave the expression "abdication" a very narrow meaning. The opinion of Duff J. was much the same, and he considered that there was no abandonment of legislative powers in this case, as the powers granted could at any time be revoked and anything done thereunder nullified by the Parliament. Idington and Brodeur JJ. dissented from this majority view. This decision was followed in the "Reference in the Matter of the Validity of the Regulations in Relation to Chemicals Enacted by the Governor General of Canada under the War Measures Act ", which is to be found reported in In this case the question raised related to the validi ty of certain regulations made by an Order in Council in terms of the powers conferred upon the Governor in Council by the War Measures Act and the Department of Munitions and Supply Act. It was held that with the, exception of para graph 4 of the Order in Council the rest of the Order was not ultra vires. It appears from the report that in this case it was not disputed before the court that powers could be delegated by the legislature to the Governor in Council under the War Measures Act. The question raised was whether the Governor in Council could further delegate his powers to subordinate agencies. The question was answered in the affirmative, the reason given being that the power of dele gation being absolutely essential in the circumstances for which the War Measures Act has been designed so as to have a workable Act, the power (1) 9 App. 990 delegated must be deemed to form part of the powers con ferred by Parliament in the Act. These are war time decisions and it is apparent that the doctrine of delegation has been pushed too far in the Chemical Reference case. In In re Gray (1) the learned Chief Justice at the conclusion of his judgment expressly stated that the security of the country was the supreme law against which no other law could prevail. I agree with the Attorney General that the competency of the Parliament to legislate could not be made dependent upon the fact as to whether the law was a war time or a peace time measure. But on the other hand, it is possible to argue that in a legis lation passed by a Parliament in times of war when the liberty and security of the country are in jeopardy, the only policy which the legislature can possibly formulate is the policy of effectively carrying on the war and this necessarily implies vesting of all war operations in the hands of the executive. There appears to be considerable substance in the observations made by Dixon J.(2) that "it may be considered that the exigencies which must be dealt with under the defence powers are so many, so great and so urgent and so much the proper concern of the executive that from its very nature the power appears by necessary intend ment to authorise delegation otherwise generally forbidden by the legislature. " It may be mentioned here that the decision in In re Gray(1) was sought t6 be distinguished in a subsequent Canadian case on the ground that in case of emergency it was possible to pass legislation of this sort by taking recourse to the residuary powers conferred on the Dominion Parliament by section 91 of the North America Act (3). In point of time, the case of In re The Initiative and Referendum Act(4) comes immediately after that of In re Gray(1). The dispute in this case related to an Act (1) 57 S.C.R. 150. (2) Vide Victoria Stevedoring and General Contracting Co. vs Dignan; , at p. 99.

Section 7 of the , provided that "The Provincial Government may by notification in the official gazette extend, with such restrictions and modifications as it thinks fit, to the Province of Delhi, or any part there of, any enactment which is in force in any part of British India at the date of such notification". Section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, provided that "The Central Government may, by notification in the official gazette, extend to the Province of Ajmer Merwara, with such restrictions and modifications as it thinks fit, any enact ment which is in force in any other Province at the date of such notification. Section 2 of the Part C States (Laws) Act, 1950, provided that "The Central Government may, by notification in the official gazette extend to any Part C State . . or to any part of such State, with such restrictions and modifications as it thinks fit, any enact ment which is in force in a Part A State at the date of the notification and provision may be made in any enactment so extended for the repeal or amendment of any corresponding law . which is for the time being applicable to that Part C State. As a result of a decision of the Federal Court, doubts were entertained with regard to the validity of laws delegating legislative powers to the executive Government and the President of India made a reference to the Supreme Court under article 143 (1) of the Constitution for considering the question whether the above mentioned sec tions or any provisions thereof were to any extent, and if so to what extent 748 and in what particulars, ultra vires the legislatures that respectively passed these laws, and for reporting to him the opinion of the Court thereon: Held, (1)per FAzL ALl, PATANJALI SASTRI, MUKHERJEA, DAS and Bose JJ., (KANIA C.J., and MAHAJAN J., dissenting). Section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, are wholly intra vires. KANIA C.J. Section 7 of the , and section 2 of the Ajmer Merwara (Extension of Laws) Act, 1947, are ultra vires to the extent power is given to the Government to extend Acts other than Acts of the Central Legislature to the Provinces of Delhi and Ajmer Merwara respectively inasmuch as to that extent the Central Legisla ture has abdicated its functions and delegated them to the executive government. MAHAJAN J. The above said sections are ultra vires in the following particulars: (i) inasmuch as they permit the executive to apply to Delhi and Ajmer Merwara, laws enacted by legislatures not competent to make laws for those territories and which these legislatures may make within their own legislative field, and (ii) inasmuch as they clothe the executive with co extensive legislative authority in the matter of modification of laws made by legislative bodies in India. (2) Per FAZL ALI, PATANJALI SASTRI, MUKHERJEA, DAS and BOSE JJ. The first portion of section 2 of the Part C States (Laws) Act, ;950, which empowers the Central Government to extend to any Part C State or to any part of such State with such modifications and restrictions as it thinks fit any enactment which is in force in a Part A State, is intra vires. Per KANIA C.J., MAHAJAN, MUKHERJEA and Boss JJ. The latter portion of the said section which empowers the Cen tral Government to make provision in any enactment extended to a Part C State, for repeal or amendment of any law (other than a Central Act) which is for the time being applicable to that Part C State, is ultra vires. Per FAzL ALI, PATAN JALI SASTRI and DAS JJ. The latter portion of section 2 of the Part C States (Laws) Act, 1950, is also intra vires. KANIA C.J. To the extent that section 2 of the Part C States (Laws) Act, 1950, empowers the Central Government to extend laws passed by any Legislature of a Part A Slate to a Part C State it is ultra vires. MAHAJAN J. Section 2 of the Part C States (Laws) Act, 1950, is ultra vires in so far as it empowers the Central Government (i) to extend to a Part C State laws passed by a legislature which is not competent to make laws for that Part C State and (ii) to make modifications of laws made by the legislatures of India and (iii) to repeal or amend laws already applicable to that Part C State. 749 KANIA C.J. (i) The essentials of a legislative function are the determination of the legislative policy and its formulation as a rule of conduct and these essentials are the characteristics of a legislature by itself. Those essentials arc preserved when the legislature specifies the basic conclusions of fact upon the ascertainment of which from relevant data by a designated administrative agency it ordains that its statutory command is to be effective. The legislature having thus made its laws, every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. While this is also sometimes described as delegation of legislative powers, in essence it is different from delega tion of legislative power as this does not involve the delegation of the power to determine the legislative policy and formulation of the same as a rule of conduct. While the so called delegation which empowers the making of rules and regulations has been recognised as ancillary to legislative power, the Indian Legislature had no power prior to 1935 to delegate legislative power in its true sense. Apart from the sovereign character of the British Parliament whose powers are absolute and unlimited, a general power in the legislature to delegate legislative powers is not recognised in any state. The powers of the Indian Legislature under the Constitution Acts of 1935 and 1950 are not different in this respect. (ii)An "abdication" of its powers by a legis lature need not necessarily amount to complete effacement of itself. It may be partial. If full powers to do everything that the legislature can do are conferred on a subordinate authority, although the legislature retains the power to control the action of the subordinate authority by recalling such power or repealing the Acts passed by the subordinate authority, there is an abdication or effacement of the legislature conferring such power. FAzL ALl J. (i) The legislature must formally dis charge its primary legislative function itself and not through others. (ii) Once it has been established that it has sovereign powers within a certain sphere, it is free to legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in making a particular law and it may.utilise any outside agency to any extent it finds necessary for doing things, which it is unable to do itself or finds it incon venient to (iii) It cannot, however abdicate its legislative functions and therefore, while entrusting power to an out side agency, it must see that such agency acts as a subordi nate authority and does not become a parallel legislature. (iv) As the courts of India are not committed to the doc trine of separation of powers and the judicial interpreta tion it has received in America, there are only two main checks in this country on the power of the legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to 750 'abdication and self effacement. ' (v) The power to intro duce necessary restrictions and modifications is incidental to the power to adapt or apply the law. The modifications contemplated are such as can be made within the framework of the Act and not such as to affect its identity or structure or the essential purpose to be served by it. PATANJALI SASTRI J. (i) It is now established beyond doubt that the Indian Legislature, when acting within the limits circumscribing its legislative power, has and was intended to have plenary powers of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act, 1861, Or the Government of India Act, 1935, or the Constitution of 1950. It is therefore as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and qualitatively. as it is for the British Parliament to do so, provided it acts within the circumscribed limits. (ii) Delegation of legislative au thority is different from the creation of a new legislative power. III the former, the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instru mentality of its choice. In the latter, there is no delega tion of power to subordinate units but a grant Of power to an independent and co ordinate body to make laws operative of their own force. For the first, no express provision authorising delegation is required. In the absence of a constitutional inhibition, delegation of legislative power, however extensive, could be made so long as the delegating body retains its own legislative power intact. For the second, however, a positive enabling provision in the con stitutional document is required. (iii) The maxim delegates non potest delegare is not part of the constitutional law of India and has no more force than a political precept to be acted upon by legislatures in the discharge of their func tion of making laws, and the courts cannot strike down an Act of parliament as unconstitutional merely because Parlia ment decides in a particular instance to entrust its legis lative power to another in whom it has confidence or, in other words, to exercise such power through its appointed instrumentality, however repugnant such entrustment may be to the democratic process. What may be regarded as politi cally undesirable is constitutionally competent. (iv) Howev er wide a meaning may be attributed to the expression "restrictions and modifications," it would not affect the constitutionality of the delegating statute. 'MAHAJAN J. (i) It is a settled maxim of constitu tional law that a legislative body cannot delegate its power. Not only the nature of legislative power but the very existence of representative government depends on the doc trine that legislative powers cannot be transferred. The legislature cannot substitute the 751 judgment, wisdom, and patriotism of any other body, for those to which alone the people have seen fit to confide this sovereign trust. The view that unless expressly prohib ited a legislature has a general power to delegate its legislative functions to a subordinate authority is not supported by authority or principle. The correct view is that unless the power to delegate is expressly given by the constitution, a legislature cannot delegate its essential legislative functions. As the Indian Constitution does not give such power to the legislature, it has no power to delegate essential legislative functions to any other body. (ii) Abdication by a legislative body need not necessarily amount to complete effacement. There is an abdication when in respect of a subject in the Legislative List that body says in effect that it will not legislate but would leave it to another to legislate on it. MUKHERJEA J. As regards constitutionality of the delegation legislative powers, the Indian Legislature cannot be in the same position as the omnipotent British Parliament and how far delegation is permissible has to be ascertained in India as a matter of construction from the express provisions of the Indian Constitution. It cannot be said that an unlimit ed right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the constitution and the legitimacy of delegation depends en tirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and complete ly. The legislature must retain in its own hands the essen tial. legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegeted is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case. Das J. (i) The principle of non delegation of legisla tive powers founded either on the doctrine of separation of powers or the theory of agency has no application to the British Parliament or the legislature constituted by an Act of the British Parliament;(ii) in the ever present complex ity of conditions with which governments have to deal, the.power of delegation is necessary for, and ancillary to, the exercise of. legislative power and is a component part of it; (iii) the operation of the act performed under dele gated power is directly and immediately under and by virtue of the law by which the power was delegated and its efficacy is referable to that antecedent law; (iv) if what the legis lature does is legislation within the general scope of the affirmative words which give the power and if it violates no express 752 Condition or restriction by which that power is limited, then it is not for the court to inquire further or enlarge constructively those conditions or restrictions; (v) while the legislature is acting within its prescribed sphere there is, except as herein after stated, no degree of, or limit to, its power of delegation of its legislative power, it being for the legislature to determine how far it should seek the aid of subordinate agencies and how long it shall continue them, and it is not for the court to prescribe any limit to the legislature 's power of delegation; (vi) the power of delegation is however subject to the qualification that the legislature may not abdicate or efface itself, that is, it may not, without preserving its own capacity intact, create and endow with its own capacity a new legislative power not created or authorised by the Act to which it owes its own existence. (vii) The impugned laws may also be supported as instances of conditional legislation within the meaning of the decision in Queen vs Burah. Bose J. The Indian Parliament can legislate along the lines of Queen vs Burgh, that is to say, it can leave to another person or body the introduction or application of laws which are, or may be, in existence at that time in any part of India which is subject to the legislative control of Parliament, whether those laws are enacted by Parliament or by a State Legislature set up by the constitution. But delegation of this kind cannot proceed beyond that; it cannot extend to the repealing or altering in essential particulars laws which are already in force in the area in question.

Appeals Nos. 1038 1040 of 1967. Appeals by certificate under Article 133 of the Constitution of India from the judgment and decree dated August 7, 1962 of the Patna High Court in Original Decrees Nos. 384/52, 1155 and 2/55. 1017 R. C. Prasad, for the appellant Jagadish Swarup, K. K. Sinha, section K. Sinha and B. B. Sinha, for respondents Nos. 1 4 (in C.A. No. 1038 of 1967), for respondents 1 (a) & 2 (in C.A. No. 1039 of 1967 and for respondents Nos. 1, 2, 4 & 5 (in C.A. No. 1040 of 1967). The Judgment of the Court was delivered by Ray, J. These three appeals are by certificate against the judgment dated 7 August, 1962 of the High Court at Patna. The High Court allowed in part the appeals filed by the appellant by decreeing in part the suits filed by the appellant for redemption of mortgages. The High Court dismissed the appellant 's prayer for mesne profits. The appellant filed three suits for redemption. Title Suit No. 54 of 1950 filed by the appellant was with respect to Ijara bond dated 21 April, 1920 in favour of Ram Baran Singh for Rs. 2,300/ . Title Suit No. 55 of 1950 was filed by the appellant with respect to another ljara bond dated 21 April, 1920 in favour of Inder Singh for Rs. 1293 12 0. The third Title Suit No. 56 of 1950 was filed by the appellant with respect to the third Ijara bond dated 21 April, 1920 in favour of Raj Kumar Mahto for Rs. 1,150/ . The bond was subsequently assigned to one Sheo Sharan Singh whose sons were defendants in that suit. These bonds were executed by Maik Nizammuddin. These three bonds were mortgage bonds in respect of certain Milkiyat share in village Keoran Mauzume Makhdumpur in the District of Patna. The appellant was the purchaser of the Milkiyat share of Nizammuddin from his heirs by a deed dated 22 May, 1946. The appellant alleged as follows. There, are baksht lands within the said Milkiyat share covered by the Ijara bonds. These bakasht lands were the subject matter of the mortgage. After 'he purchase the appellant endered the ljara money to the respondents who were ijaradars or mortgagees. The respondents refused to accept the money. The appellant thereupon deposited the mortgage money. The appellant served notice of the deposit on the respondents. The respondents did not withdraw the ijara money. They did not deliver possession of the Milkiyat share and the bakasht lands to the appellant. The appellant therefore filed suits for redemption and for possession. The appellant also claimed mesne profits. The respondents in the written statements denied that there was any bakasht land. It was also denied that there was any mortgage of bakasht land. It was alleged that the lands were raiyati lands in possession of several tenants and therefore those lands could not be redeemed. The further defence was that the 1018 Ijara bonds were really sale deeds and therefore the appellant had no right of redemption in respect of the milkiyat interest. The respondents denied that the appellant tendered the mortgage money. The trial Court held that the appellant was entitled to a decree for redemption but not for mesne profit. The reason given was that the appellant did not deposit in court under Section 83 of the Transfer of Property Act the money due on mortgage. The mortgagees had from time to time paid the Government revenue and cess in respect of the mortgage property. The Government revenue and cess should have been paid by the mortgagor. The amounts representing the Government revenue and cess should have been added up in the mortgage money. The deposits in court did not cover those amounts. The appellant preferred appeals to the High Court. The High Court upheld the finding of the trial Court that certain lands were bakasht lands. The High Court set aside the finding of the trial Court as to other lands which were found by the trial Court not to be bakasht lands. The High Court upheld the finding and conclusion of the trial Court that there was no valid deposit in court of money due on mortgage. The appellant was therefore not entitled to mesne profits. The High Court found that the amount of revenue and cess was never less than the amount of haq ajri (meaning thereby 'annual reserve rent ') payable to. the mortgagor. The result was that the amount of revenue and cess paid by the mortgagees was always higher than the haq ajri and therefore there was no case of accounting. Counsel for the appellant contended that the appellant was entitled to mesne profits from the dates of deposit of mortgage money in court under section 83 of the Transfer of Property Act. The amounts were deposited in court of First Munsif, Patna on 26 May, 1947. Notice under section 83 of the Transfer of Property Act was served on the respondents on 30 May, 1947 in two cases and on 3 June, 1947 in the third case. The suits were filed for redemption of mortgage and mesne profits in the month of June, 1950. The relevant terms of the ijara bond (mortgage bond) in favour of Ram Baran Singh were these : "It is desired that the said Mustajir, should enter into possession and occupation of the ijara property, himself cultivate the land, appropriate the produce thereof in lieu of interest on the peshgi money. I, the executant, or my heirs and representatives, neither have nor 1019 shall have any claim for excess produce and mesne profits etc. against the said Mustajir or his heirs and representatives, except to get a sum of Rs. 12/ (rupees *twelve) in king 's coins, as annual reserve rent till this deed remain intact. Expenses over dispute regarding the milkiyat property and boundary limit and payment of Government revenue and road cess and Public works cess etc. are entirely the concern of me, the executant. The said Mustajir neither has nor shall have any connection and concern therewith". The terms of the other two ijara deeds were identical. The only difference was that in the case of the ijara bond in favour of Inder Singh the annual reserve rent (haq ajri) was Rs. 6 12 0 and in the case of Raj Kumar Mahto the annual reserve rent (haq ajri) was Rs. 6/ . Broadly stated, these terms indicate three features. First, the mortgagee shall have possession and occupation of the mortgaged property and appropriate the produce thereof in lieu of interest on the mortgage money and the mortgagor had no claim to any excess produce or mesne profits against the mortgage. Secondly, the mortgagee was to pay to the mortgagor the amounts mentioned in each ijara bond the annual reserve rent or haq ajri. Thirdly, the mortgagor was liable for payment of the Government revenue or cess. The High Court found that the mortgagees paid the revenue and cess out of haq ajri. In Title Suit No. 54 of 1950 the High Court held that the total amount of revenue and cess came to Rs. 15 9 3. The haq ajri in that suit was Rs. 12/ . It therefore followed that every year the mortgagee paid Rs. 3 9 0 in excess of the amount haq ajri. The mortgagor was liable to the mortgagee for the excess payment. Similarly, in Title Suit No. 55 of 1950 the mortgagee paid revenue and cess amounting to Rs. 9 13 3. The haq ajri under the ijara bond in that suit was Rs. 6 12 0. The result was that every year the mortgagee paid Rs. 3 1 3 in excess. The mortgagor was liable to the mortgagee to pay that excess amount. Again, in Title Suit No. 56 of 1950 the High Court found that the mortgagee paid every year revenue and cess amounting to Rs. 7 12 0. The haq ajri there was Rs. 6/. The mortgagee therefore paid annually Rs. 1 12 0 in excess of haq ajiri. The mortgagor was liable to pay the excess amount to the mortgagee. In the present appeals, the mortgagor had undertaken the liability to pay the revenue and cess. The mortgagor failed to pay the same. The mortgagees paid the revenue and cess on be 1020 half of the mortgagor. The mortgagees were entitled to the excess payment of the amount of revenue and cess, because the mortgagor was liable to pay the same. The mortgage bonds in the present case provided that as Ion as the mortgagee was in possession of the property the receipts from the mortgaged property shall be taken in lieu of interest on the principal money. That amounts to a stipulation that the receipts from the mortgaged property will be taken in lieu of the interest on the principal money. That is section 77 of the Transfer of Property Act. The provisions as to accounts contained in section 76(g) of the Transfer of Property Act are excluded in cases where section 77 of the Transfer of Property Act applies. Section 77 of the Transfer of Property Act applies to the present appeals. Further, the mortgages had to pay to the mortgagor a fixed amount, namely, the haq ajri. There was nothing to account on the part of the mortgagees in relation to payment of haq ajri. On the contrary, the mortgagor was liable for the payment of Government revenue and cess. Under section 76 (c) of the Transfer of Property Act the mortgagee in possession, in the absence of a contract to the contrary, must pay the Government revenue and other charges of a public nature and arrears of rent in default of payment of which the property may be summarily sold. In the present case, the mortgagor was liable for payment of both revenue and cess. Therefore, the mortgagees were entitled to add to the mortgage money the amount for which the mortgagor under the terms of the mortgage was liable. Section 4 of the Cess Act, 1880 defines 'annual value of land ' to mean the total rent which is payable or, if no rent is actually payable, would, on a reasonable assessment, be payable, during the year by all the cultivating raiyats of such land in the actual use and occupation thereof. Section 5 of the Cess Act, 1880 states that all immovable property to which the Act applies shall be liable to the payment of a local cess. Section 6 of the Cess Act, 1880 provides as to how the cess is to be assessed. Section 38 of the Cess Act, 1880 provides as to how rate of local cess ' on the annual value of land is 'to be fixed. Section 98 of the Cess Act, 1880 enacts that the amount which may become due under the provisions of the I Cess Act in respect of arrears of cess shall be deemed to be a public demand. Section 99 provides that the 'Collector may recover dues out of rent and the Collector 's claim to have priority. These provisions show that cess is linked with rent. Cess is payable on annual value of land. Annual value is linked with rent. Cess is deemed to be a public demand. The mortgagee were entitled to add the amounts paid by them towards revenue and cess on the mortgage money. 1021 The High Court was correct in refusing the mesne profits. On behalf of the respondents it was mentioned in their statement of case that the appellant after having deposited the further amount after the decree of the High Court had taken possession of the land. This statement was not challenged and denied by the appellant. This indicates that the appeals have now become academic. The appeals therefore fail and are dismissed. The respon dents will be entitled to one set of costs in this Court. V.P.S. Appeals dismissed.

In pursuance of detention order under section 3 of the West Bengal Prevevenion of Violent Activities) Act, 1970, the petitioner was arrested. The State Government received a representation from the petitioner against his detention, which was rejected by the St ate Government 27 days after the receipt of the representation. The delay in considering the representation of the petitioner was not explained. Allowing the petition under article 32, HELD : According to article 22(5) of the Constitution when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earlier opportunity if making a representation against the order. The fact that the earliest opportunity has to be afforded to the detenu for making a representation necessarily implies that, as and when the representation is made, it should be dealt with promptly. Otherwise, the requirement would be reduced to a farce and empty formality. In case the authority concerned is guilty of unexplained delay in dealing with the representation, the detention. would be liable to be assailed and declared unvalid on the ground of interaction of article 22(5) of the Constitution. This is as it should be because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. [682B F] Jayanarayan Suku vs State of West Bengal, [1970] 3 S.C.R. 225; Xhairul Haque vs State of West Bengal, W.P. No. 246 of 1969 decided on September 10, 1969; Prof. K. L. Singh vs State of Manipur; , ; Baidya Nath Chunkar vs State of West Bengal, W.P. No. 377 of 1971 decided on March 14, 1972; Kanti Lal Bros vs State of West Bengal,. W.P. No. 8 of 1972 decided on May 5, 1972, followed.

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

Section 14 of the Code of Criminal Procedure, as amended by Bombay Act 23 of 1951, empowered the State Government to appoint a qualified person as a special Magistrate and to confer upon him powers conferrable upon a judicial Magistrate in respect of a particular case or a particular class or classes of cases or in regard to cases generally in any local area. By a notification dated December 29, 1961, the Government appointed Mr. G to be a Special Judicial Magistrate for the area comprising Greater Bombay and Ratnagiri District and conferred upon him all the powers of a Presidency Magistrate in respect of the trial of the Deogad Gold Seizure case. The petitioners, who are accused in the case, moved the Supreme Court for a writ of certiorari for quashing the notification on the ground that the notification and the amended s.14 infringed article 14 of ' the Constitution. Held, that the amended section 14 does not offend article 14 and is valid. There is substantially no difference between the powers conferrable by the unmended and by the amended section 14. M. K. Gopalan vs State of Madhya Pradesh, [1955] 1 S.C.R. 168, relied on. Held, further that the notification constituting a Special Magistrate for the trial of the petitioners was not discriminatory. Amended section 14 contemplates both a case which is pending and one which may be instituted after the date of the constitution of the Special Magistrate. The constitution of a Special Magistrate does not amount directly or indirectly to a transfer of any 574 case. The fact that Mr. G may hold the trial at Bombay and not at Deogad while other similarly situated would be tried at Deogod may result in inconvenience to the petitioners but this could not sustain the plea of discrimination. The charge against the petitioners is in respect of conspiracy at Bombay, Deogad and other places and the petitioners could have been lawfully tried at Bombay. The notification constituted a Special Magistrate and conferred jurisdiction on him both over the place where the petitioners are alleged to have conspired and the place where the offences are alleged to have been actually committed. It did not amount to discrimination that from the judgment of the Special Magistrate an appeal would lie to the High Court while if the petitioners were tried by a Magistrate at Deogad, an appeal would lie to the Sessions judge and then a revision would lie to the High Court. The difference of the venue results from the nature of the jurisdiction exercised by the Magistrate trying the case and not from any unequal dealing by the notification.

ivil Appeal No. 1811 of 1975. From the Judgment and Order dated 18.4.1975 of the Allahabad High Court in Second Appeal No. 734 of 1975. R.K. Mehta, Ms. Mona Mehta and S.K. Bagga (NP) for the Appellant. P.K. Bajaj and Mrs. Rani Chhabra (NP) for the Respondents. The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal by special leave arises from the judgment of the High Court of Judicature at Allaha bad dated April 18, 1975, dismissing the Second Appeal filed by the appellant. Teja, the common ancestor, had five sons: Nanha, Mulle, Manna, Chhota and Ram Sahai. All of them have died. Appel lant Sita Ram is the son of Nanha. Mulle had a son Nokhey who died in 1953 without any issue. Respondent No. 2 Soney Lal is the son of Manna. Kailasho Devi, respondent No. 3 is the widow of Ram Sahai. Chhota Bhondey respondent No. 1, claims to be the son of Chhota which is disputed by the appellant. The dispute in the appeal relates to sirdari holdings in Khata No. 72 and 73 in village Sambhalpur Sheoli in the State of Uttar Pradesh. Lands in Khata No. 72 were originally entered in the names of Nanha, Manna and Ram Sahai in the revenue records and on their deaths the names of the appellant and respondents Nos. 2 and 3 were entered. Respondent No. 3 sold her shares in these lands. The lands in Khata No. 73 were entered in the name of Nanha alone and on his death the same were entered in the name of the appel lant. Consolidation proceedings under the provisions of U.P. Consolidation of Holdings Act, 1953 (U.P. Act No. 5 of 1954) hereinafter referred to as 'the Act ' commenced in Village Sambhalpur Sheoli in the year 1969. Respondent No. 1 filed objections to the entries and claimed one fourth share in the holdings in both the Khatas on the basis that he is the son of Chhota and that the said lands belonged to the joint Hindu family consisting of the sons of Tej Ram. Respondents Nos. 2 and 3 filed objections claiming shares in the lands in Khata No. 73 on the ground that the said holding was jointly 187 acquired by Nanha and his brothers, Manna and Ram Sahai, and the name of Nanha was recorded in a representative charac ter. The appellant contested the said claims and claimed that lands in Khata No. 73 were acquired by Nanha in his individual capacity and not on behalf of his family. The appellant further claimed that respondent No. 1 could claim no interest in the holdings as he is not a member of the family. The case of the appellant was that respondent No. 1 is not the son of Chhota but is the son of one Heera who was a resident of a different village. The objections were considered by the Consolidation Officer, who, by order dated August 31, 1970, held that respondent No. 1 is the son of Heera alias Chhota. He gave half share to the appellant and one fourth share each to respondents Nos. 1 and 2 in all the plots of the Khata No. 73 except plots Nos. 140, 141, 142/2, 142/3 and 143/3 which were given to the appellant exclusive ly. The appellant as well as respondents Nos. 2 and 3 filed appeals against the said order of the Consolidation Officer. The Assistant Settlement Officer (Consolidation), by Order dated February 8, 1971, allowed the appeal of the appellant and directed that Khata No. 73 will be continued in the name of the appellant alone inasmuch as the lands of the said Khata were acquired by Nanha between 1927 and 193 1 before the birth of respondent No. 1 and the said land was not the ancestral acquisition nor Nanha had acquired it in a repre sentative capacity. The Assistant Settlement Officer, howev er, agreed with the findings of the Consolidation Officer that respondent No. 1 is the son of Heera alias Chhota and belongs to the family to which the appellant and respondent No. 2 belong. The respondents went in revision against the said order of the Assistant Settlement Officer. The said revisions were decided by the Deputy Director of Consolida tion by his Order dated May 13, 1971. The Deputy Director allowed the revision of respondent No. 1 in full and held that he has got a share in Khata No. 72 along with the appellant and respondent No. 2 and since respondent No. 3 has already sold her share of Khata No. 72 the remaining three branches namely the appellant and respondents Nos. 1 and 2 are entitled to one third share each in the lands included in this Khata. As regards lands in Khata No. 73 the Deputy Director disallowed the claim of the respondents in respect of plots Nos. 140, 141,142 and 143. But with regard to other plots of Khata No. 73 the Deputy Director held that the name of Nanha was entered only in a representative capacity and that the branches of Manna, Chhota and Ram Sahai also had a share in these plots and that the respond ents had acquired equal shares along with the appellant in these plots and their names may also be recorded over the same. The appellant filed a writ petition in the High Court to challenge the said decision of the Deputy Director of Consolidation, 188 but the said writ petition was dismissed in limine by the High Court by order dated July 23, 1971. The application filed by the appellant for grant of certificate of fitness to appeal to this Court under Article 133 of the Constitu tion was also rejected by the High Court by its order dated November 9, 1972. The appellant, thereafter, filed the civil suit giving rise to this appeal on January 25, 1973 for a declaration that the order of the Deputy Director of Consolidation dated May 13, 1971, is without jurisdiction. The said suit was contested by respondent No. 1. He raised a preliminary objection that the suit was barred by Section 49 of the Act. The Munsiff Hawaii, Kanpur, by judgment dated August 16, 1974 decided the said preliminary objection in favour of respondent No. 1 and dismissed the suit on the ground that it was barred by Section 49 of the Act. The said judgment and decree of the Munsiff Hawaii was affirmed in appeal by the Additional District and Sessions Judge, Kanpur Etawah by judgment dated January 17, 1975. The second Appeal filed by the appellant against the said judgment was dismissed in limine by the High Court by the judgment under appeal. The only question which arises for consideration in this appeal is whether the suit filed by the appellant was barred by Section 49 of the Act. In the instant case the consolida tion proceedings under the Act were taken during the period 1969 to 1971 and the suit was filed in 1973. At that time Section 49 read as under: "49. Bar to civil jurisdiction Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a notification has been issued under sub section (2) of Section 4 or adju dication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act. " Shri R.K. Mehta, the learned counsel for the appellant, has urged that the bar of Section 49 of the Act is not applicable to the suit of the appellant because the orders passed by the consolidation 189 authorities were without jurisdiction inasmuch as the con solidation authorities could not decide questions as to title to the lands as well as the question relating to the parentage of respondent No. 1 which the Civil Courts alone could decide. The submission of Shri Mehta is that the bar of Section 49 of the Act is applicable in respect of only those matters which could be adjudicated upon by the consol idation authorities. Shri Mehta has placed reliance on the decision of this Court in Suba Singh vs Mahendra Singh and Others, From a perusal of Section 49 it is evident that declara tion and adjudication of rights of tenure holders in respect of land lying in an area for which a notification has been issued under Section 4(2) and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, had to be done in accordance with the provi sions of the Act only and the jurisdiction of the civil or revenue courts to entertain any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under the Act, has been taken away. The language used in Section 49 is wide and comprehensive. Declaration and adjudication of rights of tenure holders in respect of land lying in the area covered by the notification under Section 4(2) of the Act and adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under the Act, would cover adjudication of questions as to title in respect of the said lands. This view also finds support from the other provisions of the Act and the amendments that have been introduced therein. In the Act, as originally enacted, Section 12 made provision for filing of objections against the statement of plots and tenure holders prepared by the consolidation authorities and in sub section (4) of Section 12 it was prescribed that where the objection filed under subsection (1) involves a question of title and such question has not already been determined by a competent court, the Consolida tion Officer shall refer the question for determination to the arbitrator. Sub section (5) of Section 12 laid down that all suits or proceedings in the Court of first instance or appeal in which a question of title in relation to some land has been raised shall be stayed. Under subsection (6) Of Section 12 finality was given to the decision of the Arbi trator under sub section (4). Similarly Section 20 made provision for filing of objections against statement of proposals prepared by the consolidation authorities under Section 19 of the Act. Section 22 prescribed that where any objection filed under Section 20 involves a 190 question of title in or over land and such question has not already been finally determined by a competent court, the Consolidation Officer shall refer it to the Arbitrator for determination and all suits or proceedings of the first instance or appeal in which a question of title in relation to the same had been raised shall be stayed and the decision of the Arbitrator shall be final. There was a similar provi sion for reference to arbitrator in Section 36. These provi sions indicate that initially the Act envisaged that ques tions of title, if not finally determined by a competent court, shall, instead of being decided by the Courts, be decided by an Arbitrator and the decision of the Arbitrator would be final. As a result the determination of questions of title was withdrawn from the jurisdiction of the Courts. On a consideration of the scheme of the Act and the policy behind the legislation, in the light of the provisions referred to above, this Court has observed: "The scheme of that Act, the policy behind that legislation and the language of the relevant provisions clearly show that the Legislature did not want questions of title to be decided by the Civil Court when the consolidation proceed ings were under way. It is perfectly plain that the frag mented holdings being converted into consolidated parcels of land is a complicated operation to be conducted by adminis trative authorities, and if long and frequent proceedings in Civil Courts hold up consolidation operations, the very transformation of land holdings in villages the legislature desired to produce .would have been indefinitely postponed and messed up. It is thus obvious that at this stage Civil Courts should not intervene even if the questions were of heirship or title to property. At the same time, the Legis lature did not want to hand over these complicated questions of title and the like to mere consolidation agencies, and so under Sections 12(4) and 22(1), it was provided that objec tions relating to title to land, if they cropped up at intermediate stages of these operations, were to be referred to arbitration." (p.420 21) Extensive amendments were made in the Act by the U .P. Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act No. 38 of 1958) whereby a number of sections including section 36, were deleted and various provisions, including sections 5, 7 to 12 and 22, were substituted. As a result of these amendments the provisions with 191 regard to arbitration contained in Sections 12, 22 and 36 of the original Act were removed. In sub clause (i) of Clause (b) of Section 5, as substituted, it was provided that all proceedings for correction of the records and all suits for declaration of rights and interests over land, or for pos session of land or for partition, pending before any author ity or court, whether of first instance, appeal, or refer ence, or revision, shall stand stayed, but without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said proceeding or suits before the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereun der. In sub clause (ii) of Clause (b) it was further provid ed that the findings of consolidation authorities in pro ceedings under the Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be. In Section 9 as substituted, provision was made for issuing notice of the statement prepared under Section 8 of the Act to tenure holders concerned and to persons interested calling upon them to file before him objections, if any, disputing the correctness or nature of the entries in the extracts and pointing out of any omission therefrom. In Section 10 of the Act provision was made for adjudication by the Consolidation Officer of the said objections in disputed cases. In Section 11 provision was made for appeal against the orders passed by the Assistant Consolidation Officer and the Consolidation Officer under Sections 9 and 10. Section 12, as substituted, prescribed that all matters relating to changes and trans fers affecting any of the rights or interests recorded in the revised records published under Section 1 1B for which a cause of action was non existent when proceedings under Sections 7 to 10 were started or were in progress may be raised before the Assistant Consolidation Officer as and when they arise but not later than the date of notification under Section 52 or under sub section (1) of Section 6 and that the provisions of Sections 7 to II shall mutatis mutan dis, apply to the hearing and decision of any matter praised under Section (1) as if it were a matter raised under the aforesaid Sections. The scheme of the above mentioned amend ments introduced in the Act by the Amendment Act of 1958 was to empower the consolidation authorities to adjudicate on matters involving declaration of right and interests over land or for possession of land or for partition and suits or proceedings in that regard pending before any Court were to be stayed till such determination and after such determina tion. the Court was to proceed with the said proceedings in the light of the findings of the consolidation authorities. In other words the question as to title which were 192 earlier required to be determined by arbitration were to be adjudicated upon by the consolidation authorities under the Act. From the Statement of Objects and Reasons for the Amendment Act of 1958 it appears that it become necessary to do away with the provisions for arbitration because it used to cause great delay and in order to inspire greater confi dence in the people in the adjudication of rights of tenure holders by consolidation authorities provision was made for a Second Appeal against orders passed by the Consolidation officer. Further amendment was made in Section 5 of the Act by U.P. Act No. 21 of 1966 whereby clause (b) of sub section (1) of Section 5, as renumbered, was omitted and sub section (2) was added in Section 5. By clause (a) of the said sub section (2) it has been provided that upon the publication of the notification under sub section (2) of Section 4 every proceeding for the correction of the records and all suits and other proceedings in respect of declaration of rights and interests in any land lying in the area, or for declara tion or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. In clause (b) of sub section (2) of Section 5 it is further provided that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suit or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder. As a result of the said amendment which has been introduced in Section 5 the right of the Courts to adjudi cate in respect of declaration of rights or interest in any land lying in the area for which the notification has been issued under Section 4(2) or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act has been completely taken away and the adjudication of these rights is to be done by the consolidation authorities under and in accordance with the provisions of the Act and the Rules made thereunder. Section 49 of the Act which bars the jurisdiction of the civil and revenue Courts gives effect to the aforesaid provisions contained in Section 5(2) of the Act. As a result of these amendments civil and revenue Courts have no role in the matter of determination of rights or interests in any land lying in the area for which notice has been issued under Section 4(2) of the Act or for the declaration or adjudication of any other right in regard to which proceed ings can or ought to be taken under the Act. 193 In Ram Adhar Singh vs Ramroop Singh and Others, ; this Court has dealt with the question whether a suit for recovery of possession filed by the plaintiff claiming to be 'Bhoomidar ' of the land and asserting that the defendant was a trespasser and not entitled to remain in possession of the property was covered by Section 5(2) of the Act as amended by U.P. Act No. 21 of 1966. After consid ering the various provisions of the Act this Court held that "disputes of the nature which exists between the parties in the present litigation are all now within the jurisdiction of the authorities, constituted under the Act, to adjudicate upon" and on that basis it was held that the suit had abated under Section 5(2). In Gorakh Nath Dube vs Hari Narain Singh and Others, ; this Court was concerned with a suit for cancellation of a Sale Deed to the extent of half share claimed by the plaintiff in fixed rates tenancy plots and for award of possession of the plaintiff 's share. This Court held that the said suit had abated under Section 5(2) of the Act inasmuch as the claim made in the said suit could be adjudicated upon by consolidation courts. Referring to Section 5 of the Act this Court has observed: "The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation pro ceedings before special courts governed by special proce dure. Such adjudication by consolidation authorities were considered more suitable, just and efficacious for speedy decisions which had to be taken in order to enable consoli dation operations to be finalised within a reasonable time. (P.341) This Court has held that questions relating to the validity of sale deeds, gift deeds and wills could be gone in proceedings before the consolidation authorities because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject matter of consolidation pro ceedings. A distinction has, however, been made between cases where the document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have.legal effect. With regard to cases falling in the first category it was held that such a claim can be 194 adjudicated by consolidation courts on the view that an alienation made excess of power to transfer would be, to the extent of the excess of power, invalid and an adjudication on the effect of such a purported alienation would be neces sarily implied in the decision of a dispute involving con flicting claims to rights, or interests in land which are the subject matter of consolidation proceedings. But as regards cases falling in the second category where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it was held that the consolidation authorities would have no power to cancel the same and it must be held to be binding no them so long as it is not cancelled by a court. In the instant case respondent No. 1 was claiming an inter est in the land lying in the area covered by notification issued under section 4(2) on the basis that he is the son of Chhota, brother of Nanha and that the lands were recorded in the name of Nanha in a representative capacity on behalf of himself and his other brothers. This claim which fell within the ambit of Section 5(2) had to be adjudicated by the consolidation authorities. Since it was a matter falling within the scope of adjudicatory functions assigned to the consolidation authorities under the Act the jurisdiction of the Civil Court to entertain the suit in respect of the said matter was expressly barred by Section 49 of the Act and the suit of the appellant was rightly dismissed on that ground. Suba Singh vs Mahendra Singh, (Supra), on which reliance has been placed by the learned counsel for the appellant,has no application to the present case. That case related to the year 1956 i.e. before the Amendment Act of 1958. At that time provision relating to arbitration were contained in Sections 12(4) and 21(1) of the Act. The provisions of sections of Section 49 of the Act which were in force at that time had a narrower scope and the jurisdiction of the Civil Court was barred "with respect of any matter arising out of consolidation proceedings or with respect to any other matter in regard to which a suit or application could be filed under the provisions of the Act. " In that case after the scheme for consolidation under Section 23 of the Act had been confirmed one Jag Ram, who was held to be a Bhoomidar under the Scheme, had died. Jag Ram had four sons including Ram Bhajan who hadpre deceased Jag Ram. The plaintiff appellant claimed himself to be the son of Ram Bhajan and had applied for mutation in the consolidation proceedings on that basis which was allowed. Thereafter he approached the Civil Court for partition of the property of Jag Ram. The question was whether the said suit was barred by Section 49 of the Act. This Court held that it was not so barred on the view that the 195 question as to who were the heirs of Jag Ram was not a matter arising out of consolidation proceedings and further that the said question of inheritance to the estate of Jag Ram arose after the consolidation operations had been sub stantively completed. In this context this Court has ob served that there is no provision in the Act for any dispute of title which arises subsequent to confirmation of the statement under Section 23 to be decided by way of arbitra tion or otherwise and that the consolidation authorities had no jurisdiction to determine finally the complicated ques tion of title when the cause of action had arisen subsequent to the finalisation, publication and even implementation of the consolidation scheme so far as Jag Ram was concerned. This would show that in this case this Court was considering the question whether a dispute as to title which arises subsequent to confirmation of the statement under Section 23 could be adjudicated upon by the consolidation authorities. As pointed out earlier the position has been changed after the amendments that have been introduced in the Act by the Amendment Acts of 1958 and 1966. For the reasons aforesaid we find no substance in this appeal and it is accordingly dismissed with costs. R.S.S. Appeal dis missed.

The appellants were convicted for offence under Ss. 147, 149 and 302 IPC for murdering a villager. The prosecution case was that motivated by group rivalry the accused persons numbering over fifteen attacked the deceased with tabbals and lathis while he accompanied by his mother, PW 1, and sister, PW 5, was on his way to a nearby village to supply milk. As a result of the injuries sustained the deceased died on the spot. When PW 1 tried to intervene, site too was assaulted. She lodged the FIR thereafter the same day against the appellants others. At the trial PW 4 and PW 6 deposed to having seen appel lants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance. The medical evidence disclosed that the deceased had sustained in all seven injuries, two incised wounds on the scalp, two contu sions and three bruises. The trial court found that the appellants were members of an unlawful assembly and death of the deceased was caused by them in prosecution of a common object. The High Court on appeal agreed with the findings of the trial court. In the appeal by special leave, it was contended for the appellants that the courts below had failed to exercise the necessary care and caution that was required in scrutinising the evidence of the two eye witnesses who were close rela tions of the deceased and deeply interested in involving the appellants on account of enmity, and that in the absence of independent corroboration the conviction based on the testi mony of these witnesses was unwarranted. Disposing of the appeal, the Court, 102 HELD: 1.1 It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to involve as many persons of the opposite faction as possi ble by merely naming them as having participated in the assault. The court, therefore, has in all such cases to sift the evidence with utmost care and caution and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt. [107C D] Baldev Singh vs State of Bihar, AIR 1972 SC 464; Raghu bir Singh vs State of U.P., AIR 1971 SC 2156 and Muthu Naicker vs State of Tamil Nadu, , referred to. 1.2 The conviction of the appellants was principally based on the evidence of PW 1 and PW 5, the mother and sister of the deceased. Though their evidence was not to be discarded as interested, necessary caution should have been observed in accepting the same in upholding the conviction of all the appellants. [104H; 105A] 2.1 In a melee, as in the instant case, where several people are giving blows at one and the same time it will be impossible to particularize the blows. If any witness at tempts to do it, his veracity is doubtful. But, it is sim pler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close crossexamination. Therefore, the nature of injuries sus tained by the victim assumes importance. [105H; 106A] 2.2 PWs 1 and 5 stated that the accused persons sur rounded the victim and each one of them assaulted him with the weapon they had. PW 1 stated that some of the assailants had given more than one blow, They did not state who caused the head injuries. They have not attempted to attribute any one of the injuries to any particular assailant. The evi dence was in general terms. If a group of more than fifteen persons had encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the vic tim. The medical evidence shows that besides the two incised wounds on the scalp which proved fatal the deceased had only five minor injuries on his person. [105E G] 2.3 When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased the necessary inference would be that not more than seven persons might have participated in delivering the blows. therefore, the presence of more than seven 103 persons is doubtful. This aspect of the case has not been given due weight by the High Court while appreciating the evidence. [105H; 106A C] 3.1 The manner in which the incident happened also makes it clear that the assailants acted in prosecution of the common object to cause the death of the victim. There is no doubt that more than five persons had actually participated in the crime. There is clear evidence regarding the identity of only four persons. Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident. This evidence lends assurance to the testimony of PW 1 and PW 5 regarding their participation in the crime. [107B C ] 3.2 The conviction of these four persons has, therefore, been rightly sustained. Regarding the rest of the appellants there is scope of genuine doubt. Their conviction and sen tence are accordingly set aside. [107D]

: Criminal Appeal No. 57 of 1984. From the Judgment and Order dated 25 10 1983 of the Allahabad High Court in Habeas Corpus WP. No. 8420 of 1983. Manjo Swarup and Dalveer Bhandari for the appellant. Mrs. & Mr. Qamaruddin, Rizwan A. Hafiez and Desh Raj for the respondent. The Judgment of the Court was delivered by SEN, J. The State Government of Uttar Pradesh has preferred this appeal by special leave from the judgment and order of the Allahabad High Court dated October 25, 1983 by which the High Court issued a writ in the nature of habeas corpus quashing an order of detention passed by the District Magistrate, Moradabad dated November 6, 1982 for the detention of the respondent under sub section (3) of section 3 of the on being satisfied that his detention was necessary "with a view to preventing him from acting in any manner prejudicial to the maintenance of Public order. " It appears that the respondent is alleged to have committed an offence of murder punishable under section 302 and of causing disappearance of evidence punishable under section 201 of the Indian Penal Code, 1860 in connection with the communal riots that occurred in the Moradabad city. On November 6, 1982, the District Magistrate, Moradabad passed the impugned order of detention but it could not be served on the respondent as he was absconding. As required under sub section (4) of section 3, the District Magistrate forthwith made a report of the fact to the State Government of Uttar Pradesh that he had passed an order for the detention of the respondent under sub section (3) of section 3 of the Act, together with the grounds on which the order had been made and such other particulars as, in his opinion, had a bearing on the matter. The State Government received the order of detention on November 8, 1982 and approved of the same on November 11, 1982 under sub section (5) of section 3, and as required thereunder, forwarded a report to the Central Government on the next day i.e. On November 12, 1982. The respondent surrendered to the police on May 24, 1983 and the impugned order of detention was served on him in District Jail, 792 Moradabad on June 1, 1983 and the grounds of detention were furnished to him on June 2, 1983. The respondent made a representation dated June 18, 1983 through the Superintendent, District Jail Moradabad and he immediately forwarded the same to the District Magistrate. On June 20, 1983 the District Magistrate forwarded the representation to the Advisory Board and the same was received by the Advisory Board on June 21, 1983. The State Government had in the meanwhile on June 13,1983 made a reference to the Advisory Board under section 10 of the Act i.e. within three weeks from the date of detention together with the order of detention, and the grounds therefore, for its opinion. On June 23, 1983 the representation of the respondent forwarded by the District Magistrate together with his comments was examined by the Joint Secretary, Home Department. The file was placed before the Home Secretary on June 27, 1983 who placed it before the Chief Minister with his comments. The Chief Minister took two days to study the file and ultimately passed an order rejecting the representation on June 30, 1983. On July 2, 1983 the State Government forwarded the representation made by the respondent together with its comments to the Government of India and the Central Government rejected the same on July 19, 1983. On July 5, 1983 the respondent through his counsel D.S. Misra simultaneously addressed two representations for revocation of his detention under section 14 of the Act, one addressed to the Prime Minister of India and the other to the State Government. It appears that the representation made to the Central Government addressed in the name of the Prime Minister was received in the Prime Minister Secretariat on July 7, 1983 and the grievance of the respondent was that the Central Government had not dealt with his application for revocation of the order of detention under section 14 even now. In his counter affidavit by one M.L. Miglani, Desk officer, Ministry of Home Affairs, New Delhi, it was stated that the Central Government had fully discharged its functions by expeditiously taking a decision on the earlier representation directly ad dressed by the respondent and it was under no statutory obligation to consider the subsequent representation for revocation addressed by the respondent through his counsel to the Prime Minister. I was not a statutory representation for revocation of the impugned 793 order of detention under section 14 and therefore it was not at all necessary for the Central Government to deal with it. The High Court placing reliance on the decision of this Court in Phillippa Anne Duke vs State of Tamil Nadu & Ors and certain of its own decisions held that the respondent had a right to make an application to the Central Government for revocation of the order of detention and the failure on the part of the Central Government to apply its mind to it made the continued detention illegal. The only question canvassed in the appeal before us is that the judgment of the High Court betrays, complete lack of awareness a of the nature of the constitutional safeguards enshrined under article 22(5) of the Constitution. It is urged that the constitutional imperatives enacted in article 22(5) are two fold; (1) The detaining authority must, as soon as maybe i.e. as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention has been made. And (2) The detaining authority must afford the detenu the earliest opportunity of making representation against the order of detention. In the present ease, it is said that the requirements of article 22(5) of the Constitution read with section 8(1) of the Act had been duly complied with. There is no question of any violation of article 22(5) or of section 8(1) and further that the grounds for detention set out the facts with sufficient degree of particularity and they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. The order of detention cannot therefore be challenged on the ground that the grounds furnished were not adequate or sufficient for the subjective satisfaction of the detaining authority, or for making an effective representation. It is further urged that there being due compliance with the constitutional requirements of article 22(5) and of section 8(1), the High Court was wrong in holding that the continued detention of the respondent was invalid merely because the Central Government refused to act on his application for revocation of the order of detention under section 14 of the act. We find considerable force in the submission. We are not oblivious of the fact that this Court has in certain cases given expression to the view that any lapse on the part of the State Government in forwarding the representation made for revo 794 cation of his order of detention under s.11(1)(b) of the COFEPOSA Act, 1974 or the failure of the Central Government to expeditiously consider the same was a denial of the constitutional right of being afforded "the earliest opportunity of making a representation against the order" as contemplated by article 22(5). At one time it was thought that section 14 of the which was in pari materia with section 14 of the Act, did not confer any right or privilege on the detenu but there is a definite shift in the judicial attitude, for which there appears to be no discernible basis. In Shyam Ambalal Siroya vs Union of India & Ors., the contention was that because a representation properly addressed to the Central Government to order revocation under section 11 of the COFEPOSA Act was not forwarded by the detaining authority to the Central Government, the detention was illegal. The Court construed the power conferred on the Central Government to direct revocation of an order of detention under section 11 of that Act to be "statutory". It was observed that the power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power and a petition for revocation of an order of detention should be dealt with reasonable expedition. Since a representation properly addressed by the detenu of the Central Government was not forwarded to the Central Government, the continued detention of the detenu was held to be illegal. In Sabir Ahmed vs Union of India & Ors., the Court held that non consideration by the Central Government of a representation for revocation made by the detenu under section 11 of the COFEPOSA Act made the continued detention to be bad, following the decision in Shyam Ambalal Siroya 's case, supra. It was however observed that the power conferred by section 11 on the Central Government was a supervisory power and it was intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. In Rattan Singh vs State of Punjab & Ors, the Court went still further. There was, in that case, a lapse on the part of the State Government in forwarding the representation simultaneously made by the detenu to the Central Government for revocation of the order of detention under section 11 of the COFEPOSA Act. The 795 Court struck down the order of detention on the ground that there was a denial of the right of making representation to the Central Government for revocation of the order of detention under section 11 of the Act and this was tantamount to a denial of the constitutional safeguard of article 22(5). Soon thereafter, the Court in Sat Pal vs State of Punjab & Ors examined the nature of the power of revocation conferred on the Central Government under section 11 of the COFEPOSA; Act and held that it was supervisory in nature, and it was observed: "That is, as it should be, under our federal structure the Centre must always keep a vigilant eye in the matter of life and liberty of a citizen guaranteed under Article 21. Ours is a Constitution, where there is a combination of federal structure with unitary features while in a unitary State there is only one Government; federal State involves multi Governments namely, national or federal Government and the Governments of component States. A federal State, in short, is a fusion of several States into a single State in regard to matters affecting common interest leaving each component State to enjoy autonomy in regard to other matters. Under our Constitution: certain powers vest in the Central Government leaving certain to its component units to exercise autonomy in spheres assigned to them in the Constitution itself. The component States are . not merely delegates or agents of the federal Government. Both federal and State Governments draw their authority from the same source, the Constitution The conferment of executive power on the States in relation to a subject with respect to which the legislatures of the States have no power to make a law under article 258(2) must necessarily be subject to the administrative control of the Union under articles 256 and 247(1), to the giving of such directions to the States as may appear to the Government of India to be necessary for that purpose. " It was then observed that the constitutional imperatives of article 22(5) enjoin that where a detenu simultaneously makes a re 796 presentation to the detaining authority as well as an application for revocation under section 11 of the Act they must both be dealt with by the appropriate Government at the same time and there was no question of any conflict of jurisdiction. To illustrate, it was said that if the Central Government were to revoke an order of detention under section 11 of the Act, there would be no representation for the State Government to consider, or refer the Advisory Board under section 8(b), nor will there arise any question of Advisory Board submitting a report to it, or on receipt of such a report confirming the order of detention under section 8(f). It was further observed that the other types of cases would be where notwithstanding that the order of detention has been confirmed under section 8(f), the appropriate Government may, at any time, revoke the same under section 11 of the Act. It was accordingly held that the power of revocation conferred on the appropriate Government under section 11 is independent of the power of confirming or setting aside an order of detention under section 8(f). As to the nature of the power of revocation conferred on the Central Government under section 11 of the COFEPOSA Act, it was stated: "The making of an application for revocation to the Central Government under section 11 of the Act is therefore part of the constitutional right a citizen has against this detention under a law relating to preventive detention. While article 22(5) contemplates the making of a representation against the order of detention to the detaining authority, which has to be referred by the appropriate Government to the Advisory Board constituted under section 8(a) of the Act, Parliament, has in its wisdom, enacted section 11 and conferred an additional safeguard against arbitrary executive action. The principle that emerges from all these decisions is that the power of revocation conferred on the Central Government under section 14 of the Act is a statutory power which may be exercised on information received by the Central Government from its own source including that supplied by the State Government under sub section (5) of section 3 or from the detenu in the form of a petition or representation. It is for the Central Government to decide whether or not it should revoke the order of detention in a particular 797 case, In the present case, the detenu was not deprived of the right of making a representation to the detaining authority under article 22(5) of the Constitution read with section 8(1) of the Act. Although the detenu had no right to simultaneously make a representation against the order of detention to the Central Government under article 22(5) and there was no duty cast on the State Government to forward the same to the Central Government, nevertheless the State Government forward the same forthwith. The Central Government duly considered that representation which in effect was nothing but a Representation for revocation of the order of detention under section 14 of the Act. That being so, it was not obligatory on the part of the Central Government to consider a second representation for revocation under section 14. We may profitably refer to Phillippa Anne Duke 's case, supra, where in somewhat similar circumstances it was held that failure of the Central Government to consider a representation for revocation of an order of detention under section 11(1)(b) of the COFEPOSA Act handed over to t he Prime Minister during her visit to England did not render the continued detention invalid. It was observed: "Representations from whatever source addressed to whomsoever officer of one or other department of the Government cannot be treated as a representation to the Government under section 11(8)(b) of the COFEPOSA Act. " The result therefore is that the appeal succeeds and is allowed. The judgment and order of the High Court is set aside and the order of detention passed by the District Magistrate under sub section (3) of section 3 of the is maintained. S.R. Appeal allowed.

Regular recruitment after the initial recruitment to the Delhi Higher Judicial Service under Rule 7 of the Delhi Judicial Service Rules, 1970 is made by promotion on the basis of selection from members of the Delhi Judicial Service who have completed not less than 10 years of service and by direct recruitment from the Bar subject to the provision that not more than one third of the substantive posts in the service shall be held by direct recruits. In the case of promoted officers, the appointment to the service shall be made by the Administrator in consultation with the High Court while the appointment of direct recruits shall be made on the recommendations of the High Court. Rule 2(b) provides that cadre post means any post specified in the Schedule and includes a temporary post carrying the same designation as that of any of the post specified in the Schedule and any other temporary post declared as cadre post by the Administrator. Under rule 16 the Administrator is empowered to create temporary post in the service and such temporary post shall be filled in consultation with the High Court from amongst the members of the Delhi Judicial Service. Under rule 17 the Administrator may in consultation with the High Court fill substantive vacancies in the service by making temporary appointments thereto from amongst members of the Delhi Judicial Service. Rule 8 speaks of seniority while the inter se seniority of members of the Delhi Judicial Service promoted to the service shall be the same as in the Delhi Judicial Service, the seniority of direct recruits vis a vis promotees shall be determined in the order or rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on. 352 The Administrator have appointed the writ petitioners and also the defendants by resorting to Rule 16 and Rule 7 respectively. But when the seniority list was prepared some of the defendants who are direct recruits were ranked higher than the promoted officers who have been appointed several years earlier under Rule 16. Hence the two writ petitions by the promoted officers contending that seniority between promotees and direct recruits must be determined in accordance with the respective dates of their continuous officiation as Additional District and Sessions Judges and that direct recruits who are appointed as Additional District and Sessions Judges after the promotees are so appointed cannot rank higher in seniority over the promotees and that promotees discharge identical functions and bear the same responsibilities as direct recruits and upon their appointments they constitute only common class and hence to give seniority to the direct recruits who are appointed later in point of time is violative of articles 14 and 16 of the Constitution. Allowing the petitions in part, the Court ^ HELD : (Per majority) Per Chandrachud, C. J. 1:1. The impugned seniority list, which is challenged by the promoted officers has been prepared on the basis that the rule of quota and rota will continue to apply notwithstanding the fact that appointments are made to the service under rules 16 and 17 of the Delhi Judicial Service Rules and is violative of articles 14 and 16 of the Constitution since the rule of quota and rota prescribed by the proviso to rule 7 would cease to apply when appointments are made to service under rules 16 and 17. [378B C] 1:2. But the provisions contained in proviso to rule 7 and rule 8(2) of the Delhi Judicial Service Rules 1970 do not by themselves suffer from any infirmity and therefore constitutionally valid. [380A] 2:1. When a rule or a section is part of an integral scheme it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of the provision leads to the risk of some other inter related provisions becoming otiose or devoid of meaning [365H: 366A] 2:2. The negative language of the proviso to rule 7 makes it clear that it merely prescribes, by way of imposing a ceiling that the direct recruits shall not hold more than one third of the substantive posts. The language of the proviso to rule 7 is certainly not felicitous and is unconventional if its intention was to prescribe a quota for direct recruits. But the proviso must be read along with rule 8(2) since the two provisions are inter related. Their combined reading yields but one result, that the proviso prescribes a quota of one third for direct recruits. Otherwise there would neither be any occasion nor any justification for rotating vacancies between direct recruits and promotees [366C E] 2:3. In the process of reading the rules as parts of a connected whole, rules 16 and 17 are equally relevant. The position which emerges from the provisions contained in rules 16 and 17 is that it is permissible to create 353 temporary posts in the service and, even substantive vacancies in the service can be filled by making temporary appointments. The two fold restriction on this dual power is that the High Court must be consulted and such appointments must be made from amongst the promotees only. If temporary appointments to the service either in temporary posts or in substantive vacancies can be made within the framework of the rules and have to be made, if at all from amongst the promotees and promotees only, the quota rule contained in the proviso to rule 7 must inevitably breakdown when such appointments are made, the simple reason being that direct recruits cannot be appointed either to temporary post in the service to substantive vacancies in the service which are filled in by making temporary appointments. Thus even though the proviso to rule 7 prescribes a quota of one third for direct recruits, rules 16 and 17 permit the non observance of the quota rule in the circumstances stated in those rules. [366F; 367A D] 3 : 1. Normally, an ex cadre post means a post outside the cadre of posts comprised in a service. Therefore all posts in the service whether permanent or temporary, are generally regarded as cadre posts. But, regardless of the normal pattern of service rule rule 2 (b) has the limited effect of making every post in the service a cadre post, whether the post is permanent or temporary. The inclusive clause contained in the second part of rule 2 (b) has to be read in the context of the first part of that rule and must take its meaning from what precedes it. This provision is consequential to and in consonance with Rule 16. Since it is permissible under Rule 16 to create temporary posts in the service, such posts are also regarded as cadre posts. It would have been anomalous to treat a post in the service as an ex cadre post merely for the reason that the post is temporary. [367H; 368A B; 367G] Therefore, every promotee who holds the post of an Additional District and Sessions Judge in the service is the holder of a cadre post, whether the post is permanent or temporary direct recruits hold cadre post in all events because, they can only be appointed to substantive post in the service on a permanent basis. Rules 16 and 17 forbid their appointments to temporary post in the service or to substantive vacancies in the service on a temporary basis. [368C D] 3 : 2. Rule 2 (d) which provides that a member of the service means a person appointed in substantive capacity to the service under the provisions of the rules shows that two conditions must co exist in order that a person can become a member of the service. Firstly, his appointment has to be in a substantive capacity and secondly, the appointment has to be to the service, that is to a post in the service. Persons who hold appointments bearing designations similar to the designations of the posts comprised in the service cannot, for that reason alone become members of the service. It is only when they are appointed in a substantive capacity to a post in the service, that they become members of the service. [368E G] 3 : 3. By the definition contained in rule 2 (d), the membership of the service is limited to persons who are appointed in a substantive capacity to the service. By the second part of rule 2 (b), if read in an extended sense every temporary post which carries the same designation as that of any of the post 354 specified in the schedule is a cadre post whether such post is comprised in the service or not. Such posts and the posts specified in the Schedule will together constitute the cadre under rule 2 (b). [369B C] 4 : 1. Whenever the rules provide for recruitment to a service from different sources, there is no inherent infirmity in prescribing a quota for appointment of persons drawn from those sources and in working out the rule of quota by rotating the vacancies as between them in a stated proportion. Therefore rule 8 (2) cannot be held to be unconstitutional merely because it reserves one third of the vacancies in the service for direct recruits and provides that the first available vacancy in the service will be filled in by a direct recruit, the next two by promotees and so on. [369G; 370B] Mervyan Coutinho vs Collector of Customs, Bombay, ; ; S.C. Jaisinghani vs Union of India, ; , Bishan Sarup Gupta vs Union of India, ; ; A.K. Subraman vs Union of India, [1975] 2 SCR 979 V.B. Badami vs State of Mysore, [1976] 2 SCC 901 and Paramjit Singh Sandhu vs Ram Rakha, ; ; referred to. 4 : 2. However, there being instances wherein though the provision of rule or a section is not invalid, the manner in which that provision is implemented in practice leads to the creation of disparities between persons who, being similarly circumstanced are entitled to equal treatment. The provisions of rule 8 (2) must therefore be applied carefully and in such a manner as not to lead to the violation of the guarantee of equality and equal opportunity contained in articles 14 and 16 of the Constitution by ascertaining as to which of the promotees can be regarded as belonging to the same class as the direct recruits. [370C D] 4 : 3. The pre requisite of the right to inclusion in a common list of seniority is that all those who claim that right must, broadly, bear the same characteristics. The mere circumstance that they hold posts which carry the same designation will not justify the conclusion that they belong to the same class. Persons who are appointed or promoted on an ad hoc basis or for fortuitous reasons or by way of a stop gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such later class posts are permanent or temporary. The rules in the instant case do not require that persons belonging to former category have to satisfy any particular prescription like consultation with the High Court. [370E F] 5 : 1. There is no provision in the Rules which requires that ad hoc appointments must also be made in accordance with any set formula. The courtesy shown by the authorities to the High Court when certain appointments are made is one thing and the obligation imposed by the rules on the authorities that the High Court shall be consulted when certain appointments are made is another. Indeed, there is a distinction between the process of consultation with the High Court and the screening of the promotees done by the High Court, may be at the instance of the authorities, when their names are considered for appointment as Additional District and Sessions Judge on an ad hoc, fortuitous 355 or stop gap basis. Thus, persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judge on an ad hoc basis or for fortuitous reasons or by way of a stop gap arrangement constitute a class which is separate and distinct from those who are appointed to posts in the service in strict conformity with the rules of recruitment. In view of this, the former class of promotees cannot be included in the list of seniority of officers belonging to the service. [370H; 371A D] 5:2. However, in the matter of seniority no distinction can be made between direct recruits who are appointed to substantive vacancies in the service on the recommendation of the High Court under rule 5 (2) and the promotees who are appointed in consultation with the High Court to posts in the service under rules 16 and 17. Promotees who are appointed to the service under either of these two rules must be considered as belonging to the same class as direct recruits appointed under rule 5 (2). They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed on a regular basis to posts in the service in the same manner as direct recruit are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court, promotees are appointed in consultation with the High Court Exclusion from the seniority list of those promotees who are appointed to posts in the service, whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity will amount to a violation of the equality rule since, thereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career. [371E H; 372A] 5:3. In situations resulting in the suspension of the rule of 'quota and rota ', it is difficult to evolve an equitable rule for determining seniority between direct recruits on the one hand and promotees who are appointed under rules 16 and 17 on the other which will cause no hardship of any kind to any member of the service. Therefore, the attempt has to be made to minimise, as far as possible, the inequities and disparities which are inherent in a system which provides for recruitment to the service from more than one source by keeping in mind one guiding principle, namely that the classification is gloss on the right to equality and to ensure that classification is made on a broad, though rational, basis so as not to produce the self defeating result of denying equality to those, who in substance, are situated similarly.[374C E] 6 Since the rule of quota and rota ceases to apply when appointments are made under rules 16 and 17, the seniority of direct recruits and promotees appointed under those rules must be determined according to the dates on which direct recruits are appointed to their respective posts and the dates from which the promotees have been officiating continuously either in a temporary post created in the service or in substantive vacancies to which they were appointed in a temporary capacity. [375F G] S.B. Patwardhan vs State of Maharashtra, ; ; applied; Baleshwar Dass vs State of U.P., [1981] 1 SCR 449 distinguished; A. Janardhana vs Union of India, ; ; followed Joginder Nath vs Union of India, ; ; held inapplicable. 356 Per Sabyasachi Mukharji, J. 1:1. The proviso to rule 7 merely provides that in case in an year there is vacancy for recruitments from the Bar as well as by promotion more than one third of substantive posts should not be filled in by direct recruitment, and nothing more and therefore it cannot be said that there is any quota of Bar recruits of one third. The rule does not say that one third of direct recruits must for each year be one third of the recruitments made. It puts a ceiling on number of Bar recruits in an year where Bar recruits are available and willing to be appointed.[384C E] 1:2. Sub rule (2) or the makers of Sub rule (2) of Rule 8 presumed and assumed a factual position that quotas of vacancies have been reserved for both categories by Rule 7 which is really not a fact Rule 7 does not reserve any quota for either of the categories Rule 7, 0.4 provides for ceiling of direct recruits by providing that in case there were recruitments from the Bar as well as by promotions in such a case Bar recruits would not be more than one third of the substantive posts in the service. [384H: 385A B] 2:1. It is well settled that breft of anything where a service consists of recruitments made from two different sources and the rules and regulations provide for their recruitment and their rights, inter se, primarily and essentially those rights have to be adjusted within the scheme of the rules though it might in some cases lead to certain amount of imbalances or injustices because a service is built on various considerations and various factors induce the legislature or the rule making authority to induce different and diverse knowledge, diverse aptitudes and requirements needed for running of the service. The legislature or the rule making authorities have better knowledge and better capacities to adjust those factors.[385D F] 2:2. Rule 8 (2) proceeds on the misconception that there is quota fixed for direct recruits, which rule 7 does not. Rule 8 (2) cannot on plain literal meaning also be construed or interpreted to mean that it was deemed by the legislature and the rule making body to engraft any quota. There is no deemed quota, if that was the intention then the rule would have said so. The rule is silent and proceeds on wrong assumption Therefore, the rule should be given effect to in so far as it can be without reading any quota for the subsequent years.[384E F] Mervyn Coutinho & Ors. vs Collector of Customs Bombay & Ors ; ; S.C. Jaisinghani vs Union of India & Ors., [1967] 2 SCR p. 703, Chandra mouleshwar Prasad vs Patna High Court & Ors., ; ; V.B. Badamai Etc. vs State of Mysore & Ors. , [1976] 1 SCR 815=2 SCC 901; and Bishab Sarup Gupta vs Union of India & Ors., [1975] Suppl. SCR 491; held inapplicable. 357 Joginder Nath and Ors. vs Union of India & Ors. ,[1975] 2 SCR 553 referred to. Service jurisprudence in India has developed in a peculiar way. It has sought to infuse both fresh blood and old experience but somehow our administrators did not for a see the need for expanding administration and the personal necessary for this expansion, as a result in making appointments and even granting promotions, there has been a good deal of ad hoc arrangements crating in practically every branch of administration feeling of discontent and misunderstanding between promotees and direct recruits, and damaging the friendly atmosphere which should prevail among the members of the administration, if administration has to remain a vehicle of social progress and transformation which the Indian administration must, in view of the very great possibility and the transitory nature through which it is passing in spite of the severe personal and economic hardships that the member of the administration go through. [388H; 389A C] 3:2. In Baleshwar Dass & Ors. vs State of U.P. & Ors. [1981]1. SCR. 449, the Supreme Court noted that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds that on probation and subject to confirmation. If the appointment was to post and the capacity in which the appointment was to be made was of indefinite duration, if the proper authority had been consulted and had approved, if the tests prescribed have been taken and passed, if probation has been prescribed, and has been approved it can be said that the post was held by the incumbent in a substantive capacity. Applying these tests to the facts and circumstances of this case dealing with the officers holding the post for a long time there is no doubt that the petitioners officers have held the positions in substantive capacities [392G H; 393A B] Further by reason of rule 2 (b) and rule 2 (d) the petitioners being holders of temporary post in substantive capacities are holding 'cadre posts ' and are also members of the Service. Appointment in a substantive capacity is certainly different from appointment to a substantive post. Therefore the holders of substantive posts i.e. the 12 posts originally at the inception of service and 22 posts now, alone are not members of the service. All incumbents holding either substantive posts or temporary post in substantive capacities are members of the service in the context of the present rule. [393C E] S.B. Patwardhan & Ors. vs State of Maharashtra & Ors., [1977] 3 SCR p. 775; Rajendra Narain Singh & Ors. vs State of Bihar & Ors,.[1980] 3 SCR 450; A. Janardhana vs Union of India & Ors. , ; at 627; and Baleshawr Dass & Ors. vs State of U.P. & Ors. [1981] 1 SCR 449; referred to. The principles of harmonious construction must be accepted so that all the rules are rendered operative and one does not make the other rule nuga 358 tory. In the context of the present circumstances rule 7 can have only application to recruitments to the substantive posts in the service. Rule 7 provides two different sources of recruitment and without fixing any actual quota. but a ceiling that not more than one third of the substantive posts be held by direct recruitments. Rule 7 and 8 does not exist in isolation and must be read with the other particularly rule 16. Rule 16 is a rule of relaxation or an additional rule of recruitment providing for temporary posts being filled up in addition to the substantive posts. The effect of the creation of temporary posts is to expand the area of membership of the service. As the filling of the temporary posts under rule 16 is confined to recruitment from the members of Delhi Judicial Service Rule 7 cannot be made applicable for the recruitment to temporary posts. Therefore, there is no quota rule applicable with regard to temporary posts. [393F H] 4:1. Assuming that proviso to rule 7 (b) provides for a quota of one third for direct recruits, rule 16 (1) which empowers the administrator to create temporary posts in the service read with rule 16 (2) which provides that temporary posts shall be filled in, in consultation with the High Court from amongst the members of the Delhi Judicial Service either constitutes an exception to the quota rule or in the alternative proceeds on the basis of realization or abrogation of quota rule. By Rule 16 (2) a direct recruit cannot be appointed to a temporary post. In other words, only promotees can be appointed to temporary post. If the source of recruitment to temporary posts is one and one only namely, the members of the Delhi Judicial Service, no question of applying the quota rule can possibly arise. The quota rule can have application only if there is more than one source of recruitment as envisaged by rule 16 (1) and if such posts have been filled in as it appears to have been done here in consultation with the High Court from amongst members of Delhi Judicial Service as required under rule 16 (2) of the rules, quota rule assuming that there is any, cannot apply to such appointments. The validity of such appointments is not open to the exception that these violate the quota rule, if any. [394F H; 395A B] 4:2. As between direct recruits on the one hand and the members of the Delhi Judicial Service who were appointed in substantive capacity to temporary posts of Additional District and Sessions Judge on the other hand, the seniority must be governed by the rules of continuous officiation in the cadre post i.e. a direct recruit who is appointed in a substantive capacity to a temporary post of Additional District and Sessions Judge cannot and should not rank higher than the latter in the list of seniority, if a direct recruit is appointed after a member of the Delhi Judicial Service thus promoted he would rank lower in seniority than the latter. [395D E] 4:3. An appointment on probation is not a jurisprudential sine qua non for absorption into the services, though normally and generally various rules of different services make such provisions as rule 12 (2) here. During the pendency of the Writ Petitions some of the promotees were placed on probation retrospectively by different orders. Such probations are meaningless formalities. In the 359 instant case, the placement of promotees on probation has not been very strictly followed for which the promotees cannot suffer. [396G H] 4:4. It cannot be said that the petitioners were not appointed regularly in accordance with the qualifications laid down under rule 7 (a). In fact the selections were made by the full court of the High Court and appointments were made on merit cum seniority basis. [397B C] M. Verraian Chowdhary & 42 Ors. vs The Government of A.P. & 87 Ors. C. A. No. 2030 of 1981; S.P. Gupta etc. vs Union of India & Ors. , [1981] Supp. SCC 87, held inapplicable. OBSERVATION [One should insist that Government must abolish this system of making appointments from two different sources in ad hoc manner. If appointments have to be made from two different sources then the authorities should so plan that recruits come from two different sources in time and officers from one source are not required to function substantively and effectively in the jobs which are intended to be performed by recruits of other source and face the prospect of being either pushed back or thrown out.] [398G H]

minal Appeal No. 325 of 1974. Appeal by Special Leave from the Judgment and Order dated the 8th April, 1974 of the Bombay High Court in Crl. Appeal No. 305 of 1974. Sharad Manchar, B. P. Maheshwari and Suresh Sethi, for the appellants. section B. Wad and M. N. Shroff, for the respondent. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J. We have just now admitted the special leave, petition and after the appeal was registered heard the learned Advocates for the parties. This is yet another case in which a criminal first appeal against a conviction has been dismissed summarily under Section 421 of the Criminal Procedure Code. We have heard both sides. Mr. Wad for the State has strenuously contended that the High Court has power to dismiss summarily and has cited several decisions, but in all these cases there is nothing to the contrary to justify a view different from the one we are taking in this case. It is submitted that the dismissal, was so summary that even the record was not called for. No doubt, Section 421, Criminal Procedure Code does vest a power in the High Court to dismiss an appeal summarily but it can do so only on a perusal of the petition and the copy of the judgment. Inasmuch as under our Constitution any person aggrieved by an order of the High Court can petition to this Court under Article 136 for special leave, it is not only necessary but having regard to the long series of decisions beginning as far back as 1953 (see ; onwards which discourages this practice of dismissal by one word 'dismissed ', the High Court should at least have given some reasons 67 why no arguable case is made out on a perusal of those documents. Since we are not in a position to ascertain and it is contended before us that arguable points do arise in this case in support of which the statement made in special leave petition has been read to us, we are not in a position to say that an arguable case does not arise. We would have been able to do so even if we had the slightest inkling in the order of the High Court. In the absence of any reasons what has been happening in many cases is that special leave is admitted, and after hearing the appeal if this Court has come to the conclusion that the conviction is valid, it has held that the dismissal by the High Court is justified. But this method, in our view, reverses the process and imposes unnecessary burden on this Court. What should have been done by the High Court, is now being done by this Court. It is only after sending for the records, getting the paper books prepared, hearing both parties in the appeal and after appreciation of the evidence that it may be held that in some cases the dismissal, in fact, was ultimately justified. In many cases the appeals were even allowed. Long avoidable delay thus ensues during which the person convicted entertains a doubt about his conviction and has to suffer the anxiety caused thereby. We do hope and trust that the series of decisions over this long period disapproving of the practice of summarily dismissing by one word will be taken note of and this Court will not be ultimately burdened with such appeals arising out of summary dismissals which is really the function of the High Court at the first instance. The appeal is accordingly allowed. The order of the High Court is set aside. The appeal is remanded to the High Court for hearing for admission and disposal in accordance with law and in the light of the directions made here in above. V.P.S. Appeal allowed.

Inasmuch as under the Constitution any person aggrieved by an order of the High Court can petition to the Supreme Court under article 136 for special leave, it is necessary, having regard to the long series of decisions beginning with ; , which discourage the practice of dismissal by the one word 'dismissed, that the High Court should give some reasons why no arguable case is made out on a perusal of the appeal petition and the judgment of the lower court. In the absence of reasons. this Court can hold the dismissal to be justified or allow the appeal only after sending for the records, getting the paper books prepared, hearing the parties and appreciating the evidence. This process involves the Supreme Court being burdened with such appeals and doing what the High Court should do. Further during such avoidable delay the conviction person entertains a doubt about his conviction and suffers anxiety. [66H 67D]

Civil Appeal No. 556 of 1966. 283 Appeal by special leave from the order dated August 13, 1964 of the Industrial Tribunal, Andhra Pradesh in Industrial Dispute No. 41 of 1963. M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the appellants. K. Srinivasamurthy and Naunit Lal, for the respondent. The Judgment of the Court was delivered by Bhargava, J. This appeal, by special leave, has arisen out of an award made 'by the Industrial Tribunal, Andhra Pradesh, at Hyderabad in an industrial dispute between the respondent, the Imperial Tobacco Co., as well as exporting the tobacco to various (hereinafter referred to as "the Company"), and its workmen. Admittedly, the Company is an associate of the Imperial Tobacco Company Ltd., and the main business carried on by the Company is that of purchasing tobacco of all varieties and qualities, stemming, grading and packing of tobacco and supplying it to the Imperial Tobacco Co., as well as exporting the tobacco to various foreign countries in the world. The Company has been carrying on this business for about 40 years and handles almost 35 per cent of the tobacco grown in the State of Andhra Pradesh. For the work of stemming, grading and packing tobacco, the Company has two factories, one at Anaparty in East Godavari District, and the other at Chirala in Guntur District. In connection with this business, the Company, in the year 1962, was maintaining 21 depots where, according to the workmen, the appellants, the Company was carrying on the work of collecting tobacco, though the Company 's case was that the principal work done at these depots was that of handling the tobacco purchased at other places and only included the work of purchasing tobacco on a small scale. On 16th August, 1963, the Company gave a notice to the Union of the appellant workmen that 8 out of 21 depots mentioned therein would be closed down with effect from 30th September, 1963. Thereafter, an industrial dispute was raised by the workmen which related to the closure of these 8 depots, as well as to a number of other demands, including revision of basic wages and dearness allowance, additional discomfort allowance, etc. The State Government, by its Order dated 14th November, 1963, referred the dispute for adjudication under section 10(1)(d) of the to the Industrial Tribunal, Hyderabad. The first issue which was referred for adjudication, was as follows : "How far the demands of the union, viz., (i) that no depot which worked during 1962 season should. be closed, and (ii) that no workman who worked in 1962 season 'should be retrenched, are justified ?" 284 There were ten other issues, but we need not reproduce them, as we are not concerned with them in this appeal. In the proceedings for adjudication, the Company took a preliminary objection that the closure the depots was a managerial function, that there could not be an industrial dispute over such closure, that the Government, therefore, had no power to refer this issue for adjudication, and that the Tribunal also had no power to adjudicate on it. Thereupon, the Tribunal framed a .preliminary issue as to "whether the employer is justified in alleging that Issue No. 1 framed by the Government cannot be deemed to relate to an industrial dispute, and as such, whether the Government had the power to refer it for adjudication". The Tribunal decided this preliminary issue by giving an interim award on the 13th August, 1964. The preliminary objection was allowed and a further direction was made that the effect of this decision on Issue No. 1 will be decided later after hearing the parties, There,after, the Tribunal proceeded to hear the reference on this question as well as on all other issues referred to it and ', ultimately, gave its award on 11th December, 1964. In that award, both the parts of issue No. 1 were decided against the workmen. The workmen have now come up in this appeal against the interim award dated 13th August, 1964 as well as against the final award insofar as it relates to issue No. 1. The decision given by the Tribunal in the interim award, holding that the reference covered by issue No. 1 was not competent, has been challenged by learned counsel for the appellants on the ground that the closure of a depot does not amount to closure of business in law and, since the same business was continued by the Company at at least 13 other depots, the closure of the 8th depots in question was unjustified. For the proposition that the closure of the depots did not amount to closure of business, learned counsel rolled on the views expressed by this Court in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union(1), where the Court explained the reason for the decision given by the Labour Appellate Tribunal in the case of Employees of Messrs India Reconstruction Corporation Limited, Calcutta vs Messrs. India Reconstruction Corporation Ltd., Calcutta(2). It, however, appears to us that this question raised on behalf of the appellants is totally immaterial insofar as. the question of the jurisdiction of the Tribunal to decide the first part of issue No. 1 is concerned. The closure of the 8 depots by the Company, even if it is held not to amount to closure of business of the Company, cannot be interfered with by an Industrial Tribunal if, in fact, that closure was genuine and real. The closure may be treated as stoppage of part of the activity or business of the Company. Such stoppage of part of a (1) (2) 63. 285 business is an act of management which is entirely in the discretion of the Company carrying on the business. No Industrial Tribunal, even in a reference under section 10(1)(d) of the , can interfere with discretion exercised in such a matter and can have any power to direct a Company to continue a part of the business which the Company has decided to shut down. We cannot possibly accept the submission made on behalf of the appellants that a Tribunal under the has power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down. An example may be taken of a case where a Bank with its headquarters in one place and a number of branches at different places decides to close down one of the branches at one of those places where it is functioning. We cannot see how, in such a case, if the employees of that particular branch raise an industrial dispute, the Bank can be directed by the Industrial Tribunal to continue to run that branch. It is for the Bank to decide whether the business of the branch should be continued or not, and No. Bank can be compelled to continue a branch which it considers undesirable to do. In these circumstances, it is clear that the demand contained in the first part of Issue No. 1 was beyond the powers and jurisdiction of the Industrial Tribunal and was incorrectly referred. for adjudication to it by the State Government. of course, if a Company closes down a branch or a depot, the question can always arise as to the relief to which the workmen of that branch or depot are entitled and, if such a question arises and becomes the subject matter of an industrial dispute, an Industrial Tribunal will be fully competent to adjudicate on it. It is unfortunate that, in this case, when dealing with the preliminary issue, the Tribunal expressed its decision in the interim award in general words holding that Issue No. 1 as a whole was beyond its jurisdiction. If the reasoning in the interim award is taken into account, it is dear that the Tribunal on that reasoning only came to the conclusion that it was not competent to direct reopening of the 8 depots which had been closed, so. that the Tribunal should have held that the first part of Issue No. 1 only was outside its jurisdiction. So far as the second part of that issue is concerned, as we have said above, it was competent for the Tribunal to go into it and decide whether the claim of the workmen that they should not be retrenched was justified. On an examination of the interim award and the final award, we, however, find that the Tribunal in fact did (1) 286 do so. The case reported in Pipraich Sugar Mills Ltd.(1) was also concerned only with the question as to the relief that can be granted to workmen when there is closure of a business. No question arose either before the Court, or in the cases considered by the Court, of an Industrial Tribunal making a direction to the employers to continue to run or to reopen a closed branch of the business. The Labour Appellate Tribunal in the case of Employees of Messrs India Reconstruction Corporation Ltd., Calcutta(1) was dealing with the question of retrenchment compensation as a result of the closure of one of the units of the company concerned, and it held that the workmen were entitled to retrenchment compensation in accordance with law. This Court, in the case of Pipraich Sugar Mills Ltd. (2), only explained why the Labour Appellate Tribunal was justified in granting retrenchment compensation in that case. The opinion expressed by the Court was that, though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law no.t for discharge as such but for discharge on retrenchment and if, as is conceded, retrenchment means in ordinary parlance discharge of the surplus, it cannot include discharge on closure of business. It was in this context that the Court went on to add that in the case of Employees of M/s. India Reconstruction Corporation Ltd., Calcutta (1 ) what had happened was that one of the units of the Company had been closed which would be a case of retrenchment and not a case of closure of business. It may be noted that, at the time when this decision was given, section 25FF and section 25FFF had not been introduced in the , and the only right to retrenchment compensation granted to the workmen was conferred by section 25F. It was in the light of the law then prevailing that the Court felt that the decision of the Labour Appellate Tribunal in the case of Employees of M/s. India Reconstruction Corporation Lid(1) granting retrenchment compensation. could be justified on the ground that the services of the workmen had not been dispensed with as a result of closure cf business, but as a result of retrenchment. That question does not arise in the case before us. Since then, as we have indicated above, section 25FF and section 25FFF have been added in the , and the latter section specifically lays down what rights a workman has when an undertaking is closed down. In a case where a dispute may arise as to whether workmen discharged are entitled to compensation under section 25F of section 25FFF it may become necessary decide Whether the closure, as a result of which the services have been dispensed with, amounts to a closure in law or not. In the case before us, it was admitted by 1earned counsel for both parties that the workmen, who have been discharged as a result of the closure of the 8 depots (1) (2) 287 of the Company, have all been paid retrenchment compensation at the higher rate laid down in section 25F, so that, in this case, it is not necessary to decide the point raised on 'behalf of the workmen. In connection with the second part of issue No. 1, it was also urged by learned counsel for the appellants that the business, which was being carried on at the 8 depots, had not in fact been closed down and had merely been transferred to buying points situated in and around the closed depots, including two new buying points established by the Company after the closure of these 8 depots. The argument was that the workmen were old employees who had served the Company for a long time and were entitled to certain benefits as a result of that long service. The Company closed these 8 depots mala fide with the object of depriving the workmen of those benefits. and merely altered the nature of the business by closing the depots and carrying on the stone business at the buying points. This point urged by learned counsel cannot, however, be accepted in view of the findings of fact recorded by the Tribunal. The Tribunal examined in detail the allegations made on behalf of the workmen in this respect. In fact, the interim award mentions that, for the purpose of deciding the preliminary issue and the first issue, evidence was recorded by the Tribunal for more than a week and arguments of Advocates of the parties were heard for even a longer period. After examining the evidence, the Tribunal came to the conclusion that the stoppage of the work at the depots was genuine and that the work which was being carried on at the depots had not been transferred to the buying points established by the Company. The closure of the business at the depots was necessitated by reasons of expediency inasmuch as the Company had to reduce its purchases in its quest for quality and its 'desire to run the business economically. The principal work, which used to be done at the depots, was not that of purchasing tobacco, but of handling it and that work was not transferred at all to, any buying point. The Tribunal, thus, came to the finding that the closure of these depots was real and genuine and that the suggestion of the appellants that only a device was adopted of carrying on the same business in a different manner had no force at all. if the same business had been continued, though under a different guise, the claim of the workmen not to be retrenched could possibly be considered by the Tribunal; but, on the finding that there was a genuine closure of the business that used to be carried on at the depots, no question could arise of the retrenchment being set aside by the Tribunal. The Tribunal could not ask the Company to re employ or reinstate the workmen, because there was no business for which the workmen could be required. In these circumstances all that the workmen 288 could claim was compensation for loss of their service and in that respect, as we have indicated above, the workmen have received adequate compensation. Consequently, the appeal has no force and is dismissed but we make no order as to. costs. V.P.S. Appeal dismissed. L2 S.C.I./69 2,500 6 I 70 GIPF.

The Central Wage Board for sugar industry had recommended revised wage scales, revised categories and fitment of workmen into those, scales and categories as from November 1, 1960. The State Government had 'accepted those recommendations fully including the date of implementation. The appellant company, however, did not implement them and hence, its workmen raised a dispute and two questions were referred to the Labour Court namely : (1) of fitment of certain workmen in the new grades, and (2) the date from which it was to have effect. By its award, the Labour Court held that two of the workmen should be fitted into certain grades and directed the company to do so within one month after the award became enforceable, but, omitted to fix the date from which such fitment should have effect. On December 7. 1963, the 'award was published in the State Gazette and, under section 6A(1) of the U.P. , it became enforceable on January 7. The appellant fitted the two workmen in the two grades from February 7, 1964, that is, one month after the award became enforceable. The union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question referred to it and the Labour Court amended its award and directed that the two workmen should be placed in their respective grades from November 1, 1960, as recommended by the Wage Board. The amendment was published in the Gazette on June 20, 1964. The appellant filed a writ petition in the High Court for quashing the order of amendment, but the High Court dismissed the petition. In appeal to this Court, on the questions : (1) Whether the correction was of an error arising from an accidental omission within the meaning of a. 6 (6) of the Act; and (2) Whether the award could be, corrected (i) after it was published in the Gazette 'and had become final, and (ii) after it had become ,enforceable. HELD : (1) Section 6(6) enables the Labour Court to correct an accidental omission. in the present case, the Labour Court omitted to answer the second question which it was bound to answer. Since the first question was answered by it in accordance with the Wage Board 's recommendations and the Government 's notification accepting them fully, if the attention of the Labour Court had been drawn, it would have answered the second question also in consonance with those recommendations and the notification. Therefore, there was an error in the award due to an accidental omission within the meaning of section 6(6) of the Act. [39 G H; 40A] (2) (i) The scheme of sections 6 and 6A shows that there are 3 different stages before an award becomes enforceable, namely : (a) when the award is signed by the adjudicating authority; (b) when it is published and be, comes final; and (c) when it becomes enforceable under section 6A. Section 6(6) does not lay down expressly any time limit within which the correctional jurisdiction under the section should be exercised. To hold by implication that such jurisdiction can only be exercised till the date of publica 36 tion when the award becomes final, would be contrary to the sub section which envisages the correction of an award even after it is published and has become final. [40 C; 41 G H: 42 D E] (ii)There is nothing in sections 6, 6A or 6D to imply the limitation namely, that the power to correct is to be exercised only before the award becomes enforceable. The circumstance that the proceedings before a Labour Court and a Tribunal are deemed to be concluded under section 6D when their award becomes enforceable and they become functus officio would be no ground for inferring such a time limit, because : (a) Since an arbitrator is not mentioned in section 6D it would lead to the result, which could not have been intended, that there is a time limit only for the Labour Court and Tribunal and not for an arbitrator; and (b) the power is similar to that of a civil court under section 152 C.P.C. or under r. 28 of the Industrial Disputes (Central) Rules, 1957 of an adjudicating 'authority under the , and is based upon the principle that no party should suffer any detriment I on account of a mistake or an error committed by any adjudicating authority, and no limitation of time for exercising the correctional jurisdiction is implied even though a civil court or an adjudicating authority under the also become functus officio after their judgment or award becomes enforceable. Also, there is no hardship in holding that the Labour Court could correct an error under section 6(6) even after the award had become final as a result of the publication, or 'after it had become enforceable under section 6A, because, the correction is within a circumscribed field, namely, only in cases where a mistake, clerical or arithmetical, or an error arising from an accidental slip or omission, has occurred. [42 G H; 43 A B, C E, G H; 44 A H]

N: Criminal Appeal Nos. 452 453 of 1984. Appeals by Special leave from the Judgment and Order dated the 1st July, 1983 of the Madhya Pradesh High Court in Criminal Revision No. 105 of 1983 and Misc. Case No. 366 of 1983. S.T. Desai, M.S. Ganesh and S.C. Dagadiya, for the appellants. Ravindra Bana and A.K. Sanghi for the respondents. The Judgement of the Court was delivered by CHINNAPPA REDDY, J. Special Leave granted. A complaint was laid by the State of Madhya Pradesh through the Inspector, Food and Civil Supplies, Dewas against the two petitioners Sheoratan Agarwal and Raghunandanlal Chaturvedi, the Managing Director and the Production Manager of M/s 5 S Limited, a public Limited Company with its registered office at Calcutta, for alleged violations of clause 2 (c)(i) and 3 of the Madhya Pradesh Pulses, Edible Oil Seeds and Edible Oil Dealers Licensing Order, 1977 and clause 3 of the Madhya Pradesh Essential Commodities (Price Exhibition and Price Control) Order, 1977 read with sections 3 and 7 of the Essential Commodities Act. The petitioners moved the High Court of Madhya Pradesh under sections 397 and 482 of the Code of Criminal Procedure to quash the Proceedings against them on the ground that they could not, in law, be prosecuted unless the Company itself was prosecuted. The High Court overruled the contention raised on behalf of the petitioners. Hence these two appeals by Special Leave under Article 136 of the Constitution. 721 Shri S.T. Desai, learned counsel for the petitioners, urged the same contention before us, relying for that purpose upon the language of section 10 of the Essential Commodities Act, and the decision of this Court in State of Madras vs C. V. Parekh and another and the decision of some High Courts: State of Gujarat vs Chandulal Jethalal, Mirji Brothers Oil Mill vs State of Karnataka, Santi Kumar Agarwala vs State. We do not think that the language of section 10 of the Essential Commodities Act justifies the submission made on behalf of the petitioners that if it is alleged that the person contravening the order made under the Essential Commodities Act is a Company, the prosecution of the Directors, the officers, and servants of the Company or other persons is precluded unless the Company itself is prosecuted. We are afraid the submission made on behalf of the petitioners proceeds upon a misunderstanding of the decision of this Court in State of Madras vs C.V. Parekh. (supra). So do the various other decisions of High Courts cited before us. Section 10 of the Essential Commodities Act is as follows: "(1) If the person contravening an order made under Sec. 3 is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention. (2) Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable 722 to any neglect on the part of, any director, manager, secretary or other officer of the company such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation For the purpose of this section, (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. " The Section appears to our mind to be plain enough. If the contravention of the order made under Section 3 is by a Company, the persons who may be held guilty and punished are (1) the Company itself (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the Company for the conduct of the business of the Company whom for short we shall describe as the person in charge of the Company, and (3) any director, manager, secretary or other officer of the Company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, whom for short we shall describe as an officer of the Company. Any one or more or all of them may be prosecuted and punished. The Company alone may be prosecuted. The person in charge only may be prosecuted. The conniving officer may individually be prosecuted. One, some or all may be prosecuted. There is no statutory compulsion that the person in charge or an officer of the Company may not be prosecuted unless he be ranged alongside the Company itself. Section 10 indicates the persons who may be prosecuted where the contravention is made by the Company. It does not lay down any condition that the person in charge or an officer of the Company may not be separately prosecuted if the Company itself is not prosecuted. Each or any of them may be separately prosecuted or alongwith the Company. Section 10 lists the person who may be held guilty and punished when it is a Company that contravenes an order made under Section 3 of the Essential Commodities Act. Naturally, before the person in charge or an officer of the Company is held guilty in that capacity it must be established that there has been a contravention of the order by the Company. That should be axiomatic and that is all that the Court laid down in State of Madras vs C. V. Parekh (supra) as a careful reading of that case will show and 723 not that the person in charge or an officer of the Company must be arraigned simultaneously along with the Company if he is to be found guilty and punished. The following observations made by the Court clearly bring out the view of the Court: "It was urged that the two respondents were in charge of, and were responsible to, the company for the conduct of the business of the Company and, consequently, they must be held responsible for the sale and for thus contravening the provisions of clause 5 of the Iron and Steel (Control) order. This argument cannot be accepted, because it ignores the first condition for the applicability of section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate OR by the High Court that the sale in convention of clause 5 of the Iron & Steel (Control) order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened Cl. 5 of the Iron & Steel (Control), order the two respondents could not be held responsible. The actual contravention was by Kamdar and Villabhadas Thacker and any contravention by them would not fasten responsibility on the respondents. " The sentences underscored by us clearly show that what sought to be emphasised was that there should be a finding that the contravention was by the Company before the accused could be convicted and not that the Company itself should have been prosecuted along with the accused. We are therefore clearly of the view that the prosecutions are maintainable and that there is nothing in section 10 of the Essential Commodities Act which bars such prosecutions. The learned counsel also invited our attention to the decisions in Durgamata Oil Mill vs Calcutta Municipality, D.K. Jain vs State and Chander Bhan vs The State. None of these cases has any application. They arose under the Prevention of Food Adulteration Act and it is unnecessary for us to consider them. The appeals are rejected. M.L.A. Appeals dismissed.

The two appellants, who were the Managing Director and the Production Manager of a public limited company, were prosecuted by the respondent for alleged violations by their company of clauses 2 (c) (i) and 3 of the Madhya Pradesh Pulses, Edible Oil Seeds and Edible Oil Dealers Licensing Order, 1977 and clause 3 of the Madhya Pradesh Essential Commodities (Price Exhibition and Price Control) Order, 1977 read with sections 3 and 7 of the Essential Commodities Act (the Act, for short). The appellants moved the High Court under sections 397 and 482 of the Code of Criminal Procedure to quash the proceedings against them on the ground that they could not, in law, be prosecuted unless the company itself was prosecuted. The High Court over ruled this contention and hence these appeals by special leave. Dismissing the appeals, ^ HELD: 1. Section 10 of the Act lists the persons who may be held guilty and punished when it is a company that contravenes an order made under Section 3 of the Act. They are: (1) the company itself (2) every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, that is, the person in charge of the company, and (3) any director, manager, secretary or other officers of the company with whose consent or connivance or because of neglect attributable to whom the offence has been committed, that is, an officer of the company. [722C F] 2. It is clear from the language of Section 10 that there is no statutory compulsion that the person in charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. Each or any of them may be separately prosecuted or along with the company if there is a contravention of an order made under Section 3 of the Act by the company. It does no lay down any condition that the person in charge or an officer of 720 the company may not be separately prosecuted if the company itself is not prosecuted. Therefore the prosecutions of the appellants are maintainable and that there is nothing in Section 10 of the Act which bars such prosecution [722 G,H, 723F] State of Madras v C.V. Parekh and another, AIR 1971 S.C. 447, State of Gujarat vs Chandulal Jethalal, (1980) 21 Gujarat Law Reporter 353, Mirji Brothers Oil Mill vs State of Karnataka, and Santi Kumar Agarwala vs State, ILR. 1975 Cuttack 86, distinguished. Durgamata Oil Mill vs Calcutta Municipality, 1978 Crl. L.J. 222, D.K. Jain vs State, AIR 1965 All. 525 and Chander Bhan vs The State, 1975 All India Prevention of Food Adulteration, held inapplicable.

N: Criminal Appeal Nos. 551 553 of 1988 From the Judgment and Order dated 18.2.1987/13.2.1987 of the Patna High Court in Crl. No. 258, 259 and 2231 of 1987 (R). M.P.Jha for the Appellant. Dr. Y.S. Chitale, Kapil Sibal. K.M. Lahari, R.F. Nariman K.K. Lahiri, Raian Karanjawala Mrs. Manik Karanjawala and Miss Meenakshi for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. SLP 1879 of 1987 is by the State of Bihar for special leave under article 136 of the Constitution to appeal from the order dated 13.2.1987 of the High Court of Patna in Crl. 223 of 1987 quashing, in exercise of powers under section 482 of code of Crl. Procedure 1973, the order dated 1.7.1986 of the Judicial Magistrate Chaibasa, ,taking cognizance of an offence under Section 9(1) read with sec. 51 of the Wild Life Protection Act. 1972 against respondent Vikram Singh. PG NO 459 Special Leave Petition Nos. 1877 of 1987 and 1878 of 1987 arise out of the subsequent two similar orders both dated 18.2.1987 in Criminal Misc . 258/ 1987(R) and 259/ 1987(R) of the High Court quashing the same common order of the said Magistrate dated 1.7.1986 against two other accused, namely, Murad Ali Khan and faruq Salauddin who are respondents in these two Special Leave petitions. Special leave was granted and the three appeals were taken up for final hearing, heard and disposed of by this common judgment. We have heard Shri M.P. Jha, learned counsel for the State of Bihar and Dr. Chitaley and Shri Nariman for the respondents. The accusation against the three respondents is that on 8.6.1986 at 2.0() P.M. they along with two others named in the complaint, shot and killed an elephant in compartment No. 13 of Kundurugutu Range Forest and removed the ivory tusks of the elephant. On 25.6.1986 the Range Officer of Forest of that Range lodged a written complaint with the Judicial Magistrate, Ist Class Chaibasa, in this behalf alleging offences against respondents under Section 51 of the Wild Life Protection Act, 1972. The learned Magistrate took cognisance of this offence and ordered issue of process to the accused. It would appear that at the Police Station. Souna, a case had been registered under sections 447, 429 and 379 IPC read with sec 54 and 39 of the Wild Life Protection Act, 1972 and that the matter was under investigation by the police. The respondents, WhO Were amongst the accused, moved the High Court under Sec. 482 Cr. P.C. or quashing of the order of the Magistrate taking cognizance he alleged offence and issuing summons. The High Court was persuaded to the view that this was a case to which section 210(1) of Code of Criminal Procedure, 1973 was attracted and that as an investigation by the Police was in progress in relation to the same offence the learned Magistrate would be required to stay the proceedings on the complaint and call for a report in the matter from the police; and that the learned Magistrate acted without jurisdiction in taking cognizance of the offence and ordering issue of process against the accused. The High Court, accordingly, quashed the proceedings against the respondents. From the orders under appeal it would appear that two grounds commended themselves for acceptance to the High Court. The first was that the learned Magistrate acted contrary to the provisions of sec. PG NO 460 210. The High Court observed: "The investigation is still continuing and pending in so far as the petitioner is concerned and the investigation shall continue. Obviously the Judicial Magistrate acted beyond jurisdiction in taking cognizance against the petitioner when for the same allegation the investigation was proceeding and pending. He acted contrary to the provisions of Section 210 of the Code of Criminal Procedure. The complaint was filed after long delay . " The Second ground was on the merits of the complaint. The High Court, inter alia, observed: "On the face of the complaint petition of the first information report itself the facts alleged do not constitute the offence. The petitioner was never named in the first information report. There is no eye witness in this case and there is no identification of the petitioner in any manner whatsoever to sustain the allegation even prima facie for the offence alleged. On a careful consideration of the matter, we are afraid, the approach of and the conclusion reached by the High court is unsupportable In regard to the first ground, presumably, certain provisions of the "Act" in regard to cognizability and investigation of offences against the act, relevant to the matter, had not placed before the High Court. The policy and object of the Wild life laws have a long history and are the result of an increasing awareness of the compelling need to restore the serious ecological imbalances introduced by the depradations inflicted on nature by man. The State to which the ecological imbalances and the consequent environmental damage have reached is so alarming that unless immediate, determined and effective steps were taken the damage might become irreversible. The preservation of the fauna and flora, some species of which are getting extinct at an alarming rate has been a great and urgent necessity for the survival of humanity and these laws reflect a last ditch battle for the restoration, in part at least, a grave situation emerging from a long history of callous insensitiveness to the enormity of the risks m mankind that go with the deterioration of environment. The tragedy of the predicament of the civilised man is that "Every source from which man has Increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of PG NO 461 damage to the environment which he can not repair and cannot foresee". In his foreward to 'International Wild Life Law ', H.R.H Prince Philip, The Duke of Edinburgh said: "Many people seem to think that the conservation of nature is simply a matter of being kind to animals and enjoying walks in the countryside. Sadly, perhaps, it is a great deal more complicated than that . " ". As usual with all legal systems, the crucial requirement is for the terms of the conventions to be widely accepted and rapidly implemented. Regretfully progress in this direction is proving disastrously slow [See International Wild life Law by Simon Lyster,Cambridge Grotuis Publications Limited, 1985 Ed.] There have been a series of international1al convention for the preservation and protection of the environment 'The United Nations General Assembly adopted on 29 10.1982 "The World charter for nature". The charter declares the "Aware" ness that. (a) Mankind is a part of nature and life depends On the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients. (b) Civilization is rooted in nature. which has shaped human culture and influenced all artistic and scientific achievement ment. and living in harmony with nature gives man the best opportunities for the development of his creativity, and for rest and recreation. In the third century B.C. King Asoka issued a decree that has a particularly contemporary ring ' in the matter of preservation1 of wild life and environment. Towards the end of his reign. he wrote: "Twenty six years after my coronation I declared that the following animals were not to be killed: parrots mynas, the aruna, ruddy geese, Wild geese the nandimukha cranes. bats, queen ants. terrapins, boneless fish. PG NO 462 rhinoceroses. and all quadrupeds which are not useful or edible . .Forests must not be burned. " Environmentalists ' conception of the ecological balance in nature is based on the fundamental concept that nature is "a series of complex biotic communities of which a man is an inter dependant part" and that it should not be given to a part to tresspass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the civilized man" operating directly through. excessive commercial hunting or. more disastrously. indirectly through invading or destroying natural habitats. We might now turn to certain provisions of the Act. 9(1) of the Act says that no person shall "hunt" any wild animal Specified in Schedule T. Elephant is included in schedule I. The expression wild animal" is defined in see. 2 (36) to mean any 'animal found wild in nature and includes any animal specified in schedule 1" etc. 'The expression "hunting" is defined in see. 2 (16) in a comprehensive manner: "2(16) 'hunting ' with its grammatical variations and cognate expressions, includes. (a) capturing. killing. poisoning. snaring and trapping of any wild animal and every. attempt to do so (b) driving any wild animal for any of the purposes specified in sub clause(a). (c) injuring or destroying or taking any part of the body of any such animal or. in the case of wild brids or reptiles, damaging the eggs of such birds or reptiles or, disturbing the eggs or nests of such birds or reptiles: Sec. 51 of the Act provides for penalties. Violation of sec. 9(1) is an offence under sec. 51(1). 55 deals with cognizance of offences: "55. No court shall take cognizance of any offence against this Act except on the complaint of the Chief wild Life Warden or such other officer as the State Government may authorise in this behalf. " What emerges from a perusal of these provisions is that cognizance of an offence against the "Act" can be taken by a PG NO 463 Court only on the complaint of the officer metioned in Sec. The person who lodged complaint dated 23.6.86 claimed to be such an officer. In these circumstances even if the jurisdictional police purported to register a case for an alleged offence against the Act, Sec. 210 (1) would not be attracted having regard to the position that cognizance of such an offence can only be taken on the complaint of the officer mentioned in that section. Even where a Magistrate takes cognisance of an offence instituted otherwise than on a police report and an investigation by the police is in progress in relation to same offence, the two cases do not lose their separate indentity. The section seeks to obviate the anomalies that might arise from taking cognisance of the same offence more than once. But, where as here cognisance can be taken only in one way and that on the complaint of a particular statutory functionary there is no scope or occasion for taking cognisance more than once and, accordingly, section 210 has no role to play. The view taken by the High Court on the footing1g of section 210 is unsupportable. The second ground takes into consideration the merits of the matter. It cannot be said that the complaint does not spell out the ingrediants of the offence alleged. A complaint only means any allegation made orally or in writing to a Magistrate. with a view to his taking action, that some person, whether known or unknown. has 'committed an offence. It is trite jurisdiction under Section 482 Cr. P.C. which saves the inherent power of the High court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon and enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before his. Through it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is could upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge sheet do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not. PG NO 464 In Municipal Corporation of Delhi vs R.K. Rohtagi, ; 884 at 890 it is reiterated: "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code. " In Municipal Corporation of Delhi vs P.D. Jhunjunwala, ; at 897 it was further made clear: " . As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further. " In the complaint No. 653 dated 23.6.1986 of the Range Officer, Forests, it is. inter alia, alleged: "I have to report that on 8.6.86 at about learnt from Sri Aghnu Mahto, Forester, Jomatai Beat, that somebody has killed an elephant in compartment No. 13 of Kundrugutu Reserve Forest. The matter was serious and so I immediately reported it to Officer incharge, Sonua Police Station to register a case and for investigation. It was further reported that Jiwan Mesi Longa, Coupe Oversee, Jomtal Beat has (been) seen the accused persons entering into the forest during the night time and had returned on the same Jeep No. BRX 9588 at about 8 or 9 A.M. He could indentify only Sri Prabhu Sahay Bhengra in the jeep, was is driver of Block Development Officer, Bandgoan. During my enquiry I visited the spot and dug out the body of the elephant and found that both of the tusk had PG NO 465 been extracted out, from the mouth of the elephant. It was also learnt from the admission of the accused Prabhu Sahay Bhengra, who was interrogated by me during the course of enquiry, that the elephant was killed in the early morning of 1.6.86 before dawn i.e. on 1.6.86 by him and (1) Sri Abranham Bhengra (2) Sri Murad ali Khan (3) Sri Vikram Sing, (4) Sri Farukh Salauddin (5) Sri Babu Khan (name above) by two Riffles and had used 6 rounds of bullet. On the spot two empty cartridges tusk with him and other tusk was taken away by Murad Ali Khan and his associates. Later one of the tusks w as produced by Sri Prabhu Sahay Bhengra to the officer in charge, Sonua Police Station in my presence. On the basis of the information resolved from Bhengra I immediately proceeded to Jamshedpur with D.S.P., Chakardharpur and the D.F.O. Pornahat Division, Sri Murad Ali Khan and his associates. Sri Baby Khan was interogated who admitted that they, brought one of the. tusks and has sent it to Lucknow for disposal. They were brought to Chaibasa with jeep No BRX 9588 and they were handed over in the custody of the S.P. Singhbhum. Chaibasa, for needful. Mr. Murad Ali Khan promised na produce the tusk in a few days time but did not disclosed the place where he had sent the tusk at Lucknow . ' The complaint further proceeds to say that elephant is included in the Schedule 1 of the Wild Life (Protection) Act. 1972 and that the complainant was authorised by the Bihar Government 's notification No SO 1022/418/73 to file complaints under Act. It is difficult to agree with the High Court that the allegations in the complaint taken on their face value would not amount in law to any offence against the "Act". The second ground on which the High Court came to quash the proceedings of the Magistrate, on the facts of this case, is impermissible as an exercise under Sec. 482, Cr. P.C. 7. It was however, suggested for the respondents that the offence envisaged by sec. 9(1) read with sec. 2(16) and PG NO 466 sec. 50(1) of the Act, in its ingredients and content, is the same or substantially the same as Sec. 429, IPC and that after due investigation and police had filed a final report that no offence was made out and that initiation of any fresh proceedings against respondents would be impermissible. 429, IPC, which occurs in the chapter "Of mischief" provides: "429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow, or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. " The offence of hunting any wild animal as defined in sec. 9(1) read with Sec. 2(16) of the Act is much wider Section 56 of the 'Act ' provides: "56. Nothing in this Act shall be deemed to prevent any person from being prosecuted under any other law for the time being in force, for any act or omission which constitutes an offence against this Act or from being liable under such other law to any higher punishment or penalty than that provided by this Act: Provided that no person shall be punished twice for the same offence. ' ' We are unable to accept the contention of Shri R.F. Nariman that the specific allegation in the present case concerns the specific act of killing of an elephant, al1d that such an offence at all events, falls within the overlapping areas between of sec 42 '), IPC on the one hand and 9(1) read with 50(l) of the Act on the other and therefore constitutes the same offence Apart from the fact that This argument does not serve to support the order of the High Court in the present case, this argument is, even on its theoretical possibilities, more attractive than sound. The expression "any act or omission which constitutes any offence under this Act ' in section 56 of the Act, merely imports the idea tat the same act or omission might constitute an offence under another law and could be tried under such other law or laws also. PG NO 467 The proviso to Section 56 has also a familiar ring and is a facet of the fundamental and salutory principles that permeate penalogy and reflected in analogous provisions of sec. 26 of General Clauses Act,1897 Section 71 IPC; Sec. 300 of the Cr.P.C., 1973 and constitutionally guaranteed under article 20(2) of the Constitution. 26 of the provides: 26. Provision as to offences punishable under two or more enactments: Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. ' ' Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re prosecution after acquittal, a protection against re prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under article 20(2). But difficulties are in the application of the principle in the context of what is meant by ' same offence". The principle in American law is stated thus: ". The proliferation of technically different offences encompassed in a single instance of crime behavior has increased the importance of defining the scope of the offense that controls for purposes of the double jeopardy guarantee. Distinct statutory provisions will be treated as involving separate offenses for double jeopardy purposes only if each provision requires proof of an additional fact which the other does not" Blockburger vs United States, ; , 304 1932 Where the same evidence suffices to prove both crimes hey are the same for double Jeopardy purposes and the clause forbids successive trials and cumulative punishment for the two crimes. The offenses must be Joined in one indictment and tried together unless PG NO 468 the defendant requests that they be tried separately. Jeffers vs United States, ; 1977." [See "Double Jeoparady" in the Encyclopedia of Crime and Justice vol. ', p. 630 1983 Edn. by Sanford H. Kadish: The Free Press, Collier Mac Millan Publishers, London] The expressions "the same offence", 'substantially the same offence ' ' in effect the same offence" or "practically the same", have not done much to lessen the difficulty in applying the tests to identify the legal common denomninators of "same offence". Friedland in "Double Jeoparady ' ' [Oxford 1969] says at page 108: "The trouble with this approach is that it is vague and hazy and conceals the thought processes of the Court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequences is the fact that a decision in one case that two offences are 'substantially the same ' may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible. . 8. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey vs The Superintendent, District Jail, Amritsar, [ ; the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said: "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences." In State of of Madhya Pradesh vs Veereshwar Rao Angnihotry ; the accused was tried by the special judge for offences under sec. 409 IPC, and sec. 5(2) PG NO 469 of the Prevention of Corruption Act, 1947. While convicting him under sec. 409, IPC, the Special Judge held that the accused could not be tried under sec. 5(2) of the Prevention of Corruption Act, 1947, as there was a breach of the requirement of law that the investigation be by a police officer not below a particular rank. In appeal, the High Court set aside even the conviction under Sec. 409 IPC, PG NO 469 applying the doctrine of autrefois acquit holding that the Special Judge 's finding on the charge under Sec. 5(2) amounted to an acquittal and that punishment as a charge under Sec. 409, would be impermissible. This court following the pronouncement in Omprakash Gupta vs Slate of UP, ; held that the two offences were distinct and separate offences. In The State of Bombay vs S.L. Apte & Anr., 11961] 3 SCR 107, the question that fell for consideration was that in view of earlier conviction and sentence under sec. 409, IPC a subsequent prosecution for an offence under sec. 105 of Insurance Act. 1935, was barred by sec. 26 of the and article 20(2) of the Constitution. This Court observed: "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for 'the same offence '. The crucial requirement therefore for attracting the Article is that the offences are the same7 i.e. they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out . " " . Though section 26 in its opening words refer to 'the act or omission constituting an offence under two or more enactments ', the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to 'shall not be liable to be punished twice for the same offence '. If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked . . PG NO 470 The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law. I he observations of this court made in the context of sec. 2(3) of Contempt of Courts Act might usefully be recalled. In Bathina Ramakrishna Reddy vs State of Madras, this Court examined the contention that the publication of an article attributing corruption to a judicial officer was not cognizable in contempt jurisdiction by virtue of sec. 2(3) of the Contempts of Courts Act, 1953, which provided that: "No High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code. " The contention before this Court was that the allegations made in the article constituted an offence under section 499 of IPC and, that therefore, cognizance of such an offence under the Contempts of Court Act was barred. Repelling the contention, Mukharji, J., said: "In our opinion, the sub section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the sub section which uses the words "where such contempt is an offence" and does not say 'There the act alleged to constitute such contempt is an offence '. ." It is. however, unnecessary to explore the possibilities of this contention as indeed there has been admittedly no prior conviction and sentence for an offence under section 429, IPC e en assuming that the two offence are substantially "the same offence '. Suffice it to notice, prima facie that the ingredients of an offence under sec. 9(1) read with sec. 50(1) of the Act require for its establishment certain ingredients which are not part of the offence under sec. 429 and vice versa. In the result, these appeals are allowed, the orders of the High Court in Crl. 223 of 87 dated 13.2.1987 and the two orders in Crl. No. 258 of 1987(R) and Crl. PG NO 471 Misc. No. 259/1987(R) 18.2.1987 are set aside and the order dated 1.7.1986 of the learned Magistrate taking cognizance of the offence and ordering issue of summons to the respondents is restored. The criminal case initiated on the complaint will now be proceeded with in accordance with law. M.L.A. Appeals allowed.

Medical Colleges Admission to All India Entrance Examination for MBBS/BDS course Vacant seats as a result of drop out in number of candidates allocated seats Guidelines issued by Court for allocation of vacant seats. The petitioners in the writ petitions had been allotted seats in MBBS/BDS courses in various Medical/Dental Colleges. They sought change, and wanted admissions in colleges which were near their home towns. The Union of India, respondent in the writ petitions also filed Civil Miscellaneous Petitions seeking directions of the Court in the matter of the allocation of 532 vacant seats in the medical colleges in the MBBS/BDS courses pursuant to the result of the All India Entrance Examination conducted by the Central Board of Secondary Education, New Delhi. Disposing of the Writ and Civil Miscellaneous petitions the Court laid down guidelines to be followed: HELD: 1. The candidates, who have been allocated seats to the Dhanbad Medical College which is not a recognised College, by the Medical Council of India should first be reallocated to the recognised medical colleges having vacancies keeping in view the minimum distance from their home towns. [907H;908A] 2. Those candidates who have exercised their choice for MBBS course only or to MBBS course by way of first preference and to BDS course by way of second preference and admitted to BDS Course for want of seats in the MBBS Course shall, if they or any of them desire to be admitted in the MBBS Course, be absorbed against the available vacant seats in order of merit. [908B C] PG NO 905 PG NO 906 3. The vacant MBBS or BDS seats, thereafter available should be offered to the candidates on the waiting list in order of merits. [908C] 4. The candidates will be given maximum time of twenty days to join the medical colleges, failing with the seats will be declared vacant. [908F] 5. The allocation of MBBs seats already made shall not be disturbed. [908F] 6. The Director General of Health Services, shall consider the question of allotment to candidates, who have been already admitted to MBBS or BDS Course, nearer to their home town in order of merit. [908G] [The Director General of Health Services to deal with the cases of the petitioners in the different writ petitions and also the cases of the other candidates in accordance with the above guidelines and dispose of the same within a period of three weaks.] [910B]

ivil Appeal No. 5502 of 1983. From the Judgment and Order dated 6.5.1983 of the Alla habad High Court in C.M.W.P. No. 6563 of 1980. S.S. Ray, D.D. Thakur, Mrs. C. Markandeya, section Markan deya, W.A. Nomani, G.S. Giri Rao, R.K. Raina and J.M. Khanna for the Appellants. B.D. Agarwal, Mrs. section Ramachandran, R. Ramachandran, H.K. Puri, Mrs. section Dikshit and A.K. Gupta for the Respond ents. The Judgment of the Court was delivered by K.N. SAIKIA, J. Appellant No. 1 is a registered Housing Cooperative Society registered under the U.P. Co operative Societies Act, bearing registration No. 2 130 dated 27.3. 1973, hereafter referred to as 'the society ', and appellant Nos. 2, 3 and 4 are respectively the President, Secretary and Treasurer of the Society. The object of the Society is to acquire lands for its members for constructing residen tial houses for them. The members are Central and State Government employees and public sector employees; and more than 70 acres of land situated in villages Chhalera Bangar and Suthari were acquired by the Society between January, 1973 and September, 1975. For development of certain areas in the State of U.P. into industrial and urban township and for matters connected therewith, the U.P. Industrial Area Development Act, 1976, hereafter referred to as 'the Act ', was enacted and thereaf ter the U.P. Government by a Notification dated 17.4.1976 declared the villages named in the schedule annexed to the Notification to be an Industrial Development Area within the meaning of the Act, to be called "NOIDA". 67 Soon after constituting this Authority a Notification under sections 4 and 17 (sub section (1) of section 4 and sub section (4) of section 17) of the Land Acquisition Act was published in the U.P. Extra Ordinary Gazette dated 30.4.1976 stating that the land in village Chhalera Bangat was needed for the planned indus trial development. The land of the appellant society was included in the Notification. In continuation of Notifica tion dated 30.4.1976, another Notification under section 6 dated 1.5.1976 was issued stating that the land mentioned in the schedule (i.e. village Chhalera Bangar) was needed for a public purpose and under section 7 of that Act to direct the Collector of Bulandshahar to take order for the acquisition of the said land. A Notification under sub section (1) of section 4 of the Land Acquisition Act was issued on 1.6.1976 notifying that the land mentioned in the schedule (i.e. land in Suthari village etc.) was needed for a public purpose and that the case was of urgency and as such the provisions of sub. section (1) of section 17 of the said Act were applicable to the land Notifica tion under section 6 of that Act was issued on 16.9.1976 notify ing that the land mentioned in the schedule (i.e. Suthari village etc.) was needed for public purpose and under section 7 of that Act it directed the Collector to take order for acquisition of the said land. The appellant society and the other registered co opera tive societies demanded land in lieu of the land acquired in the NOIDA complex and after several representations and correspondence a subcommittee was constituted under the chairmanship of Sri B.J. Khadaiji, Commissioner and Secretary, Housing and Urban Development, Government of Uttar Pradesh to look into the matter. In a meeting held on 19.10.1979 it was decided that sites would be given to various co operative societies nearest to Delhi on the basis of the NOIDA Master Plan which was under consideration. It was also clarified in that meeting that 35 per cent of the area offered to the members of the Society will be plotted area out of the total acquired area of the Society. The Executive Officer NOIDA vide his letter dated 21.4.1980 informed that it was proposed to offer developed plots to the bona fide members of the co operative societies whose lands were acquired. An approximate rate was offered at Rs. 130 per square metre in sectors 30, 31, 34, 39 and 40. Certain conditions were also laid down in that letter and one of the conditions was that amount equal to 30 per cent of the price of the area of developed plots computed at Rs. 130 per square metre should have to be sent in favour of NOIDA and thereafter tripartite agreement shall have to be made between NOIDA, Co operative Societies and individual members after finalisation of lay out plan. 68 Alleging that arbitrary action taken by the NOIDA that far was not acceptable to the appellant Society, it flied Civil Misc. Writ Petition No. 6563 of 1980 on 29.7.1980 challenging the notifications issued under sections 4 and 6 of the Land Acquisition Act. The writ petition was admitted by the Allahabad High Court but stay was refused. The Society insisted on rehabilitation of the members on the original land on the basis of the policy of the Government. The Chief Executive Officer intimated the Society that the authority had finally decided to offer lands in sectors 30, 31, 36 and 40 and that 20 per cent of the amount had to be deposited, but the Society did not deposit the amount by the stipulated time. The Society requested for extension of time, but the NOIDA did not extend it and the appellant Society had not been allotted any land. As the writ petition was filed in the year 1980 i.e. more than three years after publication of the notifications, the impugned Notifications had been upheld by a Division Bench of the Allahabad High Court by the impugned Judgment dismissing the writ petition. The appellant Society argued before the High Court that the action of the Authority in not allotting land to the appel lant Society was mala fide and also that action of the Au thority in not extending the time as prayed for was arbi trary and discriminatory. It was submitted by the respond ents that offer to give developed plots to the appellant Society was only as a concession and not as a legal right; the Authority was not bound to extend the time. The appel lant Society also challenged the price fixed by the authori ty and the appellant 's counsel had not been able to show that anybody was offered developed plots for a price less than Rs. 130. The High Court held that appellant Society had no legal right to get a particular land and that the Society did not avail of the concession granted by the authority. Hence this appeal by Special Leave from the impugned Judgment and Order dated 6.5.1983 of the Allahabad High Court passed in Civil Misc. Writ Petition No. 6563 of 1980. While granting Special Leave on 30.5.1983 there was an order of ex parte stay of dispossession pending notice; but the execution proceedings were allowed to go on. On 19.3. 1984 in C.M.P. No. 16786 of 1983 it was ordered that Mr. Markandeya, Advocate on behalf of the petitioners would make a representation to the respondent New Okhla Industrial Development Authority (NOIDA) for the allotment of a suit able site and the representation would be considered on its own merits and a decision taken thereon by the respondent within two months from the date of that order. On 30.4.1984 Mr. G.L. Sanghi appearing for NOIDA had made a statement before the Court that 69 NOIDA undertook that in the event of this appeal being allowed NOIDA would give to the appellants such areas as this Court might specify from sectors 40 and 41 at prices to be determined in accordance with the Judgment of this Court. Undertaking given by Mr. G.L. Sanghi was limited to NOIDA giving areas from sectors 40 and 41 to the appellants and to those persons who were eligible members of the Society on 1st May, 1976. These orders were said to be without preju dice to the rights and contentions of both the parties in this appeal. On 8.5. 1985 the order dated 30.4.1984 was modified by this Court directing that NOIDA would give to the appellants such areas as this CoUrt might specify from sectors 40, 41 as also from sector 42 at price to be determined in accord ance with the Judgment of this Court. If any of the peti tioners could not be accommodated in any of these sectors, the NOIDA would give them sites or areas which were contigu ous to sectors 40, 41 and 42. On 18.1.1990 this appeal was delinked from the group of NOIDA cases. By Judgment and Order dated 13.2.1990 the main Writ Petition No. 975 of 1986 Hiralal Chawla & Anr. vs State of U.P. & Ors., reported in [1990] 1 Judgments Today SC 194 was disposed of stating the total number of persons entitled to allotment and sizes of the plots to be allotted and direct ing that the sites be developed by NOIDA within a period of nine months beginning from 1st of March, 1990 and allot them by charging the agreed price at the rate of Rs. 1,000 per square metre and paying 12 per cent interest on the amount deposited till the actual allotment; and that the interest would be adjusted against the price payable on the allotted land. The dates for payment of the 1st, 2nd and 3rd instal ments were also agreed. It was observed that the Town Plan ning in NOIDA was said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh was a member. It was accordingly directed that all the norms laid down by NOIDA in the matter of development shall be strictly followed. Supervision of this operation should be by NOIDA and the appellants would co operate with NOIDA in that regard. When this appeal was heard on 5.4.1990 there was a consensus that justice would be done to the parties, if this appeal is also disposed of on similar terms as in Hiralal Chawla & Anr. vs State of U.P. & Ors. , (supra). However, the parties were allowed to file. written submissions. Written submissions were accordingly filed by the res 70 pondents, in reply thereto by the appellants, and for the intervener. Taking into consideration the earlier interim orders, the consensus arrived at the hearing and the written submis sions, it is ordered in line with Hiralal (supra) that the interim orders dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order. The impugned Judgment of the High Court is set aside and it is ordered: (A) That the total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600 (six hundred). (B) The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots. This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975. (C) The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent Sectors. (D) The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society. (E) The NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1,000 per square metre. (F) Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs. 1,000 per square metre. Balance amount, if any, shall have to be paid by every eligible member of the Society as on 1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instal ments. The 1st instalment will be paid on or before May 31, 1990, the 2nd instalment to be paid on or before June 30, 1990 and the 3rd instalment to be paid on or before July 31, 1990. (G) It shall be the obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest. (H) It is stated by the parties that a Review Application in Hiralal Chawla 's case is pending. As agreed by the parties in case that Review is allowed, the parties herein shall be at liberty to apply for review of this judgment to similar extent. (I) Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, 71 nor dependent children owns any other plot or house or flat within NOIDA. Town Planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member. We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed. Supervision of this operation of course shall be by NOIDA but we hope and trust that the Society would coop erate with NOIDA in this regard. The appeal is disposed of with these directions without any orders as to costs. G.N. Appeal disposed of.

The appellant, a registered Housing Co operative Socie ty, acquired about 70 acres of land during the period 1973 to 1975. After the enactment of U.P. Industrial Area Development Act, 1976, the State Government constituted an Industrial Development Authority called NOIDA. Soon after the constitu tion of the said authority, notifications were issued under the Land Acquisition Act acquiring certain lands including that of the appellant Society. The appellant and several other societies demanded land in lieu of the land acquired. A sub Committee was constitut ed and it was proposed to offer developed plots to the bona fide members of the societies whose lands were acquired. An approximate rate of Rs. 130 per square metre was fixed. It was also stipulated that 30% of the price would have to be deposited before a tripartite agreement between NOIDA, Co operative Societies and individual members is made after finalisation of lay out plan. The appellant society filed a Writ Petition in the High Court alleging that the action taken by NOIDA was arbitrary and challenging the notifications issued under Sections 4 and 6 of the Land Acquisition Act. Meanwhile, the authority had intimated the appellant society that it was finally decided to offer lands, and that 20% of the amount had to be deposited within a stipulated time. The Society requested for extension of time. Time was not extended and the Society was not allotted the land. It was contended before the High Court that the authori ty acted mala fide, and its not extending the time was arbitrary and discrimi 65 natory. The land price fixed by the authority was also challenged. The High Court dismissed the Writ Petition, holding that the appellants Society had no legal right to get a particular land and that it did not avail the conces sion granted by the authority. This appeal by special leave is against the order of the High Court. Disposing of the appeal, this Court. HELD: 1. The interim orders of this court dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order. [70B] 2. The Judgment of the High Court dated 6.5.83 is set aside. The total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600. The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots. This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975. The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent sectors. The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society. NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1.000 per square metre. Every member who has deposited any sum of money with NOIDA against proposed allotment shall be entitled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the persons shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs.1,O00 per square metre. Balance amount, if any, shall have to be paid by every eligible member of the Socie ty as on1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instalments. The 1st instal ment will be paid on or before May 31, 1990. The second instalment to be paid on or before June 30. 1990 and the third instalment to be paid on or before July 31, 1990. It shall be obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest. In case the Review Petition in Hira lal Chawla 's case is allowed, the parties herein shall be at liberty to apply for review of this judgment 66 on similar extent. Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, nor dependent children owns any other plot or house or flat within NOIDA. All the norms laid down by NOIDA in the matter of develop ment shall be strictly followed. Supervision of this opera tion of course shall be by NOIDA. The society would cooper ate with NOIDA in this regard. [70B H; 71A B] Hiralal Chawla and Anr. vs State of U. P. & Ors., [1990] 1JTSC 194, applied.

r Petition No. 36 of 1980. Petition under section 25 of the Code of Civil Procedure for transfer of case No. 28 of 1980 Misc. (36) pending in the Court of the Distt. Judge, Udaipur (Rajasthan) to the Court of Subordinate Judge, Eluru (Andhra Pradesh) to be tried alongwith O. P. No. 72 of 1979 pending in that court. G.S. Rama Rao for the Petitioner. B.D. Sharma for the Respondent. The following Judgments were delivered: TULZAPURKAR, J. On September 26, 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979. On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of 1980) against the wife under section 13 of the in the Court of the District Judge, Udaipur (Rajasthan). By the instant transfer petition filed under section 25 C.P.C. 226 1908 the wife is seeking to get the husband 's suit transferred to Eluru. On merits we are satisfied that it is expedient for the ends of justice to transfer the husband 's suit to the District Court at Eluru (A.P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) However, counsel for the respondent (husband) has raised before us a preliminary objection that section 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the and as such this Court has no power to transfer the husband 's suit from Udaipur District Court to the District Court at Eluru. He urged that section 25 of C.P.C. gets excluded by reason of the provisions of section 21 and 21A of the . According to him section 25 C.P.C. deals with the substantive law and not procedural law and since section 21 of the makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, section 25 C.P.C. is not applicable. He also urged that section 21 A (3) of the also makes the above position clear beyond doubt by specifically excluding sections 24 and 25 C.P.C. from being applied to the proceedings under the . A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta vs Priyanath Mehta was pressed into service as having a direct bearing on the point. In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in section 25 C.P.C. is excluded by reason of section 21 of the . Section 21 of the merely provides: "Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase 227 "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provision of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See: Canada and Dominion Sugar Co. Ltd. vs Canadian National (West Indies) Steamships Ltd. So far as section 21A of the is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial "in certain cases" and is not exhaustive. Further sub section (3) of section 21A on which strong reliance was placed runs thus: "21A (3). In a case where clause (b) of sub section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. " This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old section 24 and 25 of C.P.C. It does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104 of 1976). By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil 228 Court in one State to another Civil Court in any other State throughout the country. Conferral of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of section 21A of the . It is, therefore, difficult to accept the contention that s, 21A of excludes the power of transfer conferred upon this Court by the present section 25 of C.P.C. in relation to proceedings under that Act. Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta 's case (supra) it needs to be pointed out that the aforesaid aspects of section 21A of the and the present section 25 of the C.P.C. were not considered by the Nagpur Bench at all. Moreover, the Nagpur Bench, following the decision of the Punjab and Haryana High Court in Smt. Rama Kanta vs Ashok Kumar has also taken the view that section 21A of the permits transfer and consolidation of only two types of petition under the Act, namely, cross petitions filed by the two spouses against each other under section 10 or section 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment. The Bench has observed: "The effect of section 21A, therefore, in my opinion, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under section 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section. " Such a view, in our opinion, is not correct. As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases. " Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the Act and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the Act in order to avoid conflicting decisions being rendered by two different 229 Courts. In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. Reading section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided. In this view of the matter, the preliminary objection is overruled. Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transferred to the District Court Eluru (A.P.), to which Court the wife 's petition for maintenance shall also stand transferred. No order as to costs. AMRENDRA NATH SEN, J. I agree with the order proposed by my learned brother. I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application. The preliminary objection raised is that the jurisdiction and power conferred on this Court under section 25 of the Code of Civil Procedure are excluded by the provisions contained in section 21 and section 21A of the ; and as section 25 of the Civil Procedure Code is not attracted, this Court does not have jurisdiction to entertain this application for transfer. section 25 of the Code of Civil Procedure reads as follows: "(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. (2) Every application under this section shall be made by a motion which shall be supported by an affidavit. (3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re try it or proceed from the stage at which it was transferred to it. (4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the 230 application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case. (5) The law applicable to any suit, appeal or other proceeding transferred under the section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding. " It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure (Amendment) Act, 1976. In this connection it may be relevant to set out section 25 of the Code of Civil Procedure, as it stood before its amendment by the substitution of the present section. The earlier section 25 was in the following terms: "(1) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the Official Gazette, transfer such suit, appeal or proceeding in any other High Court: Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat. (2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case. " A plain reading of section 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice. I shall now set out the relevant provisions of the . section 21 of the is in the following terms: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all 231 proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908." Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows: "(1) where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State; the petition shall be dealt with as specified in sub section(2) (2) in a case where sub section (1) applies; (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that Court: (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented. (3) In a case where clause (b) of sub section (2) applies, the court or the Government as the case may be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code. " 232 The learned counsel for the respondent argues that in view of the provisions contained in section 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the will apply; and as section 25 of the Code of Civil Procedure does not appertain to the domain of procedure and confers substantive right, the said section is not applicable and cannot be attracted. It is argued that this position is further made clear by the provisions contained in section 21A. In my opinion, this argument of the learned counsel for the respondent husband is without any substance. I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. A suit or a proceeding for divorce under the in a Civil Court is necessarily a suit or proceeding and must on a plain reading of section 25(1) of the Code of Civil Procedure be held to come under section 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding. This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute. If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms. S.21 of the does not deal with the question of jurisdiction of any Court. As no procedure with regard to the proceedings under the has been laid down in the said Act, section 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure. ' section 21 of the cannot be construed to exclude the jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure. It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in section 25 of the Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure. Even I accept the argument of the learned counsel for the respondent that section 25 does not form any part of the procedural law and is a part of the substantive law, I am of the opinion that jurisdiction conferred on this Courts by section 25 of 233 the Code of Civil Procedure, is not in any way, affected by section 21 of the which, as I have already noted, only provides that 'all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908. ' section 21A of the , in my opinion, has indeed no bearing on the question of jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure. section 21A of the makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented. Such power has been conferred on the Court or the Government. section 21A has no application to the case of transfer of any suit or proceeding from one State to another. As I have earlier noted, very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal, suit or proceeding from one State to another under section 25 of the Code of Civil Procedure. In the instant case, the petitioner has applied for transfer of the suit pending in the District at Udaipur in the State of Rajasthan to the appropriate Court at Eluru in the State of Andhra Pradesh. I am, therefore, of the opinion that this Court enjoys the power and jurisdiction to entertain this application under section 25 of the Code of Civil Procedure and section 21 and section 21A of the do not, in any way, exclude, affect or curtail the power conferred on this Court under section 25 of the Code of Civil Procedure. I may incidentally add that the present section 25 in the Code of Civil Procedure came into force after section 21 and 21A have been incorporated in the . V.D.K. Preliminary objection rejected.

The management of a cooperative society registered under the U.P. Cooperative Societies Act vests in a committee constituted in accordance with the provisions of the Act and the Rules made thereunder. The term of elected members of a committee, according to section 29(2) read with r. 445(1) is three 'Cooperative years ' including the cooperative year in which they are elected. 'Cooperative year ' means the year commencing on the 1st day of July and ending on the 30th day of June next following. Fresh members are to be elected before the expiry of the term of existing elected members failing which an administrator can be appointed by the Deputy Registrar, Cooperative Societies to manage the affairs of the cooperative society till the reconstitution of the committee. In this case the term of the cooperative society in question was drawing to a close and the poll to elect fresh members was held on September 11, 1978. The result of the poll could not be declared immediately owing to an injunction issued by a court in a suit filed by a voter whose name had not appeared in the electoral roll. The result was, however, declared ultimately on January 28, 1980, and appellant No. 1 was elected Chairman of the committee on January 29, 1980. By an order dated July 1, 1981, made under section 29(4) (b), the Deputy Registrar, Cooperative Societies appointed an administrator to manage the affairs of the society on the ground that the term of members of the Committee had expired on June 30, 1981. The appellants challenged the validity of the order under article 226. The High Court upheld the impugned order and dismissed the petition on the ground that once the poll was held and even though the result of the election was not announced, the term would commence from the date of the poll. The appellants submitted that even though the poll was held on September 11, 1978, the result having been declared for the first time on January 28, 1980, the term of three cooperative years of the elected members would expire on June 30, 1982. Allowing the appeal, ^ HELD: 1. (a) Election means the process of being elected and the term of office is of elected members. The term of office as member cannot begin to run unless the status of being a member is acquired on being declared elected. 208 The result of the election having been declared on January 28, 1980, the term of members commenced from the cooperative year beginning on July 1, 1979 and ending with June 30, 1980 and since their term was three cooperative years including the year of election, it would expire on June 30, 1982. The order appointing the administrator was, therefore illegal. [213 H, 214 H, 215 A, 216 F G] (b) The provision of section 29(4) (b) was not attracted as the process of election had begun with the holding of the poll before the expiry of the term and, once the poll was held as a part of the programme of election, it had to progress to the statutory end of declaration of result. [216 B E] 2. The various stages of election were clearly demarcated in the Rules. Mere holding of poll, which means recording of votes, without anything more would be inconsequential. It is the counting of votes and the consequent declaration of result which would determine who has become eligible for office by the democratic process. No election process can be said to be complete unless the votes are recorded and counted and the result of the election declared and publicised. [212 G H, 213 E G] 3. The election process is sacrosanct and members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutorily prescribed term and therefore the plea that the administrator should not be disturbed as only four months would remain for the expiry of the term cannot be countenanced. The drastic power of removing elected representatives before the expiry of their term must receive strict and narrow interpretation. [217 A C]

Appeal No. 2097 of 1968. Appeal from the judgment and order dated August 11, 1965 of the Delhi High Court in C.W. No. 197 D of 1965. Jagdiish Swarup, Solicitor General of India, section N. Prasad, B. D. Sharma and section P. Nayar, for the appellant. S.C. Manchanda, section Balakrishnan and P. N. Lekhi, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgement of the Punjab High Court by which the petition under article 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called "The Indian Observer" by the licensees of the Railway Book Stalls throughout the country under directions issued by the appellant was set aside. According to the writ petition, the petitioner was the owner and publisher of a weekly newspaper known as "The Indian Observer" which had a wide sale in India, its weekly circulation being approximately 1,35,000 copies. Till March 1965 the .aforesaid news weekly was being sold at all the railway stations 867 which were managed and were under the administrative control of the Railway Board. It was alleged that the policy of the news weekly was to publish a constructive criticism and fair comment in public interest on the working of different departments of the Government and to suggest remedial measures. , In,some of the copies of the news Weekly, certain matters regarding the maladministration of the Railway had been published. Reference was made in particular to the issue of 11th September, 1964 in which allegations were made about the black marketing in deluxe train tickets. It was stated to have attained the magnitude of a big racket operating in the country resulting in lot of gain by corrupt means to the Railway staff. It is unnecessary to give the details but according to the allegations made in the news weekly, the Railway staff was corrupt and the reasons for the corruption were also given. Other comments were made which reflected adversely on the working of the Indian Railways. According to the petitioner all these statements and resolutions annoyed the Railway Authorities and on 22nd September, 1964, the Circulation Manager of the Petitioner company received a letter from M/s Gulab Singh (P) Ltd., one of the licensees, of the Railway Board for sale of printed matters intimating that the Northern Railways administration had banned the sale, of "The Indian Observer" on the Railway Book Stalls. Subsequently, when the petitioner took up the matter with the authorities concerned, the General Manager, Northern Railways, wrote to him informing him that temporary permission had been given to the railway contractors of printed matters to sell the news weekly subject to proper review of that paper and final orders which would be given later. The General Manager asked the petitioner to supply copies of 12 old issues which was done. Finally, the petitioner was informed by means of a letter dated the 16th March: 1965 that the sale of the weekly "The Indian Observer" could not be permitted on the railway stations. In the return which was filed by the Joint Director, Traffic (General), Railway Board, it was not denied that the news weekly "The Indian Observer" was being sold at the, railway stations by the licensed contractors. It was asserted that the petitioner had been publishing "sexy and obscene literature" Lind the licensees had been raising objections on this score. The articles published in the Pews weekly were considered to be of low taste, and it was decided that it would not be in public interest to allow its sale at the railway Platforms by the, licencees. The allegations made in the petition about the statements relating to corruption and maladministration in the Railways which had been published in some of the issues of the news weekly was not denied. It was, however. maintained that the Railway Board had taken the action 868 not because of the publication of those articles but because of the sexy and obscene literature of low taste which was being published in the news weekly. Before, the High Court, section 28 of the Indian Railways Act 1890, hereinafter called the "Act", and the relevant sub clauses of clause 742 of the Indian Railway Code were pressed into service for challenging the ban which had been imposed on the sale of the news weekly. The High Court was of the view that the petitioner before it had cited and produced instances of publications which were freely on sale on the bookstalls on the railway platforms to show that the material which was sought to be excluded or) grounds on obscenity, was hardly distinguishable from the other popular magazines of foreign and Indian origin. Reliance was placed on the provisions of clause 742 of the Indian Railway Code which established that a publication to attract the ban imposed by the Railway Board must have been previously prohibited by the Government. As the Railway Board was not authorised to exclude any publication from sale on its own determination that it was obscene, it was held that the order which was made by that Board was without authority. The ban had hit the writ petitioner who had been made the object of discriminatory treatment. Consequently, the restriction imposed on the sale of "The Indian Observer" was quashed. Section 120A of the Act which was inserted for the first time by Act No. 13 of 1959 provides that if a person canvasses for any custom or hawks or exposes for sale any article whatsoever, in any railway carriage or upon any part of a railway except under and in accordance with the terms and conditions of a licence by the railway administration shall be punishable with fine which may extend to two hundred and fifty rupees. He can also be removed from the carriage or any part of the railway by any railway servant so authorised. It appears that prior to the insertion of this section, rules hadbeen framed under section 47 (1) of the Act. Rule 17 ofPart 11 of the Rules laid down that no person could canvass for any custom or hawk or expose for sale any article whatsoever, on any train, station, platform or premises without a licence granted by the railway administration. Clause. I of Rule 17 has been incorporated in section 120A(1) of the Act in 1959, that Clause having been deleted from the rule. The book stalls on the railway platforms where books, manazines and newsp apers are sold, belong to the licencees who have entered into an agreement with the President of India. It is not disputed that according to the usual clauses in these agreements of licence, the ale of newspapers shall not be stopped by the licencees at any time save when it is due to causes beyond the, control of the: 869 licensee. The learned Solicitor General produced a sample agree ment in court which was not objected to by the counsel for the respondent. According to clause 3(b) thereof the licensor can reserve to himself the right to require the licencee to sell specified books or types of books and periodicals and the licencee was bound to comply with such requirements. Under clause 5 the licensor had the right of prohibiting the sale, or exhibition of any publication of an obscene or scurrilous nature and of any publication to which good, sufficient, and reasonable objections could be shown and the decision of the licensor was to be final and binding oil the licensee. The Railway Board which is the appellant before us has issued certain instructions and laid down essential principles and policy directions which have been Published in the form of a Code called the "Indian Railway Code" for the Traffic Department (Commercial). It may be Mentioned that the Solicitor General himself maintained that all those were of a mandatory nature and it is stated in the preface to the Code. Chapter VII, Part A of this Code deals with catering and vending services. Part B relates to book stalls, sale of newspapers and periodicals on railway platforms. Clause 742 to the extent it is material is reproduced below (v) The sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. (viii)The contractors should provide equal opportunity to all the popular newspapers for in their stalls on the same terms. A list of popular newspapers and magazines should be drawn up by the Railway Administration in consultation with the Zonal Railway Bookstall Advisory Committee". The main argument of the learned Solicitor General on behalf of the appellant is that sale of books on railway platforms or in railway carriages is a matter which is regulated by the terms of the agreement of licence between the bookstall contractors and the railway authorities and it is open to the appropriate authority to stop the sale of any newspaper or publication which was considered obscene or scurrilous or to which sufficient and reasonable objections could be shown. In the letter of the Railway Board dated March 26, 1965 it was stated that it had come to the Board 's, 870 notice that the "Indian Observer" generally contained "articles written in very low taste bordering oh obscenity". It was further .stated that after a perusal of few Copies of the said weekly the Board had come to the conclusion that it was not fit for sale at railway stations. It was desired that the book stall contractors should be, instructed to stop with immediate effect the sale of the "Indian Observer" from their bookstalls as well as on the platforms as also along train side and in station premises. According to the Solicitor General the action taken by the Railway Board was perfectly competent and was taken in accordance with the terms of the licence granted to the book stall contractors. It is urged that ,the respondent had no right or locus standi to insist on or ask for the sale of the Indian observer oil the platforms etc., which are the private property of the railway and where the sale .of any publication could only be subject to such terms and conditions as obtained between the licensor or licencee. Before the High Court and before us the main complaint of the present respondent is based On an infraction of Article 14 of the Constitution and it has been asserted that the news weekly "Indian Observer" was singled out for discriminatory treatment inasmuch as publications containing similar material were not prohibited from sale by the Railway Board on the book stalls at the platforms and in the trains etc. The High Court had found as a fact that publications which were freely on sale on the book stalls to whom licences had been given were such that they were hardly distinguishable from the "Indian Observer" on the ground news weekly inquestion had been sold on railway platforms since 1963 nor wasit suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration. Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub clause (viii) of Clause 742 is that the contractor should provide equal opportunity to all the popular newspapers for sale in their stalls on the same terms. This was subject to certain conditions, one of which was that the sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. (vide sub clause v). The letter written by the railway itself to which a reference has been made, does not impose the ban on the ground that the "Indian Observer" is an obscene publication which has been prohibited by the Government. In that letter there was first a recital of what had come to the Board 's notice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity. There was no finding or decision that it was a publication which was obscene. The conclusion of the Board 871 simply was that the "Indian Observer" was not fit for sale at the Railway stations. The other condition laid down in sub clause (v) that its sale had been prohibited by the government was neither mentioned nor has it been shown that any such order had been made by the government prohibiting the sale of the "Indian Observer" on the ground that it is obscene. The learned Solicitor General contends that the word 'Government ' in sub clause (v) means the Railway Board because according to section 2 of the , Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the powers or functions of the Central Government under the Act. Our attention has not been drawn to any provision in the Act or the rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication on. It appears that the aforesaid clause. has reference to a prohibition 'unposed by the Central Government under some enactments other than the Act. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision. Even on the assumption that the Board could make such an order as is contemplated by sub clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been sin led out for being banned and this clearly amounted to a discriminatory,treatment. The question that has next to be resolved is whether article 14 could be invoked by the respondent in the present case. It has not been and indeed cannot be disputed that the Railway Board will fall within the definition of "State" as given in article 12 of the Constitution. The learned Solicitor General has relied on Railway, Board vs Niranjan Singh(1). It was laid down that there was no fundamental right under article 19(1) for anyone to hold meetings in government premises. The Northern Railway was the owner of the Premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds, Railway platforms may be the property (1).[1969] 3 S.C.R. 548. 872 of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who, buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to us the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the bookstall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under article 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news was weekly on the Railway platforms etc. If that order is discriminatory and, cannot be justified on anyof the well known grounds. the respondent can challenge it in a Petition under Art.226 of the Constitution as violative of Art.14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discrimination made. A certain amount of discussion took place before us with regard to the applicability of section 28 of the Act which contains pro hibition against under preference being shown by the Railway Administration in any respect whatsoever. Tn the view that we have taken about the applicability of article 14 we do not consider it necessary to decide whether the respondent could take advan tage of the provisions of that section. 873 Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if an appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed. It does appear that Deshpande J., who delivered the order of the Division Bench granting the certi ficate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied. The appeal fails and it is dismissed with costs. G.C Appeal dismissed.

The first respondent was carrying on business of selling country liquor. In exercise of the powers conferred by section 29(2) of the Bihar and Orissa Excise Act, 1915, the appellant issued an Order and in pursuance of that Order a date was notified for selling by public auction the exclusive privilege. of selling by retail, country liquor in 8 shops. The respondent was the highest bidder but his bid was rejected because the Government was of the view that inadequate prices had been offered as a result of collusion between the bidders. Thereafter, tenders were called for and the appellant accepted the tender in respect of one shop and rejected the others as it was again of the opinion that the price offered was inadequate. Thereafter, the remaining 7 shops were ' sold by private negotiation for substantially higher prices. A writ petition filed by the respondent in the High Court was allowed mainly on the ground that the power centered on the Government by cl. (vi) of the Order, that no sale shall be deemed to be final unless confirmed by the State who shall be at liberty to accept or reject without assigning any reason, was an unguided power violative of articles 14 and 19(1) (g). Allowing the appeal to this Court, HELD : (1) Section 22 of the Act confers power on the Government to grant to any person on such conditions and for such period as it may think fit the exclusive privilege of selling in retail country liquor; and section 29 empowers the Government to accept payment in consideration of the grant either by calling tenders or by auction or otherwise as it may by general order direct. The powers conferred on the State Government by sections 22 and 29 are absolute. The Government cannot be said to have conferred on itself arbitrary power under cl. (vi) of its Order, passed under section 29(2), because, the power that the Government reserved for itself under that clause is nothing more than what was conferred on it by the Legislature under the sections. Since the validity of the sections was not challenged the validity of the Order could not also be challenged. [792 B F] (2) Even otherwise, one of the important purposes of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue; and excise 'revenue forms an important part of every State 's revenue. The Government is a guardian of the finances of the State and is expected to protect its financial interests. The fact that the prices fetched by the sale of the privilege to sell country liquor is an excise revenue does not change the nature of the right in the Government. Therefore, the 785 Legislature has empowered the Government to see that there is no leakage in the revenue. It was for the Government to decide whether the price offered in an auction is adequate and the conclusion reached by the Government does not affect anyone 's rights. [793 D F; 794 F G] (3) Public auctions are held to get the best possible price and there is no completed contract till the bid is accepted. There is, therefore, no basis for, contending that the owner of the privileges who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate, and, it makes no difference that the Government was the seller. [793 G H; 794 A] (4) If the Government is exclusive owner of the privileges, the respondent could not rely on article 14 and 19(1)(g), because, citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to Government, nor can there be any infringement of article 14 if Government tries to get the best available price for its valuable, rights. Further there is no inherent right in a citizen to sell intoxicating liquor by retail. [793 A; 794 A B] Coverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and Ors., ' ; and Union of India and Ors. vs M/s. Bhimsen Walait Ram, ; , followed. (5) Assuming that the question of arbitrary or unguided power can be raised it should be remembered that the power to accept or reject the highest bid is given to the highest authority in the State, namely, the Government, which is expected to safeguard the finances of the State and it is not a case of delegated power but of power conferred by the Legislature. While accepting or rejecting a bid Government is performing an executive function and the correctness of its conclusion is not open to Judicial review where the power is not used for any collateral purpose. [793 F , 794 C E] (6) The real conclusion. of the Government was that the price fixed was inadequate and hence High Court erred in thinking that the Government was bound to satisfy the Court that there was collusion between the bidders. [794 E F] Barrium Chemicals Ltd. and Anr. vs Company Law Board and Ors. [1966] Supp. S.C.R. 311 and Rohtas Industries Ltd. vs section T. Agarwal; , referred to. (7) The Government was not precluded, having had recourse to the auction method once, from either calling for tender or selling by negotiations. Once the Government declines to accept the highest bid or the tender price offered, the government was free to have recourse to other methods. The pow(* given to the Government to sell in such other manner as it thinks fit is a very wide and unrestricted power and includes within it the power to; sell the privilege by private negotiation. [795 A B] (8) The Government is not required by section 29 (2) (a) to make an order that the privilege will be sold by private negotiation, since, it makes no sense to require Government to first make an order that it is going to negotiate. The section only says that the State Government 'may by general or special order direct ' and the direction contemplated is one to subordinate officials and not to itself. [795 D F]

ION: Civil Appeal No. 1757 of 1980. From the judgment and order dated 11th September, 1980 of the Industrial Tribunal at Nagpur in Reference (II) No. 22/78. Y.S. Chitale, R.K. Thakur, O.C. Mathur and K.J. John for the Appellant H.W. Dhabe and A.G. Ratanaparkhi for Respondent 1. G.L. Sanghi, V.A. Bobde, A.K. Sanghi and Miss Vasudha Sanghi for Respondent 2. The Judgment of the Court was delivered by GUPTA J. During the pendency of a reference before the Industrial Tribunal at Nagpur, a written agreement in settlement of the disputes covered by the reference as also certain other disputes between the management and the workmen was signed; on behalf of the trade unions representing the workmen the agreement was signed by their office bearers. A few days later the executive committee of one of the Unions rejected the agreement on the ground that the agreement had given rise to discontent among a section of the workers whose problems had not been satisfactorily solved. A question then arose, whether the agreement was a settlement within the meaning of section 2 (p) of the from which the Union could not resile. The Tribunal by its award held that the agreement was not a settlement binding on the union: the validity of this award is challenged in this appeal by special leave preferred by the management. The relevant facts are those. The appellant, Brooke Bond India Limited, a Company incorporated and registered under the Indian Companies Act, hereinafter referred to as the company, have a factory at Kanhan, District Nagpur, in Maharashtra. Two trade unions of workmen employed by the company function in the 32 Kanhan factory; one is known as Bharatiya Swatantra Brooke Bond Chaha Karamchari Sangh (Bharatiya Union for short) and the other is called M.P. Rashtriya Brooke Bond Chaha Karamchari Sangh (Rashtriya Union for brevity 's sake). In this case we are concerned with the Rashtriya Union. On September 27, 1975 Government of Maharashtra made a reference under section 10 (1) (d) of the for the adjudication of an industrial dispute between the company and the workmen in respect of 4 demands set out in the schedule to the order of reference. Subsequently on June 11, 1977 a joint charter of demands was submitted by the workmen through the aforesaid two unions; this charter included 26 demands. At a meeting of the executive committee of the Rashtriya Union held on August 19, 1977 several resolutions were passed of which two only appear to be relevant for the present purpose. By one of the resolutions a negotiation committee composed of six members including some of office bearers of the union was formed "for a discussion to be held with the management". The other resolution related to the 26 demands mentioned above and it said that "a proper decision" regarding these demands would be taken after "due consideration of the proposals given by the members and after placing the same before the negotiation committee of both the unions". Thereafter two more charters of demands, one by each union, were submitted. At a meeting of the executive committee of the Rashtriya Union held on January 8, 1978 the office bearers of the union put it on record that in respect of the 4 demands pending before the Tribunal the union would accept a satisfactory settlement and that the executive committee had granted permission to the negotiation committee for carrying on discussion with the company and the Bharatiya Union as regards the pending demands. Subsequently the resignation of some of the office bearers of the union led to the reconstitution of the negotiation committee at a meeting of the executive committee of the union held on February 18, 1978. On the subject of the proposed settlement it was disclosed at this meeting that the company had agreed to obtain clarification from the head office on several points including the absorption in company 's employment of workers employed in loading and unloading job and confirmation of casual workers. The general secretary of the Rashtriya Union by a letter dated March 9, 1978 informed the factory manager that the members of the reconstituted negotiation committee "will participate in the negotiations to be commenced from 13th March, 1978 for arriving at an agreement". On March 16, 1978 a 33 memorandum of settlement was signed. The following office bearers of the Rashtriya Union signed the memorandum, the working president, two vice presidents, general secretary, joint secretary and the organizing secretary. They were also members of the negotiation committee along with others. On the next day, March 17, a joint petition was filed before the Industrial Tribunal signed by the factory manager of the company, the general Secretary of the Bharatiya Union and the General Secretary of the Rashtriya Union praying that an award in terms of the settlement be passed. About a week later, on March 24, 1978 a meeting of the executive committee of the Rashtriya Union was held in which "it was unanimously resolved to withdraw from the agreement dated March 16, 1978" in view of the "discontent amongst the workers about the agreement". On April 1, 1978 at an emergent meeting of the executive committee of the Rashtriya Union, after an elaborate discussion on the agreement it was "resolved to reject the agreement as the problems of the workers were not satisfactorily solved". On April 7, 1978 an application was made to the Tribunal on behalf of the Rashtriya Union praying that the agreement be rejected. The Tribunal heard the question as to the validity of the settlement so far as the Rashtriya Union was concerned as a preliminary issue. The Tribunal rejected the contention raised on behalf of the Rashtriya Union that the agreement signed on March 16, 1978 was only a draft agreement and held that it was intended to be a settlement. The Tribunal however came to the conclusion that it could not be treated as a settlement within the meaning of section 2 (p) of the . It cannot be disputed that unless the office bearers who signed the agreement were authorised by the executive committee of the Union to enter into a settlement or the constitution of the Union contained a provision that one or more of its members would be competent to settle a dispute with the management, no agreement between any office bearer of the Union and the management can be called a settlement as defined in section 2 (p) There is no provision in the constitution of the Rashtriya Union authorising any office bearers of the Union to enter into a settlement with the management. We have referred above to the proceedings of the executive committee. As the Tribunal points out, the resolutions passed by the 34 executive committee do not support the claim that the Negotiation Committee was empowered to enter into a settlement without seeking ratification from the executive committee. The Tribunal held, in our opinion rightly, that the fact that the agreement was signed by the office bearers of the Union does not clinch the matter because the executive committee at no stage had accepted the agreement. In fact no meeting of the executive committee was held before the agreement was signed on March 16, 1978 to consider whether the agreement was acceptable. Section 2 (p) of the defines "settlement"; "Settlement" means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer;" In the present case the purported settlement was arrived at not in the course of conciliation proceedings. Section 18 (1) of the Act provides: "Section 18 . Persons on whom settlements and awards are binding: (1) A settlement arrived at by agreement between the employer and workmen otherwise than in cause of conciliation proceeding shall be binding on the parties to the agreement :" It is also necessary to refer to rule 62 (2) (b) of the Industrial Disputes (Bombay) Rules, 1957. Rule 62 (2) (b) is as follows: "62. Memorandum of Settlement: . . . 35 (2) The settlement shall be signed by: (a) . . . (b) in the case of workmen, either by the President or Secretary (or such other officer of a trade union of the workmen as may be authorised by the Executive Committee of the Union in this behalf ), or by five representatives of the workmen duly authorised in this behalf at a meeting of the workmen held for the purpose. " Sub rule (4) of rule 62 requires the parties to the settlement to send copies thereof jointly to the prescribed authorities. That this was done in the present case is not disputed. It was argued on behalf of the appellant that as the agreement was signed in the manner prescribed by rule 62 (2) (b) and as the requirements of rule 62 (4) have been complied with, the agreement must be accepted as a settlement within the meaning of section 2 (p) of the and as such binding on the Rashtriya Union under section 18 (1) of the Act. But, as pointed out by the Tribunal rule 62 only prescribes the form of the memorandum of settlement and by whom it should be signed, and the question whether the procedure prescribed by rule 62 has been complied with will arise only if there is in existence a valid settlement between the parties concerned. In this case it has been found that the office bearers who signed the agreement were not competent to enter into a settlement with the company and as such it cannot be said that an agreement was reached between the employer and the workmen represented by the Rashtriya Union. What is binding as a settlement under section 18 (1) of the is an agreement between the employer and workmen. Here the Tribunal found that there was no agreement between management and the Rashtriya Union. Reliance was placed on behalf of the appellant on the decision of this Court in Workmen of M/s. Delhi Cloth and General Mills vs Management of M/s. Delhi Cloth and General Mills.(1) In that case among other matters rule 58 of the Industrial Disputes (Central) Rules, 1957 made under section 38 of the came up for consideration. Rule 58 (2) (b) of the Central Rules which is similar to rule 62 (2) (b) of the Bombay Rules reads: 36 "85. Memorandum of settlement: (1) x x x (2) the settlement shall be signed (a) x x x (b) In the case of workmen, by any officer of a trade union of workmen or by five representatives of workmen duly authorised in this behalf at a meeting of the workmen held for the purpose. " It was held that the rule must be fully complied with if the settlement is to have a binding effect on all workmen. Section 18 (3) of the makes a settlement which has become enforceable, binding among others, on all parties to the industrial dispute. It is not clear why this decision was considered relevant. Possibly this case was referred to for the observation occurring on page 897 of the report: "We may observe here that we were not impressed by the appellant 's argument that r. 58 rub rule (2) (b) required that the officer of a trade union of workmen must also be duly authorised. We, however, do not express any considered opinion in view of our conclusion on other points". Reference to this observation may have been intended as a reply to the construction sought to be put on rule 62 (2) (b) of the Bombay Rules on behalf of the Rashtriya Union that the words "duly authorised" applied not only to the five representatives of workmen" but also to the office bearers mentioned in the rule to enable them to sign the settlement; on such construction it was contended that the office bearers of the Union who signed the agreement were not specifically authorised to do so. This construction of rule 62 (2) (b) was rightly rejected by the Tribunal. But neither rule 58 of the Central Rules nor rule 62 of the Bombay Rules contains anything to suggest that any officer of a trade union who is entitled to sign a settlement must be deemed to have had the authority to enter into this settlement. The procedure prescribed by either rule 58 of the Central Rules or rule 62 of the Bombay Rules presupposes the existence of a valid settlement, and the question in this case is whether there was such a settlement. Another case relied on by the appellant is The Sirsilk Ltd. and others vs Government of Andhra Pradesh and another.(1) The facts of that case 37 are that after the proceedings before the Tribunal had come to an end and the Tribunal had sent its award to government the parties concerned in the dispute came to a settlement. Section 17 (1) of the lays down that every award shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit. Section 18 (1) makes a settlement arrived at between the employer and workmen otherwise than in the course of conciliation proceedings binding on the parties to the agreement. Under section 18 (3) an award of a Tribunal on publication shall be binding on all parties to the industrial dispute. In Sirsilk case difficulty was felt in giving effect to the settlement because the proceedings before the tribunal had ended and the tribunal had sent its award to the government before the settlement was arrived at. This Court held: "The only way in our view to resolve the possible conflict which would arise between a settlement which is binding under section 18 (1) and an award which may become binding under section 18 (3) on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under section 18 (1) has been arrived at. In such a situation we are of opinion that the government ought not to publish the award under section 17 (1) and in cases where government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under section 18 (1) with respect to the very matters which were the subject matter of adjudication under the award. " We think this decision was relied on only to emphasize that a settlement reached between the parties concerned in the dispute must prevail if it is reached at any time before the publication of the award. That is undoubtedly so, but the question before us is different which is, whether in fact a settlement within the meaning of section 2 (p) of the was reached. Other questions will arise only after it is found that there was such a settlement in existence. Sirsilk does not therefore afford any assistance to the appellant. The tribunal in support of the view taken by it relied on a decision of the Delhi High Court. In 38 Hindustan Housing Factory Ltd. vs Hindustan Housing Factory Employees ' Union and others, the High Court held: ". the contention on behalf of the petitioner company that the fact that the Memorandum of settlement was in the prescribed form and was signed by one or more of the office bearers of the Union is by itself sufficient to make the settlement arrived at between the Management of the petitioner company and the signatories binding on the Union and all its members, is untenable. The language of section 18 (1) clearly shows that the settlement will be binding only "on the parties to the agreement. " The definition of "settlement" in section 2 (p) of the Act also states that "settlement" means a settlement arrived at "between the employer and the workmen. " So, normally in order that a settlement between the employer and the workmen may be binding on them, it has to be arrived at by agreement between the employer and the workmen. Where the workmen are represented by a recognised Union, the settlement may be arrived at between the employer and the Union. If there is a recognised Union of the workmen and the Constitution of the Union provides that any of its office bearers can enter into a settlement with the Management on behalf of the Union and its members, a settlement may be arrived at between the employer and such office bearer or bearers. But, where the Constitution does not so provide specifically, the officer bearer or bearers who wish to enter into a settlement with the employer should have the necessary authorisation by the executive committee of the Union or by the workmen. A reading of rule 58 clearly shows that it presupposes the existence of a settlement already arrived at between the employer and the workmen, and it only prescribes the from in which the Memorandum of settlement should be, and by whom it should be signed. It does not deal with the entering into or arriving at a settlement. Therefore, 39 where a settlement is alleged to have been arrived at between an employer and one or more office bearers of the Union, and the authority of the office bearers who signed the Memorandum of settlement to enter into the settlement is challenged or disputed, the said authority or authorisation of the office bearers who signed the Memorandum of settlement has to be established as a fact, and it is not enough if the employer merely points out and relies upon the fact that the Memorandum of settlement was signed by one or more of the office bearers of the Union. " In our opinion the above extract from the judgment of the Delhi High Court states correctly the law on the point. The appeal is accordingly dismissed; in the circumstances of the case we direct the parties to bear their own costs. N.K.A. Appeal dismissed.

On knowing that the High Court had dismissed his appeal on the ground that his Advocate was not present in the Court when the matter was taken up for hearing the appellant moved an application for the recall of the order dismissing the appeal and for permission to participate in the hearing of the appeal. The High Court rejected this application stating that no satisfactory explanation had been furnished by the Advocate for his slackness in filing the affidavit for nearly 15 days after it was drafted. On the question whether the litigant is entitled to have his case reheard by the High Court. ^ HELD: It is not proper that an innocent litigant, after doing everything in his power to effectively participate in his proceedings by entrusting his case to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanour of his agent. For whatever reason the Advocate might have absented himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate. [511 B] The respondent 's costs should be recovered from the Advocate who absented himself from Court. [511 D] [The Court directed the appeal to be restored to its original position in the High Court and heard.]

N: Writ Petition (Crl.) No. 247 of 1990. (Under Article 32 of the Constitution of India). S.S. Ray, Vijay Bahuguna, S.K. Gambhir, Sunil Kr. Jain and Vijay Hansaria for the Petitioner. Ashok Desai, Solicitor General, P parmeshwaran and A. Subba Rao for the Respondents. The order of detention was issued by Nisha Sahai Achuthan, Joint Secretary to the Government of India who was specially empowered under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substances Act and it recited that with a view to preventing the peti tioner from engaging in abetting and transportation of narcotic drugs, the said Sayyed Farook Mohd. @ Farooq @ Sayyed Farooq Isamuddin @ Anand be detained and kept in custody in the Yervada Central Prison, Pune. The grounds of detention were also served on the same day i.e. February 15, 1990 immediately after his arrest by the Customs Authori ties. On July 19, 1989 the staff of the Preventive Collector ate Customs, Bombay impounded two fiat cars bearing Nos. GJV 5440 and MHY 2625. The drivers of the said cars namely Aslam Mohammad Nazir and Mohammad Yakub Sheikh were apprehended. On search of the two cars, 100 packets of brown coloured powder purporting to be narcotic drug of Pakistan origin was found out of the dickies of the cars. The narcotic drug recovered from the dickies of the said cars weighed 100 kgs. and its value in the market is about 2.34 crores. Car No. GJV 5440 belonged to the petitioner detenu, Syed Farooq Mohammad and the other car No. MHY 2625 belonged to one C.P. Reddy, an Officer of international airport who was also apprehended and his statement u/s 108 of the was recorded. It was revealed from his statement that this car was also used for transporting heroin along with petition er 's car. The statements of Aslam Mohammad Nazir and Moham mad Yakub Sheikh who were apprehended as well as the state ment of other person i.e. Mohd. Azam Khan @ Wali Mohd. Khan @ Hameed Khan were also recorded u/s 108 of the by the Customs Officials. From these statements it appeared that these persons were known to the detenu and they used to visit often the hotel 'Fisherman ' at Worli for disco. The detenu i.e. Farooq Mohammad also used to go for disco in the said hotel 'Fisherman ' at Worli. It has been stated by Aslam Mohammad Nazir that on July 19, 1989 he was sitting in room No. 106, 2nd Floor, Kali Building near Burtan apartment, Bombay Central (residence of the detenu) along with his friend, Mohd. Yakub Sheikh, driver of the other car. Hameed also came there to meet Farooq Mohammad. Hameed asked him and Mohd. Yakub Sheikh to go along with him to Kalina. He told them that a truck had come to Kalina with some packets of contraband goods and that they were to take those packets near Jaslok hospital Thereafter, he took two fiat cars beating registration Nos. GJV 5440 and MHY 2625 from Farooq. He gave the keys of car No. GJV 5440 to him and car No. MID/2625 to Mohd. Yakub. 245 Thereafter, they drove those two cars to Kalina as per Hameed 's instructions and Hameed led them in a red maruti car bearing No. BLB 7445 where Hameed showed them one truck wherefrom four gunny bags were unloaded and kept in the dickies of the above said two cars. It further appears from his statement that as per Hameed 's instructions after the cars were parked near Jaslok Hospital, they handed over the keys of both the cars to Hameed and he told them to contact him again in the evening on telephone No. 367373 of R.K. Hotel From Farooq 's place they contacted him over the telephone. Hameed told them to wait there and he was coming there. Thereafter Hameed took them in the Maruti Car to a place near Tejpal Road, Gowalia Tank. There he showed them the same two fiat cars bearing Nos. GJV 5440 and MHY 2625. Hameed gave the keys of the car No. GJV 5440 to him and car No. MHY 2625 to Mohd. Yakub Sheikh and asked them to drive the said two cars following his car. Similar statement was made by Mohd Yakub Sheikh which was recorded by the Customs Officials. It has also been stated by them that they were told by Hameed that each of them will get Rs.5,000 as monetary consideration. Yakub also stated that similar jobs have been done by him on 4 5 occa sions and he received Rs.5,000 each time from Hameed. From the statement of Hameed recorded by the Customs Officials, it appears that on July 19, 1989 afternoon he collected two drivers namely Aslam Mohd Nazir and Mohd. Yakub Sheikh and two fiat cars from Farooq of Bombay Central. This Farooq was introduced to him by Mohd. Nasir, a narcotic drug dealer who is now detained m ' Rajasthan in connection with a drug case. The detaining authority searched the residence of the detenu on July 20, 1989 but nothing incriminating could be found therefrom. After recording the statements of these persons and examining and considering the test reports dated October 13, 1989, September 29, 1989 and November 15, 1989 which mentioned that the brown powder contained in those 100 packets is narcotic drug coming within the Narcotic Drugs and Psychotropic Substances Act, the impugned order of detention was made on December 20, 1989 and the petitioner was arrested and detained on service of the order of deten tion on February 15, 1990. The challenge to the detention order had been made in the instant writ petition principally on four grounds which are as under: ( 1 ) The impugned order of detention has been passed rely ing on 246 the incident which is absolutely stale as the incident is dated July 19, 1989 whereas the impugned order has been passed on December 20, 1989. (2) The statements of the three persons as recorded in the form of statement under section 108 of the came to the respondents on July 20, 1989. The order should have been passed immediately on 20th July, 1989 but the order has been passed on December 20, 1989 i.e. after five months. The impugned order, it is therefore contended, is illegal and has been passed on stale ground. (3) Since no order of preventive detention has been passed against C.P. Reddy on the same evidence, no order should have been passed against the petitioner as his involvement is of the same nature and to the same extent as that of C.P. Reddy. (4) Assuming that the order rejecting bail application has been considered though not evident from the grounds of detention supplied, yet the same has not been supplied to the petitioner. This indicates that a relevant document has not been supplied to the petitioner which affected his right of effective representation guaranteed under Article 22(5) of the Constitution. The petitioner after grant of bail by an order of this Court appeared before the respondents and applied for making statement u/s 108 of the . He was arrested and the order of detention was served on him. This material aspect should have been considered before serving the impugned order. As regards the first ground, the counsel for the peti tioner has vehemently urged before this Court that the statements of the two persons i.e. Aslam Mohd. Nazir and Mohd. Yakub Sheikh the drivers of the said two cars handed over by the petitioner for carrying narcotic drugs and also the statement of Hameed, did not implicate the petitioner in the transportation and smuggling of the drugs and as such there was non application of mind on the part of the detain ing authority in clamping the order of detention on the petitioner. The impugned order of detention is, therefore, vitiated by non application of mind. The learned counsel referred to certain portions of the statements recorded by the Customs Officials u/s 108 of the and con tended with great emphasis that there was nothing to say that the petitioner was implicated in the smuggling or transportation of the heroin which has been seized from the dickies of the two cars. 247 This contention of the learned counsel is totally devoid of merit in as much as the statements of these three persons as recorded by the Customs Officials u/s 108 of the clearly implicate the petitioner who knowing fully that these two cars will be used for the purpose of transporta tion of prohibited drugs i.e. heroin and for selling of the same, handed over the keys of the two cars to the said two drivers who were sitting at his residence with Hameed on the asking of Hameed for carrying the contraband goods. In these circumstances, it is meaningless to argue that the state ments of these three persons did not implicate the petition er. All the aforesaid three persons were well known to the petitioner and were sitting at the petitioner 's residence, they were given the keys of the petitioner 's car as well as the keys of the car of C.P. Reddy which was brought to his garrage for repairs by one Ravi Poojari through whom C.P. Reddy sent his car for repairs. The petitioner knowing fully well that these two cars will be used for the purpose of transporting contraband goods i.e. heroin from the truck stationed at Kalina from which four gunny bags containing the said heroin were unloaded and placed in the dickies of these two cars, handed over the keys of the cars. It is also evident from these statements recorded by the Customs Offi cials that the petitioner along with those three persons used to visit hotel 'Fisherman ' for disco regularly and they were well known to the petitioner In these circumstances, it is beyond pale of any doubt that the petitioner knowing fully well that these two cars will be used for transporting contraband goods, i.e. heroin, handed over the keys of the cars for the said purpose. Therefore, this challenge is wholly without any basis. The next ground of challenge is that the cars were impounded and the contraband goods were seized on July 19, 1989 and the statements of these three persons were recorded by the Customs Officials on July 20, 1989 and the residen tial premises of the detenu were searched on July 20, 1989 but no incriminatory articles ' were found. The detaining authority made inordinate delay in passing the impugned.order of detention against the detenu as late as on December 20, 1989 under section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Sub stances Act, 1988 to be hereinafter referred to as the 'said Act '. It has been submitted that if there was any urgent necessity to prevent the petitioner, the order should have been passed immediately on 20th July, 1989 but it has been passed on December 20, 1989 i.e. after five months. The impugned order is, therefore, illegal being passed on stale ground. This contention is, in our considered opinion, devoid of any 248 substance as we have stated hereinbefore that the two cars were impounded on July 19, 1989 and brown sugar weighing 100 kgs. was recovered from the dickies of these two cars on that day. The said three persons i.e. Aslam Mohd. Nazir, Mohammad Yakub Sheikh and Hameed were examined and their statements were recorded by the Customs Officials on the next day i.e. July 20, 1989. It is also evident that samples of the said contraband drugs were taken from each of the 100 packets and the same were sent for chemical examination. The test reports dated October 13, 1989, September 29, 1989 and November 15, 1989 were received by the Customs Department and the Customs Officials screened all these things and the detaining authority after considering all these, passed the order of detention on December 20, 1989. In these circum stances, it cannot be said that the delay of five months in making the impugned order of detention rendered the deten tion illegal and bad as it was made on stale ground. The detention order has been made with promptitude considering the relevant and vital facts proximate to the passing of the impugned order of detention. This ground of challenge is, therefore, totally unsustainable. The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the de taining authority were not supplied to the petitioner and as such his right of making effective representation guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced. This ground is without any substance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was con sidered by the detaining authority before passing the im pugned order of detention and as such this being not re ferred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non supply of this document prejudiced the petitioner in making effective representation against the order of detention. Article 22(5) of the Constitution, undoubtedly, mandates that all the relevant documents re ferred to in the grounds of detention and which are consid ered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu. The said document was not considered by the detaining authority in coming to his subjective satisfaction and in making the impugned order of detention. The non furnishing to the detenu of the said document i.e. the bail application and the order passed thereon, does not affect in any manner whatsoever the detenu 's right to make an effective representation in compliance with the provi sions of Article 22(5) of 249 the Constitution of India. This ground, therefore, is wholly untenable. It has been contented in this connection by referring to the order made by this Court on January 22, 1990 in the Special Leave Petition filed by the petitioner before this Court against the rejection of his application of anticipa tory bail whereon this Court made an interim order while issuing show cause notice on the Special Leave Petition and directing that in the meantime the petitioner shall not be arrested, that the impugned order of detention is illegal. This order was made in the Special Leave Petition which did not challenge the impugned order of detention but questioned the rejection of the application for anticipatory bail. The order of detention was made on December 20, 1989 i.e. prior to the passing of the said order dated January 22, 1990. The said order of this Court has, therefore, nothing to do with the subjective satisfaction arrived at by the detaining authority in passing the order of detention in question. It has been urged in this connection that the facts in between the passing of the detention order and implementing the detention order have to be taken into account for consider ing whether the detention order should be served on the detenu even after passing of the order by this Court dated January 22, 1990 stating that the petitioner shall not be arrested in the meantime. The counsel for the petitioner referred the case of Binod Singh vs District Magistrate, Dhanbad, Bihar and Ors., Wherein the detenu was served with the order of detention u/s 3(2) of the National Scurity Act while he was in jail custody in connection with the criminal charge u/s 302 I.P.C. The question arose whether in such cases where the detention order which was passed before the detenu surrendered before the Court and was taken into custody in a criminal case, should be served on the detenu after he has surrendered in the criminal case and was in jail as an under trial prison er. It has been held by this Court that: " . . the power of directing preventive detention given to the appropriate ,authorities must be exercised in excep tional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised . . " 250 This ruling as well as the ruling in Suraj Pal Sahu vs State of Maharashtra and Ors., ; relied upon by the counsel for the petitioner have no application to the instant case in as much as in the instant case the detenu was not arrested and imprisoned in jail till February 15, 1990 when the order of detention was served on him and he was arrested by the Customs Authorities. Considering all these, this ground of challenge is also wholly untenable. The next ground of challenge is that the detenu appeared before the respondents and applied to them to record his statement u/s 108 of the . He was then arrested and the order of detention was served on him. It is relevant to mention in this connection the averments made in para 10 of the counter affidavit filed on behalf of the respondents which is to the effect that in fact, when the petitioner presented himself, his statement was recorded on February 15, 1990 and it was only after the recording of the state ment that the petitioner was detained in pursuance of the detention order. It has also been stated in para 11 of the said affidavit that there existed sufficient grounds which impelled the detaining authority to pass the detention order against the petitioner. It has also been stated in para 12 of the said affidavit that a detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act, 1988 can be legally issued even if there is a single and solitary case against a person. It has also been stated that the detaining authority carefully scrutinised all the relevant documents and facts of the case and arrived at his subjective satisfaction that preventive order of detention of the petitioner is necessary to prevent him from smuggling and transporting contraband goods and as such the impugned order of detention is not at all illegal or bad and the same is not vitiated by non application of mind or non consideration of relevant materials. This ground, therefore, is not sustainable. The last ground of challenge is that there has been inordinate delay in arresting the detenu and in serving the detention order i.e. on February 15, 1990 after a lapse of 1 month and 25 days and no serious attempt was made to arrest the petitioner and to serve the order of detention on him in accordance with the provisions of Section 8 of the said Act which specially provides for enforcing the provisions of Section 82, 83, 84 and 85 of the Code of Criminal Procedure. It has been urged in this connection that this unusual delay in arresting the petitioner shows that there was no real and genuine apprehension in the mind of the detaining authority regarding the necessity of detention of the petitioner and as such continued detention of the petitioner is 251 illegal and contrary to law. It is apropos to refer in this connection to the averments made on behalf of the respond ents in para 7 of the counter affidavit. It has been stated therein that the Department served two notices, one of which was accepted by his mother and the second by his brother, Nizamuddin for handing over the same to the petitioner, as the petitioner was not available in the house. It has been submitted that the petitioner deliberately avoided making himself available to the Department and thus delayed comple tion of investigation of the case. Instead of appearing before the Department, the petitioner applied to the Ses sions Judge for anticipatory bail which was rejected on 5.1.1990. Thereafter, the petitioner approached this Court for anticipatory bail, which was granted on 22.1.1990. It is, therefore, evident that the petitioner absconded and tried to evade arrest pursuant to the order of detention even though he knew the passing of such an order by the detaining authority. It is relevant to mention here the observations of this Court in Shafiq Ahmad vs District Magistrate, Meerut and Ors., [1989] 4 SCC 556 to the follow ing effect: " . . We are, however, unable to accept this contention. If in a situation the person concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad." In Bhawarlal Ganeshmalji vs State of Tamil Nadu & Anr., ; an order of detention was made against the appellant u/s 3(1) of COFEPOSA Act in December, 1974. It could not be executed because the detenu was absconding and could not be apprehended despite a proclamation made under Section 7 of the Act. More than three years after the order was passed, the appellant surrendered in February, 1978. It was held that there must be a 'live and proximate link ' between the grounds of detention and the avowed purpose of detention. But in appropriate cases the Court can assume that the link is 'snapped ' if there is a long and unex plained delay between the date of the order of detention and the arrest of the detenu. Where the delay is not only ade quately explained but is found to be the result of the detenu 's recalcitrant or retractory conduct in evading arrest, there is warrant to consider the 'link ' not snapped but strengthened. It was, therefore, held that the delay in serving the order of detention on the detenu does not viti ate the order. In the instant case, it has been clearly averred in the affidavit that two notices were served, one on the petition er 's mother and another 252 on the petitioner 's brother directing the petitioner to appear before the detaining authority. The petitioner, it has been stated, has intentionally absconded and thereby evaded arrest. These averments have not been denied by the petitioner. In these circumstances it cannot be said that the delay was not explained and the rink between the grounds of detention and the avowed purpose of detention has been snapped. Reference may also be made in this connection to the decision in T.A. Abdul Rahman vs State of Kerala and Ors., ; This ground of challenge is, there fore, devoid of any merit. It has also been submitted on behalf of the petitioner that the representation made by the detenu on February 28, 1990 both to the Chairman, Advisory Board as well as to the Central Government were not disposed of till March 29, 1990 when the said representation was rejected by the Central Government. It has been submitted that this long delay of one month made the continued detention of the petitioner invalid and illegal. The counsel for the respondents has produced before this Court the relevant papers from which it is evident that after receipt of the representation of the petitioner, it was sent to the detaining authority for his comments and immediately after the comments of the detaining authority were received the same were processed and put up before the Minister concerned who rejected the representa tion after considering the comments of the detaining author ity and the State Government. It has been urged on behalf of the petitioner that the comments were not duly considered. This submission is not at all tenable in as much as it is evident from the relevant papers produced before this court that the Central Government passed the order after consider ing the comments of the detaining authority. So this submis sion is without any substance and the same is rejected. It has been further submitted that the counter affidavit was sworn not by the detaining authority but by one Shri A.K. Roy, Under Secretary in the Ministry of Finance, De partment of Revenue, New Delhi and as such this affidavit cannot be taken into consideration and the averments made therein are not relevant to explain the unusual delay in serving the order of detention as well as in rejecting the representation. In this connection some rulings of this Court have been cited at the bar. In Madan LaI Anand vs Union of India and Ors. , ; the counter affidavit filed on behalf of the respondents had been af firmed by Kuldip Singh, Under Secretary to the Government and not by the detaining authority himself. It was urged that the counter affidavit being not sworn by the detaining authority, the averments made therein should not be taken notice of. It was held 253 that there being no personal allegation of mala fide or bias made by the detenu against the detaining authority in per son, the omission to file affidavit in reply by itself is no ground to sustain the allegation of mala fides or non appli cation of mind. Similar observation has been made by this Court in Mohinuddin vs District Magistrate, Beed and Ors. , ; which is to the following effect: " . . In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other officer duly authorised under the Rules of Business framed by the Government under Article 166 of the Constitution to pass orders on behalf of the govern ment in such matters. " Reference has also been made therein to the cases of Niran jan Singh vs State of Madhya Pradesh, ; ; Habibullah Khan vs State of West Bengal, ; Jagdish Prasad vs State of Bihar, ; and Mohd. Alam vs State of West Bengal, ; In the instant case, the counter affidavit has been filed by Shri A.K. Roy, Under Secretary to the Government, Ministry of Finance, Department of Revenue, New Delhi al though the order of detention was made by Nisha Sahai Achu than, Joint Secretary to the Government of India, Ministry of Finance. It is evident that the said Under Secretary was dealing with the papers relating to the particular order of detention and he placed those papers before the Minister concerned. In these circumstances, the counter affidavit filed on behalf of the respondents cannot but be considered and there is no allegation of mala fide or malice or extra neous consideration personally against the detaining author ity in making the impugned order of detention. This conten tion is, therefore, not tenable. 254 In the premises aforesaid we dismiss the writ petition and hold that the impugned order of detention is quite in accordance with law and the same is valid. The observations made herein are confined to this application. T.N.A. Petition dismissed.

Consequent to the acquisition of the appellant 's land for meeting the requirements of the respondent Corporation, a reference was made to the Civil Court, under section 18 of the Land Acquisition Act, 1894, when was determined without notice to the respondent Corporation. and by allowing higher compensation to the appellants. The State preferred an appeal against the decision of the Civil Court which was dismissed and the respondent Corporation 's intervention in the appeal was not allowed. Thereafter the respondent Corporation filed a writ petition challenging the validity of the Civil Court 's judgment. The High Court set aside the award of compensation and directed the Civil Court to re open the proceedings. Dismissing the appellant 's appeal, this Court, HELD: 1. In view of the clear language used in clause (c) of section 20 of the Land Acquisition Act, 1894 there cannot be any doubt that the respondent Corporation was entitled to be heard before the reference could be deter mined. [22H] Himalayan Tiles and Marbles (P) Ltd. vs Francis Victor Coutinho, ; , referred to. The land was acquired for the purpose of the respondent Corporation, and the burden of payment of compensation is on the Corporation. Therefore, the High Court 's view that it was mandatory for the Court of reference to have caused a notice to be served on the respondent Corporation is correct. Non service of notice deprived the 21 Corporation of an opportunity to place its case before the Court, and the judgment so rendered in the reference case was illegal and not binding on the respondent Corporation. [22D E] 3. The High Court 's direction to the Civil Judge to re open the proceedings and decide the matter afresh after giving the Corporation a chance to lead its evidence on the question of valuation is confirmed.

No. 147 of 1972. (Appeal by Special Leave from the Judgment and Order dated 19.2.1971 of the Calcutta High Court in Income Tax Ref. No. 98/67) G.C. Sharma, D.N. Mukherjee, A. K. Ganguly and G.S. Chatterjee, for the appellants. B.B. Ahuja and R.N. Sachthey, for respondent. G.C. Sharma, D.K. Jain, Anup Sharma, S.P. Nayar and Miss K. Jaiswal for the Intervener. The Judgment of the Court was delivered by SARKARIA J. Whether any payment by a Company, not being a Company in which the public are subsantially interested within the meaning of section 23A, of any sum by way of advance or loan to a shareholder, not exceeding the accumulated profits possessed by the Company, is to be deemed as his dividend under Section 2(6A) (e) read with Section 12(lB) of the Income tax Act, 1922, even if that advance or loan is subsequently repaid in its entirely during the relevant previous year in which it was taken, is the only question that falls to be determined in this appeal by special leave. The assessment year is 1957 58, and the corresponding previous year is the calendar year 1956. The assessee is a shareholder and the Managing Director of M/s. Dolaguri Tea Co. (P) Ltd. The Company is admittedly one in which the public are not substantially interested within the meaning of section 23A of the Indian Income tax Act, 1922 (for short, the Act). At the commencement of the previous year, there was in the books of the Company a credit balance of Rs. 65,246/ in the assessee 's account, which had been brought ' forward from the earlier year. Between the 11th January and the 12th November, 1956, the assessee withdrew in cash from time to time from the Company, amounts, aggregating Rs. 4,97,442/ . The first two cash amounts of Rs. 3,50,000/ and Rs. 40,400/ , were taken by the assessee on 11.1.1966. Deducting therefrom the opening balance of Rs. 65,246/ and two more item, namely, Rs. 1,40,000/ being outstand ing dividends declared on 31.12.1955 of his major son, and transferred to his account, and a further dividend of Rs. 19,493/ credited to his account from Kathoni Tea Estate, there remained a sum of Rs. 2,72,703/ to the debit of the assessee 700 in the books of the Company as on the 12th November, 1956. On December 29, 1956, the assessee paid back to the Company a sum of Rs. 1,90,000/ . On December 31, 1956, his account was credited with another sum of Rs. 80,000/ in respect of the dividend due to him and his wife, and with a further sum of Rs. 29,326/ for hypotecation. In this manner before the end of the previous year, the assessee 's account was credited with an aggregated amount of Rs. 2,99,326/ which exceeded the debit balance of Rs. 2,72,70,3/ as on November 12, 1956. Thus at the end of the relevant previous year, no advance or loan was due to the Company by the assessee. The Income tax Officer found that the accumulated prof its of the Company as on January 1, 1956, amounted to Rs. 6,83,005. He, therefore, deducted the two aforesaid items of Rs. 1,40,000/ and Rs. 19,493/ , aggregating Rs. 1,59,493/ , from the amount paid in cash to the assessee and treated the balance of Rs. 2,72,703/ as the net 'dividend ' income in the hands of the assessee within the meaning of Section 2 (6A)(e). The/income tax Officer grossed up that amount under Section 16(2) and gave credit for tax in ac cordance with that Section to the assessee. The assessee 's appeal to the Appellate Assistant Commissioner having failed, he preferred a further appeal to the Income tax Appellate Tribunal. There was a divergence of opinion between the Members of the Tribunal. The Ac countant Member took the view that the moment a payment is made as envisaged in Section 2(6A)(c) it becomes clothed with the character of a dividend and has to be treated as such income of the assessee, and no subsequent action or repayment by the share holder can take it out of the mis chief of this provision. He therefore held that the sum of Rs. 2,72,703/ was taxable dividend under Section 2(6A)(e). The Judicial Member expressed a contrary opinion. In his view, the total income of the assessee during the rele vant previous year could be computed and assessed only at the end of that year; it could not be computed at interim periods during the previous year. "If it is found that although the shareholder had taken by way of advance or loan an amount from the Company during the course of a previous year but had returned the same to the Company before the close of that previous year, it can only be said while computing the shareholder 's total income at the end of that previous year that no advance or loan from the 23A Company of which he was a shareholder stood for his benefit at the time relevant for computation of his total income. The advances or loans taken during the interim periods of the previous year would just have to be ignored. " On these premises, the Judicial Member came to the conclusion that the sum of Rs. 2,72,703/ grossed up to Rs. 3,19,245/ , was not a dividend within the fiction under Section 2(6A) (e) of the Act. On account of this difference of opinion, the following question was referred to the President of the Tribunal: "Whether on the facts and in the circum stances of the case, the sum of Rs. 2,72,703/ net (Rs. 3,19,245/ gross) 701 is to be treated as dividend income in the hands of the assessee within the meaning of Section 2(6A) (e) ?" The President agreed with the Accountant Member and held that an "advance or loan received by the shareholder of a Private Company forthwith assumes the character of a divi dend and becomes his income by virtue of the fiction created by Section 2(6A) (e) and it ceases to be a liability for the purpose of taxation, although the assessee may, in fact or in law, remain liable to the Company to repay it. If the assessee repays the loan subsequently, such repayment would not liquidate or reduce the quantum of the income which had already accrued as such repayment is not be al lowed as a permissible deduction under Section 12(2). On these premises he answered the question in the affirma tive. In accordance with the majority opinion, the Tribunal dismissed the assessee 's appeal, but, at his instance, referred the same question for opinion to the High Court under Section 66(1) of the Act. The High Court held that the tax was attracted at the point of time when the said loan was borrowed by the share holder and it was immaterial whether the loan was repaid before the end of the accounting year or not. On this reasoning it answered the question in favour of the Revenue and against the assessee. Hence this appeal by the assessee. Before dealing with the contentions canvassed, it is necessary to have a look at the general scheme and the relevant provisions of the Act, Section 2 (6A)(e) of the Act reads as follows: (6A) "dividend" includes (a) to (d) . (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company on behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; but "dividend" does not include (i) a distribution made in accordance with sub clause (c) or sub clause (d) in respect of any share issued for full cash consideration where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets; (ii) any advance or loan made to a share holder by a company in the ordinary course of its business where the lending of money is a substantial part of the business of the compa ny; 702 (iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a dividend within the meaning of clause (e), to the extent to which it is so set off; Explanation. The expression "accumulated profits", wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948, and be fore the 1st day of April, 1956; Sub section (15) defines 'total income ' as meaning "total amount of income, profits and gains referred to in sub section (1 ) of Section 4 computed in the manner laid down in this Act." Section 3 is the charging section. Two of the princi ples deducible from the Section are: (1 ) That the tax is levied on the total income of the assessable entity; (2) That each previous year is a distinct unit of time for the purpose of assessment, and the profits made or liabilities or losses incurred before or after the relevant previous year are wholly immaterial in assessing the profits of that year unless there is a statu tory provision to the contrary. Section 4 (1 ) so far as it is material reads as follows: "Section 4(1): Subject to the provisions of this Act, the total ' income of any previous year of any person includes all income, prof its and gains from whatever source derived which (a) are received or are deemed to be re ceived in the taxable territories in such year by or on behalf of such person, or (b) if such person is resident in the taxa ble territories during such year, (i) accrue or arise or any deemed to accrue or arise to him in the taxable territories during such year, or (ii) accrue or arise to him without the taxable territories during such year, or (iii) . . (c) if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year: (emphasis supplied) "Provided that . . " The principles deducible from Sec. 4(1) are: (1 ) The charge is on accrual or receipt basis. Such receipt or accrual may be actual or statutory, i.e. the result of any statutory fiction created by the Act. 703 (2) If a particular amount of income is taxed under any of the clauses (a), (b) or (c) of the sub section the same amount cannot be taxed under any other clause either in the same year or in a different year. That is to say, income which is taxed on accrual under clause (b) (ii) cannot be taxed again on receipt under clause (a) or on remittance under clause (b)(iii) (see Kanga and Palkhiwa la, Vol. I, 1959 Edition, page 153). (3) The receipt spoken of in this clause is the first receipt after the accrual of the income See the decision of this Court in Keshav Mills vs Commissioner of Income tax(1)]. Sub section (1) of Sec. 4 also highlights the basic principle embodied in the charging section 3, that the accrual or receipt of income (actual or deemed) is taxed with regard to the relevant previous year. Section 12 deals with the residuary head: "Income from other sources". Its sub section (1A) says that: "Income from other sources shah include 'dividends '. Sub section (lB) in crucial. It provides: "Any payment by a company to a share holder by way of advance or loan which would have been treated as a dividend within the meaning of clause (e) of sub section (6A) of section 2 in any previous year relevant to any assessment year prior to the assessment year ending on the 31st day of March, 1956 had that clause been in force in that year, shall be treated as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956, if such loan or advance remained outstanding on the first day of such previous year". Sub section (2), inter alia lays down that in computing any income by way of dividend, allowance shah be given for any reasonable sum paid by way of commission or remuneration to a banker or any other person realising such dividend on behalf of the assessee. It is to be noted that sub section (6A) of section 2 and subsections (1A) and (lB) u/s 12 were inserted in the Act by the Finance Act, 1955, with effect from the 1 st April, 1956. In the relevant assessment year, Section 16(2) of the Act was operative and ran as follows: "16(2) For the purpose of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or (1) 704 distributed to him, and shall be increased to such amount as would, if income tax (but not super tax) at the rate applicable to the total income of the company . . for the finan cial year in which the dividend is paid, credited or distributed or deemed to have been paid, credited or distributed were deducted therefrom, be equal to the amount of the dividend. " Mr. G.C. Sharma, Counsel for the appellants contends that the scope of the fiction created by Sec. 2(6A)(e) should be confined to those advances and loans only, which are not repaid but remain subsisting at the end of the previous year in which they were taken. It is argued that the sole object of this provision is to curb the evil of distributing profits under the guise of loans or advances; that if an advance or loan is repaid in the same accounting year, it cannot be said that it was a device for distribu tion of profits. It is submitted that only in the case of an advance or loan which remains outstanding at the end of the accounting year, Sec. 2(6A) (e) raises an irrebutable presumption that it was a payment of dividend under the cloak of a loan. It is maintained that if this construc tion of Sec. 2(6A)(e) is not adopted, it will lead to ex tremely oppressive, unreasonable and anamolous results, including double taxation. To illustrate his point Counsel compares and contrasts the position of a shareholder who promptly, after a short period, repays the loan in the same year, with one who does not do so but allows it to remain outstanding and be carried over to the next year, and there after a dividend is declared. If the interpretation adopted by the High Court is correct says Mr. Sharma the share holder in the prior case who had promptly repaid the loan would not be entitled under sub clause (iii) of Clause (e) of section 2(6A) to set off any part of the subsequently declared dividend against the loan which he had repaid earlier, but will have to pay double tax on the same item, once on it as deemed dividend and then on it as declared dividend. His liability cannot be reduced to the extent of the dividend; because at the date on which the dividend was declared, no loan was outstanding against which. it could be set off. As against the former, the latter shareholder who makes full use of the loan and does not repay any part of the loan in the same year, but leaves it unpaid till a dividend is declared next year, will get relief by set off of the subse quently declared dividend, in whole or in part against the loan outstanding against him. Another example cited by Mr. Sharma is of a case where the accumulated profit, say is Rs. 9,000/ and the share holder takes an advance or loan of Rs. 3,000/ and he repays it after a week, and again gets the same amount (Rs. 3,000/ ) back as a loan, and again repays it after a week, and again retakes the same amount as loan all the three loans being taken and repaid, in the same year. If the unrestricted interpretation of the provision, sought by the Revenue were to be adopted, the same amount of loan in all the three transactions of loan would be subjected to triple taxation. Such an absurd and oppressive result, says the Counsel, would be against the intendment of the provi sion and inconsistent with the scheme of the Act which generally aims avoids double taxation. The upshot of the arguments of Mr. 705 Sharma is that under the Act, only that item or entity is taxable which is rationally capable of being considered as the income of the assessee; that an advance or loan which is genuine and not a subterfuge for payment of dividend and is not subsisting or outstanding at the end of the previous year on account of its repayment by the shareholder cannot reasonably be deemed to be his dividend income within the contemplation of section 2(6A)(e) read with section 12 of the Act. Mr. Sharma has taken us through various decisions having a bearing on the problem. The cases referred to, discussed or sought to be distinguished by him are: K.M.S. Lakshman Aiyar vs Assistant Income tax Officer,(1) Navnit Lal C. Javeri vs K.K. Sen, Appellate Assistant Commissioner, Income tax, Bombay;(2) Commissioner of Income tax, Madras vs K. Srini vasan; (3) Walchand & Co. Ltd. vs Commissioner of Income tax, Bombay;(4) Commissioner, Income tax Bombay vs R.K. Badiani. (5) Mr. Sharma also has referred to Sec. 108 of the Commonwealth income tax Act as in force in Australia, and submitted that since the substance of Sec. 2(6A)(e) and section 12(lB) has been borrowed from s.108 of the said Act and the object of these provisions in the two enactments is the same, it will not be illegitimate to determine and circum scribe the scope of the fiction created by the provision in question in the light of the principles indicated in Sec. 108 of the Commonwealth Act. On the other hand, Mr. Ahuja appearing for the Revenue, submits that sub clause (iii) which permits a set off against a loan deemed as dividend, does not apply in cases where the dividend is not declared in the same accounting year because to hold otherwise would be against the basic scheme ingrained in sections 3 and 4 of the Act, according to which the unit of time for the purpose of assessment is the previous year of the assessee. Mr. Ahuja further maintains that even if during the same accounting year after repayment of the loan, a dividend is declared, sub clause (iii) will apply, and the Income tax Officer will not be debarred from reducing, in an appropriate case, the amount treated by him as 'dividend ' under clause (e) of section 2(6A) to the extent of the subsequently declared dividend, on the principle of notional set off underlying sub clause (iii). The point sought to be made out is that since the treatment of the loan to the assessee shareholder as his dividend rests on a legal fiction, it will not be an illegitimate use of sub clause (iii) to allow a notional set off to meet such a situation. Thus construed, says the Counsel, there would be no anomaly. Mr. Ahuja further submitted that section 2(6A)(e) was enact ed to suppress the evil of receiving profits or dividends under the guise of loans by the shareholders of a controlled Company, as such a malpractice resulted in evasion of tax. This provision, it is urged should be construed in a manner which suppresses the mischief and advances the remedy. It is maintained that the language of the provisions in question (1) [1959] XL I.T.R.469 (Mad.) (2) [19651 1, SCR 909 56 I.T.R. 198. (3) (4) (5) 706 is plain and unambiguous and no question of seeking external aid for its interpretation arises; the Court must give effect to it regardless of the hardship, if any, resulting therefrom. The sum and substance of his arguments is, that since all the factual ingredients necessary for raising the fiction contemplated by section 2(6A) (e) and section 12(lB) have been found to exist by the Income tax authorities and the Tribu nal, the loan had to be treated as the assessee 's dividend income, the moment it was received, and the subsequent repayment of the loan could not neutralise or take it out of that category of 'income '. Counsel has drawn our attention to the observations of this Court in Navnit Lal C. Javeri vs K.K. Sen, Appellate Assistant Commissioner of Income tax (supra). He has further adopted the reasoning of the Bombay High Court in Walchand & Co. vs Commissioner of Income tax, Bombay (supra) Section 2(6A)(e) and section 12(lB) were inserted in the Act by. the Finance Act 1955 which came into operation on 1 4 1955. These provisions seem to have been adapted, and borrowed with alterations, from section 108 of the Commonwealth Income tax Assessment Act in force in Australia. Section 108 reads as follows: "Loans to shareholders, (1 ) If amounts are paid or assets distributed by a private company to any of its shareholders by way of advances or loans, or payments are made by the company on behalf of or for the individual benefit of, any of its shareholders, so much, if any, of the amount or value of those ad vances, loans or payments, as, in the opinion of the Commissioner, represents distributions of income shall, for the proposes of this Act other than the purposes of Division 11A of Part III and Division 4 of Part VI be deemed to be dividends paid by the company on the last day of the year of income of the company in which the payment or distribution is made. (2) Where the amount or value of an advance, loan or payment is deemed, under the last preceding sub section, to be a dividend paid by a company to a shareholder, and the company subsequently sets off the whole or a part of a dividend distributed by it in satis faction in whole or in part of that advance, loan or payment, that dividend shall, to the extent to which it is so set off, be deemed, not to be a dividend for any purpose of this Act. " It will be seen that under section 108( 1 ) formation of "the opinion of the Commissioner" is the sine qua non for bring ing this provision into provision into operation. It has been held be the Australian Board of Review that the mere fact that a shareholder in a private Company has become indebted to it, does not justify the formation of the opin ion by the Commissioner such as is indicated in sub section (1) of section 108. "There must be something that goes beyond a mere debt automatically arising upon a taking of accounts and which points to a subterfuge whereby a payment which, upon examination, is found to relate to the income of the Company and to represent the distribution thereof, is made to appear to be a loan or advance" (I.C.T.B.R. (N.S.) Case No.80.) 707 It is noteworthy that at least in one material aspect the Indian law is different from that under section 108(1) of the Commonwealth Act as explained and interpreted by the Board in the case mentioned above. Under section 108, the raising of the fiction is dependent upon a positive finding recorded by the Commissioner of Income tax that the payment represents distribution of the Company 'section income. But section 2 (6A) (e) and section 12 of the Act do not leave this question to the adjudica tion of the income tax authorities. Parliament has itself, in the exercise of its legislative judgment, raised a con clusive presumption, that in all cases where loans are advanced to a shareholder in a Private Ltd. Company ' having accumulated profits, the advances should be deemed to be the dividend income of the shareholder. It is this presumption juris et de jure which is the foundation of the statutory fiction incorporated in section 2(6A)(e). Thus section 108 of the Commonwealth Act appears to be more reasonable and less harsh than its Indian counterpart. From the above discussion it emerges clear that the fiction created 2(6A) (e) read with section 12(lB) of the Act is inexora bly attracted as soon as all the conditions necessary for its application exist in a case. In Navnit Lags case (supra), this Court, after an analysis of these provisions, listed these conditions, as follows: ". the combined effect of these two provisions is that three kinds of payments made to the. shareholder of a company to which the said provisions apply, are treated as taxable dividend to the extent of the accumu lated profits held by the :company. These three kinds of payments are: (1 ) payments made to the shareholder by way of advance or loan, (2) payments made on his behalf and (3) payments made for his individual benefit. There are five conditions which must be satis fied before section 12(lB) can be invoked against a shareholder. The first condition is that the company in question must be one in which the public are not 'substantially interested within the meaning of section 23A as it stood in the year in which the loan was advanced. The second condition is that the borrower must be a shareholder at the date 'when the loan was advanced; it is immaterial what the extent of his shareholding is. The third condition is that the loan advanced to a shareholder by such a company can be deemed to be dividend only to the extent to which it is shown that the company possessed accumulated profit at the date of the loan. This is an important limit prescribed by the relevant section. The fourth condition is that the loan must not have been advanced by ' the company in the ordinary course of its busi ness. In other word 's, this provision would not apply to cases where the company which advances a loan to its shareholder earnes on the business of money lending itself; and the last condition is that the loan must have remained outstanding at the commencement of the shareholders previous year in relation to the assessment year 1955 56." (emphasis supplied) The first four conditions factually exist in the instant case. The last condition is not applicable because it was a transitory provision 6 707 SCI 77 708 applicable to the assessment year 1955 56 only, while we are concerned with the assessment year 1957 58 and the previous year is the calendar year 1956. There is no dispute that the company is a controlled (Private Ltd.) company in which the public are not substantially interested within the meaning of section 23A. Further the assessee is admittedly a shareholder and Managing Director of that Company. It is also beyond controversy that at all material times, the company possessed "accumulated profits" in excess of the amount which the assessee shareholder was paid during the previous year. The Income tax Officer found that on January 1, 1956, the accumulated profits of the Company amounted to Rs. 6,83,005/ while from, 11.1.1956 to 12.11.1956, the assessee received in cash from time to time from the Company payments aggregating Rs. 4,97,449/ . After deducting the opening credit balance and some other items credited to his account, the Income tax Officer found that in the previous year the assessee share holder had received a net payment of Rs. 2,72,703/ by way of loan or advance from the Compa ny. The Company 's ' business is not money lending and it could not be said that the loans had been advanced by the company in the ordinary course of its business. Thus all the factual conditions for raising statutory fiction created by ss.2(6A)(e) and 12(IB) appeared to have been satisfied in the instant case. Mr. Sharma, however, contends that in order to attract the statutory fiction one other essential condition is, that the loan or advance must be outstanding at the end of the previous year, and if the loan had ceased to exist owing to repayment or otherwise before the end of the year as in the present case the fiction cannot be invoked. In this connec tion, Counsel has again referred to the last limb of section 108 (1) of the Commonwealth Income tax Act, according to which, the payment to a shareholder by way of advance or loan is to be treated as a dividend paid by the Company on the last day of the year of income of the Company in which the payment is made. It is urged that the principle in the last limb of sub section (1) of section 108 of the Commonwealth Act should also be read into. the Indian statute, It is maintained that the omission of such words from sections 2(6A) (e) and 12(lB) does not show that the intendment of the Indian Legislature was different. According to the Counsel what is implicit in section 108(1) of the Commonwealth Act, is implicit in sections 2(6A)(e) and 12(1B) and the general scheme of the Act which re quires that the assessment is to be made on the basis of total income of the whole previous year. Such a view concludes Mr. Sharma, would also be in consonance with reason and justice. We have given anxious thought to the persuasive argu ments of Mr. Sharma. His arguments, if accepted, will certainly soften the rigour of this extremely drastic provi sion and bring it more in conformity with logic and equity. But the language of sections 2(6A) (e) and 12(1B) is clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. 709 To us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicase vs I.R.C.(1) at p. 71, that "in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is No. presumption as to a tax. nothing is to be read in, nothing is to be implied. One can only look fairly at the language used". Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to. the judicial mind to be. In our opinion, the Indian Legislature has deliberately omitted to use in sections 2(6A)(e) and 12(lB) words analogous to those in the last limb of sub section (1) of section 108 of the Commonwealth Act. When Sections 2(6A) (e) and 12(lB) were inserted by the Finance Act, 1955, Parliament must have been aware of the provision contained in section 108 of the Common wealth Act. In spite of such awareness, Parliament has not thought it fit to borrow whole hog what is said in section 108 (1 ) of the Commonwealth Act. So far as the last limb of section 108(1) is concerned, our Parliament imported only a very restricted version and incorporated the same as the 'fifth condition ' in sub section (lB) of section 12 to the effect, that the "payment deemed as dividend shall be treat ed as a dividend received by him in the previous year relevant to the assessment year ending on the 31st day of March, 1956 if such loan or advance remains outstanding on the last day of such previous year". The word "such" pre fixed to the "previous year" shows that the application of this clause is confined to the assessment year ending on 31 3 1956. In the instant case we are not concerned with the assessment year ending on 31 3 56. This highlights the fact that the Legislature has deliberately not made the subsist ence of the loan or advance, or its being outstanding on the last date of the previous year relevant to the assessment year, a prerequisite for raising the statutory fiction. In other words, even if the loan or advance ceases to be outstanding at the end of the previous year, it can still be deemed as a 'dividend ' if the other four conditions factual ly exist, to the extent of the accumulated profits possessed by the Company. At the commencement of this judgment we have noticed some general principles, one of which is, that the previous year is the unit of time on which the assessment is based (section 3). As the taxability of an income is related to its receipt or accrual in the previous year, the moment a dividend is received whether it is actual dividend declared by the company or is a deemed dividend, income taxable under the residuary head, "income from other sources", arises. The charge being on accrual or receipt the statutory fiction created by section 2(6A)(e) and s.12(IB) would come into opera tion at the time of the payment by way of advance or loan, provided the other conditions are satisfied. (1) (1921)1,K.B. 64 atp. 710 We do not propose to examine the soundness or otherwise of the illustrations given by Mr. Sharma since they are founded on assumed facts which do not exist in the present case. For the foregoing reasons we would answer the question posed in favour of the Revenue and dismiss this appeal with costs. P.B.R. Appeal dismissed.

section 6(17) of the Madras Hindu Religious and Charitable Endowments Act, 1951 defines a temple as "temple" means a place by whatever designation known, used as a place of public religious worship, and dedication 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. The Deputy Commissioner, in a proceeding u/s 57 of Madras Hindu Religious and Charitable Endowments Act, 1951 and the Commissioner on appeal held that an ancient temple founded about 400 years ago known as Varadaraj Venkataraman Temple at Gurpur in Mangalore Taluk in Karnataka as a 'Public Temple '. But in the suit No. DS. 106/1961 instituted by the appellant trustees of the temple for a declaration that the temple was a private temple and not a temple as defined in section 6(17) or in the alternative that it was a denominational or sectional temple belonging to the Goud Saraswat Brahmin Community of Gurpur, the Subordinate judge South Kanara, held on the evidence that this was a denominational or sectional temple belonging to the Goud Saraswat Community and allowed the alternative declaration. The High Court on appeal found that this was a temple as defined in section 6(17) of the Act and taking a different view of the evidence held that the temple was a place of religious worship dedicated to and used as of right by the general Hindu Community and was thus a public temple. On appeal by certificate the Court, HELD: (1) It is now well settled that "the mere fact of the public having been freely admitted to the temple cannot mean that Courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right." [635 B C] Bihar State Board Religious Trust, Patna vs Mahant Sri Biseshwar Das, (689) referred to. (2) In the instant case the circumstances disclosed in evidence do not support the inference that Hindus generally used the temple as a place of worship as of right. The evidence is to the effect (i) that the temple was founded by 37 Goud Saraswat Brahmin families of Gurpur, (ii) that the trustee managing the temple belonged always to the members of said community, (iii) that the lended properties owned by the temple had all been endowed by members of the Community, (iv) that none of the witnesses claimed a right of ownership in the temple and the small sevas were voluntary, (v) that it was the members of the Goud Saraswat Brahmin Community who were allowed to participate in the more important cere monies. [634 B D; 635D] (3) The High Court 's finding that "numerous endowment" have been made by Hindus not belonging to Goud Saraswat Brahmin Community, is not subpotted by the evidence in the case. In the context of the Award (Ext. A 13) the term general body mentioned therein could only refer to the members 633 of the Goud Saraswat Brahmin Community and not to the Hindu Community generally, because the proceeding concluded by the decree was confined to the members of the Community. [635 A B]

: Criminal Appeal No. 93 of 1981. Appeal by special leave from the judgment and order dated the 16th January, 1980 of the Gujarat High Court in Special Criminal Application No. 185 of 1979. J. L. Nain and R. N. Poddar for the Appellant. O. P. Rana, A. C. for the Respondents. The Judgment of the Court was delivered by BAHARUL ISLAM, J. This appeal by special leave is by the State of Gujarat and is directed against the judgment and order of the Gujarat High Court quashing the order of detention passed by the H appellant against respondent, Ismail Juma. The respondent was detained by the appellant in exercise of powers conferred on it by 1016 Sub section (I) of Section 3 of the (hereinafter called 'the Act '). The grounds of detention inter alia were that the respondent, Hasan Malabari and Abdul Latif Fakirmohmed were the members of the crew of a vessel that was engaged in smuggling of wrist watches and some other contraband articles worth Rs. 33,70,819,00. The respondent moved the High Court of Gujarat. A Division Bench ofthe High Court by its impugned order dated January 16, 1980 quashed the order of detention. The High Court found: ". the order of detention made against him (detenu) clearly shows that the detaining authority had not applied his mind to the facts of the case . The impugned order nowhere states that the detaining authority on having received a proposal from the customs authorities, had applied his mind to all materials on record and had reached satisfaction that the facts of the case warranted the detention of the petitioner. In absence of anything to show that the detaining authority was satisfied with the material on record so as to enable him to detain the petitioner, the impugned order cannot be sustained. It suffers from a fatal infirmity. The impugned order of the High Court is liable to be set aside as factually the above observations are incorrect. Presumably the attention of the High Court was drawn only to the order of the appellant made under Section S of the Act by which the Government directed the detenu to be detained in Ahmedabad Central Prison. This order was dated August 1, 1979 (Annexure 'B '). There was another order of the same date passed under sub section (I) of Section 3 of the Act which in fact was the order of detention which ran as follows: "Whereas the Government of Gujarat is satisfied with respect to the person known as Shri Ismail Juma Tangan alias Bando residing at Balapar, Beyt (Okha), Distt. Jamnagar that, with a view to preventing him from smuggling goods, it is necessary so to do; Now, therefore, in exercise of the powers conferred by sub section (1) of Section 3 of the , 1017 the Government of Gujarat hereby directs that the said A Shri lsmail Jumma Tangan Bando (be detained. By order and in the name of the Governor of Gujarat, Sd/ P.M. Shah Deputy Secretary to the Government (Annexure 'A ')" 3. Both these orders were taken in the name of the Governor of Gujarat and were authenticated by Shri P. M. Shah, Deputy Secretary to Government of Gujarat, Home Department (Special). These two orders were accompanied by the grounds of detention, a which have been filed before us as Annexure 'C '. Annexure 'C ' is also dated August 1, 1979 and was taken in the name of the Governor of Gujarat, and authenticated by the same Deputy Secretary to the Government of Gujarat, Shri Shah. 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. This Court in the case of State of Gujarat vs Adam Kasam Bhaya(1) held:. "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 athority on materials on record, then the court cannot go further and examine whether the material was adequate or not which is the function of ail 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. ' The reason is that the satisfaction of the detaining authority is subjective. Additionally it appears from the affidavit filed by the Deputy Secretary (referred to in greater detail herein below) that the entire record was carefully considered by the Home Minister concerned before the order of detention was passed. 1018 5. Mr. Rana appearing as Amicus Curiae for the respondent raised a preliminary objection before us. The same preliminary objection was raised in State of Gujarat vs Adam Kasam Bhaya (supra), namely, that in view of the fact that the maximum period of detention mentioned in Section 10 of the Act had expired, the appeal had become infructuous The objection is covered by our aforesaid judgment. The additional argument advanced by Mr. Rana in this behalf was that once the maximum period prescribed by law was over, the order of detention was non est and there was no order by which the detenu could be put under fresh detention. The answer is once the order quashing the order of detention of the detenu is set aside by this Court, the order of the High Court rendering the order of detention non est itself becomes non est and the order of detention gets life. We do not find any valid reason to differ from our earlier judgment (supra) on this point. The only other submission made by Mr. Rana in this appeal was that the order of detention was not passed by a competent authority mentioned in the Act. This point is new and does not appear to have been urged before the High Court. Even so we heard Mr. Rana on the point and proceed to give our decision. The relevant authorities that can pass order of detention are mentioned in Sub section (I) 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, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government. The argument was that the order was signed by the Deputy Secretary (Shri P. M. Shah) and he was not one of the authorities mentioned in Sub section (I) of Section 3 of the Act. This appeal came up for hearing on an earlier occasion but after being heard in part was adjourned to enable the counsel of the appellant to satisfy the Court as to who actually passed the order of detention. In pursuance of that order of this Court, an affidavit has been filed by Shri P. M. Shah aforesaid. It has been stated in the affidavit that the entire record was placed before the Home Minister who "after careful consideration of the entire record has passed the impugned order of detention" and that he (Mr. Shah) "only authenticated the impugned order of detention in accordance with sub clause (2) of 1019 Article 166 of the Constitution of India. " As the order has been A taken in the name of the Governor of Gujarat and validly authenticated by the Deputy Secretary concerned, the order tentamounts to an order by the State Government of Gujarat. It therefore cannot be said that the order of detention was not passed by the competent authority. In the result, this appeal succeeds and is allowed. The impugned order of the High Court is set aside. N.V.K. Appeal allowed.

Assistant Sales Tax Officers serving in connection with the affairs of the former States of Madhya Pradesh and Hyderabad, on the appointed date, were allocated to the new State of Bombay under section 115 of the (Act No. XXXVII) with effect from November 1, 1956. The Assistant Sales Tax officers from the former States of Madhya Pradesh and Hyderabad were superior to the Sales Tax Inspectors in their respective States and the posts of Assistant Sales Tax officer in those States was a promotion post. In the former State of Bombay, there was no similarly constituted cadre of Assistant Sales Tax officers, but there were posts of Sales Tax Inspectors. On November 16,1957, the State Government by its resolution directed that the ASTOs from Madhya Pradesh and Hyderabad should continue in their respective pay scales until such of them were not appointed as STOs Grade III, and Notes 3 and 6 appended to the Resolution provided that for purposes of promotion their inter se seniority be Fixed on the basis of their service as STOs and ASTOs. On February 3, 1960, the State Government substantially modified rule 7 of the Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957 and a new rule 7 was substituted which provided that the seniority of an allocated Government servant in the post or cadre of absorption shall, as on November 1, 1956 be determined by the length of continuous service etc. Since 666 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. The State Government by its resolution dated September 10, 1960 modified Notes 3 and 6 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, and that the service rendered by the ASTOs from Madhya Pradesh as Excise Inspec tors or Assistant District Excise Officers in the Excise Department be counted as equivalent service. On August 17,1962, the State Government prepared a fresh provisional gradation list of ASTOs and STIs and invited objections. None of the respondents raised any objection. 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. The Departmental Examination Rules for Sales Tax officers 1954 framed by the former State Government of Bombay were made applicable to the Assistant Sales Tax officers allocated from Madhya Pradesh and Hyderabad from August 8,1960, as the provisions of the Bombay Sales Tax Act, 1959 were extended to the whole of the State, the CP and Berar Sales Tax Act 1947 and the Hyderabad General Sales Tax 1950 having been repealed. The ASTOs from Vidarbha and Marathwada regions of Madhya Pradesh and Hyderabad were called upon to appear at the examinations prescribed from the STOs of the old Bombay region, and some of the ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STos Grade Ill were reverted to the post of ASTOs due to their failure to pass the said examination. The Government by its Resolution dated June 13, 1964 directed that the ex Hyderabad ASTOs even though they had not passed the prescribed depart mental examination should be confirmed on the basis of confidential records, efficiency and seniority: and by its Memorandum dated November 21,1964 order ed that all the ASTOs and STIs who had been allocated from the old M.P. and Hyderabad States should be considered eligible for promotion without passing the STos examination if they are otherwise fit for promotion. On representation made by the ASTos from Madhya Pradesh and Hyderabad, the Government of India, by its letter dated March 9, 1965 to the State Government directed that the Bombay Departmental Examination Rules, 1954, could not be made applicable to the allocated ASTOs from Madhya Pradesh and Hyderabad as it would amount to changing their conditions of service to their disadvantage. It accordingly directed that all the ASTOs from Madhya Pradesh and Hyderabad who were compelled to appear for the said examination and who had failed to pass the same be reinstated as STOs. This directive resulted in Respondents I and 2 who had been promoted to officiate as STO, Grade 111 being reverted as STIs. The State Government in view of this change reviewed the cases of all the ASTOs, and STIs from the three regions and those who were otherwise found 667 suitable were according to their seniority promoted to the post of STO, Gr. III even though they had not passed the STOs examination. On January 6,1966 the State Government published a revised gradation list of ASTOs and STIs and invited objections. Only Respondent 4 filed objections which was considered by the Government and rejected. The writ petition filed by Respondents 1 to S who were STIs in the State of Bombay and had passed the prescribed departmental examination for promotion as STOs Gr. III was allowed by the High Court which struck down the various resolutions and orders passed by the State Government from time to time relating to integration of service under sub section (7) of section 115 of the Act. In the appeals by the State to this Court on the questions whether (I) the State Government could by an executive order without framing a rule under the Proviso to article 303 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 proviso to sub section (7) of section 115 of the Act, and (2) the State Government while integrating the services could unilaterally alter the seniority list of the allocated ASTOs and place the ASTOs from Madhya Pradesh and Hyderabad in an isolated category over the STIs from Bombay while determining their inter se seniority. Allowing the appeal, ^ HELD :1 (i). The matter of equation of posts is purely an administrative function under section 115 of the States Re organisation Act, 1956. Under sub section (5) of section 115 the Central Government is the sole repository of the power to effectuate the integration of services in the new States. It has been left entirely to the Central Government as to how it has to deal with these questions. The Central Government established an Advisory Committee for purposes of assisting in proper consideration of the representations made to it for the work of integration of services, the Central Government could take all manner of assistance from the State Government including the preparation of provisional gradation lists, The Central Government exercises general control in regard to the integration of services, and the ultimate integration was done with the sanction and approval of the Central Government. The provisional gradation lists prepared by the State Government were not, therefore, open to challenge. [679 A E] Union of India and Anr. vs P.K. Roy and Ors. ; referred to. In the instant case, not only had the Central Government laid down the principles for integration but also considered the representation made and passed the final orders thereon. The provisional gradation lists were prepared by the State Government under the direction and with the sanction of the Central Government. The Assistant Sales Tax officers from the former States of Madhya Pradesh and Hyderabad allocated to the new State of Bombay, could not be equated with the Sales Tax Inspectors. In the former State of Bombay, there was no similarly constituted cadre of Assistant Sales Tax officers, but there were 668 posts of Sales Tax Inspectors. The Assistant Sales Tax officers from Madhya Pradesh and Hyderabad were superior to Sales Tax Inspectors in their respective States and the post of Assistant Sales Tax officer in these State was a promotion post. It would have been inequitable and unfair to equate Assistant Sales Tax officers from Madhya Pradesh and Hyderabad with Sales Tax Inspectors from Bombay having regard to the nature of their posts, the powers and responsibilities, and the pay scales drawn by them. In addition, Assistant Sales Tax officers in these States were assessing authorities and they enjoyed statutory powers of their own to assess tax and levy penalties, whereas the Sales Tax Inspectors 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 Sales Tax officers. [679 F 680 C] (ii) The principle adopted by the State Government for determining the relative inter se seniority was obviously wrong, being contrary to the principles settled at the Chief Secretaries Conference. The Government of India, on re presentation by the affected Assistant Sales Tax Officers 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 1, 1956 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. [680 E.G] 2. There was a difference between the Departmental Examination Rules framed by the former State Governments of Bombay, Madhya Pradesh and Hyderabad regulating the appointment of STOs. In the former State of Bombay, eligibility for the promotion of STIs to the post of STO Gr. Ill depended upon their passing the departmental examination for the non gazetted staff of the Sales Tax Department under rule I (b) (ii) of the Recruitment Rules for the STOs Gr. III, i. e. it was condition precedent. In the former States of Madhya Pradesh and Hyderabad there was no such condition attached. Under the Rules for Departmental examination, the ASTOs who were promoted as STOs were required to pass the departmental examination within two or three years from the date of their promotion i.e. it was a condition subsequent. 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 and they could not be altered to their disadvantage without the prior approval of the Central Government under section 115 (7) of the Act. Since no examination admittedly had been held there was no question. Of their reversion as ASTOs. [685 B C; E G; 683 B F; 685F] 3(i) The Resolution dated June 13, 1964 and the Memorandum dated November 24,1964 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 669 should be considered eligible for promotion to the post of STO, Gr. III without passing the departmental examination for STOs Gr. The State Government had not by its Resolution or Memorandum 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. There is, therefore, no infirmity in these two documents. [681 F H] (ii) 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 promotions are not. [683 C] (iii) 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 STI 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. 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 ', it envisages a decision which is fair and equitable to all. [686 A D]

Appeal No. 635 of 1965. Appeal by special leave from the Award dated January 8. 1963 of the First Industrial Tribunal, West Bengal in Case No. VIH 354 of 1961. B. Sen, Janardan Sharma, P.K. Ghosh and S.K. Nandy, for the appellants. Niren De, Solicitor General, M. Mukherjee and Sardar Bahadur. for respondent No. 1. The JUdgment of the Court was delivered by Bhargava, J. This appeal by special leave has been filed by ' the workmen of Messrs Hindustan Motors Ltd. against the decision of the First Industrial Tribunal, West Bengal in a dispute relating to payment of bonus for the year 1960 61. The respondent, M/s Hindustan Motors Ltd., (hereinafter referred to as 315 "the Company") was established in the year 1942 and, initially, the work taken up by the Company was that of assembling of motor cars from components imported from foreign countries. Later on, manufacture of components of motor cars was started and gradually the Company developed this work of manufacture of components by increasing the number of components manufactured by it until, at the present time, the Company is manufacturing more than 70% of the components utilised in the cars put on the market by the Company. The work of manufacturing components was taken in hand for the first time in the year 1949, according to the reply of the Company filed on 10th January, 1962, to the statement filed on behalf of the workmen. before the Tribunal. At the initial stages of its existence, the Company was running at a loss and even, as late as the year 1956. the Tariff Commission 's Report on the Automobile Industry mentioned that this Company was making a loss of Rs. 833 per car on the Hindustan Landmaster which was the car put on the market by the Company at that time. Even Subsequently, for several years. no profit was shown in the profit and loss account and, consequently, no bonus was paid to the workmen until the dispute about it was raised for the first time in respect of the year 1959 60. We were informed that the dispute relating to the payment of bonus for the year l 959 60 is still pending before the Industrial Tribunal, while the dispute with respect to bonus for the next year 1960 61 has been decided and is now before us in this appeal. In this year 1960 61, the profit and loss account of the Company showed a net profit of Rs. 249.71 lacs. Out of this, a sum of Rs. 59.53 lacs was allocated for payment of dividend on ordinary shares @ 12% and a sum of Rs. 27.55 lacs for dividend on preference shares @8.57%. The total amount allocated for payment of dividends was thus Rs. 87.08 lacs. In view of the fact that, in this year, the Company had earned a net profit of over Rs. 249 lacs. the workmen demanded bonus equivalent to six months ' wages. The monthly wage bill of the workmen is about Rs. 4 lacs, so that the total amount claimed towards bonus by the workmen came to Rs. 24 lacs. It was also stated on behalf of the workmen that, if this bonus to the extent of Rs. 24 lacs is awarded, the actual amount which the Company would have to pay will only be 55% of this amount, because 45% representing income tax on this amount would be refundable to the Company from the Government. Before the Tribunal, there was no dispute between the parties that, in order to find out whether any surplus was available for distribution of bonus, calculations must be made on the basis of the Full Bench Formula approved by this Court in The Associated Cement Companies Ltd., Dwarka Cement Works, Dwarka vs Its 316 Workmen & Another(1). The Tribunal, after making all other deductions from the surplus which have to be made in accordance with the Full Bench Formula and without taking into account provision for rehabilitation, arrived at a figure of Rs. 87.80 lacs as the amount of surplus available. Thereafter, the Tribunal held that a sum of Rs. 373.62 lacs every year was needed for rehabilitation purposes and, since this amount very much exceeded the surplus otherwise available, there was no scope for granting, any bonus at all. Consequently, the Tribunal decided the reference against the workmen and held that no bonus was payable for this year. The workmen have come up to this Court against this decision of the Tribunal. In this appeal also, there is no dispute that the principles to be applied for working out the surplus available for distribution of bonus must be those approved by this Court in the case of Associated Cement Companies Ltd.(1). On behalf of the workmen, however, it was urged that the Tribunal committed an error in applying the Formula in respect of five different items involved in the calculation. These are: (1) Rehabilitation, (2) Return on reserves used as working capital, (3) Return on paid up capital, (4) Interest on fixed deposits, and (5) Home delivery commission. Of these items, the most controversial is the first item of rehabilitation and that is also the most material one, because, if the figure of annual rehabilitation arrived at by the Tribunal is accepted, it is clear that no surplus can possibly remain out of the profits earned during the year for distribution of bonus. In the calculation of rehabilitation, various factors are involved which have been indicated by this Court in the case of Associated Cement Companies(1). The factors in calculation of rehabilitation accepted by the Tribunal which have been challenged by the workmen are: (i) the divisor, which depends upon the life of the plant, machinery and buildings, the year of their installation or erection, and the residuary life which must be taken into account when working out the divisor, (ii) the calculation of the multiplier for arriving at the replacement cost of the old machinery which requires rehabilitation. and (1) 317 WORKMEN V. HINDUSTAN MOTORS LTD. (Bhargava, 1.) 317 (iii) the deductions which should be made when working out the annual rehabilitation. We shall now proceed to deal with these points. When the dispute was taken up for adjudication by the Tribunal, the Company, on 3 l st May, 1962 filed statements showing calculations of rehabilitation provision required for rehabilitating the plant, machinery and buildings. Amongst these statements was a statement described as Schedule IA (hereinafter referred to as "the first Schedule IA") and in that statement it was claimed on behalf of the Company that the average total life of its machinery was 6 years. On behalf of the workmen, it was urged that the life of the machinery should be taken to be 30 years and on this basis, ,after the arguments were over a rehabilitation cost calculation was filed on 21st November, 1962. Thereafter, in the course of arguments on 22nd November, 1962, some fresh statements were filed by the Company. These statements in respect of the machinery had two new Schedules, both marked as Schedule IA. In one of these Schedules IA filed on 22nd November. 1962, the multiplier taken for replacement of the machines installed in various years was higher than the multiplier in the first Schedule 1A. This Schedule shall be referred to. as "the second Schedule 1A". At the same time, as mentioned earlier, another Schedule IA was filed and, in this Schedule IA, the multipliers were the same as in the first Schedule 1A. This shall be referred to hereinafter as "the third Schedule 1A". In none of these Schedules filed, either on behalf of the Company or on behalf of the workmen, was there any classification of plant and machinery into precision or non precision machinery. Some statements for the purpose of calculation of rehabilitation were again filed on behalf of the Company on 28th December, 1962 under the directions of the Tribunal and it appears that, taking into account the evidence which had been led before the Tribunal, the Tribunal at this stage asked the Company to give separate Charts for precision machinery and non precision machinery. Consequently, the statements flied on 28th December. 1962 classified the machinery into precision and non preCision machinery. It seems that the Tribunal, in making this direction was also influenced by the circumstance that, under the Income tax Law, the depreciation allowed in respect of precision and non precision machinery is different, from which the Tribunal. inferred that precision machinery will have a shorter life than non precision machinery. In fact, the Tribunal was of the view that the proportion between the life of precision and non precision machinery can be safely taken to be the same as the proportion between the depreciation allowed in respect of the two. Proceeding on this basis, the Tribunal, in the statements prepared for and annexed as. part of the LISup. C.I./68 6 318 Award, classified the machinery into precision and non precision machinery and worked out different life for the two kinds of machinery. In the course of arguments before us, it was urged on behalf of the workmen that the Company not having claimed that machinery classified as precision had a shorter life than machinery classified as non precision either in the written statements or at the stage of filing the first Schedule 1A or even the second or third Schedule IA, there was no justification for the Tribunal to. accept this. classification and work out different periods of life for different classes. of machinery. Mr. Niren De, counsel appearing on behalf o.f the Company, in his argument before us also urged that the Company at No. stage put forward the Case that the machinery should be classified into precision and non precision machinery and different life should be attributed to the two classes of machinery. According to him, the Company 'section case throughout has been that all machinery installed m the. factory of the Company has an economic life of 6 years only, so that the Company is not prepared to justify the decision given by the Tribunal on the basis of this classification. Since both parties before us challenge the adoption of this classification by the Tribunal, we consider that it will be right to ignore this. classification and to proceed on the basis that the total life of the machinery must be worked out on an average for all the machines installed in the factory of the Company, without making any distinction between precision machinery and non precision machinery. As we have mentioned earlier, the contention on behalf of the workmen was that the life of the whole machinery should be taken to be 30 years. Mr. B. Sen, counsel appearing on behalf of the workmen, drew our attention to a number of cases, in which the life of the machinery came up for consideration either before the Labour Appellate Tribunal or before this Court in connection with calculation of rehabilitation provision. first case brought to our notice was Saxby & Farmer Mazdoor Union, Calcutta vs M/s. Saxby & Farmer (India) Ltd., Calcutta(1), in which, for purposes. of calculation of rehabilitation, the life of machinery was taken to be 30 years. Another case between the Workmen of M/s. Saxby & Farmer (India) Pvt. Ltd. vs M/s. Saxby & Farmer (India) Private Ltd.(2) in respect of a subsequent year came up before this Court. In that case, the Tribunal, in its Award, fixed the life of the machinery at 20 years and on behalf of the, workmen it was urged that it should have been 30 years as accepted by the Labour. Appellate Tribunal in respect of the earlier year in the of Saxby & Farmer Mazdoor Union, Calcutta(1). This Court held that the life of 30 years. had been taken at a time when (1) (2) Civil Appeal No. 152 of 1964 decided on 12 4 1965. 319 the machinery was. being worked in two, shifts, while, in the subsequent case, it was shown that the machinery was working in three shifts, so that it could not be said that the Tribunal was wrong in fixing the life in this subsequent case at 20 years. Relying on these cases, Mr. Sen urged that, in the present case also, we should take the life of the machinery to be 30 years. In The Millowners Association, Bombay vs The Rashtriya Mill Mazdoor Sangh,Bombay(1), the Full Bench of the Labour Appellate Tribunal, when laying down the formula that was later approved by this Court, appears to. have accepted the life of textile machinery as 25 years, while this Court, in the case of the Associated Cement Companies Ltd. (2), proceeded on the basis that the life of the machinery was 30 years. In the Honorary Secretary, South India Millowners Association and Others vs The Secretary, Coimbatore District Textile Workers ' Union(1), this Court confirmed the finding of the Tribunal that the estimated life of the textile machinery of the Company concerned in that case should be taken. to be 25 years. It is on the basis of these decisions that the claim was put forward that the life of the machinery in the present case should also. be taken to be 30 years or at least 25 years. In our opinion.this argument proceeds on an entirely incorrect basis. The life of a machinery of one particular factory need not necessarily be the same as that of another factory. Various factors come in that affect the useful life of a machinery. There is, first, the consideration of the quality of machinery installed. If the machinery is purchased from a country producing higher quality of machines,it will naturally have longer life, than the machinery purchased from another country where the quality of production is lower. Again, the articles on which the machinery operate.s may very markedly vary the life of a machine. If, for example, a machine is utilised for grinding of cement, the strain on the machine will necessarily not be the same as on a machine which operates on steel o.r iron. We are, therefore, unable to accept the suggestion that the: life of the machinery in the present case should have been fixed on the basis of the life accepted in other cases in which decisions were given on bonus disputes either by the Labour Appellate Tribunal or by this Court. The Tribunal, in its decision, worked. out the life of the machinery on 'the basis of the percentage of depreciation allowed under the Income tax Act. The application of this principle has been attacked before us by both the parties. It is urged that the artificial rule laid down in the Income tax Act for calculation of notional depreciation can provide no criterion at all for determining the life of the machinery. We think that the parties are (1) (2) (3) [1962] 2 Supp. S.C.R. 926. 320 correct and that the Tribunal committed an error in proceeding on this basis. Though, in the case of the Honorary Secretary, South India Millowners ' Association(1), this Court, on the facts of that case, accepted the life of the textile machinery as 25 years; the Court also laid down the principle for.finding out the life of machinery in the following words : "We are not prepared to accept either argument because, in our opinion, the life of the machinery in every case has to be. determined in the light of evidence adduced by the parties." (p. 933) Obviously, this is the correct principle, because it is only when the life of machinery is determined in the light of evidence adduced by the parties in a particular case that the authority determining the life can take into account all the factors applicable to the particular machinery in question. As we have indicated earlier, when determining the life of a machinery, factors, such as the quality of the material used in the machines and the nature of the material on which the machines are to operate, very materially affect their life. Further, the life of a machine will also depend on the. manner in which it is handled in a particular factory. We, consequently, in this case proceed to examine the evidence given by the parties. in this behalf. In order to prove the life of machinery, one method usually adopted by the Companies is to tender evidence of experts. In the. present case, the Company tendered in evidence the statement of an expert, Gerald Waplington, which was recorded earlier on 5th November, 1961 by the Fifth Industrial Tribunal in a dispute pending before it. That dispute was also between this very Company and its workmen. In giving the life of machinery, Waplington first classified the machines into two classes general purpose machine tools and special or single purpose machine tools and expressed the opinion that a general purpose machine tool used for one single operation is likely to have a shorter economic life than special or single purpose machine tool. According to him, a general purpose machine carrying on work of high accuracy will have an economic life of the: order of 2 to 3 years only, while a special purpose machine doing similar work of high accuracy working 400 hours a month will have an economic life of 5 to 6 years. If the work taken. from the machines is of less accuracy. then, in his opinion, a general purpose machine may have an,economic life up to 5 years, and a special purpose machine an econoevidence available in this case. It may however, be noted that (1) [1962] 2 Supp. S.C.R. 926. 321 tinction between economic life and useful life. He twice stated that economic life of a machine would be only 1/3rd of the useful life of the machine, so that if, on the basis of his evidence, the useful life of various classes of machines mentioned by him is to be worked out, the member of years given for each class by him above will have to be multiplied by 3. Thus, according to his evidence, the economic life of a machine will vary from 2 to 3 years as a minimum to 7 to 10 years at the maximum, and working out the useful life on the basis of his statement that economic life is only 1/3rd of the useful life, the machines would have a minimum of 6 to 9 years and a maximum of 21 to 30 years useful life. We shall consider what inferences can be drawn from his statement at a later stage when we have discussed the other evidence available in tiffs case. It may, however, be noted that Waplington is the only expert who can be held to. be entirely disinterested, because the other two experts examined are employed as Engineers by the Company itself. This independent witness, Waplington, was not asked whether he had seen the various machines in the factory of the Company, nor was he at any tune requested to indicate how many different machines in the factory of the Company would fail in the various classifications mentioned by him for which he has given different periods in respect of economic life. The Other two witnesses examined are Joseph Joyce, General Master Mechanic, and Girish Chandra Bansal, Master Mechanic, employed by the Company. Both of them have, in their statements given out their qualifications and experience which they. have in dealing with automobile manufacturing machinery. According to Joyce, the economic life of the machinery of the Company cannot go beyond 6 years, and this statement was. made on the basis of the machines working 16 hours a. day in two shifts of 8 hours each. Later on, he added that, applying American standard, the life of the machines can only be 6 to 10 years. In giving the life, he qualified that word with "economic" or "economic useful", so that he equated economic life with economic useful life and gave the figures on this basis. In cross examination, he, however, admitted that useful life of a machine is longer than its economic life. Thus, if various, statements of his are taken into account and it is kept in view that he is. an employee. of the Company, it may be accepted that, according to him, the maximum ,economic life of the machinery of the Company will be between 6 to 10 years and the useful life will be longer how much longer, he has not indicated. If we were to assume that he is using the expressions "economic life" and "useful life" in the same: sense in which they were used by Waplington, economic life would be 1/3rd of the useful life, with the result that, on his evidence, useful life of the machinery of the Company would work out to be 322 anywhere between 18 to 30 years. The third witness, Girish Chandra Bansal, estimated the efficient economic life, based on 16 hours per day working, at 6 to 10 years, which Coincides with the ' estimate by Joyce. In his case, however, no questions were put to. elicit from him whether he would make any distinction between efficient economic life and useful life, so. that his evidence does not appear to carry us any farther than the evidence of Joyce. It may be added that both these witnesses in their evidence stated that the workmen employed by the Company were not very skilled workers and this was a factor that had to be taken into account in considering the life of ' the machines in this company. It is obvious that, if a machine is handled by a more skilful worker, it will last longer and have a longer life. A Statement was also made by Joyce that machine.s running at high speed will have shorter life than those running at lower speeds; but this general statement made by him offers no assistance to us in this case, because he has not indicated in his evidence how many and which of the machines of the Company run at high speed and which at lower speed. Apart from this evidence of experts, the Company has attempted to provide some other data which can be of assistance in assessing the life ' of the machinery. In this connection, Mr. Niren De, arguing the case on behalf of the Company; drew our attention to the history of this Company which showed that, initially, this Company started the work of assembly of cars from parts imported from foreign countries. some time in the year 1942 43, but, later, the policy was. altered and manufacture of components was taken up and progressively increased so as to minimise foreign. import. He also pointed out that this policy of progressive production of indigenous parts was pressed Upon the Company by the Government and, for this purpose, drew our attention to the: first and the Second reports of the Tariff Commission in the years 1953 and 1956, as well as the report of the lid Hoc Committee on Automobile Industry known as the Report of the Jha Committee, because Sri L.K. Jha was its Chairman. This report came out in the year 1960. It was Urged by Mr. De that, due to. this policy of progressive increase in manufacture of new components, it was not possible for the Company to find money to rehabilitate old machinery and, consequently, the fact that the Company continued to use old machinery for a number of years should not be taken as indicating that machinery 'still had economic or useful life. It was argued. that the Company per force had to continue use of these 'old machines, because it was under pressure to expand its activities. by taking up manufacture of components and the Company was running at a loss. It has already been mentioned earlier ' that in the second report of the Tariff Commission in 1956 it was clearly stated that this Company was selling cars at a loss of 323 Rs. 833 per car. It is in this background that the evidence given by the Company should be judged to find out what is the life of the machinery possessed by the Company. He also drew our attention to the principles laid down in this connection by the Full Bench of the Labour Appellate Tribunal in the Millowners ' Association 's case (1), and by this Court in the Associated Cement Companies ' case(2). In the former case, when laying down the principle that provision should be ' made for rehabilitation replacement and modernization of the machinery, the Tribunal held that: "It is essential that the plant and machinery should be kept continuously in good working Order for the purpose of ensuring good return. and such maintenance of plant and machinery would also be to the advantage of labour, for. the better the machinery the larger the earnings, and the better the chance of securing a good bonus. " In the latter case, this Court, when examining the scope of claim for rehabilitation. held that: "this claim covers not only cases of replacement pure and Simple but of rehabilitation and modernisation. In the context, rehabilitation is distinguished from ordinary repairs which go into the working expenses of the industry. It is also distinguished from replacement. It is quite/conceivable that certain parts of machines which constitute a block may need rehabilitation though the block itself can carry on for a number of years; and this process of rehabilitation is in a sense a continual process. Unlike replacement, its date cannot always be fixed or anticipated. So with modernisation and all these three items are included in the claim for rehabilitation. That is why we think it is necessary that the Tribunals should exercise their discretion in admitting all relevant evidence which would enable them to ' determine this vexed question satisfactorily." Proceeding further to. distinguish between cases of replacement. modernisation and expansion, the Court held: "If it appears fairly 'on the evidence that the introduction of the modern plant or machine is in substance an item of expansion of the industry, expenses incurred in that behalf have to be excluded. On the other hand, if the employer had to introduce the. new plant essentially because the use of the old plant. though capable (1) (2) 324 of giving service was uneconomic and otherwise wholly inexpedient, it may be a case of modernisation. Similarly; if by the introduction of a modern plant or machine the production capacity of the industry has. appreciably increased, it would be relevant for the Tribunal to consider in an appropriate case whether it would be possible to apportion expenses on the basis that it is a case of partial modernisation and partial expansion. " It will thus. be seen that, when considering the question of rehabilitation, what is essentially to be taken into. account is that the old plant, though capable of giving service, was uneconomic and otherwise wholly inexpedient when provision for its replacement and rehabilitation, even though it will include modernisation would be fully justified. In this context, it may be worthwhile examining at this stage the difference between economic life and useful life on which emphasis has been laid by Mr. Sen on behalf of the workmen. We have already indicated earlier that even the expert examined behalf of the Company, Gerald Waplington, made a distinction between economic life of machinery and its useful life, Further, in giving the life, he applied American standards which may not be applicable in India. Court, in various cases where the question of rehabilitation has been discussed, has laid emphasis on useful life rather than on economic life and, oven in the Associated Cement Companies ' case(1) in the extract quoted above, the Court held that modernisation is justified when the use of the old plant becomes uneconomic and otherwise wholly inexpedient. Thus, two tests were laid down, first, that it should be uneconomic and, second, that it should be also otherwise wholly inexpedient. The economic life, as envisaged by Waplington, was not, therefore, considered the appropriate. test for determining when rehabilitation of the plant and machinery would be justified. In fact, one of the very major considerations, that should be taken into account is the actual practice of the manufacturers using the machinery and if evidence be available, to find out how long the manufacturers continue to use the machinery as a rule. It may be that, during the last few years of use, the machinery may.be continued to. be utilised because of want of resources and compulsion to retain the machinery, because replacement is not possible at all. It is in the light of this. situation that we proceed to examine the evidence given by the Company about the behaviour of its machinery and the steps taken by the Company to have the old machinery rehabilitated. (1) 325 In this connection, two statements filed on behalf of the Company are of significance. One of these is a list of obsolete and/or discarded machines prepared on 26th October, 1962 and marked as Ext. It is to be. noticed that, though 40 different machines were discarded by 26th October, 1962 when this statement was prepared, none of the machinery discarded was that installed up to. the year 1947 48. In fact, this situation is also borne out by the three Schedules IA which have been referred to earlier by us. In those Schedules 1 A, the machinery discarded and written off from books is shown as being worth Rs. 35,000/ out of machinery of the value of Rs. 89.75 lacs installed in the year 1947 48. Thus, the machinery of that year discarded was nominal in value. None of the machinery installed between 'the years 1948 49 to 1951 52 was discarded. Again, the machinery installed in 1952 53 was discarded to the extent of the nominal value of Rs. 39,000/ out of Rs. 11.06 lacs, and no machinery installed in 1953 54 was discarded. The machinery discarded was primarily that installed in the years 1954 55 to 1957 58, and its value was in the region of Rs. 46 lacs. Thus, right up to 1962, the old machinery purchased up to the year 1954 was almost all continued in use and was not discarded, even though machinery installed in the next four years was considered unfit for further use and. was discarded or written off, The second statement is Ext. 21 which bears the heading "replacement programme condition of machine tools" and which was prepared in March, 1960 in order to claim foreign exchange from the Government for replacement of machinery. That list contains more than 200 machines, but, again, the machines installed during the year 1947 48 or earlier included in it are only 5 in number, whereas the majority of machines. included in that list are those installed in later years,. Significance attaches to this factor, because the machines ins.tailed in the year 1947 48 were of very large value, their cost being. in excess of Rs. 89 lakhs. In fact, that is the year in which the investment on installation of machinery was highest, barring the year of bonus and the year immediately preceding it. This statement thus shows that, even though the Company wanted replacement of a number of machines which had been installed even in the year 1949 50 and some machines installed in later years, the replacement of those machines was given preference over the replacement of machines installed earlier in the year 1947 48. In this statement, in the remarks column,. it was mentioned that these machines are to be scrapped. but there was no statement that machines which had been installed in the year 1947 48 were also in such a condition that they required scrapping. Thus, these statements provide some indication of the life of machinery which point both ways. The fact that old machinery of 1947 48, though of large value, was not 326 considered to be in such a condition as to require immediate replacement in preference to machinery installed later would point towards that machinery having a fairly long life. On the other hand, there is the factor that machinery installed in later years was actually scrapped or was sought to be scrapped, and this necessarily means that later machinery was considered as having shorter life. In this connection, another statement of which notice may be taken is Ext. 29 which shows prices of certain machines originally purchased by. the Company which is to be rehabilitated, and the prices of the same machines, which were purchased in the two years preceding the time when Girish Chandra Bansal was examined before the Tribunal. Girish Chandra Bansal 's ,evidence was recorded on 14th November, 1962 'and in his statement before the Tribunal he stated that Ext. 29 was prepared to compare the prices of same machines in earlier years when they were purchased originally and again when similar machines were purchased a second time in the past two years. This statement has the significance that, though in the past two years the Company took the step of purchasing machines which would perform the identical functions which the old machines were performing, the Company chose to add these machines as new ones, as a part of its scheme of expansion rather than replace those old machines. In the year 1961 62, therefore, the Company was still of the opinion that it was preferable to add a new machine of the same type rather than replace an old machine doing the same work, and an inference would necessarily follow that old machine must have been considered to be sufficiently serviceable. This is the view that the Company appears to have held in respect of machinery which was installed 14 or 15 years earlier. On behalf of the Company, some statements were also. filed to show that there were very frequent break downs in the machinery of the Company and. as an illustration, our attention was drawn to the statement for the period January, 1960 to September, 1960. It is true that, if there are very frequent break downs in machinery, this would give an indication of the condition of the machinery and lead to the inference that their useful life is coming to an end. There is, however, one great difficulty in drawing any conclusion from the statistics of number of break downs of the machinery put forward on behalf of the Company. The Company has. no doubt, shown us statements that a number of machines had break downs during the last few years preceding the year of bonus. but no material was brought to our notice from which it might have been possible to compare how the same machinery was behaving in earlier years or within the first few years after it was installed. Unless it be possible to compare the number of 327 break downs. when their life is claimed to be over with the number of break downs when the machine was almost new ' or 'was running its economic or Useful life, no assistance is available for assessing the. life of the machinery from a mere table showing the number of break downs. Further, it was not possible from these statements ' to find out which of the machines installed in which year were subject to the break downs, nor did these statements give us any picture about the percentage of machines installed in different years which ' were included in these 'statements. Consequently, we have felt handicapped in drawing any inference from these statements. Reliance was also placed on some statements showing that, for purposes of granting incentive bonus, a rated time was prescribed for various machines and progressively this rated time in respect of a large number of machines has had to be increased in order to enable the workmen to earn bonus, because the machines themselves are not working efficiently and. if the rated time is not increased, the workmen would fail to qualify for incentive bonus for no fault of their own and simply because the machines on which they were required to work had deteriorated in condition. It is true that the statement given of increase of rated time gives some indication that the condition of the machinery in this factory has been going down and though this. factor is relevant in determining the useful life of machinery, it cannot carry us very far, because there is no evidence ' which would enable us to lay down a correlation between the increase in the rated time and the expiry of the useful life of the machinery. It is not possible on the evidence to discover how much the rated time is expected to increase before it can be said that the machinery has completely run out its useful life. Mr. De also drew our attention to the statements of some of the witnesses who. deposed that machinery running at high speed has a shorter life than that running at low speed. This general statement, however, is of no assistance, because the Company did not attempt to classify its machines between high speed and low speed ones and ' to give evidence in that behalf. Lastly, it was urged by Mr. Sen on behalf of the workmen that another factor which should be taken into account is that, according to the Full Bench Formula, for calculation of rehabilitation the machinery is treated as scrapped when its value is reduced to 5%, because the break down value of 5% is all that is deducted when calculating the requirements for rehabilitation. The argument was that the fact that the. break down value is taken at 5% indicates that the machinery 'for purposes of rehabilitation is treated as still useful unless its value is reduced to that low figure. 328 This is, no doubt, another aspect that must be taken into. account, though we are unable to accept the submission that a machinery should be deemed to have useful life until it reaches the stage of having a break down value of 5%. No such absolute rule can be inferred. In this case, the Tribunal, in fixing the life of the machinery, as we have mentioned earlier, proceeded to calculate it on the basis of the depreciation rate permitted under the Income tax Act. That basis was not acceptable to either of the parties before us. On behalf of the workmen, it was urged that it was an entirely wrong principle of calculating the life, and even o.n behalf of the Company no attempt was made to support this method adopted by the Tribunal. In the Honorary Secretary, South India Millowners, Association 's case(1), this Court also rejected the argument that the calculation of the life may be based on the depreciation rate permitted by the income tax Act. In these circumstances, we have to consider the cumulative effect of the various pieces of evidence and circumstances which we have discussed above and, on its basis, to estimate what should be considered to be the useful life of the machinery of this Company. Reference may briefly be made to the various conclusions arrived at. The evidence of the independent expert and of the engineer employees of the Company gives a figure. for useful life. of machinery which may be anywhere between 6 years to. 30 years. The lower figures given by them cannot be, accepted as they relate to economic life in the strict sense of that expression and are based on American standards. At the same time, the maximum life worked out from their evidence is on the hypothesis that the useful life stated by Waplington to be three times that of economic life is also the useful life in the same proportion to economic life as given in the evidence of Joyce. Then, there is the evidence that this Company itself has been running its old machinery for quite a large number of years and even after 13 or 14 years of use, the Company in quite a large number of cases preferred, when buying similar machines, to utilise them for expansion rather than for rehabilitation. On the face of it, replacement of old machinery would have been preferred to expansion, if the old machinery had really completed its useful life. In some cases, however, machinery purchased in later years had to be rehabilitated after much shorter periods, but no detailed information is available. why such early replacement became necessary. No. ' material was provided to show the comparative quality of machines which have been run for a long time and machines which were replaced or sought to be replaced after shorter periods of us. After tak (1) [1962] 2 supp. S.C.R. 926. 329 ing into consideration the various factors mentioned by us above, and on the evidence before us, we think that in this case, it would. be appropriate to hold that the average life of the machinery of this. Company in respect of different kinds of machines obtained from different sources may be appropriately taken as 15 years. This life of 15 years arrived at by us, it may be mentioned is on the basis that the machines of the Company have been running during most of the. period, to which the evidence relates, in two shifts only. Girish Chandra Bansal, one of the Engineers of the Company, examined as a witness, stated that the machines in this Company were working in two shifts only, until, for the first time in 1959 60, the factory started to run round the clock, i.e., in three shifts. He added that the factory had been working in two shifts from the time it was founded. It is also clear that; if the. factory had been working in only one shift, the life of the machinery would have been longer, and we think that in that case lit. would have been appropriate to take the life of the machinery as 25 years. On the other hand, after the machines are being worked in three shifts, the Life of the machinery is bound to be lower and, consequently, if the machines be worked in three shifts, it would be appropriate to take the life of the machinery at 10 years. In the present case, however, we are accepting the; average life as 15 years for all the machines requiring rehabilitation, because the evidence, as mentioned above, shows that the machines have been. working in two shifts only from the time when the factory started functioning, with the exception that, in the first few years, they were worked in only one shift while, from the year preceding the year of bonus, they have been worked in three shifts. Consequently, it may be taken that, up to the year of bonus, the machines have been worked on the average, in two shifts. In working out the divisor, however, it will have to be kept in view that future life of the machinery will have to be calculated on the basis of three shifts and, consequently, on the basis of the figure of 10 years as the useful life of the machinery. We may also incidentally mention that this Court, in the case of National Engineering 'Industries Ltd. vs The Workmen & Vice Versa(1), accepted the life of the precision machinery of the Company concerned in that case as 15 years, so that the conclusion arrived at by us on the evidence in the present case happens to coincide with the figure of life accepted in that case. In this connection, we may also take notice of one point urged by Mr. De on behalf of the Company. It appears that, when working out the divisor and finding out what machinery required rehabilitation, the Tribunal did not take into account machinery installed during the bonus year itself for making provision for mic life of 7 to 10 years. In his evidence, further, he made a dis (1) Civil Appeals Nos. 356 357 of 1966 decided on 6 10 1967. 330 any machinery is installed in bonus1 year, the Company would be justified in claiming that it must immediately start making provision for its rehabilitation, though the period for rehabilitation of that machinery would only start at the end of the bonus year. Once machinery has been installed and is in existence. in the bonus year, the Company is entitled. to say that it will require= rehabilitation in future and that provision should be made for rehabilitation of that machinery also and the Company should start keeping reserves. for that purpose from the year of bonus itself. Thus, in the present case, the machinery installed in the year 1960 61 should have been included in the rehabilitation statement, though the divisor in respect of that machinery will, on our decision given above, be 15 on the basis of two shifts and 10 on the basis. of three shifts, as the machines will still have a residuary life of 15 or 10 years, computing the period from the bonus year which is also the year of installation. The second factor entering the calculation of rehabilitation requirement about which there was controversy between the parties is the multiplier. We have already mentioned the fact that, in the first and the third Schedules 1A, the Company gave one set of multipliers, while in ' the second Schedule 1A higher multipliers were given. The Tribunal took both sets of multipliers into. account and worked out the average and accepted that as the correct multiplier, representing the rise in the price: rate of the machinery requiring rehabilitation. Thereafter, the Tribunal held that the machinery which was to replace the old one would have a larger production and proceeded to work out figures for reducing the multipliers on that account. The Tribunal held that it would be justified to reduce the average multipliers arrived at by 75 for machinery installed up to ' 1951 52, by 55 for machinery installed during the years 1952 53 to 1955 56, and by 35 for that installed during the years 1956 57 to 1960 61. Before us, this method adopted by the Tribunal was criticised by counsel ' for both parties. On behalf of the workmen, it was contended that there was no justification for the Tribunal to take the average of the multipliers in the first and the second Schedules IA and that the Tribunal should only have proceeded on the basis that the multipliers given in the first Schedule IA were proved and were correct ones. On behalf of the Company, it was urged that the Tribunal should have accepted the multipliers given in the second Schedule IA and should not have reduced them by taking into account those given in the first Schedule 1A, and, further, that there was no justification at all for the Tribunal to reduce the figures of the multipliers for the various blocks of machinery by 75, 55 or 35 on the ground that the machinery to be installed in replacement would have a higher production. 331 We were taken by learned counsel for parties into the evidence tendered on behalf of the Company to prove the multipliers. We nave found that the correctness of the multipliers shown in the first Schedule 1A has been very satisfactorily proved. It appears that those figures were arrived at by comparing the prices of the old machinery installed in various years with similar machinery purchased in subsequent years. That comparison was contained m statement Ext. The Company 's witness Bansal not only proved this statement, but also clearly stated that the machines originally purchased and those purchased later shown in, that statement Ext. 29 were the same machines. In cross examination, he further specifically arrested that the production capacity of these new machines mentioned in Ext. 29 was very much the same as that of the original machines which were to be replaced when they were new. It is also, significant that these figures of multipliers included in the first Schedule IA. were not challenged on behalf of the workmen before the Tribunal. So far as the figures contained in the second Schedule 1 A are concerned, it was suggested on behalf of the Company that they were ' based on subsequent quotations received for replacement machinery which formed part of a series Ext. Learned counsel for the Company was, however, unable to point out any statement in the evidence of any witness which would show that the figures for multipliers incorporated in the second Schedule IA were actually calculated from the quotations contained in Ext. In fact, no such evidence was possible, because the second Schedule IA was filed on behalf of the Company after the evidence of parties was over and that second Schedule IA not being a part of the record before the Tribunal when evidence was recorded, it was not possible for any witness to give evidence proving those figures for multipliers. In these circumstances, we must hold that the. Tribunal committed an error in taking into account the multipliers given in the second Schedule IA and that the only figures for multipliers that could have been and should be accepted are those in the first Schedule 1A. At the same time, we must also accept 'the contention on behalf of the Company that the Tribunal had No. justification fox reducing the multipliers by deducting 75, 55, and 35 in respect of the three blocks of machinery sought to be replaced. As we have indicated earlier, the Tribunal proceeded to hold that this deduction was justified on the ground that the new machines which had been purchased and which were being compared with the original machines sought to be replaced must necessarily have more productive capacity. We have not been able to find any evidence on the record of any witness which would support this conclusion. It is true that the statements. made by Company witnesses, particularly Bansal show that the new machines were 332 more efficient and were likely to produce better quality goods. no stage, however, in the cross;examination of Bansal was any statement made admitting that ' these new machines, whose. prices. were being compared with those of the old machines for rehabilitation, had a larger productive capacity than those original machines. In fact, as we have pointed out earlier, in his cross examination Bansal made a definite statement that these new machines will produce exactly the same number of pieces as the original machines when they were new. This Court in the case of the Associated Cement Companies Ltd.(1) had indicated that it is only if, by the introduction of a modern plant or machine, the production capacity of the industry has appreciably increased that it would be relevant for the Tribunal to consider in an appropriate case whether it would be possible to apportion expenses on the basis that it is a case of partial modernisation and partial expansion. If, however, the increased production is not of a significant order. it may be regarded as incidental to replacement or modernisation and the question of apportionment may not arise (p. 969). It is, of course, possible that Bansal, in stating that the new machines, the prices of which formed the basis of calculation of multipliers, have exactly the same capacity as the original machines to be replaced, may not be quite correct; but there was no material at all from which 'the Tribunal could have justifiably inferred that the increase in production would be so material as to attract the principle 'for apportionment laid down by this Court in the case cited above and, consequently, the Tribunal fell into an error in reducing the multipliers merely on the assumption that the new machines must necessarily have a larger production capacity than the original machines. In these circumstances, we hold that the rehabilitation, provision should have been calculated by the Tribunal on the basis of the. multipliers given by the Company in the first Schedule 1A, without taking an average of those multipliers and the multipliers given in the second Schedule IA and without decreasing the multipliers by 75, 55 and 35 in respect of various blocks. The third contested question with regard to rehabilitation relates to the deductions which have to. be made out of the total rehabilitation requirement to arrive at the annual provision for that purpose which must be allowed in working out the available surplus for distribution of bonus. In the Associated Cement Companies Ltd. case (1), when approving the Full Bench Formula this Court indicated how the calculations should be made. It was held : "Before actually awarding an appropriate amount in respect of rehabilitation for the bonus year certain (1) 333 deductions have to be made. The first deduction is made on account of the break down value of the plant and machinery which is usually calculated at the rate of 5 % of the cost price of the block in question. Then the depreciation and general liquid reserves available to the employer are deducted. The reserves which have already been reasonably earmarked for specific purposes of the industry are, however, not taken into account in this connection. Last of all the rehabilitation amount which may have been allowed to the employer in previous years would also have to be deducted if it appears that the amount was available at the time when it was awarded in the past and that it had not been used for rehabilitation purposes in the meanwhile. These are the broad features of the steps which have to be taken in deciding the employer 's claim for rehabilitation under the working of the formula. "(p.970). The dispute in the present case relates to the deduction of the depreciation and general liquid reserves. One aspect in controversy in this behalf raised on behalf of the Company is that even depreciation should not be deducted unless it is available to the employer for purposes of rehabilitation. The argument was that in the sentence "Then the depreciation and general liquid reserves available to the employer are deducted" the word "depreciation" should be read with the words "reserves available to the employer" and, consequently, the deduction should only be made of. depreciation reserves available to the employer. We are unable. to accept this submission, because the very principle on which rehabilitation provision is allowed when making calculations for awarding. bonus militates against this interpretation. This Court, in the:same case, in explaining why rehabilitation is granted, held: "We have already noticed that the object of providing depreciation of wasting assets in commercial "accounting is to recoup the original capital invested in the purchase of such assets; but the amount of depreciation which is allowed under the formula can hardly cover the probable cost of replacement. That is why ' the formula has recognised the industry 's claim for rehabilitation in addition to the admissible depreciation." (p. 966) It will thus be seen that the purpose of providing for rehabilitation charges is to enable the industry to cover the difference between the amount of depreciation which is recouped by making provision for it in accordance with the principles of commercial accounting and the amount that would be required to purchase the new machinery for replacement. Once the price of the new machinery sup. C.1./68 7 334 is known, the rehabilitation amount would, be the difference between that price and the amount provided as depreciation of wasting assets in accordance with the principles of commercial accounting. The deduction of depreciation provision made in ,the accounts is not, therefore, on the basis that amount must be available for purchasing the replacement machinery even in the year when provision for rehabilitation is being made. That amount is deducted from the price of the machinery Which will be required to be purchased in order to determine what amount the industry is going to require for rehabilitation in spite of having been allowed depreciation. In our view, therefore, this Court, when it later held that the depreciation and general liquid reserves available are to be deducted in calculating the rehabilitation amount, did not intend to lay down that the depreciation must also be available in the year of bonus. The words "available to the employer" were intended to qualify the expression "general liquid reserves" only and not the word "depreciation". General liquid reserves are to be deducted on the principle that if such reserves are in the hands of the industry and are not earmarked for binding purposes, the industry must utilise those reserves for rehabilitating the old machinery instead of asking for provision to be made out of profits in the year of bone and in future years. The principle adopted is that provision for rehabilitation is to be made only to the extent of the difference between the price of the machinery which will have to be paid for replacing the old machinery and the amount of depreciation provision shown in the accounts according to the commercial system of accounting and even that rehabilitation requirement must first be met by the industry out of available liquid reserves rather than by asking for provision to be made out of profits. In the present case, the Tribunal, when calculating the provision for rehabilitation, took the entire price of the replacement machinery as required to be provided out of profits and did not take into account that price should have been reduced to the extent of the depreciation provided for in the accounts. The annual report of this Company for the year of bonus 1960 61 was produced before us and at page 24 it showed that at the beginning of the year 1960 61 depreciation to the extent of Rs. 325.48 lacs had been provided in the balance sheet of the Company. This amount has, therefore, to be deducted from the price of the machinery which is to replace the original machinery when rehabilitation is resorted to. The second question on this aspect that arises is whether there were any liquid reserves available which should also have been deducted. In the balance sheet of the Company contained in the Annual Report, various kinds of reserves have been shown. There. was a reserve for contingencies to the extent of Rs. 10.00 lacs on 31 3 1960 and a development rebate reserve of Rs. 39.51 lacs on 335 the same date. On behalf of the workmen, it was urged that this amount of Rs. 39.51 lacs should at least be deducted when calculating the requirement for rehabilitation. From the balance sheet itself an inference was sought to be drawn that this reserve existed in the form of a liquid reserve available for rehabilitation. For this purpose reference was made to the entries on the assets side of the balance sheet which shows a sum of Rs. 220 lacs as lying in fixed deposit account. The argument was that if the Company had such a large sum as Rs. 220 lacs in the fixed deposit account, it could not possibly urge that the sum of Rs. 39.51 lacs in respect of development rebate reserve was not a part of it and was not available as a liquid reserve. It is but natural that in the balance sheet the Company could not show any correlation. between the amounts entered on the two sides, liabilities and ' assets, as that is not required by any principle of commercial accounting. The argument of learned counsel for the company was ,that this development rebate reserve had been used ' as a part of the working capital of the Company represented by various items shown on 'the assets side and this fact was proved by the affidavit of Satya Narayan Murarka, Commercial Manager of the Company, who categorically stated that all the reserves had been utilised as part of the working capital. It seems to us that a mere statement by the Commercial Manager that the reserves have been utilised in the working capital cannot be accepted as conclusive evidence of that fact. When the balance sheet itself shows that cash amounts in the form of fixed deposits were available which were far in excess of the development rebate reserve in question there would be no justification for holding that this development rebate reserve was not available as a liquid asset and had been included by the Company in its working capital. At the stage it is not necessary, therefore, to go into any further details to arrive at the conclusion that this development rebate reserve was a liquid asset available for rehabilitation and, consequently, liable to ' be deducted when calculating the rehabilitation requirement We shall deal in greater detail with the question of what items were included in the working capital at a later stage when dealing with the controversy relating to the claim of the Company for return on working capital which is allowed under the Full Bench Formula, when calculating the surplus available for distribution of bonus. On the question of calculation for provision for rehabilitation, the only point raised on behalf of the workmen with regard to buildings was that the Tribunal, in taking the life of the factory buildings at 25 years and non factory buildings at 40 years, was not correct and that the life of the two types of buildings should have been taken at 40 years and 50 years respectively. At the 336 time of the hearing before the Tribunal, the Company had claimed that factory buildings have a normal life of 25 years only and non factory buildings 30 years, while the claim of the workmen was that the factory buildings had a life of 40 years and the non factory buildings 50 years. In arriving at its decision, the Tribunal primarily took into account the provisions of Rule 9 of the Rules framed under the Income tax Act, 1922 which lays down the principle for calculation of depreciation in respect of buildings. That principle, no doubt, cannot be taken as giving any correct indication of the life of buildings for purposes of calculation of rehabilitation provision, but, in this case, there was the difficulty that the Tribunal did not accept the evidence given by the Company to prove the age of the buildings as claimed by it, while no evidence was given on behalf of the workmen in support of their claim that the life of the buildings should be taken at the figures contended on their behalf. In the course of arguments before us. all that learned counsel did was to refer to the decision of this Court in the Associated Cement Companies Ltd. case(1) at p. 993 where the calculations made in the Chart show that the life of the various buildings concerned in that case were taken to be between 30 and 35 years. We do not think that, in the absence of evidence showing that the buildings of the Company were similar to those buildings whose life came up for consideration in the case cited above, it is possible to derive any assistance from the figures accepted in that case. In these circumstances, the position before us is that neither on behalf of the Company, nor on behalf of the workmen is there any reliable evidence brought to our notice on the basis of which we can arrive at a correct estimate of the life of the buildings of the Company and, consequently, we do not think that there will be any justification for us to vary the decision given by the Tribunal in this behalf. The last controversy in the calculations for rehabilitation provision is on the question whether the depreciation and the liquid reserves available should be deducted from the total amount of rehabilitation requirement or whether it should be taken into account at the very first stage when the machinery or the buildings requiring earliest rehabilitation are taken into consideration and the annual requirement in respect of them is worked out. On behalf of the workmen, we think, it was rightly urged that, if depreciation and liquid reserves available are to be deducted, they must be incorporated in the accounts against the replacement cost of those items which required replacement earliest in time. It is obvious that if funds in the form of depreciation provision and other liquid reserves are available, the Company claiming provision for rehabilitation must utilise them in rehabilitating those (1) 337 machines and buildings which require rehabilitation at the earliest point of time. There is no principle at all that the depreciation in respect of a particular machinery must be deducted when calculating the rehabilitation requirement in respect of that machinery itself. The Full Bench Formula approved by this Court only recognises the industry 's claim to make provision out of profits for rehabilitation of machinery which might require replacement even in future only on the ground that the industry may not be able to meet those replacement cost out of funds available in its hands. The provision for future requirement of rehabilitation must at any time depend upon what is immediately available and what is going to be required in future. If some machines have fully run out their lives, they fast necessarily be replaced out of resources available immediately and there would be no justification for keeping the available resources in reserves for future rehabilitation, while not providing out of those available resources for immediate replacement of the machinery. Then, there is the second aspect that an employer in order to claim more and more rehabilitation provision, will have a tendency to keep old blocks of machinery running and to avoid adoption of such a device it would be fair that he is required to utilise available resources at the very first opportunity when the old blocks of machinery require replacement and claim annual provision for future only in respect of that machinery which will require replacement later on. It appears that this Court in The Associated Cement Companies Ltd. case(1) proceeded on this very basis when calculating the rehabilitation requirement, though without discussing this question in detail. In that case, reserves to the extent of Rs. 311 lacs were found to be available. The machinery which required to be rehabilitated was divided into four blocks, the earliest block consisting of machinery installed up to 1939 in respect of which the rehabilitation requirement was Rs. 1172.76 lacs. In respect of three later blocks, the rehabilitation requirement was Rs. 70.40 lacs, 270.37 lacs and Rs. 768.50 lacs. The total requirements for rehabilitation in respect of all the four blocks was thus Rs. 2282.03 lacs. When calculating the annual requirement the Court did not deduct the sum of Rs. 311 lacs in respect of available reserves 'out of this total of Rs. 2282.03 lacs, but instead deducted this amount from the cost of the machinery required to replace the pre 1939 block for which the amount arrived at was Rs. 1172.76 lacs. After deducting this amount of reserves from the replacement cost of that block, the balance was divided by the divisor 7 which was treated as the remainder life of the machinery falling within that block. This calculation adopted in that case, therefore, fully bears out our view that the depreciation and available reserves must be taken into account when calculating the annual (1) 338 provision in respect of that machinery which requires earliest replacement and should not be deducted out of the total rehabilitation cost as urged by learned counsel for the. Company. Mr. De in this connection drew our attention to a decision of the kabour Appellate Tribunal in Saxby & Farmer Mazdoor Union, Calcutta(1) at pp. 711 712. In that case, the Tribunal first worked out the total rehabilitation and replacement cost of 'the machinery at Rs. 43.81 lacs. From this amount were deducted a sum of Rs. 14.75 lacs in respect of available reserve, a sum of Rs 9, 03 lacs as the total depreciation on the plants and machinery and a sum of Rs. 0.737 lac in respect of the break down value of the machinery at 5 % of the cost price, leaving a balance of Rs. 19.364 lacs as the rehabilitation requirement. Then the Tribunal noticed that, on the basis of total requirement of Rs. 43.81 lacs over the several periods during which rehabilitation and replacement was to take place, the annual requirement was worked out at Rs. 8.04 lacs. Applying the simple arithmetic of ratio, the Tribunal held that the proportionate annual requirement would be Rs. 3.54 lacs, if the total requirements are reduced to Rs. 19.364 lacs. In that case, thus, the Tribunal proceeded on the basis which has been canvassed on behalf of the Company before us. The total rehabilitation requirement was first worked out, while the annual requirement was also worked out on the basis of that requirement,. without taking into account the depreciation, available liquid reserves and the break down value of the machinery to be replaced. Thereafter, the total rehabilitation requirement was reduced. by the amount of depreciation, liquid reserves available and break down value of the machinery, and the annual requirement was reduced in respect of each block of machinery in the same proportion as the proportion between the total requirement and the net amount available arrived at, after deducting depreciation, ,available liquid reserves and break down value. We do not think that the principle adopted by the labour Appellate Tribunal was correct and should be accepted. On the face of it, it introduces a very anomalous position. In a case where some machinery may require immediate replacement in the year of bonus in question and resources may be available for meeting the cost of the entire machinery required to replace it, the principle adopted by the Tribunal would still permit the industry not to replace that machinery, but claim future provision for its replacement on the basis that the available resources are to be proportionately allocated to machinery which may require replacement in much later years. We hold that in approving this course, the Tribunal did not adopt the correct principle according to which calculation should be made, when applying the, Full Bench (1) 339 Formula for calculation of bonus. Learned counsel also referred us. to the decision of this Court in M/s. Titaghur Paper Mills Co. Ltd. vs Its Workmen(1) to show that, in that case, this Court also, when calculating the rehabilitation provision, deducted the entire depreciation and reserves available from the total rehabilitation requirement and did not adopt the course of deducting it from different blocks of machinery requiring rehabilitation. That case, however, does not support the view taken by the Labour Appellate Tribunal, because in that case this Court had accepted the decision of the Tribunal that all the machinery in whichever year it may have been installed had a uniform residuary life of 10 years, so that all the machinery was to be rehabilitated simultaneously during the next 10 years. There was, therefore, no distinction between machinery installed in one year and that installed in other years insofar as the year in which it was to be replaced was concerned. It is true that, in some cases while describing the Full Bench Formula,this Court has mentioned that the total depreciation and liquid reserves available are to be deducted from the total rehabilitation requirement,but we do not think that it was intended to lay down in those cases that the method of deduction to be adopted is that laid down by the Labour Appellate Tribunal in Saxby and Farmer Mazdoor Union, Calcutta(2). On the other hand as we have already indicated this Court, in The Associated Cement Companies Ltd. case(a), very clearly proceeded to apply the principle which we are accepting in this case. Consequently, we hold that the depreciation provision of Rs. 325.48 lacs and available development rebate reserve of Rs. 39.51 lacs must be taken in to account when calculating the annual provision for rehabilitation required for replacement of the earliest installed machinery until it is exhausted, whereafter the annual requirement for the remaining blocks of machinery will have to be calculated, ignoring these available resources. The next contest between the parties in this appeal relates to the claim of the Company to return on reserves and other funds used as working capital during the bonus year when calculating the surplus available for distribution of bonus. That a Company is entitled to return on reserves used as working capital was recognised by the Full Bench of the Labour Appellate Tribunal in The Millowners ' Association 's(4) case, when laying down the formula for calculation of available surplus which was approved by this Court in the case of The Associated Cement Companies Ltd.(a). In the latter case in dealing with this aspect of the matter, the Court pointed out that no distinction has been made by Tribunals between reserves used as working capital and depre (13 [1959] Supp. 2 S.C.R. 1012 at p. 1042. (2) (3) (4) 340 ciation fund similarly used. The Court approved the decision of the Labour Appellate Tribunal in The Millowners ' Association Bombay vs The Rashtriya Mill Mazdoor Sangh(1), where the objection of the labour to depreciation fund earning any return, even if it was utilised for or about the business of the year, was ovre ruled and the Tribunal observed that "no essential difference could be made between the depreciation fund and any other fund belonging to the Company which could be invested so as to earn return. ' The Court further held: "It is thus clear that what is material is not the origin of the fund. It is the fact that the fund in the hands of the concern has been used as working capital that justifies the claim for an adequate return on it. We think it is common sense that if the concern utilises liquid funds available in its hands for the purpose of meeting its working expenses rather than borrow the necessary amounts, it is entitled to claim some reasonable return on the funds thus used." (pp. 964 65). In this appeal, it is not disputed that the Company is entitled to claim a return on reserves which were actually utilised as working capital during the year of bonus, but Mr. Sen on behalf of the workmen urged that this return must be allowed only on reserves used as working capital and not on any other funds used at such, ,On the face of it, this argument cannot be accepted in view of the decision of this Court in the case of The Associated Cement Companies Ltd.,(2) where it has been clearly held that the origin of the fund is immaterial, though with the qualification that the fund should be one which is available for investment before a claim can be made by the employer for a return on it. This principle has been affirmed or followed in a number of cases subsequently decided by this Court, but we do not consider it necessary to refer to them in view of the fact that Mr. De on behalf of the employer conceded that this is the settled law and only contended that, in this case, the Company has in fact discharged the burden of proving that all the reserves shown in the balance sheet for the year of bonus were actually utilised as working capital. Consequently, we proceed to examine this submission made on behalf of the Company. Mr. De, in support of this submission, drew our attention to the affidavit of Satya Narayan Murarka who is the Commercial 'Manager of the Company. In this affidavit, Murarka stated. that all the sums shown as reserves and surpluses in the balance sheet 'were available for being utilised as working capital and were, in (1) [1952] 1.L.L.J. 518, 522. (2) 341 fact, so utilised. Murarka was also tendered for cross examination, so that the workmen hand an opportunity of testing the correctness of his evidence by cross examining him. It was urged by Mr. De that there was nothing in the cross examination of Murarka which would justify rejection of the statements made by him in his affidavit that all the reserves and surpluses available had been employed as part of the working capital of the Company, and, in this connection, drew our attention to some decisions of this Court where the evidence given on behalf of the employer on affidavit has been accepted by this Court as sufficient proof. The first case cited by him is The Tara Oil Mills Co., Ltd. vs IIts Workmen and Others(1). In that case, a question arose whether the Company concerned was entitled to claim return on the amount of depreciation reserves used as working capital. Dealing with this claim, the Court held: "An affidavit was made on behalf of the Company that it had used its reserve funds comprising premium on ordinary shares, general reserve, depreciation reserve, workmen 's compensation reserve, employees ' gratuity reserve, bad and doubtful debt reserves and sales promotion reserve as working capital. The Tribunal, however, allowed return at 4 per centum on a working capital of Rs. 31.88 lacs. This excluded the depreciation reserve but included all other reserves which were claimed by the company and having been used for working capital. " Proceeding further, the Court held : "It is enough to say that the affidavit of the Chief Accountant filed on behalf of the company was not challenged before the Industrial Tribunal on behalf of the respondents. It would, therefore, be impossible for us now to overlook that affidavit, particularly when the Tribunal gave no reason why it treated the working capital as Rs. 31.88 lacs only. " The Court, thus, accepted the evidence of the affidavit, though it was added that it will be open to the workmen in future to show by proper cross examination of the Company 's witnesses or by proper evidence that the amount shown as the depreciation reserve was not available in whole or in part to be used as working capital and that whatever may be available was not in fact so used in the sense explained above. In Anil Starch Products Ltd. vs Ahmedabad Chemical Worker 's Union and Others(2) this Court, dealing with the ques (1) ; at p. 10. (2) A.I.R. 1963 S.C, 1346 at p. 1348. 342 tion of proof that depreciation reserve had been used as working capital, held: "It is enough to say in that connection that an affidavit was filed by the manager of the company to the effect that all its reserves including the depreciation fund had been used as working capital. The manager appeared as a witness for the company before the Tribunal and swore that the affidavit made by him was correct. He was cross examined as to the amount required for rehabilitation, which was also given by him in that affidavit; but No. question was put to him to challenge his statement that the entire depreciation reserve had been used as working capital. The Tribunal also did not go into the question whether any money was available in the depreciation reserve fund and had been actually used as working capital. It dismissed the claim for return on the depreciation reserve on entirely different grounds. In the circumstances, we must accept the affidavit so far as. the present year is concerned and hold that the working capital was Rs. 34 lacs. It will, however, be open to the workmen in future to show by proper cross examination of the company 's witnesses. or by proper evidence that the amount shown as depreciation reserve was not available in whole or in part as explained above to be used as working capital and that whatever was available was not in fact so used." In Khandesh Spg. & Wvg. Mills Co. Ltd. vs The Rashtriya Girni Kamgar Sangh, Jalgaon,(1) this Court, again dealing with the question of proof of working capital, referred to the earlier cases and held: "This judgment again reinforces the view of this Court that proper opportunity should be given to the labour to. test the correctness of the evidence given on affidavit on behalf of the management in regard to the user of the reserves as working capital. " On the basis of these views expressed by this Court, it was urged that, in the present case, the affidavit of Murarka should be accepted as sufficient evidence in proof of the company 's claim that all the reserves and funds mentioned in the affidavit were in fact used as working capital, so that the company is entitled claim a return on them. It appears to us that the affidavit of Murarka in the present case is not such that it can be held to have discharged the burden (1) ; at p. 850. 343 which lay upon the Company to prove that all the reserves and other funds had, in fact, been utilised as working capital. In the affidavit, Murarka referred to the balance sheet and stated that the various funds claimed as having been used as working capital were shown at the beginning of the bonus year as in existence and the further entries indicated that those amounts were still intact at the end of the bonus year and were carried forward to the next year. Such a statement was made by him in respect of reserve for contingencies amounting to Rs. 10 lacs, forfeited dividends amounting to Rs. 450 lacs, profit and loss account balance amount to Rs. 3.63 lacs, provision for depreciation amounting to Rs. 325.48 lacs, and development rebate reserve amounting to Rs. 39.51 lacs. It is to be noticed that the fact that these amounts were shown as in existence at the beginning of the bonus. year as well as at the end of that year can certainly lead to a reasonable inference that these funds were all available to the company for being utilised in its business during the year; but the mere fact of these entries showing the existence of these funds at. the beginning and at the end of the year cannot be the basis for a conclusion that these funds must have been utilised as part of the working capital of the Company. In order to claim a return, it is not enough for a Company to show that the amounts were available during the year for being utilised as working capital. The Company has further to discharge the burden of proving that those funds were in fact so utilised. This principle was clearly indicated by this Court in Bengal Kagazkal Mazdoor Union and Others vs Titagarh Paper Mills Company, Ltd. and Others(1). It was in that case that this Court gave an indication of how the availability of reserves and other funds for use as working capital can be inferred from the balance sheet. It was said: "What is usually done is to take into account the ' liquid assets of various kinds available at the beginning of the relevant year and the total of such assets available at the beginning of the year is considered as working capital for that year, if there is evidence that it has. been actually used during the year. But when we come to the end of the year and look at the balance sheet, we have to find out the liquid assets available at the end of the year from which the amount available as working capital for the next year may be arrived at. But the liquid assets available at the end of the year will usually be of two kinds firstly, there will be cash assets in the various reserves and secondly, there will be assets in the shape of raw materials, etc., and both together become the available working capital for the next year subject (1) at p. 364. 344 to necessary adjustments and also subject to the evidence that they were actually used as working capital. " Proceeding further, the Court, while dealing with the bonus year 1955 56, held : "Now the working capital is generally arrived at by finding the liquid reserves available on 1st April, 1955. These liquid reserves may be in the form of reserves of various kinds, i.e., depreciation reserves, general reserve, renewal reserve, and so on, and also in the form of investments, advances and raw materials, etc. in stock. All these have to be taken into account in arriving at the working capital after necessary adjustments. As we have already pointed out, the amount of working capital thus arrived at, if there is evidence that it was actually used as working capital for the year, may be allowed interest in accordance with the Full Bench Formula." In that case, thus, the two steps necessary for proving the claim were separately indicated. The first step in proving that reserves and other funds have been used as working capital is to show that they were available by proving the balance sheet in which those reserves and funds are shown in existence at the beginning of the year. The second step indicated is that evidence must be given to prove that these reserves and funds were actually utilised as working capital during the year. Obviously, this proof is needed, because, even though the reserves and funds may be available, they may not be utilised as part of the working capital and may form part of cash amounts kept by the Company or may be utilised for purposes other than that of working capital. The mere existence of the reserves and funds at the beginning of the year, even taken together with their existence at the end of the year, cannot lead to. any inference that these reserves and funds must have formed part of the working capital during the year and could not form part of other items such as fixed deposits, investments, etc. Murarka in his affidavit, as we have indicated above, gave his conclusion that the various reserves were used as part of the working capital only on the basis that these reserves and funds were in existence both at the beginning and at the end of the year. The conclusion drawn by Murarka had, therefore, no basis at all. The facts on which he relied could only justify an inference that these reserves and funds were available, but they could not exclude the possibility that they were utilised for purposes other than that of working capital. The affidavit of Murarka in this case cannot thus be held to be sufficient proof of this second ingredient that the reserves and 345 funds were in fact utilised as working capital. So far as the cases referred to by learned counsel are concerned, which we have discussed earlier, they do not, in our opinion, lay down the principle that, if in an affidavit filed on behalf of the employer a broad statement is 'made that all reserves and other funds were used as part of the working capital, that statement must be accepted as. sufficient proof, even when the statement is coupled with an admission that it is based on an inference from the balance sheet only and no other proof is furnished to show that these available reserves and funds were in fact brought in as working capital by the employer during the year in question. In these circumstances, even though in the cross examination of Murarka on behalf ' of the workmen nothing very material was elicited on this question, we have to hold that the affidavit given by Murarka is not sufficient discharge the burden which lay on the Company to prove that all the reserves and other funds shown in the balance sheet as in existence at the beginning and at the end of the bonus year in question were utilised as working capital. The balance sheet, it appears to us, itself gives an indication. that this claim made on behalf of the Company cannot be fully justified. In the balance sheet, the assets of the Company are shown under various heads and it seems to us that items falling under certain heads only can be treated as working capital of the Company during the year, while others have to be excluded. The items which cannot be treated as part of the working capital are: fixed assets of the value of Rs. 411.08 lacs, investments of the value of Rs. 14.48 lacs, fixed deposit amount of Rs. 220 lacs, loans and advances recoverable in cash or in kind or for value to be received or pending adjustment amounting to Rs. 11.74 lacs, and loans and advances from Trust and other authorities amounting to Rs. 8.09 lacs. On the other hand, the working capital would consist of current assets of the value of Rs. 31.34 lacs, Stock in Trade of the value of Rs. 337 lacs, sundry debts of the value of Rs. 69.82 lacs, bank and cash balances of the value of Rs. 37.98 lacs, loans and advances of the value of Rs. 14.27 laes, and insurance and other claims of the value of Rs. 7.61 lacs. Thus, in the present case, the balance sheet gives an 'indication that a sum of Rs. 498.02 lacs was the amount shown at the beginning of the year against items of assets which can be classified as part of the working capital, whereas the remaining sum of Rs. 665.38 lacs represent fixed assets, fixed deposits, investments and other loans and advances which cannot be classified as part of working capital. Similarly, an examination of the items entered on the side of liabilities in the balance sheet shows what were the sources from which moneys became available for acquisition of these assets. 346 Amongst these, the reserves shown are only Rs. 10 lacs for contingencies and Rs. 39.51 lacs as development rebate reserve. Though the balance sheet does not itself show the depreciation fund, it is also clear from the Schedule attached to the balance sheet that, up to the beginning of the year, a depreciation provision had been made to the extent of Rs. 325.48 lacs. In order not to show it as available development reserve or fund in the balance sheet, what the Company did was to show the depreciated value of the capital assets at Rs. 411.07 Iacs instead of the actual value of Rs. 736.56 lacs which was the amount paid in cash for acquiring those fixed assets. For purposes of dealing with the question whether any reserve was used as working capital, we must, therefore, proceed on the basis that there was a depreciation reserve of Rs. 325.48 lacs, while the investment on the fixed assets was Rs. 736.56 lacs and not merely Rs. 411.07 lacs. Taking this depreciation reserve also into account, it would thus appear that the reserves available at the beginning of the year Were of the amount of Rs. 374.99 lacs. The subscribed capital and capital available from forfeited shares was Rs. 819.57 lacs. Funds available from other resources, such as profit and loss account balance, unsecured loans, current liabilities and provisions, provision for taxation, proposed dividends and contingent liabilities not provided for, amounted to Rs. 294.33 lacs. The question that arises. is how much money from each of these ' sources had gone into the working capital and how much into fixed assets or other items of assets indicated by us above. In examining this position, the value of the fixed assets has to be taken as Rs. 736.56 lacs which was the actual amount spent in acquiring 'those assets and not at the written down value of those assets at Rs. 411.08 lacs. It seems to us that this being the position, there was no justification for Murarka to claim that all the amounts available in reserve had gone towards the working capital and did not represent other assets, such as the fixed deposit of Rs. 220 lacs and similar other items. In these circumstances, we have. to hold that no reliance can be placed on the affidavit of Murarka that all the reserves, including the depreciation reserve and the contingent anti development rebate reserve were actually used as part of the working capital during this year. The question that next arises on this conclusion of ours is whether any return at all should be allowed to the Company on reserves or other funds claimed as having been utilised as working capital during this year. The exact figure on which the Company could claim return has not been proved by it, but it seems to us that at least some part of the reserves must necessarily have been utilised in the working capital. The Company had a paid up capital of Rs. 819.57 lacs and it can safely be assumed that 'this money:was utilised for acquiring the fixed assets, as that will 347 be the primary purpose of obtaining capital from the share holders. A sum of Rs. 736.56 lacs must, therefore, have gone in cash into the fixed assets out of this sum of Rs. 819.57 lacs, leaving a balance of Rs. 83.01 lacs. The sum available from other resources was Rs. 294.33 lacs which, together with the balance of the subscribed capital left over, gives a figure of Rs. 377.34 lacs. Consequently, for purposes of the working capital, a maximum amount of Rs. 377.34 lacs could have been available from the subscribed capital or other resources and the balance of the amount must necessarily come out of the reserves. The items of assets classified as representing the working capital, as we have indicated above, have a total value of Rs. 498.02 lacs. Deducting from this amount the sum of Rs. 377.34 lacs available from subscribed capital or other resources, there remains a balance of Rs. 120.68 lacs which must have necessarily come out of the various reserves, including the depreciation reserve, and this amount at least must be held to represent reserves acually used as working capital during the year by the Company. We think that,since the information available from the balance sheet itself shows that at least Rs. 120.68 lacs out of the reserves did form part of the working capital of the Company, it would be fair to allow the Company 4% return on this amount, even though we are not inclined to accept the evidence of Murarka and have to hold that the Company on its part failed to prove that this amount or the whole of the amount of reserves had been utilised as part of them working capital during this year. Consequently, the amount which the Company has to be allowed as return on reserves utilised as working capital comes to Rs. 4.83 lacs. In this connection, we may also take notice of the claim made by the Company that return should also be allowed on certain other sums. used as working capital which have been described as working income. The Company claimed that it had money available from four different sources. The details given were Rs. 249.71 lacs from profit as worked out in the Profit and Loss Account at the end of the year, Rs. 63.07 lacs as reserve for depreciation for the year. Rs. 36.00 lacs as development rebate for this year and Rs. 4.71 lacs as value of discarded fixed assets written off. The claim was that at least half the amount represented by these figures should be treated as a fund which was available during the bonus year for being utilised as working capital. This submission, in our opinion, cannot be accepted. There is nothing to show whether any of these amounts became available to the Company during the year and if so, when they became available. In fact, the profit as worked out in the Profit and Loss. Account can be held to have accrued to the Company only when the Profit and Loss Account was worked out at the end of the year. We have already referred to the decision of this Court in 348 Bengal Kagazkal Mazdoor Union and Others(1) where it was held that amounts shown as liquid assets at the beginning of the year are the only amounts which can be held to be available for utilisation as working capital in that year. Amounts which accrue during the year or at the end of the year cannot be held to be available, unless evidence is led on the basis of which a positive finding can 'be recorded that those amounts became available on a particular date during the year and were thereafter actually utilised as part of the working capital. Profit for the year and reserve or development rebate for the year in question cannot be proved to have accrued on any particular date during the year and, therefore, it is also not possible to hold that they were utilised as part of the working capital during that very year. This claim which is a novel one put forward on behalf of the Company for the first time in applying the Full Bench Formula for calculation of available surplus for distribution of bonus, must, therefore, be rejected. A point that was raised on behalf of the workmen, but which was not seriously argued before us, was that the return on paid up capital should not be allowed at least to the extent to which money had been invested in the subsidiary or other companies. The amount in question is Rs. 14.48 lacs already noticed by us earlier when dealing with the question of proof of utilisation of reserves as working capital. In dealing with that question, we have already proceeded on the basis that the paid up capital was either invested in fixed assets, or must have been utilised as part of the working capital, and have not accepted the plea that this sum of Rs. 14.48 lacs of investment came out of the paid up capital. Consequently, no question can arise of reducing this amount from the paid up capital when allowing 6% return on it in accordance with the Full Bench Formula. Another deduction, while calculating the surplus out of the profits available for distribution of bonus, which has been challenged on behalf of the workmen relates to the income from home delivery commission. From the facts, it appears that this Company was manufacturing cars in collaboration with a foreign concern and the arrangement was that,if that foreign concern sold any of its goods in India, the Company would be entitled to its commission on those sales, even though the Company may not be a party to the transactions of those sales. This arrangement thus recognised the exclusive right of the Company in respect of sale of its cars and to reimbursement in case the foreign collaborator entered into transactions infringing that right. It seems to us that the income thus accruing to the Company has to be treated as extraneous income which was earned by the Company without (1) 349 any activities in which the workmen participated or contributed their labour. Learned counsel for the workmen referred us to the decisions of this Court in the Tata Oil Mills Co. Lid. Q) and Voltas Limited vs Its workmen(1). The situations that were discussed in those cases were different. In those cases, the principle laid down was that, if any income was earned in the course of the normal business of the Company in which the workmen were also engaged, that income must be included in the profits for calculation of surplus available for distribution of bonus. None of the instances that came up for consideration were similar to the one before us. The home delivery commission earned in the present case did not require any contribution of work or labour on the part of the workmen, and accrued to the Company simply because of its agreement with the foreign collaborator ' which entitled the Company to claim the commission without going through any process of manufacturing or selling the cars or their components. In the circumstances, the deduction of the home delivery commission from the profits was fully justified. The last point urged related to the interest on fixed deposits earned by the Company during the bonus year. We have already indicated earlier that a sum of Rs. 220 lacs was in fixed deposit account and the profit and loss account shows that a sum of Rs. 5.17 lacs was received as interest on it by the Company. This has also to be excluded when calculating the available surplus, because this income also accrued to the Company without any contribution on the part of the workmen. It was not the regular business of the Company to keep money in fixed deposits and earn interest thereon. ' At the same time, however, we feel that on equitable grounds, the Company should not be entitled to claim the sum of Rs. 2.16 lacs as an expenditure of the business of the Company in respect of interest paid to bank and others. When the Company was receiving interest on fixed deposits, it would be proper to hold that at least the interest paid by the. Company should come out of the interest earned by it. There seems to be no justification for permitting a Company to keep money in a fixed deposit and treat the interest accruing on it as extraneous income, while, at the same time permitting the Company to take loans, pay interest and treat that interest as business expenditure. Consequently, in this case, when calculating the available surplus, a sum of Rs. 5.17 lacs minus Rs. 2.16 lacs Rs. 3.01 lacs only will be deducted as extraneous income which was earned without any contribution from the workmen and which cannot therefore, be taken into account when calculating available surplus. On the basis of these decisions, we have worked out Charts bowing the amount of annual rehabilitation provision which (1) ; (2) ; LISupCl/688 350(a) CHART Year Original Cost Discarded Price Replace and Factor ment Cost written or Multi off from plier books 1 2 3 4 5 1942 43 to 1946 47 2.17 . 2.80 6.08 1947 48 89.75 0.35 2.80 250.32 1948 49 44.77 . 2.50 111.93 1949 50 37.60 . 2.30 86.48 1950 51 5.29 . 2.40 12.70 1951 52 14.63 . 2.70 39.50 1952 53 11.06 0.39 2.50 26.68 1953 54 9.09 . 1.50 13.64 1954 55 38.65 24.33 1.90 27.23 1955 56 30.05 8 01 1.80 39.69 1956 57 34.47 5.95 1.60 45 63 1957 58 75.32 7.79 2.00 135.06 ]958 59 53.74 . 1.25 67.17 1959 60 140.15 . 1.15 161.17 1960 61 98.52 . 1.10 108.37 350(b) (All figures in lacs of rupees) Less 5 % Balance Deduct Balance Resi Annual Cost deprecia require duary Rehabili tion & other ment Age tation reserve require available ment 6 7 8 9 10 11 0. 11 5.97 364.99 Nil Immaterial . 4.47 245.85 359.02 Nil " . 2.24 169.69 113.17 Nil " . 1.88 84 60 3.48 81.12 3 27.04 0.27 12.43 12.43 3 4.14 0 45 13.19 . 13.19 5 2.64 0 72 26.51 26.51 6 4.42 1.43 44.20 44.20 7 6.31 3.37 131.69 . 131.69 8 16.46 2.69 64.48 64 48 9 7.16 7.01 154.16 154.16 9 17.13 4.93 103.44 103.44 10 10.34 116.70 351 CHART II (All figures in lacs of rupees) Annual Requirement for Rehabilitation for all the Machinery 116.07 Less Depreciation Provision for the Year of Bonus 1960 61 63.07 Net Requirement for Rehabilitation of Machinery in the Year 1960 61 53.00 Requirement for Rehabilitation of Buildings 11.97 Total Rehabilitation Requirement 64,97 CHART III (All figures in lacs of rupees) Profit as per Profit&Loss Account 249 '71 Add : Provision for Depreciation 63.07 Reserve for Development Rebate 36.00 Charity and Donation 0.35 Expenses pertaining to previous years (Sales tax) 0,01 99 43 99,43 349,14 Less: Income pertaining to previous years and Provisions no longer required 5.70 Surplus on Sale of Fixed Assets 0,09 Home Delivery Commission 1.03 Interest on Fixed Deposits 3,01 Normal Notional Depreciation 69,26 Income tax Liability for the year 112,37* 6% Return on Ordinary Share Capital 29,77* 8.57% Return on Preference Share Capital 27,55 4%Return on Working Capital 4,83 Provision for Rehabilitation 64,97 318.58 318,58 Net Surplus Available for Payment of Bonus 30.56 *These figures have been corrected by us. In the statement filed by the Company they were wrongly entered as 12.18 lacs and 129 ' 89 lacs respectively. 359. must be allowed to the Company and, taking that into account, the amount of surplus available out of the profits for distribution as bonus. Chart 1 shows the annual rehabilitation requirement for machinery which works out at Rs. 116.07 lacs. Chart II gives the calculation, on the basis of this figure, of the net amount required for rehabilitation during the year of bonus for the machinery and buildings, after taking into account the depreciation provision for the year of bonus. This net amount is Rs. 64.97 lacs. Chart 111, based on these figures and on other figures arrived at by us in our judgment, shows that a net amount of Rs. 30.56, lacs would be available as surplus for payment of bonus during this year. The Tribunal was, therefore, not right in arriving at its decision that this Company was not in a position to pay bonus at all. As we have indicated earlier, the workmen have claimed bonus equivalent to 6 months ' wages which would amount to a sum of Rs. 24 lacs. We do not find any justification for granting bonus at such a high rate. Though the Company has earned a large amount of profit during the year of bonus, it is to be noticed that, for quite a large number of years, the Company has been running at a loss. The Company has an expanding business and the total amount of surplus available for allocation between the capital and the labour is Rs. 30.56 lacs. In all these circumstances, we consider it just and proper that bonus should be paid to the workmen. 20% of their annual wages, so that a total sum of Rs. 9.60 lacs out of this surplus will be paid out as bonus, leaving the balance of Rs. 21.03 lacs with the Company for being utilised for other purposes. The appeal is, consequently, allowed, the decision of the Tribunal is set aside and it is hereby ordered that the Company shall pay to the workmen a total amount of Rs. 9.60 lacs as bonus, representing 20% of the annual wage of the workmen. In the circumstances of this case, we direct parties to bear their own costs of this appeal. G.C. Appeal allowed.

After an enquiry under section 476 of the Code of Criminal procedure the Judicial Magistrate, Baroda, ordered that the appellant he prosecuted for offences under sections 205, 467 and 468 read with section 114 of the Indian Penal Code. In Appeal the Additional Sessions Judge held that the said complaint was justified but only in respect of the offence under section 205 read with section 114. The High Court dismissed the appellant 's revision pettion but granted a certificate under article 134(1)(c). The appellant came to this Court. On behalf of the respondent State it was contended that the High Court 's order dismissing the revision was not a final order as it, did not determine the complaint filed by the Magistrate nor did it decide the controversy between the parties viz., the State of Gujarat and the appellant.whether the appellant had committed the offence. Held : (Per Wanchoo C. J. and Shelat and Vaidialingam JJ.) (i) A judgment or order may be final for one purpose and interlocutory another or final as to part and interlocutory as to part. The meaning of the two words 'final ' and 'interlocutory ' his, therefore to be considered separately in relation to the particular purpose for which it is required However, generally speaking a judgment or order which determines the principal matter in question is termed final. It may be final although it directs enquiries or is made on an interlocutory application or reserves liberty to apply. [687 H; 688 A ,B] Salaman vs Warner , Standard Discount Co., vs La Grange, , A. Great Eastern Rail Co. [1879] 27 W.R,. 759, Shutrook vs Tufnell, , Bozson vs Altrincham Urban Council, , Abdul Rehman vs The King [1947] Cassim & Sons vs 60 IA. 76, S.Kuppusami Rao vs King, , Mohammad Amin Brothers Ltd. vs Dominion of India, Sardar Svedna Taher Saifuddin Saheb vs The State of Bombay , Jethainand and Sons vs The State of Uttar Pradesh ; , Premchand Satramadas vs State of Bihar ; , State of Uttar Pradesh vs Sujan Singh, [1964] 7 S.C.R. and State of Orissa vs Madan Gopal [1952] S.C.R. 28, referred to. (ii) The order of the High Court in the present case disposed of the controversy whether the filing of the complaint against the appellant was justified, The finality of that order was not to be judged by co relating that order with the controversy in the controversy viz., whether the appellant had committed the offence charged against him therein. The fact 686 that that controversy remained alive was irrelevant. Consequently the order passed by the High Court in the revision filed by the appellant was it final order within the meaning of article 134(1)(c). [693 D H] Ramesh vs Patni, ; , relied on. (iii) The High Court, before it certifies the case in cases not covered by clauses (a) and (b) of article 134(1)(c), must be satisfied that it involves some substantial question of law or principle. Only it case involving something more than mere appreciation of evidence is contemplated by the Constitution for the grant of a certificate under article 134(1) (c) The question in the revision petition before the High Court was whether the filing of a complaint against the appellant was expedient in the interest of justice. This was a question of fact and therefore the grant of certificate was not justified. [694 B F] Haripada Dey vs Slate of West Bengal, ; , and Babu State of Uttar Pradesh, relied on. Per Bachawat and Mitter, JJ. (dissenting) : Whatever test is applied,in order directing the filing of a complaint and deciding that there is a prima facie case for enquiry into an offence is not a final order. It is merely a preliminary step in the prosecution and therefore and, interlocutory order. As the order is not final, the High Court was not competent to grant a certificate under article 134(1)(c). [695 B] section Kuppuswamy Rao vs The King , relied on.

ivil Appeals Nos. 1148, 1656 and 2341 of 1966. Appeals by special leave from the judgment and decree dated July 27, 1965 of the Punjab High Court in Letters Patent Appeals Nos. 13 to 15 of 1965. Prem Chand Jain and Janardan Sharma, for the appellants (in all the appeals). D.D. Sharma, for respondents Nos. 1 (iv to xiii) in all the appeals). The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought by special leave on behalf of the defendants against the judgment of the Punjab High Court dated 27th July, 1965 in Letters Patent Appeals Nos. 13 and 14 of 1965. Dhara Singh, respondent No. 2, executed three sale deeds with regard to lands at village Bhadani, 'Tehsil Jhajjar, Rohtak in favour of the appellants in all the three appeals. The first sale was of land measuring 27 kanals and 4 marlas dated September 20, 1960, the second was of land measuring 36 kanals and 19 marlas dated November 23, 1960 and the third was of land measuring 33 kanals and 18 marlas dated March 6, 1961. Neki deceased, who was the father 's brother of Dhara Singh, vendor, instituted three suits in the court of Subordinate Judge at Jhajjar for possession of the aforesaid lands covered by the three sales on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the appellants under section 15(1)(a) of the Punjab Pre emption Act, 1913 (Punjab Act 1 of 1913). These suits were contested by the appellants. After hearing the contentions of the rival parties, the Subordinate Judge granted decrees in ail the three suits in favour of the plaintiffs. In suit No. 311 of 1961 the decree stipulated that the plaintiff should deposit the amount of Rs. 3,500/ in court on or before 15 1 1963. In suit Nos. 368 and 369 of 1961 the condition was that the plaintiffs should make the deposit of Rs. 5,000/ and Rs. 7,000/ respectively in court on or before 15 1 1963. The appellants took the matter in appeal before the Senior Subordinate Judge who by his judgment dated 30th January, 1963 dismissed the appeals against the decrees in 835 suits Nos. 313 and 369 of 1961 and modified the decree in suit No. 368 of 1961 to the extent that the plaintiff was called upon to deposit a further sum of Rs. 2,000/ on or before 1 3 1963. The appellants preferred regular Second Appeals Nos. 280, 281 and 282 of 1963 in the High Court against the decrees and judgment of the Senior Subordinate Judge, Rohtak. The plaintiffs also preferred in the High Court appeal No. 830 of 1963 against the increase made in the price of the land by the Senior Subordinate Judge Rohtak in the appeal arising out, of decree in suit No. 368 of 1961. While the appeals were pending in the High Court, Neki plaintiff died on April 7, 1963. After his death, the appellants vendors in the three regular appeals moved applications under 0.22, r. I of the Civil Procedure Code to bring on record of the appeals the legal representatives of Neki, deceased plaintiff, namely, Dhara Singh, Ramkishan and Balbir Singh. All the four appeals were heard and dismissed by Mr. Justice Khanna by his judgment dated 17th September, 1964. The appellants preferred appeals under the Letters Patent which were dismissed by a Division Bench of the Punjab High Court by a common judgment dated 27th July, 1965. The claim of Neki for pre emption was based on sections 14 and 15 (1) (a) of the Punjab Pre emption Act 1913 (Punjab Act 1 of 1913). Section 14 states : "No person other than a person who was at the date of sale a member of an agricultural tribe in the the same group of agricultural tribes as the vendor shall have a right of pre emption in respect of agricultural land sold by a member of an agricultural tribe". "Section 15 (I) (a) reads as follows "The right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner: FIRST, in the son or daughter or son 's son or daughter 's son of the vendor; SECONDLY, in the brother or brother 's son of the vendor; THIRDLY, in the father 's brother or father 's brother 's son of the vendor; FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof . " The Punjab Pre emption Act, 1913 was amended by Punjab Act 10 of 1960 and section 6 of the amending Act inserted a new section 31 in the Principal which states as follows: 836 "No court shall pass a decree in a suit for pre emption whether instituted before or after the commencement of the Punjab Pre emption (Amendment) Act, 1960, which is inconsistent with the provisions of the said Act". It is necessary also to refer at this stage to the provisions of 0.22, r.1 and 0.22, r. 1 1 which are to the following effect : "0.22, r. 1 : The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives". "0.22, r. I I : In the application of this Order to appeals, so far as may be, the word 'plaintiff ' shall be held to include an appellant the word 'defendant ' a respondent, and the word 'suit an appeal". In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre emption. The argument was that the statutory right of pre emption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of ',he legal representatives as representing the estate of Neki. We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stran (Ter into the land. The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent 'that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute. In other words, the statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre empt. In the present case, Neki obtained decrees for pre emption in all the three suits against the appellants and these decrees were confirmed by the first appellate Court. While the second appeals were pending in the High Court, Neki died and the question is whether under the provisions of 0.22, r. I and 0.22, r. I I of the Code of Civil Procedure, the right to sue survived after the death of Neki. In this context, it is necessary to consider the provisions of section 306 of the Indian 837 Succession Act XXIX of 1925. This section expresses a qualification of the maxim actio personalis mortiur cum persona to the extent that the section indicates that, amongst causes of action which survive, are included some actions of a personal nature, that is to say personal actions other than those expressly excluded by the section itself. It is true that the right of pre emption under section 15(1)(a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor. But under section 14 of the Act, the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes as the vendor and the land of which pre emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe. We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption. The view which we have taken is supported by the language of section 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre emption did not abate upon his death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of 0.22, r. 1 read with 0.22, r. 10 of the Code of Civil Procedure. The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah vs Ram Kishan & Ors.(1). The question that arose for determination in that case was whether the right to sue for pre emption under s.12 of the Punjab Laws Act upon a cause of action which accrued to a person in his life time passed at his death to his successor who inherited the property through which the right had accrued. The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the par ties. At p. 641 of the Report, Clark, C.J. observed : "While, therefore, there is good reason why volun tary transfers should not pass a right of pre emption as regards properties previously sold, those reasons do not apply to transfers by inheritance. As regards transfers by inheritance, the general principle should apply that the right of pre emption passes with the land. Mr. Grey laid great stress on sections 13 and 16 of the, Punjab Laws Act urging that the father was the person on whom the notice had to be served, and that it was he who had the right to sue and that the right was thus a personal one that could not (1) 133 P. R. 1907. 838 be inherited by the son. The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son. If the father had waived or otherwise disposed of his right this would no doubt be binding on the son, as the father was representing the whole estate. Where, however, the father has done nothing of the kind, but has simply taken no steps in the matters, there seems to me no reason why the son should not step into the shoes of his father and take the same action as the father could have done. The son inherits the other causes of 'action belonging to his father and why not this one ? Nor do I see why the son cannot come in under Section 16, simply alleging that no notice as required by section 13 was served on his father". A similar view was expressed by the Full Bench of the Allahabad High Court in Wajid Ali & Ors. vs Shaban & Ors. It was held that where a right of pre emption exists by custom as recorded in the village wajib ul arz, the right having once accrued did not of necessity lapse by the death of the pre emptor before making a claim, but descended along with the property in virtue of which it subsisted to the heir of the pre emptor. It is necessary to emphasize that we are dealing in this; case with the statutory right of pre emption under Punjab Act 1 of 1913 and its subsequent amendment and not with the right of preemption under the Mohammedan Law. In regard to the latter right it has been held that according to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption has not obtained his decree for pre emption in his life time the right to sue does not survive to his heirs. (See Muhammad Husain vs Niamet un nissa and Ors.) (2). It is not necessary for us to express any opinion on this point in the present case. On behalf of the respondent it was also pointed out that after the passing of the decree by the, trial court, Neki complied with the terms of the decree and made payments within the time given. It was said that under the terms of section 14 and section 1 5 (1 ) (a) the title to the land in the pre emption suits must be deemed to have accrued to Neki from the date of such payment. It was argued that before his death, Neki became the owner of the lands which were the subject matter of pre emption and the legal representatives of Neki were substituted in his place as representing the estate of Neki. In support of this proposition counsel relied upon the language of 0.20 r. 14(1) which states : "Where the court decrees a claim to pre emption in respect of a particular sale of property and the pur (2) 1. L. R. 20 All. 88. 839 chase money has not been paid into Court, the decree shall (a) specify a day on or before which the purchasemoney shall be so paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs. " In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram & Ors. vs Shiv Lal(1) where it was held that the title to the preempted property passes to the pre emptor under a pre emption decree on deposit of the purchase money in terms of the decree and was deemed to. pass to him from the date of the deposit. So far suit No. 368 is concerned, there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescribed but as regards suits Nos. 311 and 369 of 1961, it is admitted that the deceased Neki made the payment of the amount under the two decrees within the time prescribed. So far as these two decrees are concerned, the deposit of the purchase money is an additional reason for holding that the legal representatives of Neki were properly substituted in his place in the proceedings of the second appeals. It was finally urged on behalf of the appellants that, in any vent, section 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents. The argument was stressed that section 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singh and his two sons as legal representatives of Neki could not be granted a decree for pre emption. In our opinion, this argument is wholly irrelevant. The reason is that the Amending Act came into force on February 4, 1960 and Neki instituted the present suits for pre emption long after this date. Even the three sales of land were effected after the promulgation of the Amending Act. Reliance was placed on behalf of the appellants on the decision of this Court in Ram Sarup vs Munshi & Ors.(1) but the material facts of that case are quite different. It appears that the claim of pre emption in that case was based upon section 15(c) 'thirdly ' of the Punjab Pre emption Act 1913 which states: (1) 66 P. L. R. (1964), 251. (2) 840 "Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold; (b) where the sale is of a share out of joint land or property, and is not made by all the co sharers jointly, firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co sharers, if any, who are agnates, in order of succession; (c) If no person having, a right of pre emption under clause (a) of clause (b) seeks to exercise it: thirdly, in the owners of he estate;. . " By section 4 of the amending Act (Act 10 of 1960) section 1 5 of the parent Act was repeated and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons 'owning land in the estate ' as the original section 15(c) 'thirdly ' had done. Retrospective effect was given to the provision by the insertion of a new section 31 in the. parent Act. The question for consideration was that whether by reason of this amendment in the law the respondent was entitled to the benefit of the decree which he obtained under the previously existing enactment. It was the case of the plaintiff that he owned land in the 'estate ' whereas the vendee did not own land there. The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an 'estate ', sought to prove that he too owned land in the same village and 'estate ' but in this he failed. As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court on Novber 8, 1951, and an appeal and second appeal therefrom were also dismissed. The question was whether the respondent was entitled to a decree in view of section 31 of the Punjab Pre emption Act 1913 as amended by Punjab Act 10 of 1960 which came into force on February 4, 1960. It was held by this Court that in view of the plain language of section 3 1, the substantive law enacted by the legislature in the amended section 15 of the Pre emption 841 Act should be applied and the decree for pre emption in favour of the first respondent should be set aside. It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in Ram Sarup vs Munshi & Ors. (1) has no application to the present case. In Ram Sarup 's case(1) the right of the plaintiff to pre empt was extinguished retrospectively; in the present case Neki 's right to sue has not been extinguished Neki had the right of pre emption under the Amended Act at the time he, instituted the suit and Neki 's right was not extinguished on his death but passed to his legal representatives. For the reasons expressed above, we hold that these appeals have no merit and must be dismissed with costs. There will be one set of hearing fee. Y.P. (1) ; Appeals dismissed.

By section 4 of the Amending Act (Punj. Act 10 of 1960) section 15 of the Punjab Pre emption Act, 1913 was repealed and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons 'owning land in the estate ' as the original section 15(c) 'thirdly ' had done. Retrospective effect was given to the provisions by the insertion of new section 31 in the parent Act. In respect of sales effected after the promulgation of the Amending Act, one N filed suits and obtained decrees for pre emption in all suits against the appellants under section 15(1)(a) of the Punjab Pre emption Act. These decrees were confirmed by the first appellate court. While the second appeals were pending in the High Court, N died, and his legal representatives were brought on record. The High Court dismissed the appeals. In appeals to this Court, it was contended that (i) the statutory right of pre emption under the Punjab Preemption Act, was not a 'heritable right ' and no decree for pre emption should have been passed by the lower court in favour of the legal representatives; and (ii) section 31 of the Act as amended retrospectively by Punjab Act 10 of 1960, stood as a bar to the granting of a decree in favour of substituted legal representatives. HELD : The appeals must be dismissed. (i) The statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the persons entitled to pre empt. The right of pre emption under section 15(1) (a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor. But under section 14 of the Act, the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes, as the vendor and the land of which preemption is sought must be in respect of agricultural land sold to a member of the agricultural tribe. If an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption. This view is sup ported by the language of section 306 of the Indian Succession Act and therefore, the claim of N for pre emption did not abate upon his death and his legal representatives were properly brought on 'record of the second appeals under the provisions of 0. 22, r. 1 read with 0. 22, r. 10 of the Code of Civil Procedure. (836 G; 837 B D] Faqir Ali Shah vs Rani Kishan & Ors. 133 P.R. 1907 and Wajid Ali & Ors. vs Shaban & Ors. 1.L.R. 31 All 623, approved. Muhammad Husain vs Niamat un nissa & Ors. I.L.R. 20 All, 88, referred to. 834 (ii) The Amending Act came into. force long before N instituted the present suits. Even the sales of land were effected after the promulgation of the Amending Act. In Ram Sarup 's case, the right of the plaintiff to pre empt was extinguished retrospectively; in the present case N 's right to sue has not been extinguished. N had the right of pre emption under the Amended Act at the time he instituted the suit and N 's right was not extinguished on his death but passed to his legal representatives. [839 G] Ram Sarup vs Munshi & Ors. [196.3] 3 S.C.R. 858, distinguished.

Appeal No. 2580 of 1969. Appeal from the judgment and order dated August 6, 1969 of the Andhra Pradesh High Court in Writ Petition No. 3124 of 1967. A.Subba Rao, for the appellants. S.P. Nayar, for respondent No. 1. P.Ram Reddy and A. V. V. Nair, for respondents Nos. 2 and 3. P. P. Rao and T. V. section Narasimhachari, for respondent No. 4. The Judgment of the Court was delivered by Beg, J. This appeal, from a Judgment and order of the Andhra Pradesh High Court dismissing the appeallant 's Writ Petition, comes up before us by Certificate under Article 133(1)(a) of the Constitution, in the following circumstances One Buchivenkata Rao had filed application on 1 9 1959 and 1 8 1960 under Mineral Concession Rules, There in after referred to as 'the Rules ' before the Collector of Nellore, for the grant of a mining lease to him of an area mentioned in his applications. He alleged that his applications complied with the rules framed under the Mines and Minerals (Regulation and Development Act of 1957. The State Government rejected the application of 11 8 1960 on 7 12 1960, but granted the application made on 4th October, 1950, by the Respondent Kumara Rajah of Venkatagiri (hereinafter referred to as Venkatagiri). The ground on which the application of the appellant Rao, was rejected was that Venkatagin ' had a prior claim. The appellant Rao had then preferred a Revision application to the Central Government under the Mineral Concession Rules which came into force on 11th November, 1960,. 667 The Central Government had rejected the revision application on the ground that it was not filed within the prescribed time. Upon a Writ Petition filed in the High Court of Andhra Pradesh, the order of rejection of the revision application by the Central Government was quashed. The Central Government was directed to consider Rao 's application on merits. The Central Government had, after giving due opportunity to be heard to the appellant Rao, dismissed his application on 18th October, 1967, holding that Venkatagiri had priority over his claim. Rao then filed a second Writ Petition which was dismissed on 26th September, 1969. The judgment and order of dismissal are now under appeal before us. The judgment of the High Court shows that the appellant Rao had relied on the following three grounds only at the time of agruments on his Writ Petition : firstly, that the application of Venkatagiri was not made in accordance with Rule 27 and 32 of the said Rules of 1949; secondly, that the application of Venkatagiri was not for a fresh lease but for the continuation of a previous lease so that it did not fall within the purview of the rules; and, thirdly, that the Central Government had, not considered in detail the various comments offered by the State Govt. with regard to each ground of revision. A contention noticed by the High Court, as a separate ground of attack, was that the Central Govt. had relied upon a ruling of a Single Judge of the Punjab High Court in J. A. Trivadi Brothers vs Union of India(1), holding that Rules 27 to 29 did not make defective applications void, but this view had been reversed by a Division Bench of that Court. This was no really a separate ground but a contention relating to the effect of failure to comply strictly with Rules 27 to 29 of the Rules of 1949. The main contention of Rao was that the application of Venkatagiri had to be disregarded as it failed to comply with the rules, and, therefore, was not an application in the eye of law, so that, out of several competing applications, Rao 's application. ought to have been granted. The High Court, made it clear that other grounds were taken in Rao* petition, but were not argued there. In this Court, a fresh ground, neither taken nor argued before the High Court, is sought to be urged in addition to the other grounds before the High Court which were repeated before us. We will take up the grounds advanced in the High Court and again in this Court before considering the entertain ability of the fresh ground. At this stage, before dealing with the first ground, we may set out the relevant rules 27 and 32 of 1949 which run as follows "27. Application for mining, lease An application for a mining lease shall, in case of land in which the mine (1) A.I.R. 1959 Punjab 589. 668 rals belong to Government, be made to the State Government concerned through such officer or authority as it may appoint in this behalf and shall contain the following particulars : (a)(i) If the applicant is an individual, his name, nationality, profession, and residence, and (ii) if the applicant is a partnership firm, a company or an association or body of individuals, whether in corporated or not, its name, nature and place of business, place of registration of incorporation and except in the case of a company which is not a private company as defined in the Indian Companies Act, 1913 (VII )of 1913) the names and addresses of the individuals constituting such partnership firm, company, association or body. (b) The number and date of the notification of the grant or renewal of certificate: of approval of the applicant; (c) A description, illustrated by a map or plan, showing as accurately as possible the situation, boundaries and area of the land in respect of which the lease is required; (d) The mineral or minerals which the applicant intends to mine; (e) The areas and minerals within the jurisdiction of the State Government for which the applicant or any person joint in interest with him already holds a mining lease; (f) If the applicant holds a prospecting license for the area applied for, the number and date of such license; (g) The period for which the lease. is required; and (h) The industry, if any, which the applicant proposes to develop and the location of such industry. Explanation : The map or plan referred to in item (c) should give sufficient information to enable identification of the area in respect of which the lease is required". Priority (1) If more than one application regarding the same land is received, preference shall be given to the application received first. unless, the State Govern 669 ment, for any special reason, and with the prior approval of the Central Government decides to the contrary. Provided that where more than one application in respect of the same land is received on the same day, the State Government, after taking into consideration the matters specified in sub rule (2) and after obtaining the prior approval of the Central Government, may grant the mining lease to such one of the applicants whom it considers to be the most suitable. Provided further that no application shall be deemed to be incomplete for the purposes of this rule on account of the omission or misdescription of the number and date of the prospecting licence and of the profession or residence or nationality in the case of an individual or of the place of business in the case of a partnership firm, a company or an association or body of individuals, whether incorporated or not, if such omission or misdescription, is corrected within a period specified by the State Government or an Officer appointed by that Government in this behalf. (2) The matters referred to in the proviso to subrule (1) shall be the following namely: (i) experience of the applicants in mining; (ii) financial soundness and stability of the applicants; (iii) special knowledge of geology or mining and the technical staff already employed or to be employed for the work. It is clear to us that the details mentioned in Rule 27 are intended for the correct identification of the individual to whom the lease is to be granted, the minerals which are to be mined, the area in respect of which the lease was to be granted, and the qualifications of the applicant. Considerable emphasis was placed on the word 'shall ' in Rule 32 with regard to the priority to be given between different applicants. This rule does not directly affect the question whether an application for a lease could be considered a proper application or not by the authorities concerned. The second proviso to this rule, however, provides for the manner in which certain defects may be cured. Rule 32, sub rule (2), introduced in 1955 before the grant of the application of Venkatagiri, shows that the individual qualifications of the applicants including their special knowledge, their capacity to engage technically efficient staff, their financial soundness and stability, had to be taken into account in determining the question of priority. Again Rule 670 26, imposing certain restrictions, prohibits the grant of the lease to any person who does not hold a certificate of approval from the State Government or who has not produced an Income tax clearance certificate. It does not prohibit any grant on the ground that the application for it is defective or not accompanied by a map. The form of the application seems to be subordinate to the essential facts, to be taken into account before granting a lease. There is no provision in the Act showing that the defects in an application which is accompanied by the fee prescribed in Rule 28 cannot be subsequently removed. The information given in the application is intended for the satisfaction of the authorities granting the lease so that, after considering inherits and making a grant, proper details are embodied in the lease actually granted. It was not urged anywhere that, as a result of any defects in the applica tion, of Venkatagiri, the lease. itself could not be executed. This indicates that the omission to file a proper map initially was cured. The High Court had relied on a decision of this Court in Banarsi Das vs Cane Commissioner, U.P.(1) where conditions similar to those laid down by Rule 27 were held to be directory. It had also held that, even assuming that some of the requirements in the rules may be mandatory, it could not be held that the mere want of a map or of details, describing the area for which the lease was applied for, would make the application itself void or of no effect. We are, therefore, unable to find any error in the view adopted by the High Court that the supply of necessary details was directory and not mandatory. If it did not produce a defect which affected the validity of the lease, and the details supplied in the application corresponded with the contents of the lease after the alleged lacuna had been filed up, the grant of the lease to Venkatagiri was valid. As regards the second ground that the application of Venkatagiri had to be interpreted as an application for the continuation of an already existing lease and not for the grant of 'a fresh lease, we find that the High Court had rejected this contention by pointing out that the application was on a form which complied, with Rule 27 so that it could be treated as a fresh application. We find nothing wrong with the High Court 's interpretation of the application made by Venkatagiri. The High Court had also found, as a fact, that the order of the Central Government disclosed that it was based on relevant considerations and could not be said to have omitted consideration of anything material simply because the details of matters considered were not fully set out. We concur with this view and are (1) A.I.R. 1963 S.C. 1947. unable to hold that the order of the Central Government was vitiated on the third ground urged on behalf of Rao. We may now refer to the fresh question which was sought to be raised on behalf of the appellant by means of an application before us. This was, that this Court had pointed out in Nookala Satharamaiah vs Kotaiah Naidu & Ors.(1), that, on 15th September, 1956, the Mineral Concession Rules were amended and. a new sub rule 28(1 A) was introduced which provided that every application under Rule 27, shall be disposed of within nine months from the date of its receipt, and had, held that the effect of the amended Rule 57, which was further amended on 14 9 1956, was that an application remaining undisposed of within the period prescribed will be deemed to be rejected. It was urged that we should allow this point to be argued for the first time in this Court although it was neither raised nor argued in the High Court. it was submitted that this was a pure question of law on which no investigation of facts afresh was required. On the other hand, it has been contended, on behalf of the contesting respondent, that a new _point should not be allowed to be urged at this stage for which reliance was placed on Bhagwati Saran & Anr. vs State of Uttar Pradesh(2), section L. Aggarwal v ' General Manager, Hindustan Steel Ltd.(3), Chitra Ghosh & Anr.v. Union of India & Ors.(4) Even if we had been disposed to consider this new ground on the plea that exceptional circumstances justified our going into it, we must here point out another fact which affects the very maintainability of the appeal before us now. The appellant B. Rao died on 18 2 1970. His sons filed an application in this Court on 20 7 1970 for impleading them as the heirs and legal representatives of the deceased. This application was tentatively allowed, on 3 11 1970, under the orders of the Registrar of this Court, subject to such objections to the rights of the substituted appellants to be heard and to continue this appeal on behalf of the deceased ' as may be taken before us at the hearing of the appeal. It has to be remembered that, in order to enable a legal re presentative to continue a legal proceeding, the right to sue or to pursue a remedy must survive the death of his predecessor. In the instant case, we have set out provisions showing that the rights which an applicant may have had for the grant of a mining lease, on the strength of an alleged superior claim, cannot be separated from his personal qualifications. No provision has been pointed out to us in the rules for impleading an heir who could continue. the application for a mining lease. The scheme under the rules (1) ; (3) ; at 365. (2) ; at 568. (4) ; at 420. 672 seems to be that, if an applicant dies, a fresh application has to be presented by his heirs or legal representatives if they themselves desire to apply for the grant of a lease. It may be that the heir,, and legal representatives, if they are continuing the business or industry of the deceased and have, the required qualifications, obtain priority over an earlier applicant on account of special reasons for this preference. But, in each case, they have to apply afresh and set out their own qualifications. It has not been shown to us that any of the legal representatives have applied afresh. The legal, representatives only claim to be entitled to succeed the deceased Buchivenkata Rao under a will. The assumption underlying the application is that, whatever right the deceased may have had to .obtain a lease survived and vested in the heirs after his death. We are unable to accept the correctness of this assumption. In support of the contention on behalf of the heirs of Buchivenkata Rao, our attention was drawn to the case of Dhani Devi vs Sant Bihari & Ors.(1) which related to a right to obtain transfer of a permit for a Motor vehicle under Section 61, sub. section 1(2) of the Motor Vehicle Act. It was held there that, in the case of the death of an applicant for the grant of a permit in respect of his motor vehicle, the Regional Transport Authority had the power to substitute the person succeeding to the possession of the vehicle in place of the deceased applicant. It was pointed out there that the right to the permit was related to the possession of the vehicle. Moreover, there was a rule enabling the Transport Authorities to substitute the heir or legal representatives of the .deceased. No such rule applicable to the case of the heirs of the deceased Buchivenkata Rao has been pointed out to us. Therefore, we are unable to hold that the heirs, who have been heard, had any right to continue, the appeal before us. This feature of the case is decisive not only on the right to be heard on the fresh ground but also on the right to advance any argument in support of the appeal of the deceased. We may mention that it was also urged that the matter was so, old that any reversal of the grant of the mining lease to Venkatagiri, as long ago as 1960, would involve considerable dislocation and injury to respondent Venkatagiri without any fault on his part. The respondent Venkatagiri must have invested considerable amount of money in mining operations. The acceptance of the claim of Venkatagiri by the Government on the strength of which Venkatagiri made his investment clothes Venkatagiri 's claim with an equity which could not be defeated without clear proof of some legal right or interest of another claimant. We are (1) ; 673 unable to see any such right in the heirs of the deceased Buchivenkata Rao. Consequently this 'appeal is dismissed but we make no orders as to costs in this Court. V.P.S. Appeal dismissed.

The application of one B for a mining lease was rejected on the ground that another applicant V had a prior claim. B 's writ application was dismissed by the High Court and while his appeal in this Court was pending he died and his sons were allowed to be impleaded as legal representatives subject to any objection that may be taken to their right to continue the appeal. it was not in accordance with r. 27 of the Mineral Concession Rules and because of want of a map and 'some details regarding area, and therefore, whether B 'section appli cation should have been granted, HELD : (1) The details mentioned in r. 27 are intended for the correct identification of the individual to whom the lease is to be granted, the minerals which are to be mined the area in respect of which the lease was to be granted and the qualifications of the applicant. Rules 32(2), introduced in 1955, before the grant of V 's application, shows that individual qualifications of the applicants including their special knowledge, .their capacity to engage technically efficient staff, their financial soundness and stability, bad to be taken into account in determining the question of priority. There is no prohibition against the grant of an application on the ground that the application is defective or not accompanied by a map. There is also no provision in the Act showing that defects in an application could. not be subsequently removed. The form of the application is subordinate to the essential facts to be taken into account before granting a lease. The information given in the application is intended for the satisfaction of the authorities granting the lease, so that, .after considering the merits and making a grant up Proper details are embodied in the lease actually granted. ply of necessary details is directory and not mandatory. It was not the cage here that as a result of the defects in V 's application the lease itself could not be executed. Therefore, the mere want of a map or of details describing the area for which the lease was applied for, would not make the application itself void or of no effect. If it did not produce a defect which affected the validity of the leak, and the details supplied in the application corresponded with the contents of the lease after the alleged lacuna had been removed the grant of the lease to V was valid. [669 F H; 67OB F] (2) In order to enable a legal representative to continue a legal proceeding, the right to sue or pursue a remedy must survive the death of his predecessor. Under the rules, the right of an applicant on the strength of a superior claim cannot be separated 'from his personal qualifications. [671 G H] 666 Moreover, there is no provision in the Rules for imploding an heir to continue the application for a mining lease. The scheme under the Rules is that if an applicant dies, a fresh application has to be presented by the heirs or legal representatives if they desire to apply far the grant of a lease. It may be that they may obtain priority over an earlier applicant if they are continuing the business or industry of the decreased, but it would be on a fresh application setting out their qualifications. Therefore, the heirs had no right to continue the appeal in this Court. [672A C] Dhani Devi vs Sant Bihari & Ors. , ; , distinguished. (3) The acceptance of V 's claim by the Government on the strength of which he had made his investment, clothes his claim with an equity which could not be defeated without clear proof of some overriding legal right or terest of another claimant, and, there is no such right in the heirs of B [672G H]

Appeal No. 379 of 1958. Appeal from the judgment and decree dated January 17, 1956 of the Patna High Court in Appeal from Original Decree No. 169 of 1947. L. K. Jha, D. P. Singh, R. K. Garg, M. K. Ramamurthi and section C. Agarwal, for the appellant. R. C. Prasad, for the respondent. September 15. The Judgment of the Court was delivered by DAS GUPTA, J. Can a wife 's sister 's daughter 's son be validly adopted to a person governed by the Benaras School of the Mitakshara Hindu Law ? That is the main question raised in this appeal brought on a certificate granted by the High Court at Patna. The plaintiffs who would succeed to the properties left by Babu Ram Singh on the death 629 of his widow but for the adoption of Devendra Singh which this widow made on June 9, 1935, brought the present suit for a declaration that Devendra Singh was not adopted by the second defendant, Babu Ram Singh 's widow and that in any case, the adoption is invalid in law and so Devendra Singh acquired no right in the properties left by Babu Ram Singh. The main ground on which the adoption is attacked as invalid is based on the fact that Devendra Singh is Babu Ram Singh 's widow 's sister 's daughter 's son. The other ground raised in the plaint based on the plaintiff 's allegation that Babu Ram Singh was governed by Mithila School of Hindu Law was negatived by the courts below and has been abandoned before us. No dispute is also raised now as regards the factum of adoption. The only question that arises in this appeal therefore is whether the adoption of a wife 's sister 's daughters son is valid in law. The High Court answered this question in the affirmative and dismissed the suit. It is against that decision that the present appeal has been preferred. In support of his contention that such an adoption is invalid in Hindu Law reliance is placed by the learned counsel on the following passage of Nanda Pandit 's Dattak Mimansa : (see Whitley Stokes 's Hindu Law Books at pp. 590 and 591). Accordingly, the brother, paternal and maternal uncles, the daughter 's son, and that of the sister, are excluded : for they bear no resemblance to a son. Intending this very position, it is declared in the sequel, by the same author: "The daughter 's son, and the sister 's son, are declared to be the sons of Cudras. For the three superior tribes, a sister 's son, is No. where mentioned as a son. Here even the 630 term "sister 's son" is illustrative of the whole not resembling a son, for prohibited connection is common to them all. Now, prohibited connection is the unfitness of the son proposed to be adopted to have been begotten by the individual himself through appointment to raise issue on the wife of another. The mutual relation between a couple, being analogous to the one, being the father or mother of the other, connection is forbiden: as for instance the daughter of the wife 's sister, and the sister of the paternal uncle 's wife". The meaning of the text is this. Where, the relation of the couple, that is of the bride and bridegroom, bears analogy to that of father or mother ; if the bridegroom be, as it were, father of the bride, or the bride stand in the light of mother, to the bridegroom, such a marriage is a prohibited connection. The two examples illustrate these cases in their order. In the same manner as in the above text, of the Grihaparisistha, on marriage, prohibited connection, in the case of marriage, is excepted and so in the case in question, one who if begotten by the adopter, would have been the son of a prohibited connection, must be excepted; in other words, such person in to be adopted, as with the mother of whom, the adopter might have carnal knowledge. It is urged that in view of this specific exclusion of a wife 's sister 's daughter 's son from the list of those who are fit for adoption there is no escape from the conclusion that such an adoption would be invalid in law. Learned Counsel has emphasised that great authority attaches to all statements of law as regards adoption that are contained in Dattak Mimansa. There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to 631 be of great authority on all questions of adoption. It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandit 's views to unfavorable criticism. In spite of all this the Privy Council in Bhagwan Singh vs Bhagwan Singh(1) did recognise that both the Dattak Mimansa and Dattak Chandrika had been received in courts of law including the Privy Council as high authorities and after drawing attention to Lord Kingsdown 's statements as regards these in Rungama vs Atchama (2) and Sir James Colvile 's statement in Collector of Madura vs Moottoo Ramlinga Sathupathy(3), stated thus : ",To call it (i.e., Dattak Mimansa), infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law. " While saying this mention must also be made of the observations of the Privy Council in Sri Balusu Gurulingaswami vs Sri Balasu Ramalakshmamma(4) decided on the same date (March 11, 1899) but immediately before Bhagwan Singh 's Case, was decided, expressing their concurrence with the view that caution was required in accepting the glosses in Dattaka Mimansa and Dattak Chandrika where they deviate from or added to the Smirities. There can be no doubt that in laying down the rule that the adoption of the son of a woman who could not have been married by the adoptive father because of incongruous relationship (Viruddha Sambandha) Nanda Pandit was adding to the existing state of law. It 'is interesting to notice here that commenting on what Saunaka had said in describing the ' ritual of adoption that a (1) (1899) L.R. 26 I.A. 153, 161. (2) (1846) T.A. 1, 97. (3) (1863) 12 M.I.A. 397, 437. (4) (1899) L.R. 26 I.A. 113,136. 632 son should be adopted the Dattaka Chandrika observed at p. 14 : (Reflection of a son The resemblance of a son,or in other words the capability to have been begotten, by the adopter, through appointment, and so forth). (Sutherland 's translation). The Dattak Mimansa adopts this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption. It is unnecessary for us to examine what authority should be attached to this serious addition to the texts for determining who can be adopted, as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority Nanda Pandit has stated this merely as a recommendation and not as a mandatory prohibition. For many years now courts have recognised the position that not only the Dharma Sutras and Grihya Sutras but also the commentaries thereon and digests mingle without hesitation statements of law which are intended to be recommendations merely with statements which are intended to be mandatory. In Balu Gurulingaswami 's case to which reference has just been made the Privy Council pointed out that recent extension of the study of Sanskrit had strengthened the view of Sir William Macnaughten that "it by no means follows that because an act has been prohibited it should therefore be considered illegal. The distinction between the vinculum juris and the vinculum pudoris is not always discernible," and adding to the previous statement of the Board in Rao Balwant Singh vs Rani Kishori(1) decided in the previous year the Privy Council observed these ,words of caution in Balusu Gurulingaswami 's case : .lm15 "They now add that the further study of the subject necessary for the decision of these (1) (1898) L.R. 25 I.A. 69. 633 appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion, morality and law, lest foreign lawyers, accustomed to treat as law what they find in authoritative books and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and ,should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity never contemplated by the original law givers. " The importance of this caution has by no means decreased in the years that have gone by. It is therefore necessary to examine the words used by Nanda Pandit himself in laying down this rule against Viruddha Sambandha adoption. It has to be noticed that while he says (One who if begotten by the adopter would have been the son of a prohibited connection must be excepted Sutherland 's translation), he does not say anything about what would happen if Viruddha Sambandha Putra was adopted. If the rule was intended to be mandatory it is reasonable to expect that the author who as the treatise itself shows was a master of logic and well acquainted with the rules of logic and other rules which deal with the question of mandatory injunctions would give clear indication of that view. This was all the more reasonable to expect as he was introducing a new rule. But he contents himself with saying that We do not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided, can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid in law. Notice has necessarily to be taken in this connection of the fact that the only authority mentioned by Nanda Pandit himself against 634 Viruddha Sambandha marriage from which he deduces his rule of Viruddha Sambandha in matters of adoption is to be found in the text of Ashvalayana (The bridegroom duly qualified should marry a duly qualified maiden who is younger in years, is not a sapinda, is not of the same gotra, and whose marriage does not involve a viruddha sambandha) (contrary relationship). It is followed a little later by this comment: (Viruddha Sambandha is that Sambandha (relation) which is viruddha (contrary or im proper) owing to the relationship (existing) between the bride and the bridegroom (before their marriage) being similar to that of a father or mother. As for instance the daughter of the wife 's sister (and) the sister of the maternal uncle 's wife). Is this rule mandatory? In other words, would a marriage of a girl standing in the Viruddha Sambandha relationship to the bridegroom be invalid. We are not satisfied that this is the position in law. It is striking that though the numerous Dharma Sutras and Grihya Sutras, deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say about Viruddha Sambandha. Coming to more recent times the only Digest in which any reference to this Virudha Sambandha of Ashvalayana can be traced is in Nirnaya Sindbu (late 16th century). There is no reference to this however in Raghunandana 's exhaustive treatise on marriage udhvahatattva which was written in the early 16th century. In Nirnaya Sindhu there is only bald reference to this in these words 635 (There is also the bar to marriage by sayings (of sages). As in the Grihyaparishistha should not marry a girl of Viruddha Sambandha (incongruous relationship)" Viruddha Sambandha was illustrated thus : "As in the case of wife ',% sister 's daughter; father 's brother 's wife 's sister." without any comments whatsoever. It is reasonable to think that the numerous Smritikars and commentators who have dealt with the subject of marriage were acquainted with Ashvalayana 's text but (lid not think it necessary to refer to it as it was a recommendatory rule not considered to be of much importance. Mr. Jha argues that when a positive statement is followed by a negative statement, the negative statement should always be held to contain a prohibitory mandate. Thus he says that as after saying says next the rules contained in this latter portion should be held to be mandatory. We can find no justification either in the modern rules of interpretation or in the rules of interpretation of the old Hindu Shastras for such a view. One instance where a negative rule following a positive direction on this very subject of marriage cannot possibly be I considered to be mandatory can be found in Yajnavalkaya 's text : (Let him, whose life as bachelor is unsullied marry a wife who possesses good qualities, who has not been enjoyed by another, who is beautiful, who is not his sapinda, who is younger than himself, who is not suffering 636 from any complaints, who has brothers, and who does not belong to the family descended from the same primitive guide." Quite clearly the rule that a girl suffering from disease should not be married is not a mandatory rule even though it follows some positive rules about marriage. That this is the position has been pointed by Vigyaneshwar. It is interesting to notice in this connection Ashvalayana 's own statement about marriage rules in the fourth section of the first Chapter of his Grihaya Sutra. After saying (a daughter should be given to a man of understanding) he says in the next text (that one should marry a girl of understanding, good looks, good conduct and good qualities) and one who is not suffering from any disease. This also is a case of a positive statement that a person should marry a girl of understanding, good looks, good conduct and good qualities, followed by a rule that a person should not marry a girl suffering from disease. Even so, it cannot be imagined for a moment that this rule that one should not marry a girl suffering from disease is a mandatory rule, implying that marriage with such a girl would be invalid. In any case, argues the learned counsel, when we find the three rules against marriage to a sapinda girl and sagotra girl and Viruddha Sambandha girl in the same text as here and admittedly the first two are mandatory and marriage to a sapinda girl or a sagotra girl would be invalid there is no reason why the same result should not follow on breach of the third rule against marrying a Viruddha Sambandha girl. The reasons why marriage to a sapinda girl or a sagotra girl has always been held to be invalid are succinctly stated by Raghunandana in his Udhvahatattva in a passage which has been translated thus by Dr. Jogendra Nath Bhattacharyya in his Commentaries on Hindu Law; Third Edition, Vol. I at P. 188: 637 "The negative ordinances, prohibiting marriage with girls of the same gotra, pravara etc., are parudasa (exceptional clauses) having reference to a vidhi; they are also prohibitions proper, like the prohibitory rule about the sexual union on parva days, because they forbid such marriages by the accompaniment of condemnatory and penance clauses, (See Texts of Apastamba. and Sumantu), (cited on p. 187) and in view also of the fact that such marriages may spring from natural inclination. The term wife is like the terms yupa (sacrificial post) ahavaniya (sacrificial fire), and denotes a female taken in marriage with occult ceremonies. Therefore, where a sapinda or a sagotra girl is taken in marriage, she does not become a wife. " It is a clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayana 's text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl. It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been even more clear to Nanda Pandit and so when extending Viruddha Sambandha to adoption on the % cry basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition. Our attention was drawn to a decision of the Madras High Court in Minakshi vs Ramanada where the learned judges observed: (1) Mad. 49. 638 "In the case of marriage. , there are three prohibitions, viz., (1) The couple between whom marriage is proposed should not be sapindas; (2) They should not be sagotras; and (3) There should be no Viruddha Sambandha or contrary relationship as would render sexual connection between them incestuous." The real question which was before the Full Bench 'Was whether there can be valid adoption under the Hindu law if a legal marriage is not possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state. In the case before the Full Bench, the adoptee 's mother was a sagotra of the adoptive father, and so, there could be no legal marriage between them. It was not necessary there "ore for the learned judges in the Minakshi 's case to consider whether the Viruddha Sambandha rule against marriage was mandatory or not. We are not aware of any decision in any of the High Courts where Nanda Pandit 's rule against Viruddha Sambandha adoption has been considered to be a mandatory, prohibition. For the reasons discussed above we are of opinion that this rule introduced by Wanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wife 's sister 's daughter 's son is invalid. Mr. Jha then tried to take advantage of the rule which has been accepted by almost all the High Courts except Bombay that there can be no valid legal adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state, by urging that there can be no legal marriage between a person and, his wife 's sister 's daughter. Assuming for the present that it is no 630 longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, for the simple reason that we see no reason to think that there can be no legally valid marriage between a person and his wife 's mister 's daughter. For,the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Asvalayana 's Viruddha Sambandha rule. That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid. An early as 1878 Dr. Gooroodas Banerjee (whose erudition equalled his orthodoxy) dealing with this question in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan observed thus (p. 64). "The prohibition by reason of affinity, which exsts in other systems, has no place in Hindu Law. But the prohibition of marriage with sapindas to some extent supplies its place and so did the prohibition of widow marriage. The Hindu Law, however, does not prohibit marriage with the wife 's sister, or even with her niece or her aunt." Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol. I, also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wife 's sister 's daughter (already quoted above): " 'Instances of marriage with wife 's sister 's daughter, and wife 's brother 's daughter, are also not unknown in Bengal though, Hindu sentiment is strong against such marriages. " The question was directly raised in Ragavendra Rau vs Jayaram Rau (1). Mr. Justice Subramania Ayyar and Mr. Justice Benson relying on Dr. Gooroodas Banerjee 's statement of the law (1) Mad. 640 and also on Syama Charan Sarkar 's VyavasthaDarpan, Dr. Bbattacharyya 's commentaries on Hindu Law and certain other text books held that marriage between a man and his wife 's sister 's daughter is valid. The learned judges pointed out that in South India at least there was little to 'indicate that such marriages are disapproved of "by the members of any section of the community." In our opinion a marriage of a Hindu with his wife 's sister 's daughter is not invalid in law even though it may not be liked by certain people. Mr. Jha 's second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, must therefore fail. We therefore hold that the High Court was right in its conclusion that the adoption of a wife 's sister 's daughter 's son is valid in law. The appeal is accordingly dismissed with costs. Appeal dismissed.

The appellant was searched by a Customs Official and some bars of gold were found tied round his waist. Out of those bars some were of base metal and the rest of pure gold which borne foreign markes. The appellant had no permit from the Reserve Bank of India to import the gold. He was prosecuted and convicted under section 167(81) of the . He brought an appeal to the Supreme Court by Special leave. Held, that section 178A of the , is constitutional. The contension that before the presumption under s.178A of the could be raised the prosecution had to prove that the gold was of foreign origin was rejected and held that section 178A provides that when the goods are seized in the reasonable belief that they are smuggled goods the onus is on the accused to show that they are not smuggled. Collector of Customs, Madras vs Nathella Sampathu Chetty (1962) 3 S.C.R. p.786 followed.

ON: Criminal Appeal No. 205 of 1956. Appeal by special leave from the judgment and order dated the 30th November, 1955, of the Punjab High Court in Crimi nal Appeal No. 282 of 1955, arising out of the judgment and order dated the 15th February, 1955, of the Court of the Additional Sessions Judge at Amritsar in Sessions Case No. 64 of Trial No. 6 of 1955. R. L. Anand, and section N. Anand, for the appellant. Kartar Singh Chawla, Assistant Advocate General, for the State of Punjab and T. M. Sen, for the respondent. September 17. The following Judgment of the Court was delivered by KAPUR J. This is an appeal against the judgment and order of the Punjab High Court reversing an order of acquittal by the Additional Sessions Judge, Amritsar. The appellant Bakshish Singh and his brother Gurbakshi Singh were tried for an offence under sections 302/34 of the Indian Penal Code but were acquitted. Against this judgment the State took an appeal to the High Court. As Gurbaksh Singh was said to be ab sconding the appeal against the appellant alone was heard and decided by the High Court. On August 1, 1954, sometime between 7 and 8 p.m Bachhinder Singh son of Bhagwan Singh of village Kairon was shot in the lane in front of their house and as a result of bullet injuries be died the next day in the hospital at Amritsar. He was at the time of shooting accompanied by his younger brother Narvel Singh, a boy of 13, and after getting injured Bachhinder Singh and his brother returned to the house. Bhagwan Singh states that he was informed of the identity of the assailants by Bachhinder Singh who was, at his own request, carried from the house to the hospital at Kairon but as the injuries were serious 411 the doctor at Kairon rendered " first aid " and advised the father to take his son to V. J. Hospital at Amritsar. Bhagwan Singh then took Bachhinder Singh to the Railway Station but before the arrival of the train he went to the Police Post at Kairon which is at a distance of about 100 yds. from the Railway Station in order to make a report. As the Assistant Sub Inspector was away at Sarhali, he returned to the Railway Station and took his son to the Amritsar hospital by the train leaving Kairon at 9 47 p.m. Bhagwan Singh was accompanied at that time by his younger son, Narvel Singh, P.W. 12, and by Shamir Singh, Inder Singh and Narinjan Singh. Soon after their arrival at the Amritsar hospital Bachhinder Singh was examined by Dr. Kanwal Ki shore, P.W. 2, at 11 45 p.m. and finding the injury to be of a serious nature the doctor sent information to the Police as a result of which Head Constable Maya Ram Sharma, P.W. 4, arrived at the hospital sometime after midnight and, in the presence of Dr. Mahavir Sud, P.W. 17, recorded the dying declaration of Bachhinder Singh, Exhibit P H, after getting a certificate from the doctor that the injured person was in a fit state to make a statement. This statement is the basis of the First Information Report, Exhibit P H. 1, which is a copy of Exhibit P H. This report was recorded on August 2, 1954, at 7 50 a.m. at Police Station Sarhali which, we were told, is about 20 miles or so away from Amritsar. In the early hours of the morning Dr. K. C. Saronwala P.W. I performed an operation on Bachhinder Singh and extracted a bullet from the left abdominal wall which was handed over to the Police. But Bachhinder Singh died at 1 35 p.m. on August 2, 1954. An inquest report Exhibit P K was prepared at 2 30 p.m. by Head Constable Maya Ram, P.W. 4. The case for the prosecution rests on the dying declaration of Bachhinder Singh, exhibit P H, and on the statement of Narvel Singh, P.W. 12, who was an eye witness to the occur rence and on the statement made by the deceased to his father as to his assailant as soon as he (Bachhinder Singh) was brought to the house after receiving the injuries. The prosecution 53 412 also relied on an extra judicial confession made to Teja Singh, P.W. 13, but both the courts below have rejected this piece of evidence and it is unnecessary to consider it any further. The learned Additional Sessions Judge rejected the dying declaration made by Bachhinder Singh on two grounds; that at the time of recording the dying declaration not only Bhagwan Singh, the father, and Narvel Singh, the brother of Bachhin der Singh, were " present but the police officer had actually made enquiries from them about the occurrence before he proceeded to record the dying declaration of Bachhinder Singh de ceased. Head Constable Maya Ram, P.W. 4, has admitted in cross examination that Bachhinder Singh gave his statement in Punjabi but the form and the detailed account given in the statement, Exhibit P H, would show that it was not the product of Bachhinder Singh 's creation alone but it was a touched up ' declaration of the deceased. It is laid down in 1954 Lahore 805 that a dying declaration which records the very words of the dying man unassisted by interested persons is most valuable evidence but the value of a dying declara tion altogether disappears when parts of it had obviously been supplied to the dead man by other persons whether interested or Police Officer. As the dying declaration, Exhibit P H, in this case cannot be regarded as the creation of Bachhinder Singh deceased, no reliance whatsoever can be placed on it and it could not form the basis for the convic tion of any of the accused. " The learned Judges of the High Court did not agree with this criticism. Birhan Narain J., who delivered the main judg ment, said: " This criticism appears to me to be without any substance. The statement was recorded by Head Constable Maya Ram who was posted in Amritsar and was not posted in village Kairon and therefore had no knowledge of the parties nor had any interest in them Thus there was no reason why he should record the statement falsely or irregularly. Throughout the time that the statement was recorded Dr. Mahavir Sud of the Amritsar hospital was present. He has appeared 413 as P.W. 17 in the present case. He is a respectable and disinterested person and he 'is positive in his testimony before the court that the statement was made by the deceased voluntarily and that there was nobody present to prompt him. He has further stated that he did not allow any person to be present at that time. There is absolutely no reason for doubting the correctness of this statement. . . . . . . . . . . . . Coming to the other objection of the Additional Sessions Judge, it is difficult to understand the significance at tached by him to the fact that the deceased spoke in Punjabi while the statement was recorded by Maya Ram in Urdu. The court language is Urdu and the Police generally records statements in Urdu even if they are made in the Punjabi language. I have no doubt in my mind that the dying decla ration recorded in the present case is a voluntary one and was made without any prompting from anybody. The High Court in our opinion correctly appreciated the evidence and was right in accepting the authenticity of the dying declaration. The statement of Maya Ram, P. W. 4, does not support the criticism of the learned trial judge. And he had read more in the statement of Narvel Singh, P. W. 12, made before the Committing Magistrate, than it really con tains. It is unfortunate that the criticism has proceeded on the English record of the Magistrate 's Court which does not appear to have been correctly recorded as the Urdu record is in many parts materially different. The fact that the statement contained in Exhibit P H was made without any prompting is also supported by the testimony of a wholly disinterested witness, Dr. Mahavir Sud, whose statement made before the Committing Magistrate was transferred at the trial stage under section 33 of the Evidence Act. He stated: " The statement of Bachhinder Singh was voluntary and there was none to prompt it. I did not allow any attendant on Bachhinder Singh then. " In cross examination he made it clearer that there was no relation or friend of the deceased person when 414 the statement was recorded. Some criticism was levelled against the dying declaration based on a sentence in the statement of Dr. Mahavir Sud P. W. 17 that the Head Consta ble put certain questions to clarify the ambiguities and these questions and answers do not find place in Exhibit P H, the record of the dying declaration. No such question was put to the Head Constable who recorded the statement. The Head Constable stated that the dying declaration was written at the declarant 's own dictation without any addi tion or omission. In/ cross examination nothing was asked as to any questions having been put to the deceased by this witness. Therein the witness also stated : " It is not correct that I first made the inquiry from the father of the deceased and other persons before I proceeded to record his statement ". He also made it clear that before he allowed the statement to be made he satisfied himself that Bachhinder Singh was in a fit state to make the statement. We are of the opinion that the High Court rightly held the dying declaration to be a statement made by the deceased unaided by any outside agency and without prompting by anybody. The declarant was free from any outside influence in making his statement. Another reason given by the Additional Sessions Judge for rejecting the dying declaration was that the deceased gave the narrative of events in Punjabi and the statement was taken down in urdu. In the Punjab that is how the dying declarations are taken down and that has been so ever since the courts were established and judicial authority has never held that to be an infirmity in dying declarations making them inefficacious. As a matter of fact in the Punjab the language used in the subordinate courts and that employed by the Police for recording of statements has always been Urdu and the recording of the dying declaration in Urdu cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant. This, in our opinion, was a wholly in. adequate reason for rejecting the dying declaration. 415 Exhibit P H, the dying declaration, is a long document and is a narrative of a large number of incidents which happened before the actual assault. Such long statements which are more in the nature of First Information Reports than recital of the cause of death or circumstances resulting in it are likely to give the impression of their being not genuine or not having been made unaided and without prompting. The dying declaration is the statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and such details which fall outside the ambit of this are not strictly within the permissible limits laid down by section 32 (1) of the Evi dence Act and unless absolutely necessary to make a state ment coherent or complete should not be included in the statement. We are informed that, in the Punjab, no rules have been made in regard to the recording of dying declara tions which, we are told, has been done in several other States. We think it would be desirable if some such rules were framed and included in the Rules and Orders made by the High Court for the guidance of persons recording dying declarations. Of course the authenticity of the dying declaration has to be judged in accordance with the circum stances of each case depending upon many factors which would vary with each case but those recording such statements would be well advised to keep in view the fact that the object of a dying declaration is to get from the person making the statement the cause of death or the circumstances of the transaction which resulted in death. The admissibility of the statement of Dr. Mahavir Sud was assailed by counsel for the appellant on the ground that the conditions laid down for the admissibility of statements under section 33 had not been complied with and several decided cases were relied upon. This question does not seem to have been raised at any previous stage of the proceedings, nei ther before the Additional Sessions Judge nor before the High Court, and this criticism seems to be without much substance. At the trial the prosecution produced Foot Constable Kartar Singh, P. W. 14, who deposed that he took the 416 summons for this witness to the hospital where he was previ ously employed and the Superintendent of the hospital made a report that he was no longer in service and it was not known where he was. This witness also stated that " from the inquiries made by me, I learnt that his whereabouts are not known. " In cross examination he again stated that he made inquiries but he could not discover the whereabouts of this witness. After the statement of Kartar Singh, P. W. 14, the Public Prosecutor made a statement that Dr. Mahavir Sud 's whereabouts were not known ' and prayed that his statement be transferred under section 33 of the Evidence Act on the ground that there was no likelihood of the witness being available without unreasonable delay and expense and no objection is shown to have been taken by the defence at that stage. Thereupon the learned trial judge ordered the statement to be transferred under section 33 of the Evidence Act. He might have been well advised to give fuller reasons for making the order transferring the statement. It appears to us that the learned judge transferred it on the ground of unreasonable delay and expense and we do not find any infirmity in this order of transfer. Counsel then contended that for the efficacy of the dying declaration, corroboration was essential. In the present case there is the statement of Narvel Singh, P. W. 12, who is an eye witness to the occurrence which is relied upon by the prosecution as corroboration of the dying declaration. The learned Additional Sessions Judge rejected the testimony of this witness on the ground that there were discrepancies between his statement made in the commitment proceedings and at the trial. We have already pointed out that the cross examination of this witness was based on somewhat inaccurate English record of his statement in the Committing Court, the statement in Urdu record puts a different complexion on it. But even if this were not so the High Court, in our opinion, has taken a correct view of the testimony of this witness and has accepted it for cogent reasons. Besides Narvel Singh there is the statement of Bhagwan Singh, the father, who stated that as soon as Bachhinder Singh 417 came into the house he mentioned the names of his assailants to him. The incident took place just outside the house of Bhagwan Singh and it was never disputed that he was present in the house when the incident took place. It is only natural that as soon as the injured son came into the house he would be asked as to who had injured him or would himself state who had caused him the injury. He was in his senses at that time and no reason has been suggested why the son would not disclose to his father the names of his assail ants. There is no adequate reason for rejecting this por tion of the testimony of Bhagwan Singh and merely because the dying declaration does not mention it, is hardly a reason for not accepting it. The non production of Sucha Singh who is stated in the dying declaration and in the statement of Narvel Singh, P.W. 12, to have witnessed the occurrence was commented upon by counsel as a very serious omission. The Public Prosecutor stated at the trial that he was giving up Sucha Singh as he had been won over. Therefore, if produced, Sucha Singh would have been no better than a suborned. witnesss. He was not a witness "essential to the unfolding of the narrative on which the prosecution was based" and if examined the result would have been confusion, because the prosecution would have automatically proceeded to discredit him by cross examination. No oblique reason for his non production was alleged, least of all proved. There was, therefore, no obligation on the part of the prosecution to examine this witness: See Abdul Moham. mad vs Attorney General of Pales tine (1) ; Stephen Servaratne vs The King (1); Habeeb Moham mad vs The State, of Hyderabad (3). In the circumstances the court would not interfere with the discretion of the prosecutor as to what witnesses should be called for the prosecution and no adverse inference under section 114 of the Evidence Act can be drawn against the State. The High Court, in our opinion, have kept in view correct principles governing appeals against acquittals and have rightly applied them to the circumstances (i) A.I.R. 1945 P.C. 42 (2) A.I.R. 1936 P.C. 289. (3) ; 418 of this case. The erroneous view that the learned Sessions Judge took of the dying declaration and of the oral evidence were compelling enough reasons for the reversal of that judgment. We therefore dismiss this appeal. Appeal dismissed.

There are two classes of officials amongst those who are holding the posts of Sub Inspectors, Inspectors and Deputy Superintendents of Police in the Central Bureau of Investi gation namely (i) who are directly recruited and (ii) those who have been drawn from various State cadres on deputation basis. The deputationists are paid Deputation Allowance as compensation for the temporary displacement from their parent cadres occasioned by their deputation to the Central Bureau of Investigation. Pursuant to the recommendation of the Third Pay Commission as accepted by the Central Govern ment both the Direct recruits and "deputationists" in the rank of Sub Inspectors and Inspectors were paid equal rate of Special Pay from 1.7.73, while the Dy. Superintendents were not paid anything. Both the direct recruits and the deputationists posted in one of the Central Units were granted Special Pay considering the special nature of duties of investigating officers, by its letter No. 203/13/76 AUD II dated 21.6.1976. But the Special Pay granted to the deputationists were more in all the three categories. Having failed to get the disparity in the pay ment of Special Pay set aright at the departmental level, the aggrieved direct recruits (non deputationists) have approached the Supreme Court for justice through their petitions under Article 32 of the Constitution. Allowing the petitions, the Court, HELD: It is well settled by several decisions of the Supreme Court that in order to pass the test of permissible classification of persons belonging to the same class into groups for purposes of differential treatment two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes 1015 persons who are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the law which brings about discrimination between the two groups. [1017G H; 1018A] The Special Pay that was being paid to all the officers in the cadre of Sub Inspectors. Inspectors and Deputy Super intendents of Police in the Central Investigating Units of the Central Bureau of Investigation has nothing to do with any compensation for which the deputationists may be enti tled either on the ground of their richer experience or on the ground of their displacement from their parent depart ments in the various States, but it relates only to the arduous nature of the duties that is being performed by all of them irrespective of the fact whether they belong to the category of the 'deputationists ' or to the category of 'non deputationists '. That being the position, the classifi cation of the officers working in the said cadres into two groups, namely, deputationists and non deputationists for paying different rates of Special Pay does not pass the test of classification permissible under Articles 14 and 16 of the Constitution of India since it does not bear any ration al relation to the object of classification. [1022D F] The Court directed the Central Government to pay the nondeputationists who have been working in the cadres of Sub Inspectors, Inspectors and Deputy Superintendents of Police in the Central Investigating Units of the Central Bureau of Investigation Special Pay at the same rates at which the deputationists are being paid with effect from the date from which the decision contained in the letter of the Government of India, Cabinet Secretariat beaming No. 203/13/76 AVD.II dated 21.6.1976 came into force upto date and to pay hereafter Special Pay to all the officers (depu tationists and non deputationists) in the said cadres at the same rates.) [1022G H; 1023A B]

ition Nos. 5670 and 6216 of 1980. (Under Article 32 of the Constitution) Mrs. K. Hingorani, Mr. Hingorani, Mukul Mudgal and Damodar Prakash for the Petitioners. K G. Bhagat and D. Goburdhan for the Respondent. Miss A. Subhashini for the Union of India. The Order of the Court was delivered by, BHAGWATI, J. The question which arises before us for consideration is whether certain documents called for by the Court by its order dated 16th February, 1981 are liable to be produced by the State or their production is barred under some provision of law. The documents called for are set out in the order dated 16th February, 1981 and they are as follows: 1. the CID report submitted by L.V. Singh, DIG, CID Anti Dacoity) on December 9, 1980; 2. the CID reports on all the 24 cases submitted by L.V. Singh and his associates between January 10 and January 20, 1981; 3. the letters number 4/R dated 3rd January, 1981 and number 20/R dated 7th January 1981 from L.V. Singh to the IG, Police; 4. the files containing all correspondence and notings exchanged between L.V. Singh, DIG and M.K. Jha, Additional IG, regarding the CID inquiry into the blindings, and 5. the file (presently in the office of the IG, S.K. Chatterjee containing the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July or thereabouts and his letter to K.D. Singh, SP, CID, Patna which has the hand written observations of M.K. Jha. The State has objected to the production of these documents on the ground that they are protected from disclosure under Sections 162 and 172 of the Code of Criminal Procedure 1973 and the petitioners are not entitled to see them or to make any use of them in the present 150 proceeding. This contention raises a question of some importance and it has been debated with great fervour on both sides but we do not think it presents any serious difficulty in its resolution, if we have regard to the terms of Sections 162 and 172 of the Criminal Procedure Code on which reliance has been placed on behalf of the State. We will first consider the question in regard to the reports submitted by Sh. L.V. Singh, Deputy Inspector General CID (Anti Dacoity) on 9th December, 1980 and the reports submitted by him and his associates Sh. R.R. Prasad, S.P. (Anti Dacoity) and Smt. Manjuri Jaurahar, S.P. (Anti Dacoity) between 10th and 20th January, 1981. These reports have been handed over to us for our perusal by Mr. K.G.Bhagat learned advocate appearing on behalf of the State and it is clear from these reports, and that has also been stated before us on behalf of the State, that by an order dated 28 29th November, 1980 made by the State Government under Section 3 of the Indian , Sh. L.V. Singh was directed by the State Government to investigate into 24 cases of blinding of under trial prisoners and it was in discharge of this official duty entrusted to him that he with the assistance of his associates Sh. R.R. Prasad and Smt. Manjuri Jaurahar investigated these cases and made these reports. These reports set out the conclusions reached by him as a result of his investigation into these cases. The question is whether the production of these reports is hit by Sections 162 and 172 of the Criminal Procedure Code. It may be pointed out that these are the only provisions of law under which the State resists production of these reports. The State has not claimed privilege in regard to these reports under Section 123 or Section 124 of the Indian Evidence Act. All that is necessary therefore is to examine the applicability of Sections 162 and 172 of the Criminal Procedure Code in the present case. Before we refer to the provisions of Sections 162 and 172 of the Criminal Procedure Code, it would be convenient to set out briefly a few relevant provisions of that Code. Section 2 is the definition Section and clause (g) of that Section defines 'Inquiry ' to mean "every inquiry other than a trial conducted under this Code by a Magistrate or Court". Clause (h) of Section 2 gives the definition of 'investigation ' and it says that investigation includes "all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf". Section (4) provides: 151 "4 (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences. It is apparent from this Section that the provisions of the Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into tried or otherwise dealt with. Then we come straight to Section 162 which occurs in chapter XII dealing with the powers of the Police to investigate into offences. That Section, so far as material, reads as under: "162 (1) No statement made by any person to a police officer in the course of an investigation under this chapter, shall, if reduced to writing be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the ; and when any part of such statement is so used, any part thereof may also be used in the re examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of claues(1) 152 of section 32 of the , or to affect the provisions of section 27 of that Act. " It bars the use of any statement made before a police officer in the course of an investigation under chapter XII, whether recorded in a police diary or otherwise, but by the express terms of the Section this bar is applicable only where such statement is sought, to be used 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made '. If the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted. This section has been enacted for the benefit of the accused, as pointed out by this Court in Tehsildar Singh and Another vs The State of Uttar Pradesh(1) it is intended "to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence." This Court, in Tehsildar Singh 's case approved the following observations of Braund, J. in Emperor vs Aftab Mohd. Khan(2) "As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it, and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths." and expressed its agreement with the view taken by the Division Bench of the Nagpur High Court in Baliram Tikaram Marathe vs Emperor(3) that "the object of the section is to protect the accused both against overzealous police officers and untruthful witnesses. " Protection against the use of statement made before police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under in 153 vestigation at the time when such statement was made. But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the . There are a number of decisions of various High Courts which have taken this view and amongst them may be mentioned the decision of Jaganmohan Reddy J. in Malakalaya Surya Rao vs Janakamma(1) The present proceeding before us is a writ petition under Article 32 of the Constitution filed by the petitioners for enforcing their Fundamental Rights under Article 21 and it is neither an "inquiry" nor a "trial" in respect of any offence and hence it is difficult to see how section 162 can be invoked by the State in the present case. The procedure to be followed in a writ petition under Article 32 of the Constitution is prescribed in order XXXV of the Supreme Court Rules, 1966, and sub rule (9) of Rule 10 lays down that at the hearing of the rule nisi, if the court is of the opinion that an opportunity be given to the parties to establish their respective cause by leading further evidence the court may take such evidence or cause such evidence to be taken in such manner as it may deem fit and proper and obviously the reception of such evidence will be governed by the provisions of the . It is obvious, therefore, that even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 provided it is relevant under the and section 162 cannot be urged as a bar against its production or use. The reports submitted by Shri L.V. Singh setting forth the result of his investigation cannot, in the circumstances, be shut out from being produced and considered in evidence under section 162, even if they refer to any statements made before him and his associates during investigation, provided they are otherwise relevant under some provision of the . We now turn to section 172 which is the other section relied upon by the State. That section reads as follows: "172. Diary of proceedings in investigation (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investi 154 gation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the (1 of 1872) shall apply. The first question which arises for consideration under this section is whether the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates could be said to form part of case diary within the meaning of this section. The argument of Mrs. Hingorani and Dr. Chitale was that these reports did not form part of case diary as contemplated in this section, since the investigation which was carried out by Shri L.V. Singh was pursuant to a direction given to him by the State Government under section, 3 of the Indian , and it was not an investigation under Chapter XII of the Criminal Procedure Code which alone would attract the applicability of section 172. Mrs. Hingorani sought to support this proposition by relying upon the decision of this Court in State of Bihar vs J.A.C. Saldhana(1) Mr. K.G. Bhagat, learned counsel appearing on behalf of the State however, submitted that even though Shri L.V. Singh carried out the investigation under the direction given by the State Government in exercise of the power conferred under section 3 of the Indian , the investigation carried out by him was one under Chapter XII and section 172 was therefore applicable in respect of the reports made by him setting out the result of the investigation. He conceded that it was undoubtedly laid down by this Court in State of Bihar vs J.A.C. Saldhana (supra) that the State Government has power to direct investigation or further investigation under section 3 of the 155 Indian , but contended that it was equally clear from the decision in that case that "power to direct investigation or further investigation is entirely different from the method and procedure of investigation and the competence of the person who investigates." He urged that section 36 of the Criminal Procedure Code provides that police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station and Shri L.V. Singh being the Deputy Inspector General of Police, was superior in rank to an officer incharge of a police station and was, therefore, competent to investigate the offences arising from the blinding of the under trial prisoners and the State Government acted within its powers under section 3 of the Indian in directing Shri L.V. Singh to investigate into these offences. But, "the method and procedure of investigation" was to be the same as that prescribed for investigation by an officer in charge of a police station under Chapter XII and therefore the investigation made by Shri L.V. Singh was an investigation under that Chapter so as to bring in the applicability of section 172. These rival contentions raise two interesting questions, first, whether an investigation carried out by a superior officer by virtue of a direction given to him by the State Government under section 3 of the Indian is an investigation under Chapter XII so as to attract the applicability of section 172 to a diary maintained by him in the course of such investigation and secondly, whether the report made by such officer as a result of the investigation carried out by him forms part of case diary within the meaning of section 172. We do not, however think it necessary to enter upon a consideration of these two questions and we shall assume for the purpose of our discussion that Mr. K.G. Bhagat, learned counsel appearing on behalf of the State, is right in his submission in regard to both these questions and that the reports made by Shri L.V. Singh setting out the result of his investigation form part of case diary so as to invite the applicability of section 172. But, even if that be so, the question is whether these reports are protected from disclosure under section 172 and that depends upon a consideration of the terms of this section. The object of section 172 in providing for the maintenance of a diary of his proceedings by the police officer making an investigation under Chapter XII has been admirably stated by Edge, C.J. in Queen Empress vs Mannu(1) in the following words: 156 "The early stages of the investigation which follows on the commission of a crime must necessarily in the vast majority of cases be left to the police, and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary, for the protection of the public against criminals, for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false, or misleading which was obtained from day to day by the police officer who was investigating the case and what such police officer acted. " The criminal court holding an inquiry or trial of a case is therefore empowered by sub section (2) of section 172 to send for the police diary of the case and the criminal court can use such dairy, not as evidence in the case, but to aid it in such inquiry or trial. But, by reason of sub section (3) of section 172, merely because the case, diary is referred to by criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of section 161 or section 145, as the case may be, of the would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to so far either of these purposes and so much of the diary as in the opinion of the Court is necessary to a full understanding of the particular entry so used. It will thus be seen that the bar against production and use of case diary enacted in section 172 is intended to operate only in an inquiry or trial, for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case dairy is used by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer. This bar can obviously have no application where a case diary is sought to be produced and used in evidence in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and particularly when the party calling for the case diary is neither an accused nor his agent in respect of the offence to which the case diary relates. Now plainly and unquestionably the present writ petition which has been filed under Article 32 of the Constitution to enforce the fundamental right guaranteed under Article 32 is neither an 'inquiry ' nor a 'trial ' for an offence 157 nor is this Court hearing the writ petition a criminal court nor are the petitioners, accused or their agents so far as the offences arising out of their blinding are concerned. Therefore, even if the reports submitted by Shri L. V. Singh as a result of his investigation could be said to form part of 'case diary ', it is difficult to see how their production and use in the present writ petition under Article 32 of the Constitution could be said to be barred under section 172. Realising this difficulty created in his way by the specific language of section 172, Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, made a valiant attempt to invoke the principle behind section 172 for the purpose of excluding the reports of investigation submitted by Sh. L.V. Singh. He contended that if, under the terms of section 172, the accused in an inquiry or trial is not entitled to call for the case diary or to look at it, save for a limited purpose, it is difficult to believe that the Legislature could have ever intended that the complainant or a third party should be entitled to call for or look at the case diary in some other proceeding, for that would jeopardise the secrecy of investigation and defeat the object and purpose of section 172 and therefore, applying the principle of that section, we should hold that the case diary is totally protected from disclosure and even the complainant or a third party cannot call for it or look at in a civil proceeding. This contention is in our opinion wholly unfounded. It is based on what may be called an appeal to the spirit of section 172 which is totally impermissible under any recognised canon of construction. Either production and use of case diary in a proceeding is barred under the terms of section 172 or it is not it is difficult to see how it can be said to be barred on an extended or analogical application of the principle supposed to be underlying that section, if it is not covered by its express terms. It must be remembered that we have adopted the adversary system of justice and in order that truth may emerge from the clash between contesting parties under this system, it is necessary that all facts relevant to the inquiry must be brought before the Court and no relevant fact must be shut out, for otherwise the Court may get a distorted or incomplete picture of the facts and that might result in miscarriage of justice. To quote the words of the Supreme Court of United States in United States vs Nixon(1) "The need to develop all relevant fact in the adversary system is both fundamental and comprehensive. The ends of . justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity 158 of the judicial system and public confidence in the system depend on full disclosure of all the facts within the frame work of the rules of evidence. ", it is imperative to the proper functioning of the judicial process and satisfactory and certain ascertainment of truth that all relevant facts must be made available to the Court. But the law may, in exceptional cases, in order to protect more weighty, compelling and competing interests, provide that a particular piece of evidence, though relevant, shall not be liable to be produced or called in evidence. Such exceptions are to be found, inter alia in sections 122, 123, 124, 126 and 129 of the and sections 162 and 172 of the Criminal Procedure Code. But being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed, "for they are in derogation of the search for truth". It would not, therefore, be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section. That is a feeble reed which cannot sustain the argument of the learned advocate appearing on behalf of the State. It would in fact be inconsistent with the Constitutional commitment of this Court to the rule of law. That takes us to the question whether the reports made by Sh. L.V. Singh as a result of the investigation carried by him and his associates are relevant under any provision of the so as to be liable to be produced and received in evidence. It is necessary, in order to answer this question, to consider what is the nature of the proceeding before us and what are the issues which arise in it. The proceeding is a writ petition under Article 32 for enforcing the fundamental right of the petitioners enshrined in Article 21. The petitioners complain that after arrest, whilst under police custody, they were blinded by the members of the police force, acting not in their private capacity, but as police officials and their fundamental right to life guaranteed under Article 21 was therefore violated and for this violation, the State is liable to pay compensation to them. The learned Attorney General who at one stage appeared on behalf of the State at the hearing of the writ petition contended that the inquiry upon which the Court was embarking in order to find out whether or not the petitioners were blinded by the police officials whilst in police custody was irrelevant, since, in his submission, even if the petitioners were so blinded, the State was not liable to pay compensation to the petitioners first, because the state was not constitutionally or legally responsible for the acts of the police officers outside the scope of 159 their power or authority and the blindings of the under trial prisoners effected by the police could not therefore be said to constitute violation of their fundamental right under Article 21 by the State and secondly, even if there was violation of the fundamental right of the petitioners under Article 21 by reason of the blindings effected by the police officials, there was, on a true construction of that Article, no liability on the State to pay compensation to the petitioners. The attempt of the learned Attorney General in advancing this contention was obviously to preempt the inquiry which was being made by this Court, so that the Court may not proceed to probe further in the matter. But we do not think we can accede to this contention of the learned Attorney General. The two questions raised by the learned Attorney General are undoubtedly important but the arguments urged by him in regard to these two questions are not prima facie so strong and appealing as to persuade us to decide them as preliminary objections without first inquiring into the facts. Some serious doubts arise when we consider the argument of the learned Attorney General. If an officer of the State acting in his official capacity threatens to deprive a person of his life or personal liberty without the authority of law, can such person not approach the Court for injuncting the State from such officer in violation of his fundamental right under Article 21 ? Can the State urge in defence in such a case that it is not infringing the fundamental right of the petitioner under Article 21, because the officer who is threatening to do so is acting outside the law and therefore beyond the scope of his authority and hence the State is not responsible for his action ? Would this not make a mockery of Article 21 and reduce it to nullity, a mere rope of sand, for, on this view, if the officer is acting according to law there would ex concession is be no breach of Article 21 and if he is acting without the authority of law, the State would be able to contend that it is not responsible for his action and therefore there is no violation of Article 21. So also if there is any threatened invasion by the State of the Fundamental Right guaranteed under Article 21, the petitioner who is aggrieved can move the Court under Article 32 for a writ injuncting such threatened invasion and if there is any continuing action of the State which is violative of the Fundamental Right under Article 21, the petitioner can approach the court under Article 32 and ask for a writ striking down the continuance of such action, but where the action taken by the State has already resulted in breach of the Fundamental Right under Article 21 by deprivation of some limb of the petitioner, would the petitioner have no remedy under Article 32 for breach of the Fundamental Right guaranteed to him ? 160 Would the court permit itself to become helpless spectator of the violation of the Fundamental Right of the petitioner by the State and tell the petitioner that though the Constitution has guaranteed the Fundamental Right to him and has also given him the Fundamental Right of moving the court for enforcement of his Fundamental Right, the court cannot give him any relief. These are some of the doubts which arise in our mind even in a prima facie consideration of the contention of the learned Attorney General and we do not, therefore, think it would be right to entertain this contention as a preliminary objection without inquiring into the facts of the case. If we look at the averments made in the writ petition, it is obvious that the petitioners cannot succeed in claiming relief under Article 32 unless they establish that their Fundamental Right under Article 21 was violated and in order to establish such violation, they must show that they were blinded by the police officials at the time of arrest or whilst in police custody. This is the foundational fact which must be established before the petitioners can claim relief under Article 32 and logically therefore the first issue to which we must address ourselves is whether this foundational fact is shown to exist by the petitioners. It is only if the petitioners can establish that they were blinded by the members of the police force at the time of arrest or whilst in police custody that the other questions raised by the learned Attorney General would arise for consideration and it would be wholly academic to consider them if the petitioners fail to establish this foundational fact. We are, therefore, of the view, as at present advised, that we should first inquire whether the petitioners were blinded by the police officials at the time of arrest or after arrest, whilst in police custody, and it is in the context of this inquiry that we must consider whether the reports made by Sh. L.V. Singh are relevant under the so as to be receivable in evidence. We may at this stage refer to one other contention raised by Mr. K.G. Bhagat on behalf of the State that if the Court proceeds to hold an inquiry and comes to the conclusion that the petitioners were blinded by the members of the police force at the time of arrest or whilst in police custody, it would be tantamount to adjudicating upon the guilt of the police officers without their being parties to the present writ petition and that would be grossly unfair and hence this inquiry should not be held by the Court until the investigation is completed and the guilt or innocence of the police officers is established. We cannot accept this contention of Mr. K.G. Bhagat. When the Court trying the writ petition proceeds to inquire into the issue whether the petitioners were blinded by police officials at the time of arrest or whilst in police custody, it does so, 161 not for the purpose of adjudicating upon the guilt of any particular officer with a view to punishing him but for the purpose of deciding whether the fundamental right of the petitioners under Article 21 has been violated and the State is liable to pay compensation to them for such violation. The nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the with petition on this issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against a particular police officer. A situation of this kind sometimes arises when a claim for compensation for accident caused by negligent driving of a motor vehicle is made in a civil Court or Tribunal and in such a proceeding, it has to be determined by the Court, for the purpose of awarding compensation to the claimant, whether the driver of the motor vehicle was negligent in driving, even though a criminal case for rash and negligent driving may be pending against the driver. The pendency of a criminal proceeding cannot be urged as a bar against the Court trying a civil proceeding or a writ petition where a similar issue is involved. The two are entirely distinct and separate proceedings and neither is a bar against the other. It may be that in a given case, if the investigation is still proceeding, the Court may defer the inquiry before it until the investigation is completed or if the Court considers it necessary in the interests of Justice, it may postpone its inquiry even until after the prosecution following upon the investigation is terminated, but that is a matter entirely for the exercise of the discretion of the Court and there is no bar precluding the Court from proceeding with the inquiry before it merely because the investigation or prosecution is pending. It is clear from the aforesaid discussion that the fact in issue in the inquiry before the Court in the present writ petition is whether the petitioners were blinded by the members of the police force at the time of the arrest or whilst in police custody. Now in order to determine whether the reports made by Shah L.V. Singh as a result of the investigation carried out by him and his associates are relevant, it is necessary to consider whether they have any bearing on the fact in issue required to be decided by the Court. It is common ground that Sh. L.V. Singh was directed by the State Government under Section 3 of the Indian to investigate into twenty four cases of blinding of under trial prisoners where allegations were made by the undertrial prisoners and First Information Reports were lodged that they were blinded by the police officers whilst in police custody. L.V. Singh through his associates carried out this inves 162 tigation and submitted his reports in the discharge of the official duty entrusted to him by the State Government. These reports clearly relate to the issue as to how, in what manner and by whom the twenty four undertrial prisoners were blinded, for that is the matter which Shri L.V. Singh was directed, by the State Government to investigate. If that be so, it is difficult to see how the State can resist the production of these reports and their use as evidence in the present proceeding. These reports are clearly relevant under section 35 of the which reads as follows: "35. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. " These reports are part of official record and they relate to the fact in issue as to how, and by whom the twenty four under trial prisoners were blinded and they are admittedly made by Sh. L.V. Singh, a public servant, in the discharge of his official duty and hence they are plainly and indubitably covered by Section 35. The language of section 35 is so clear that it is not necessary to refer to any decided cases on the interpretation of that section, but we may cite two decisions to illustrate the applicability of this section in the present case. The first is the decision of this Court in Kanwar Lal Gupta vs Amar Nath Chawla(1). There the question was whether reports made by officers of the CID (Special Branch) relating to public meetings covered by them at the time of the election were relevant under section 35 and this Court held that they were, on the ground that they were" made by public servants in discharge of their official duty and they were relevant under the first part of section 35 of the Evidence Act, since they contained statement showing what were the public meetings held by the first respondent. "This Court in fact followed an earlier decision of the Court in P.C.P. Reddiar vs section Perumal(2)also in Jagdat vs Sheopal(3) Wazirhasan J. Held that the result of an inquiry by a Kanungo under section 202 of the Code of Criminal Procedure 1898 embodied in the report is an entry in a public record stating a fact in issue and made by a public servant in the discharge of his official duties and the report is therefore admis 163 sible in evidence under section 35. We find that a similar view was taken by a Division Bench of the Nagpur High Court in Chandulal vs Pushkar Rai(1) where the learned Judges held that repots made by Revenue Officers, though not regarded as having judicial authority where they express opinions on the private rights of the parties are relevant under section 35 as reports made by public officers in the discharge of their official duties, in so far as they supply information of official proceedings and historical facts. The Calcutta High Court also held in Lionell Edwerds Limited vs State of West Bengal(1) that official correspondence from the Forest officer to his superior, the conservator of Forests, carried on by the Forest Officer in the discharge of his official duty would be admissible in evidence under section 35. There is therefore no doubt in our mind that the reports made by Sh. L.V. Singh setting forth the result of the investigation carried on by him and his associates are clearly relevant under section 35 since they relate to a fact in issue and are made by a public servant in the discharge of his official duty. It is indeed difficult to see how in a writ petition against the State Government where the complaint is that the police officials of the State Government blinded the petitioners at the time of arrest or whilst in police custody, the State Government can resist production of a report in regard to the truth or otherwise of the complaint, made by a highly placed officer persuant to the direction issued by the State Government. We are clearly of the view that the reports made by Shri L.V. Singh as a result of the investigation carried out by him and his associates are relevant under section 35 and they are liable to be produced by the State Government and used in evidence in the present writ petition. Of course, what evidentially value must attach to the statements contained in these reports is a matter which would have to be decided by the Court after considering these reports. It may ultimately be found that these reports have not much evidentially value and even if they contain any statements adverse to the State Government it may possible for the State Government to dispute their correctness or to explain them away, but it cannot be said that these reports are not relevant. These reports must therefore be produced by the State and taken on record of the present writ petition. We may point out that though in our order dated 16th February 1981, we have referred to these reports as having been made by Shri L.V. Singh and his associates between January 10 and January 20, 1981, it seems that there has been some error on our part in mentioning the outer date as January 20, 1981, 164 for we find that some of these reports were submitted by Shri L.V. Singh even after January 20, 1981 and the last of them was submitted on 27th January 1981. All these reports including the report submitted on 9th December, 1980 must therefore be filed by the State and taken as forming part of the record to be considered by the Court in deciding the question at issue between the parties. What we have said above must apply equally in regard to the correspondence and notings referred to as items three and four in the Order dated 16th February 1981 made by us. These notings and correspondence would throw light on the extent of involvement, whether by acts of commission or acts of omission, of the State in the blinding episode and having been made by Shri L.V. Singh and Shri M.K. Jha in discharge of their officials duties, they are clearly relevant under section 35 and they must therefore be produced and taken on record in the writ petition, so also the reports submitted by Inspector and Sub Inspector of CID to Gajendra Narain, DIG, Bhagalpur on 18th July and his letter to Shri K.D. Singh, Superintendent of Police, CID, Patna containing hand written endorsement of Shri M.K. Jha must for the same reasons be held to be relevant under section 35 and must be produced by the State and be taken as forming part of the record of the writ petition. Since all these documents are required by the Central Bureau of Investigation for the purpose of carrying out the investigation which has been commenced by them pursuant to the approval given by the State Government under section 6 of the Delhi Special Police Establishment Act, we would direct that five sets of photostat copies of these documents may be prepared by the office, one for Mrs. Hingorani, learned advocate appearing on behalf of the petitioners, one for Mr. K.G. Bhagat, learned advocate appearing on behalf of the State one for Dr. Chitale who is appearing amcius curiae at our request and two for the Court, and after taking such photostat copies, these documents along with the other documents which have been handed over to the Court by the State shall be returned immediately to Mr. K.G. Bhagat, learned advocate appearing on behalf of the State, for being immediately made available to the Central Bureau of Investigation for carrying out its investigation so that the investigation by Central Bureau of Investigation may not be impeded or delayed. We hope and trust that the Central Bureau of Investigation will complete its investigation expeditiously without any avoidable delay. S.R. Application allowed.

When a tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which the notice of demand for the arrears of rent has been served on him by the landlord proviso (a) to section 14(1) empowers the Controller to make an order for the recovery of possession of the premises. The proviso to section 14(2) states that no tenant shall be entitled to the benefit under the sub section if having obtained such benefit once in respect of any premises he again makes a default in the payment of rent of those premises for three consecutive months. On 14th December, 1973, the land lady appellant issued a notice to the tenant stating that he had not paid the damages after May 1973 and called upon him to pay the arrears within two months from the date of notice. The tenant remitted the rent to the land lady by money order towards the end of February 1974 but she refused to accept the same. On the land lady 's application the Controller, and the Tribunal in appeal, held that the notice was valid and that the expression "damages for the use and occupation" meant nothing more nor less than rent. But the High Court on appeal held that the term "rent" and "damages for use and occupation" could not be taken to be synonymous terms and that the notice issued by the land lady did not satisfy the requirements of clause (a) of the proviso to section 14(1) of the Act in that it did not demand rent from the tenant. Allowing the appeal and remitting the case to the Court below ^ HELD: The notice issued by the land lady satisfies the requirements of clause (a) of the proviso to section 14(1). [46 D] The High Court has taken an unnecessarily hypertechnical view of the contents of the notice which specifically stated that on account of the termination of the tenancy by an earlier notice the tenant had become a statutory tenant and it was in this context that a claim was made for damages for use and occupation at a rate equivalent to the agreed rent. The demand so made could not be construed as anything but a demand for rent. [46 B C] 44

Appeal No. 76 of 1950. Appeal from the Judgment and Decree of the High Court of Madras dated 18th April 1945, in 895 Appeals Nos. 56 and 192 of 1941 reversing in part the decree of the Court of the Subordinate Judge of Masulipatani in Original Suit No. 29 of 1937. B.Somayya (C. Mallikarjuna Row, with him) for the appellant. K.Rajah Aiyar (R. Ganapathy Aiyar , with him) for Respondent No. 1. Respondent No. 10 appeared in person. May 18. The Judgment of the Court was delivered by MUKHERJEA J. The appellant before us is the sixth defendant in a suit, commenced by the plaintiff respondent in the court of the Subordinate Judge at Masulipatam (being Original Suit No. 29 of 1937) for recovery of a sum of Rs. 99,653 annas odd by enforcement of a simple mortgage bond. The mortgage bond is dated 28th September, 1930, and it was executed by defendant No. 1 for himself and as guardian of his two minor sons defendants 2 and 3 all of whom consti tuted together a joint Hindu family at that time. The plaintiff mortgagee happens to be the son in law of defendant No. 1 and at the time of the execution of the mortgage the first defendant was indebted to a large number of persons including the mortgagee himself, and being hard pressed by his creditors requested the plaintiff to lend him a sum of Rs. 1,25,000 on the hypothecation of the properties in suit, to enable him to tide over his difficulties and discharge his debts. The total consideration of Rs. 1,25,000 as stated in the deed is made up of the following items : (1)Rs. 13,065, which was the amount due on a promissory note executed in favour of the plaintiff by the first defendant on the 17th January, 1928. (2)Rs. 13,285 due under another promissory note dated 18th August, 1930 executed by defendant No.1 in favour of the wife of the plaintiff and later on transferred by her to the plaintiff on 28th September, 30. (3)Rs. 25,000 paid by the plaintiff by endorsing in favour of defendant No. 1 a cheque for that amount 896 drawn in his name by the Co operative Central Bank, Ramchandrapuram on the Central Urban Bank, Madras. (4) Rs. 937 8 0, the amount paid in cash by plain tiff to defendant No.1 for purchasing stamps for the mortgage document. (5) Rs. 72,712 8 0, the amount of future advances which the plaintiff promised to make from time to time to defendant No.1 according to his convenience. The money lent was to carry interest at 7 1/2 % simple per annum and the due date of payment of the principal money was 30th September, 1933. The interest would, however, have to be paid annually on the 30th of September every year, in default of which the whole of the principal and interest in arrears would become repayable immediately with interest at 9% compound per annum with yearly rests. It was expressly stated in the mortgage deed that if the mortgagee was unable to advance the entire amount of Rs. 1,25,000, the terms set out above would apply to the amount actually advanced. It appears that after the execution of the mortgage bond a sum of Rs. 3,000 only was paid by the mortgagee to defendant No.1 on 5th of November, 1930. In the plaint, which was filed by the plaintiff on the 15th September, 1937, the total claim was laid at Rs. 99,653 annas odd, out of which Rs. 55,287 annas odd constituted the principal money as stated above and the rest was claimed as interest calculated at the rate of 9% per annum compound with yearly rests. Besides the original mortgagors, who were defendants Nos. 1 to 3 in the suit, there were three other persons impleaded as parties defendants. Defendant No. 4 was the Receiver in insolvency in whom the entire estate of the defendant No. 1 vested by reason of his being adjudged a bankrupt by an order of the District Judge of Kistna dated the 18th January, 1932 in Insolvency Proceeding No. 20 of 1931, started at the instance of another creditor of the first defendant. Defendant No. 5 was a lessee in respect of the mortgaged properties under defendant No. 4, while the sixth defendant was the purchaser of all the mortgaged 897 properties from the Receiver in insolvency. The Receiver, it seems, had put up all the suit properties to sale subject to the mortgage on 19th April, 1937, and they were knocked down to defendant No. 6 for the price of Rs. 1,340. A registered deed I of sale was executed by the Receiver in favour of the purchaser on 20th January, 1939. The defendants 1 to 3 did neither appear nor contest the suit. Defendant No. 4 appeared in person but disclaimed any interest in the suit properties. The defendant No. 5 contended that he was a lessee under defendant No. 4 for one year only and was not a necessary party to the suit at all. The suit was really contested by defendant No. 6, the purchaser at the Receiver 's sale. The defence taken by defendant No. 6 in his written statement was substantially of a two fold character. It was pleaded in the first place that the bond in suit was a collusive document not supported by any consideration and was executed by defendant No. 1 in favour of his own son in law, with a view to shield his properties from the reach of his creditors. The other contention put forward was that the interest claimed was penal and usurious. After the passing of the Madras Agriculturists ' Relief Act in March, 1938, this defendant filed an additional written statement, with the permission of the court, in which he raised the plea that as an agriculturist he was entitled to the reliefs provided in that Act and that the mortgage debt should be scaled down in accordance with the provisions of the same. The trial Judge by his judgment dated the 29th July, 1940, decreed the suit in part. It was held that the mortgage bond was not a collusive document executed with the intention of defrauding the creditors of the mortgagor; it was a genuine transaction and was supported by consideration. On the other point, the court held that defendant No. 6 was an agriculturist and was entitled to claim the reliefs under Madras Act IV of 1938. After deducting all outstanding interest which stood discharged under section 8(1) of the 898 Agriculturists Relief Act, the principal money due to the creditor on that date was found by the trial court to be Rs. 42,870 annas odd. This figure was arrived at by taking only the original amounts actually advanced on the two promissory notes mentioned above and further, deducting from them, the payments made by the debtor towards the satisfaction of the principals in each. Thus a preliminary decree was made in favour of the plaintiff entitling him to recover a sum of Rs. 42,870 4 0 together with interest at 6 1/4 per annum from 1st October, 1937, to 1st November, 1940, the date fixed for payment under the preliminary decree. In default, the whole amount was to carry interest at 6% per annum. It may be mentioned here that the Subordinate Judge in deciding issue No. 3 held expressly that the provision relating to payment of compound interest at an enhanced rate in default of payment of the stipulated interest on the due dates was in the nature of a penalty and should be relieved against; but as the court scaled down the interest under Madras Act IV of 1938, it became unnecessary to consider in what manner this relief should be granted under section 74 of the Indian Contract Act. Against this decision, two appeals were taken to the High Court of Madras, one by the plaintiff and the other by defendant No. 6. The plaintiff in his appeal (being Appeal No. 56 of 1941) assailed that part of the judgment of the Subordinate Judge which gave the defendant No. 6 relief under the Madras Agriculturists ' Relief Act; while the appeal of the sixth defendant (being Appeal No. 192 of 1941) attacked the very foundation of the mortgage decree on the ground that the mortgage being a collusive and fraudulent transaction, the plaintiffs suit should have been dismissed in toto. The defendants 2 and 3, although they remained ex parts during the trial in the first court, filed, in forma pauperig, a memorandum of cross objection challenging the decree of the Subordinate Judge on the ground that as their interest in the mortgaged properties did not pass to the defendant No, 6 by virtue of the Receiver 's sale, their right of 899 redemption remained intact and ought to have been declared by the trial Judge. Both these appeals as well as the cross objection were heard together by a Division Bench of the High Court and they were disposed of by one and the same judgment dated the 18th of April, 1945. The High Court affirmed the finding of the trial Judge that the bond in suit was supported by consideration to the extent of Rs. 55,287 8 0 as alleged in the plaint and that it was a valid and bona fide transaction. The learned Judges held, differing from the trial court, that the defendant No. 6 was not entitled to claim any relief under the provisions of the Madras Agriculturists ' Relief Act, and that in any event the court below was not right in reducing the amount of the principal money from Rs. 55,287 8 0 to Rs. 42,870, there being no renewal of a prior debt so far as defendant No. 6 was concerned. The court agreed in holding that the provision relating to payment of enhanced interest in case of default amounted to a penalty and reduced the rate of interest from 9% compound to 71 % compound with yearly rests. Lastly, the High Court allowed the cross objection of defendants 2 and 3, being of opinion that their interest in the mortgaged properties could not vest in the Receiver on the insolvency of their father and that the defendant No. 6 could not acquire the same by virtue of his purchase from the Receiver. The defendants Nos. 2 and 3 were, therefore, allowed the right to redeem the mortgaged properties along with defendant No. 6. The result was that the plaintiff was given a decree for a sum of Rs. 55,287 8 0 with interest at 7 1/2 compound with yearly rests up to the date of redemption and subsequent interest was allowed at the rate of 6% per annum. Interest was to be calculated from 28th September, 1930, on Rs. 52,287 8 0 and. from 5th November, 1930, on the amount of Rs. 3,000. Against this decree, the defendant No. 6 obtained leave to appeal to the Privy Council and because of the abolition of the jurisdiction of the Privy Council, the appeal has come before us. 900 Mr. Somayya, who appeared in support of the appeal, did not press before us the contention raised on behalf Of his client in the courts below that the mortgage was a fraudulent transaction or was void for want of consi deration. He assailed the propriety of the judgment of the High Court substantially on three points. His first contention is, that the decision of the High Court allowing a right of redemption to defendants 2 and 3 cannot stand in view of the amendment introduced by the Provincial Insolvency Amendment Act, 1948, which has been expressly made retrospective. The second point taken by the learned counsel is that the defendant No. 6 should have been given relief under the Madras Agriculturists ' Relief Act and the debt should have been scaled down in accordance with the provisions thereof. It is said that the defendant No. 6 was an agriculturist himself and even if he was not, the relief under Madras Act IV of 1938 was still available to him by reason of the original mortgagors being agriculturists. The third and the last point urged is that in any event having regard to the finding arrived at by the High Court that the stipulation to pay compound interest at an enhanced rate was a penalty, adequate relief should have been granted against it and no compound interest should have been allowed at all. The first point raised by the learned counsel, in our opinion, is well founded and must succeed. There was some difference of judicial opinion as to whether the powers of a father under the Mitakshara law to alienate the joint family property including the interest of his sons in the same for discharge of an antecedent debt not contracted for illegal or immoral purposes vests in the Receiver on the adjudication of the father as an insolvent. Under the Presidency Towns Insolvency Act, this power was held to vest in the Official Assignee under section 52(2) of the Act(1). As regards cases governed by , it was held by a Full Bench of the Madras High Court that the father 's power to dispose of his son 's interest in the joint family property for satisfaction of his untainted (1) Sat Narain vs Sri Kishen, (1936) 63 I.A. 384. 901 debts was not "property" within the meaning of section 28 (2) (d) of the Provincial Insolvency Act(1) ; while a contrary view was taken by a Full Bench of the Patna High Court (2) . The conflict has now been set at rest by the enactment of section 28A in the Provincial Insolvency Amendment Act of 1948 which came into force on the 12th April, 1948. The new Section reads as follows : " The property of the insolvent shall comprise and shall always be deemed to have comprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge. " The language of the section indicates that its operation has been expressly made retrospective. The result, therefore, is that the power of the defendant No. 1 to alienate the interest of his sons, the defendants 2 and 3, in the mortgaged properties for satisfaction of his antecedent debts, did pass to the Receiver as "Property" within the meaning of the and consequently OD a sale by the Receiver the interest of defendants 2 and 3 did vest in the sixth defendant, and he alone must be held competent to exercise the right of redemption. The second point urged by Mr. Soinayya raises the question as to whether the appellant could claim relief under the Madras Agriculturists ' Relief Act. The High Court decided this point against the appellant firstly on the ground that the appellant was not a debtor at the date of the commencement of the Act, he having acquired no interest in the equity of redemption at that time. The other reason given is that the defendant No. 6 was not an agriculturist within the meaning of the Agriculturists ' Relief Act and although he was possessed of agricultural lands and hence prima facie came within the definition of an " agriculturist " as given in section 2 (ii) of (1) Ramasastralu vs Balakrishna Rao I.L.R. (2) Viswanath vs Official Receiver, I.L.R. (1936) 16 Pat, 60 (F.B.). 902 the Act, he was excluded from the definition by the operation of proviso (D) attached to the sub section. So far as the first ground is concerned, section 7 of the Agriculturists ' Relief Act expressly lays down that " all debts payable by an agriculturist at the commencement of this Act, shall be scaled down in accordance with the provisions of this chapter". The essential pre requisite to the application of the provisions of the chapter, therefore is the existence of a debt payable by an agriculturist on the date when the Act commenced, that is to say, on the 22nd March, 1938. The learned Judges of the High Court were certainly right in saying that the sixth defendant was not a debtor on that date, as he did not become the owner of the equity of redemptin till the 20th of January, 1939, when the deed of sale was executed in his favour by the Receiver in insolvency. But this by itself is not sufficient to disentitle the appellant to the privileges of the Agriculturists ' Relief Act. It is not necessary that the applicant for relief himself should be liable for the debt on the date that the Act came into force. The right to claim relief as is well settled by decisions(1) of the Madras High Court is not confined to the person who originally contracted the debt, but is available to his legal representatives and assigns as well; nor is it necessary that the applicant should be personally liable for the debt. The liability of a purchaser of the equity of redemption to pay the mortgage debt undoubtedly arises on the date of his purchase; but the debt itself which has its origin in the mortgage bond did exist from before his purchase, and if it was payable by an agriculturist at the relevant date, the purchaser could certainly claim the privileges of the Act if he himself was an agriculturist at the date of his application. The material question, therefore, is whether the mortgage debt was payable by an agriculturist on 22nd March, 1938 ? The appellant argues that it was payable by the mortgagors and they were certainly agriculturists. We do not think that there is warrant for any such assumption on (1) Vide Periannia vs Sellappa, I.L.R. 903 the materials as they exist on the record. The only issue before the trial Judge was, as to whether defendant No. 6 was an agriculturist. There was neither any question raised nor any evidence adduced as to whether defendants Nos. I to 3 were agriculturists as well. In fact, this aspect of the case was not adverted to by the trial Judge at all. Before the High Court it was argued on behalf of defendant No. 6 that even if he was not an agriculturist himself, yet if the defendants 2 and 3 were given relief as agriculturists, that would enure for his benefit as well and accordingly he invited the court to go into the question and hold that the original mortgagors were agriculturists. This the learned Judges refused to do and dismissed this part of the claim of defendant No. 6 with these remarks: "In the present case, the mortgagors have not claimed such a benefit, nor have they adduced any evidence to show that they are agriculturists. We therefore cannot accede to the request of the sixth defendant that the right of the mortgagors to relief should be investigated merely with the object of giving an accidental relief to the non agriculturist purchaser. " As the point was not investigated at all, it is not possible for us to hold that the debt was payable by an agriculturist on the relevant date. It may be that the mortgaged properties were agricultural lands but it is not known whether the mortgagors did possess other estates which might bring them within the purview of any of the provisos attached to the definition. In these circumstances, the appellant must be deemed to have failed to show that there was in existence a debt payable by an agriculturist on 22nd March, 1938. The High Court has held further that the defendant No. 6 was not an agriculturist because he was the purchaser of certain villages at a court sale in respect of which Peishkush exceeding Rs. 500 was payable. Consequently, he became " land holder of an estate " under the Madras Estates Land Act and could not claim to be an agriculturist as laid down in the proviso (D) to section 2 (ii) of the Act. Mr. Somayya 904 lays stress upon the fact that this purchase on the part of his client was merely as a benamidar for defendant No. 5 as has been held by both the courts below and consequently the proviso did not affect him at all. This is a debatable point upon which the judicial opinion of the Madras High Court itself does not seem to be quite uniform. A distinction can certainly be drawn between the rights of a person in his own individual or personal capacity and those which he exercises on behalf of another. On the other hand, if we look to the definition of " land holder " as given in section 3 (5) of the Madras Estates Land Act, it may be argued that a benamidar of an estate, who is entitled to collect rents and is at least the titular owner of the estate could come within the description. Having regard to the view taken by us that section 7 of the Agriculturists ' Relief Act is not applicable on the facts of the present case, this question does not really become material and it is not necessary for us to express any final opinion upon it. For the identical reason section 8 (1) of the Act cannot also be invoked in favour of the appellant. It may further be mentioned that Mr. Somayya in course of his arguments made it plain that he would not press for relief under the Agriculturists ' Relief Act if the high rate of in terest allowed by the High Court was substantially reduced. This takes us to the third point and we think that the stipulation as to payment of compound interest in case of default, being held to be a penalty by both the courts below, the High Court should not have allowed interest at the rate of 71 % compound with yearly rests, The High Court seems to have been misled by a statement occurring in the judgment of the trial Judge that the original rate of interest was 7 1/2% compound with yearly rests. This is not true and as a matter of fact, the original agreement was to pay interest at 7 1/2 % simple. We consider it proper that the mortgage money payable to the plaintiff should carry interest at the rate of 7 1/2% simple up to the expiry of the period of redemption which we fix at six months from this date, 905 The result, therefore, is that we allow the appeal in part and modify the judgment of the High Court. A preliminary decree should be drawn up in favour of the plaintiff against defendant No. 6 alone for a sum of Rs. 55,287 annas odd which will carry interest at 7 1/2 % simple per annum. Interest will be calculated on Rs. 52,287 on and from the date of the mortgage, while on the balance of Rs. 3,000 interest will run from 5th November, 1930. We make no order as to costs of this court or of the High Court. The plaintiff will have his costs of the trial court. Appeal allowed in part. Agent for respondent No. 1 : Ganpat Rai.

Under the provisions of section 28A of the , as amended by the Provincial Insolvency (Amendment) Act of 1948, which has been expressly made retrospective, when a Hindu father governed by the Mitakshara law is adjudged a bankrupt, his power to alienate the interest of his sons in the joint family properties for the satisfaction of his antecedent debts not contracted for illegal or immoral purposes, passes to the Receiver as his "property" within the meaning of the Act. Consequently, where a Hindu father who has mortgaged the joint family property for an antecedent debt which is not illegal or immoral becomes insolvent and the receiver sells the property, the interest of his sons in the property also vests in the purchaser, even in the case of a sale held before the Amendment Act of 1948 came into force, and the sons cannot redeem the property. Sat Narain vs Sri Kishen (63 I.A. 384), Rama Sastrulu vs Balakrishna Rao (I. L. R. 1943 Mad. 83) and Viswanath vs Official Receiver (I.L.R. 16 Pat. 60) referred to. Though the liability of a person who has purchased an equity of redemption after 22nd March, 1938, to pay the mortgage debt arises only on the date of his purchase, if the debt itself existed on the 22nd March, 1938, and if it was payable by an agriculturist on that date, the purchaser can claim the benefits conferred by section 7 of the Madras Agricultural Relief Act, 1938, if he himself was an agriculturist on the date of his application. Periannia vs Sellappa (I.L.R. 1939 218) referred to.

Civil Appeal No. 916 of 1992. From the Judgment and Order dated 18.6.1991 of the Bombay High Court in W.P.N. 1914 of 1991. Harish N. Salve, Rajiv K. Garg and N.D. Garg for the Appellant. K.T.S. Tulsi, Addl. Solicitor General, A. Subba Rao, P. Parmeswaran and A.D.N. Rao for the Respondents. The Judgment of the Court was delivered by 999 KASLIWAL, J. Special leave granted. This appeal has been filed against the judgment of the Bombay High Court dated 18.6.1991. The short controversy raised in the present case is whether the cloves imported by the appellant fall within Item 169 in List 8 of appendix 6 or fall within Paragraph 167 of Chapter XIII of the Import and Export Policy April 1990 March 1993. Brief facts of the case are that the appellant obtained by transfer an Import Lincence No. 3412179 dated 29th November, 1990 for Rs. 16,10,700 for the import of admissible Items as per Para 220 (2) (3) (4) & (6) of the Import Policy 1990 93 Vol. After acquisition of the aforesaid additional licence, the appellant placed an order for the supply of about 200 bags of Madagascar cloves No. 1 quality to a firm of Singapore. The appellant opened a letter of credit dated 6.5.1991 in favour of the foreign supplier. On receipt of the letter of credit the foreign supplier shipped the above mentioned goods in favour of the appellant. On arrival of the goods at Bombay Port, (e) appellant filed Bill of Entry for the clearance of the goods for home consumption on 30th May, 1991. The appellant claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy being "Drugs/Drug intermediate not elsewhere specified. " The Department relied on Para 167 which dealt with the import of spices and took the stand that the cloves could be imported only against specific licence relating to cloves. The appellant in the above circumstances filed a Writ Petition in the High Court of Bombay seeking a mandamus against the respondent to clear the goods against the Bill of Entry filed by the appellant. The High Court held that th cloves cannot fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible. It was thus held that the action of the Customs Authorities in not permitting clearance cannot be faulted and the licence relied upon by the appellant was not valid for the import of cloves. It was contended by Mr. Harish Salve, Learned Counsel for the appellant that though the use of clove as a spice is not in much dispute, but at the same time it cannot be disputed that clove is a Drug/Drug intermediate. It was submitted that in popular sense and trade parlance, clove is also used as drug intermediate and that being so the appellant was 1000 entitled to import the cloves against the additional licence under para 220 of the Policy. It was also submitted that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drugs. It was thus submitted that when clove was considered as crude drugs, there was no justification now to hold that it did not fall within Item 169 which provided for Drug/Drug intermediates. It was further argued that cloves are used for treatment of dyspepsia and flatulence. It is also used to relieve nausea and vomiting. Clove oil is famous for medicinal use and specially for tooth problems. It was also argued that in the Indian Materia Medica by A.K. Nadkarni the use of the cloves has been stated as follows : "Uses Cloves(unopened flower buds) are generally used as spice in curry foods and condiments. Medicinally they are used to correct griping caused by purgatives, relieve flatulence, various forms of gastric irritability, colic, dyspepsia, and to increase the flow of saliva. Combined with other spices and rock salt clove is given to relieve colic, indigestion and vomiting and to many other uses. " It was submitted that in the Indian Pharmaceutical Codex issued by the Counsel of Scientific & Industrial Research, New Delhi the Action and Uses of cloves have been stated as under : "Action and Uses Clove is one of the most stimulant of aromatics. It is carminative and is used in treatment of flatulence and dyspepsia. It is sometimes administered in the form of powder or an infusion to relieve nausea and vomiting, correct flatulence and excite languid digestion. " It was thus argued that the High Court committed an error in holding that clove was not a Drug/Drug intermediate. On the other hand, it was submitted by Mr. Tulsi, Learned Additional Solicitor General that Para 167 of the Policy clearly provided that import of cloves could be allowed only against licences and there was no question of applying Item 169 of List 8 Appendix 6 which provided for Drugs/Drug intermediate not elsewhere specified. It was also submitted that in the common parlance as well as in trade and commerce, the cloves are always considered as spice and not as a drug or drug intermediate. It was submitted that the cloves are sold as spice in a `Kirana ' shop and not as drug in a chemist shop. 1001 In order to appreciate the controversy raised before us it would be necessary to reproduce Para 167 contained in Chapter XIII and Item 169 appearing in Part I of List 8, Appendix 6 of the Import & Export Policy, 1991 93 Vol. I: "Import of Spices: 167. (1) Import of (1) Cloves (2) Cinnamon/Cassia (3) Nutmeg and (4) Mace will be allowed against licences. Such licences may be granted to those who imported these items during any of the financial years from 1983 84 to the preceding licensing year. Import licences will be issued on the basis of the best year 's imports of an item from 1983 84 to the proceding licensing year. The percentage entitlement as well as minimum value of licence will be as notified by the Chief Controller of Imports & Exports. From the licensing year 1991 92, applicants will be required to furnish evidence of exports of Indian spices, during the preceding licensing year, for a value equal to the value of the import licence granted during the preceding licensing year. Only exports of (1) Cardamom (small), (2) all Spices/spice products in approved consumer packs of 450 gms. or less except spice oils and oleoresins and saffron (3) Herbal spices such as rosemary, thyme, terragon, sage, etc. (4) Vanila (5) Black cumin, (6) Star anise, (7) Kokum, (8) Garlic, (9) Cardamom (large), (10) Bishopsweed, (11) Caraway and (12) Cumin seed, will be taken into account for the above purpose. Items may be added or deleted by the Chief Controller of Imports & Exports as and when considered necessary in public interest. (2) Exports referred to in sub paragraph (1) above should be direct exports by the applicant in his own name with the export proceeds i.e. the foreign exchange realisation in his own name, or exports through the Consortium of Spices Exporters, membership of which is to be confined only to dealers of spices who want to avail of the facility for exports through the Consortium. Documents required to be furnished alongwith the application for grant of licences for spices shall be as provided in sub paragraph 166(6) above. (3) Actual users who have no past imports will also be eligible 1002 for licence on the recommendation of the sponsoring authority and approval by the Headquarters Supplementary Licensing Committee. (4) Applications for import of spices are to be made to the licensing authority concerned. " Item 169 in Part I of List 8, Appendix 6 : "Drugs/Drug intermediates not elsewhere specified. " In the present case we are concerned with the Import Policy of 1990 93 and not any earlier Policy. The appellant had obtained the licence on 29th November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question shall be governed by the provisions contained in the Import Policy of April 1990 93, and not by any meaning given to cloves in any earlier Policy. It cannot be disputed that the Government has power to modify or change its Import and Export Policy. Para 167 under Chapter XIII of the present Policy clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences. Thus, it is clear beyond any doubt that cloves have been included under the heading spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167. In face of the above provision dealing with the import of spices which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied. When Para 167 provides for obtaining specific licence for cloves, there is no necessity of finding its meaning from Policies or its use as medicine. As regards import of spices, there is a clear provision under Para 167 and it would govern the import of cloves. That part we are in agreement with the view taken by the High Court that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug. It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist. Thus, we find no error in the view taken by the High Court and this appeal having no force is dismissed with no order as to costs. N.P.V. Appeal dismissed.

The appellant obtained, by transfer, an Import Licence for the import of admissible Items as per Para 220 (2), (3), (4) and (6) of the Import Policy 1990 93 Vol. I and placed an order on a foreign firm for the supply of cloves No. 1 quality. On arrival of the goods in the Indian Port, the appellant filed Bill of Entry for the clearance of the goods for home consumption, and claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy, being Drugs/Drug intermediate not elsewhere specified. " The Department relying on Para 167, which dealt with the import of spices, took the view that the cloves could be imported only against specific licence relating to cloves. Hence the appellant filed a writ petition in the High Court for a direction to the respondent to clear the goods against the Bill of Entry filed by the appellant. The High Court held that cloves could not fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible, and that the licence relied upon by the appellant was not valid for the import of cloves. In the appeal before this Court, it was contended on behalf of the appellant importer that in popular sense and trade parlance, clove was also used as drug intermediate, and that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drug and the cloves and clove oil were used for treatment of dyspepsia, flatulence, etc., and tooth problems and, therefore, the High Court committed an error in holding that clove 998 was not a Drug/Drug intermediate, and that it did not fall within Item 169. Dismissing the appeal of the Importer, this Court, HELD : 1.1 Para 167 under Chapter XIII of the Import Policy of April 1990 93 clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of Cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences. Thus, it is clear beyond any doubt that cloves have been included under the heading Spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167. In the face of this provision, dealing with the import of spices, which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied. [1002D E] 1.2 In the instant case the appellant had obtained the licence in November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question, shall be governed by the provisions contained in the Import Policy of April, 1990 93, and not by any meaning given to cloves in any earlier Policy. Therefore, when para 167 provides of obtaining specific licence for cloves, there is no necessity of finding its meaning from earlier Policies or its use as medicine. There is a clear provision under Para 167 as regards import of spices and it would govern the import of cloves. That apart, the High Court was right in holding that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug. It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist. [1002C, F G]

Appeal No. 106 of 1976. (Appeal by Special Leave from the Judgement and Order dated 30.9.1975 of the Allahabad High Court in S.T.R. No. 698/70) S.C. Manchanda, Mrs. Urrnila Kapoor, Y. D. Jain and Miss Kamlesh Bansal, for the appellant. G.N. Dikshit and O.P. Rana, for the respondent. The Judgment of the Court was delivered by FAZAL ALI, J. This is an appeal by special leave by the assessee who was a contractor dealing in fabrication of Vanguard rolling shutters and steel works. The assessee manufactures iron shutters according to specifications given by the parties and fixes the same at the premises of the customers. In the assessment year 1965 66 the assessee received an aggregate sum of Rs. 1,08,633 08 in the execu tion of such contracts. This amount was claimed by the assessee as not being liable to sales tax during the assess ment year 1965 66 on the ground that the same represented the proceeds of work contracts. The Sales Tax Officer rejected.the plea of the assessee. and the Assistant Commis sioner (Judicial) on appeal also affirmed the order of the Sales Tax Officer. But the plea of the assessee appears to have found favour with the Judge (Revisions) Sales Tax who decided that the amount was not exigible to sales tax, because the contracts in question were work contracts. Thereafter at the instance of the Commissioner, the Revising Authority made a reference to the High Court and referred the following question of law for its opinion: .LM15 "Whether under the circumstances of the case and under the terms of the contract the supply of shutters and iron gates worth Rs. 1,08,633 08 was sale or amounted to work contract ?" .LM0 The High Court, after hearing the parties and considering the materials on the record, came to the conclusion that the contract entered into 167 by the appellant was not a work contract but a contract for the supply of goods simpliciter and the assessee, was, therefore, liable to pay tax. The question referred to the High Court was answered accordingly. The assessee 's case was that having regard to the circumstances of the present case, the terms and conditions of the contract and the nature of the work done by the appellant the contract in question was out and out a work contract and not a contract for supply of goods or materi als. In order to decide this question it may be necessary first to give the salient features of the contract between the parties. A specimen of the contract has been filed by the assessee as Annexure 'A ' in the Paper Book the relevant portions of which may be extracted thus: "Please erect at our premises . Nos. of . .Nos. of following dimension against ' the contract price of Rs. . 1. Full payment against delivery prior to despatch or documents by Bank. It is clearly understood that there will be no such thing as to make payment after fixing. Material will be carried to the side of work at cost of the party. Our responsibility ceases when the same leaves our premises. x x x 4. We do not hold ourselves responsible for any structural damage or dispute with the landlord. Masonary work done by the party at his cost according to. our instructions. x x x 6. No responsibilities for non delivery or late despatch of goods due to any reason beyond our control. " It would appear from the terms extracted above, that the assessee was required under the contract to fabricate the rolling shutters in the first instance, .to bring them to the site and thereafter to erect the saine at the premises. In an application given to the Assistant Commissioner (Judi cial), which is Annexure 'C ' of the Paper Book, by the assessee he explains the various steps which the contractor had to take in order to fix the rolling shutters to the factory premises of the owner. First the different parts and components of the rolling shutters are fabricated. It is only when the various component parts are fitted into one that they constitute the rolling shutter as one unit, and taken separately they have no separate existence. It was further explained that the component parts do not constitute a rolling shutter unless they are affixed to and erected in the building in position and in the required manner. It was further alleged that the contract was not concluded merely by delivery of fabricated materials but was completed only after the same were taken to the site and finally erected and affixed to the site of the building. In order to fix them 12 240SCI/77 168 to the premises certain masonary work had to be done by the owner and that too according to the instructions of the contractor. It was also averred that in erection of the shutters some parts were permanently embedded into the walls and lintals and they become permanent fixtures which are not detachable. The allegations made in Annexure 'C ' have not been controverted by the State either in this Court or before the High Court. Moreover, the Indian Standard Specification Book for Metal Rolling Shutters and Rolling Grills the particulars of the fittings of rolling shutters, whose authenticity has not been doubted by counsel for the parties, clearly shows that rolling shutters consist of curtains, lock plates, guide channels, bracket plates, rollers, hood covers, gears, worms, fixing bolts, safety devices, anchoring rods, central hasp and staple. Each guide channel has to be provided with a minimum of three fixing cleats or supports for attachment to the walls or column by means of bolts or screws. The guide channels are further attached to the jambs, plumb either in the overlap ping fashion, projecting fashion or embedded in grooves, depending on the method of fixing. All these operations take place at the site after despatch of the component parts of the rolling shutter. Hood covers are fixed in a neat manner and supported at the top at suitable intervals. This also has to be done at the site. Item 11.1 of the specifications shows that the rolling shutter curtain and bottom lock plate are interlocked together and rolled in one piece, but the other parts like guide channels, bracket plates, rollers etc., are despatched separately. Item 12.1 shows that all the rolling shutters are erected by the manufacturer or his authorized representative in a sound manner, so as to afford trouble free and easy operation, long life and neat appearance. Even after erection is done, grease is applied to the springs and on the sides of the guide channels. Thus the process involved in the fabrica tion of a rolling shutter and its actual fixing to the premises at the site is a continuous one and is completed only when erection is completed in every way. The price charged by the contractor from the owner of the premises is one lumpsum without at all specifying as to what part is meant for the materials used or fabricated and what part for the services or labour put in by the contractor. It is, therefore, clear that in the facts and circumstances of the present case, the transaction is a composite consolidated contract which is one and indivisible comprising labour and services executed for a lumpsum. It is also clear that the materials are not merely supplied to the owner so as to pass as chattel simpliciter, but are actually fixed to an .immov able property and after the same are fixed and erected they become a permanent fixture so as to become an accretion to the immovable property. In these circumstances, the con clusion is inescapable that the present contract cannot be said to be a pure and simple sale of goods or materials as chattels but is a work contract. It is well settled that a work contract is a contract for construction of bridges, buildings etc., and in for a lumpsum. The question as to under what circumstances a contract can be said to be a work contract is not free from difficulty and has to depend on the facts of each case. It is difficult to lay down any rule of universal application, but there are. some well recognized tests which are laid down by decided cases of this Court which afford 169 guidelines for determining as to whether a contract in question is a work contract or a contract for supply of goods. One of the important tests is to find out whether the contract is primarily a contract for supply of materials at a price agreed to between the parties for the materials so supplied and the work or service rendered is incidental to the execution of the contract. If so, the contract is one for sale of materials and the sale proceeds would be exigi ble to sales tax. On the other hand where the contract is primarily a contract for work and labour and materials are supplied in execution of such contract, there is no contract for sale of materials but it is a work contract. The circum stance that the materials have no separate identity as a commercial article and it is only by bestowing work and labour upon them, as for example by affixing them to the building in case of window leaves or wooden doors and windows that they acquire commercial identity, would be prima facie indicative of a work contract. So also where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixure and an accretion to the said property, the contract prima facie would be work contract. This is exactly what has happened in the present case. In State of Rajasthan vs Man Industrial Corporation Ltd.(1), after discussing the entire case law on the sub ject, this Court 'observed as follows: "The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in connection with the installation are under a separate contract or are incidental to the execution of the contract of sale. " Although the aforesaid case appears to us to be on all fours with the facts of the present case, the High Court merely noticed the decision, but did not try to apply it to the facts of the present case. In Man Industrial Corporation Ltd 's case (supra) the contract was to prepare window leaves according to specifications and fix them to the building. It was held that fixing the window leaves to the building was not incidental or subsidiary to the sale but an essential term of the contract, because the contract became complete only after the windows were fixed as stipulated in the con tract. Similarly in the instant case, the contract could not be completed merely by sending the materials at the site but would be completed only after erection of the shutters Had been made and the shutters fixed to the premises so as to become an accretion to the premises. Mr. Dikshit appearing for the State submitted that in the present case the contract was merely for the supply of shutters in one unit after being fabricated by the contrac tor and the price was paid for the shutters, the question of fixing the shutters at the site was not an integral part of the contract but was only incidental to the supply of materials and, therefore, the contract was not a work con tract. We are, however, unable to agree with this conten tion, because as (1) 24 S.T.C. 349, 355. 170 discussed above, the materials were sent with various component parts which had to be taken at the site, fitted into one another and then finally fixed into a frame so that the fixture became permanent and a part of the premises. The operation to be done at the site as required by the instructions in the Standard Book could not be said to be merely incidental to the contract but was a fundamental part of the contract itself. In our opinion, therefore, the decision in Man Industrial Corporation Ltd 's case (supra) fully covers the facts of the present case. It was further argued by Mr. Dikshit learned counsel appearing for the State that it will appear from the terms of the contract that the price of the goods had to be paid in advance before delivery of the same to the customer which shows that the title to the shutters passed to the customer as soon as the shutters were packed and despatched to the site and the price paid and therefore the contract in the instant case could not be a work contract. It is not possi ble to accept this contention, because the advance payment of the entire price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment of goods, but the contract would be completed only after the 'shutters were fully assembled at the site and fixed according to the specifications which was essentially the responsibility of the contractor. In Richardson ' and Cruddas Ltd. vs State of Madras(1) there was a similar recital in the contract for full price to be paid in advance and still the Madras High Court held that the contract was a work contract. The decision of the Madras High Court was approved by this Court in Man Industrial Corporation Ltd 's case (Supra) and affirmed by this Court in Stale of Madras vs Richardson and Cruddas Ltd.(2) For these reasons the contention put forward by Mr. Dikshit on this score is overruled. In a later case of this Court in State of Rajasthan vs Nanu Ram(3) tenders were invited by the Chief Engineer from the contractors for supplying and fixing of wooden door and windows, sashas together with frames and painting them in the police lines building and for supplying and fixing the wooden chowkhats and this was held to be a work contract. The decision in Man Industrial Corporation Ltd 's case (supra) was followed by this Court in that case. Again in Commissioner of Sales Tax, M.P. vs Purshottam Premji(4) this Court indicated the essential difference between a contract for work and services and a contract for sale of goods and observed as follows: "The primary difference between a con tract for work or service and a contract for sale of goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole . In the case of a contract for sale, the thing produced as a whole has indi vidual existence as the sole property of the party who produced it, at some time before delivery, and the property (1) 16 S.T.C. 827. (2) 21 S.T.C. 245 (S.C.). (3) 26 S.T.C. 268. (4) 26 S.T.C. 38. 171 therein passes only under the contract relat ing thereto to the other party for price. " The High Court placed great reliance on the decision in M/s T.V. Sundram Iyengar & Sons vs The State of Madras(1). In that case what had happened was that the contractor built bus bodies and fitted the same to the chassis provided by the customers and charged the price for building the body and fitting the same to the chassis. It was held by this Court that the contract was completed only when the complete bus with the body fitted to the chassis was delivered to the customer and, therefore, the supply of body being one single unit constituted a sale of goods. That case is clearly distinguishable from the facts and circumstances of the present case. In the first place the supply of materials and completion of the contract was indisputably in respect of movable property, no immovable property was at all in volved at any stage in the process of completion of the contract. The bus body built by the contractor was moveable property manufactured by the contractor and had merely to be fitted to the chassis ' which was also movable property. Secondly, the bodies constructed and fitted to the chassis were easily detachable. In the instant case, the shutters were fabricated and fixed to an immovable property so as to become a permanent fixture and they were also not detacha ble. The High Court failed to have noticed these important features which distinguish the aforesaid decision from the facts of the present case. We are of the considered opinion that the present case is clearly covered by the two decisions of this Court re ferred to in Man Industrial Corporation Ltd 's case and Nenu Ram 's case (supra), and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not eligible to tax. The High Court was in error in holding that the assessee was liable to pay tax ,on the sale proceeds of the contract. We, therefore, allow this appeal, set aside the order of the High Court and restore the order of the Revising Author ity and hold that the assessee was not liable to pay sales tax. The appellant will be entilled to his costs through out. P.B.R. Appeal allowed.

The appellant was convicted by the Sessions Judge. Salem for an offence under section 302 I.P.C. and was sentenced to death. The High Court modified the sentence of death to one of life imprisonment. However, exercising its powers under section 367(4) of the Criminal Procedure Code, 1973, the High Court imposed a fine of Rs. 20,000/ under section 357(1)(c) of the Code. Special Leave was granted, by the court, limiting it into the question of propriety of the fine im posed by the High Court. Allowing the appeal in part and reducing the fine the Court, HELD: (i) A saving provision which saves the inherent powers of the court cannot over ride an express provision contained in the statute which saves that power. That did not however affect the power of the High Court to deal with the application merely because the application was wrongly described as having been made under a wrong section. In the instant case, the High Court correctly passed an order of compensation not under 5. 482 but under section 357(1)(c) of the Code and the application filed in the High Court was main tainable at the instance of the son and daughter of the deceased. [133 H, 135 F G] (ii) Under section 302 LP.C. not only a sentence of imprisonment for life but even a sentence of death can legitimately be combined with a sentence of fine. For the offence of murder, the court do have the power to impose the sentence of fine. [136 B C] (iii) Legitimacy is not to he confused with propriety and the fact that the court possesses a certain power does not mean that it must exercise it. Though there is power to combine a sentence of death with a sentence of fine that power is to be sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose. [136 C E] (iv) The first concern of the court, after recording an order of conviction, ought to he to determine the proper sentence to pass. The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly excessive. In fact, the primary object of imposing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realised which can happen only when the fine is not unduly excessive, having regard to all the circumstances of the case, including the means of the offender. [137 D F] (v) Since by section 357(1)(c) of the code of 1973 and its pre cursor section 545(1)(bb) of the code of 1898 compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of fine is at all called for, particularly when the offender is sentenced to death or life imprisonment. If so, the fine must not be execessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine. The High Court in the instant case instead of applying its mind to these fac tors, considered only what compensation the heirs ought to receive. There is no warrant for the assumption made by the High Court as regards the retention of "abilities in fact" or as regards the "extent of loss to the dependants. " [137 A C, 138 A C] 133 State vs Pandurang Shinde, A.I.R. [1956] Born 711, 714 referred to. Adamji Umar Dalai vs The State of Bombay, , applied. (vi) In view of the fact that the appellant was under the sentence of death since its imposition by the Sessions Court and its reduction to life imprisonment by the High Court since a sentence of life imprisonment has been imposed on the appellant that being the only other sentence permis sible under the law, the fine of Rs. 20,000 is unduly exces sive and a sum of Rs. would meet the ends of justice. [138 C D]

Civil Appeal No 707 of 1973. From the Judgment and Decree dated the 23rd December 1971 of the Madras High Court in Civil Suit No. 158 of 1966. K. section Ramamurthi, section Balakrishnan, N. M. Ghatate for the appellant. A.K. Sen, J. section Arora and H. K. Puri for respondent No. 1. G. L. Sanghi and Girish Chandra for respondents Nos. 2 and 3. The Judgment of the Court was delivered by CHANDRACHUD, J. The Trustees of the Port of Madras, appellants herein, filed suit No. 158 of 1966 in the High Court of Madras for recovering a sum of Rs. 3,1 8,968.04 from the respondents by way 724 of demurrage. The 1st respondent is a firm called M/s. Aminchand Pyarelal, the 2nd respondent is the Union of India and the 3rd respondent is the Collector of Custom, Madras. A learned single Judge referred the suit to a Division Bench which dismissed it by a judgment dated December 23, 1971. This is an appeal by certificate granted by the High Court under Article 133(1)(a) of the Constitution. On April 10, 1963 a Steamer "A.P.J. AKASH" arrived at the Madras Port and landed, among other goods, a consignment of 202 bundles of black plain sheets of various sizes. The appellants received the goods and stored them in transit sheds. The goods were imported by the 1st respondent under an authorisation issued by the State Trading Corporation of India which held a licence dated June 16, 1962 to import the goods from Hungary. The Clearing Agents of the 1st respondent filed a Bill of Entry with the 3rd respondent but the customs authorities detained the goods as the specifications in the import licence did not tally with the description of the imported goods. The Customs authorities then issued a show cause notice to the 1st respondent and after considering its explanation the 3rd respondent passed an order on November 12, 1963 confiscating the goods under section 111 (a) of the . The 1st respondent preferred an appeal against that order to the Central Board of Excise and Customs, New Delhi, which was allowed by the Board on July 27, 1964. On August 21, 1964 the Clearing Agents of the 1st respondent requested the customs authorities to issue a certificate for the permission of the transit dues for the period during which the goods were detained. A certificate was accordingly issued by the 3rd respondent stating that the goods were detained by the Customs Authorities from April 24, 1963 to August 21, 1964 for examination under section 17(3) and section 17(4) of the , other than in the ordinary process of appraisement and that the detention was due to no fault or negligence on the part of the 1st respondent. Acting on this certificate, appellants waived the demurrage for the period covered by the certificate, whereupon the 1st respondent cleared the consignment on August 25 and August 27, 1964 on payment of the Harbour dues, Cranage charges and Demurrage charges for the period not covered by the certificate. Thinking that the certificate was issued erroneously, appellants wrote a letter dated January 27, 1965 to the 3rd respondent requesting him to reconsider the matter. By his letter of April 12, 1965 the 3rd respondent owned up the mistake and stated that the certificate was incorrect as the goods were detained in order to ascertain whether the Import Trade Control formalities were complied with and not for examination and assessment of duty under section 17(3) and (4) of the . The case of the appellants is that due to the negligent mistake committed by the 3rd respondent in issuing the certificate, they charged to the 1st respondent a sum of Rs. 1963.60 only whereas 725 it was liable to pay a sum of Rs. 3,20,951.64 by way of demurrage. The appellants called upon the 3rd respondent to pay up the balance but the latter, by his reply dated July 6, 1965 repudiated all liability, contending that the Union of India could not be held liable for the negligent or tortious acts of its officers done in good faith during the course of their official duties and that the appellants should seek J their remedy against the 1st respondent. Later, the appellants brought the present suit against the three respondents to recover the demurrage. The case of the appellants as made out in the plaint is that the liability of respondents 2 and 3 was in the region of contract or quasi contract, that the appellants were put to a loss due to the wrong certificate issued by the 3rd respondent and therefore respondents 2 and 3 could not repudiate their liability to pay the demurrage. As regards the 1st respondent, the case of the appellants is that it had contravened the Import Trade Control regulations, that it was fully aware of the true facts that it was not open to it to take advantage of the wrong certificate issued by respondent 3 and that therefore it was also liable to pay the demurrage. The 1st respondent disputed its liability to pay the demurrage contending that it could not be penalised either for the delay caused by the Customs authorities in clearing the goods or for the issuance by them of a wrong certificate. According to the 1st respondent, the consignment imported in April, 1963 was one of a series of consignments which the 1st respondent had imported under a con tract with the State Trading Corporation for a fixed remuneration. The 1st respondent had not authority to deal with he imported goods but was bound to hand them over at the agreed price to the State Trading Corporation or its nominee The 1st respondent further stated that the only controversy raised by the Customs authorities related to a difference in the size of the sheets imported under the import licence and that if the appellants had called upon it to pay by way of demurrage a sum as large as over rupees 3 lakhs, the 1st respondent would have rejected the goods as against the supplier unless the State Trading Corporation was willing to accept the goods. The import clearance orders were granted on the recommendation of the Corporation which held the import licence and which arranged for the grant of import clearance permits to persons like the 1st respondent on the basis that the goods were imported on behalf of the Corporation. Finally the 1st respondent contended that the scale of charges in the Port Trust Regulations under the heading "Chapter IV Demurrage" was void and ultra vires both for the reason that it was unreasonable and because the scale of charges was not within the authority of the appellants. The unreasonableness of the demurrage charges, according to the 1st respondent, was obvious from the fact that whereas the goods were of the value of Rs. 1,31,501 appellants were claiming a sum of over rupees 3 lakhs by way of demurrage. 726 The 2nd respondent, the Union of India, set out the various facts attendant upon the import of the goods and contended that the appellants had no cause of action against it or the 3rd respondent. The 3rd respondent adopted the written statement of the 2nd respondent. The High Court held that the levy of demurrage ill cases where the goods were detained by the Customs authorities for no fault or negligence on the part of the importer, was unreasonable and also beyond the powers of the appellants and that the appellants were not entitled to recover demurrage from any of the respondents. Two questions, mainly, arise for consideration in this appeal : firstly, whether the scale of fees under which the appellants charge demurrage is void as being unreasonable and as being beyond their powers; and, if the answer to the first question is in the negative, whether the 1st respondent is liable to pay the demurrage claimed by the appellants. Counsel for the appellants did not press the claim against respondents 2 and 3. The decision of the first question turns on the relevant statutory provisions but before considering the validity of the levy, it would be necessary to know the procedure which is adopted in the Madras Port during the process of importation and clearance of goods. The local agents of the ship inform the Traffic Manager of the Port Trust of the probable date of arrival of the ship and submit to the customs House the "Import General Manifest" which contains a description of the goods which are at board for landing at the Port. The Dock Labour Board supplies the labour to the Master of the ship for unloading the goods and for putting them on the quay side so as to enable the Port Trust authorities to take charge of the goods. The Port Trust labour handles the goods on the shore and when the Port Trust takes charge of the same, it is obliged under section 39(3) of the Madras Port Trust Act, 1950, to give a receipt to the Master of the Ship. With few exceptions, all goods received by the Port Trust are kept in the transit sheds. The Port Trust charges Harbour Dues for receiving the goods, handling them and keeping them in tile transit sheds. The importer then files the Import Application and the Steamer Agent 's Delivery order which is in the nature of an authority from the Steamer as bailor, to the Port Trust as the bailee, to deliver the goods to the importer or his agent. Section 45 of the forbids the person having the custody of any imported goods in the customs area from permitting their removal except under and in accordance with the written permission of the Customs authorities. The goods are cleared by the Customs authorities if the importation is not contrary to any law and if the importer pays the import duty assessed on the goods and the other charges payable under the . If the customs officer is of me opinion that the goods have been imported contrary to any prohibition imposed by the or the Imports and Exports (Control) Act, or by the orders issued or the rules framed thereunder, 727 a notice is issued under section 111 or section 112 of the calling upon the importer to show cause why the goods should not be confiscated. If the importer shows good cause" the goods are released and thereupon the Customs authorities issue a Detention Certificate stating if that be true, that the goods were detained for examination under sections 17(3) and (4) of the and that the detention was due to no fault or negligence on the part of the importer. The Port Trusts are under a statutory obligation to perform certain duties and equally so they have statutory powers to fix scales of fees and rates. The statute with which we are here concerned directly is the Madras Port Trust Act, 2 of 1905, (hereinafter called "the Act"). It is necessary to notice the relevant provisions thereof in order to understand the controversy in this appeal. Section 5(1) defines the "Board" to mean the Trustee of the Port of Madras appointed under the Act. Section 5(12) defines "Rate" as including any toll, due, rent, rate or charge leviable under the Act. By section 7 the Board consists of 21 Trustees including the Chairman. Section 8 provides that the Chairman of the Board shall be appointed by the Central Government and the remaining trustees shall be (1) the Collector of Customs, Madras, (2) the Municipal Commissioner for the City of Madras, (3) the General Manager, M. & section M. Railway, (4) the General Manager, South Indian Railway; (5) one representative of the Mercantile Marine Department chosen by the Central Government; (6) one representative of the Defence Services chosen by the Central Government. (7) one representative of the State Government chosen by the State Government; (8) two representatives of labour chosen by the Central Government after consultation with the registered trade unions, if ally, composed of persons employed in the port; and (9) eleven elected trustees. By section 8(2), of the eleven elected trustees one is elected by the Madras Municipal Corporation and the remaining by such provincial or local bodies representing commercial interests as the Central Government may, from time to time, by notification in the official Gazette, specify. Such notification may also specify the number of trustees that each of such bodies may elect. Section 10 which lays down disqualifications for the trustee 's office provides, inter alia, that a person shall be disqualified to be a trustee if, inter alia, he holds any office or place of profit under the Board. This provision does not, however, apply to the Chairman. ex officio Trustees and Trustees appointed by virtue of office. Section 23(1) lays down the procedure governing the proceedings of the Board while section 23 (2) provides that the Board may, from time to time, appoint committees consisting of not less than five of its members for carrying into effect any part of the provisions of the Act with such powers and under such instructions, directions or limitations as shall be defined by the Board. By section 39 the Board is under an obligation, according to its powers, to provide all reasonable facilities for, and has the power to 728 undertake the services of the description mentioned in the sub section among those services are landing of goods from vessels in the Port, and receiving, storing or delivering goods brought within the Board 's premises. Section 39(2) imposes upon the Board the obligation, if so required by any owner, to perform in respect of goods all or any of the services mentioned in clauses (a), (b) and (d) of section 39(1). Under section 39(3) the Board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the prescribed form. After the goods have been taken charge of and the receipt given by the Board, no liability for any loss or damage which may occur to the goods can attach to any person to whom a receipt shall have been given by the Board or to the master or the owner of the vessel from which the goods have been landed. Under section 40 the responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge is, subject to cerain provisions, that of a bailee under sections 151, 152 and 161 of the Indian Contract Act subject to certain modifications. Chapter VI of the Act which appears under the heading "Imposition and Recovery of Rates" contains provisions which have direct impact on the contentions raised in this appeal. Section 42 empowers the Board to frame a scale of rates at which and a statement of the conditions under which any of the services specified in clauses (a) to (e) of the section shall be performed by the Board. Clause (b) refers to landing of goods from any vessel upon any land or building in the possession or occupation of the Board or at any place within the limits of the Board. Clause (d) refers to "wharfage, storage or demurrage of goods on any such place". Sections 43 and 43 A also confer on the Board power similar to that conferred by section 42. By Section 44 every scale and every statement of conditions framed by the Board under sections 42, 43 and 43 A shall be submitted to the Central Government for sanction and, when so sanctioned and published in the official Gazette, such scale and statement of conditions have the force of law. The Central Government has power under section 44(1a) at any time to cancel any of the scales framed by the Board or to call upon the Board to modify any portion of such scales whereupon the Board shall modify the scales according to the directions of the Central Government. Section 44(2) confers power on the Board, in special cases, for reasons to be recorded in writing, to remit the whole or any portion of the rates or of any charge leviable according to any scale. Under section 50 rates in respect of goods to be landed are payable immediately on the landing of the goods; rates in respect of goods to be removed from the premises of the Board are payable before the goods are removed. Under section 51 the Board has a lien on the goods for the amount of all rates leviable under the Act on the goods and it may seize and detain the goods until the rates are fully paid. This lien has by section 52 priority over all other liens and claims except for general average and the ship owner 's lien for freight and other charges where 729 such lien exists and has been preserved in the manner provided in section 53. Under section 56, if the rates payable to the Board remain unpaid, it is competent to the Board to sell the goods by public auction after expiry of two months from the time That the goods have passed into its custody and in the case of perishable goods after the expiry of a shorter period not being less than 24 hours. Section 57 requires that the notice of sale must be published in the official Gazette. By section 58 notice is also required to be given to the owner of the goods, if the address of the owner is known. Under section 58 A? notwithstanding anything contained in the Act, where any goods placed in the custody of the Board are not removed by the owner or other person entitled there to from the premises of the Board within one month, the Board may, after due notice, required that the goods be removed forthwith or that in default of compliance the goods would be liable to be sold by public auction. In cases where all the rates and charges payable under the Act have been paid, such a notice for removal of the goods cannot be given before the expiry of two months from the date on which the goods. were placed in the custody of the Board. If the notice is not complied with, the Board may at any time after the expiration of one month from the date on which the notice was served or published sell the goods by public auction. Section 62 preserves the right of the Board to recover the rates by a suit. Section 95 of the Act which appears ill Chapter XI called "Bye Laws" empowers the Board to make bye laws not inconsistent with the provisions of the Act, inter alia, for the safe and convenient use of sheds, for the reception and storage of goods brought within the premises of the Board, for the mode of the payment of the rates leviable under the Act and generally for carrying out the purposes of the Act. Section 109 of the Act which has an important bearing on these proceedings provides that nothing contained in the Act shall affect any power vested in the Chief officer of Customs under any Law for the time being in force. Section 49 of the , 52 of 1962, provides that where in the case of any imported goods, the Assistant Collector of Customs, is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse or in a private warehouse if facilities for deposit in a public warehouse are not available. Acting in pursuance of the power conferred by sections 42, 43 and 43 A, the appellants have framed a "Scale of Rates" payable at the Port of Madras, which has been duly sanctioned by the Central Government under section 44 of the Act. We are concerned with the rates framed under section 42 which are contained in Chapter IV of the Scale of Rates. The various scales of rates arc divided into three parts: Book I, Book II and Book III. Chapter IV is headed "Demurrage " and it occurs in Book I called "Charges for certain 16 L925SupCI/75 730 services which the Board is prepared to render to the public". The introductory part of Chapter IV says: "Demurrage is chargeable on all goods left in the Board 's transit sheds or yards beyond the expiry of the free days. After demurrage begins to accrue no allowance is made for Sundays or Board 's holidays. The free days are fixed by the Board from time to time. " Scale 'A ' of Chapter IV prescribes conditions governing "Free Days", the normal rule being that two working days in the case of coast cargo and three working days in the case of foreign cargo excluding Sundays and the Board 's holidays arc treated as free after complete discharge of a vessel 's cargo, or the date when the last package was put overside. Rule 13(b) is the focus of controversy between the parties and it would be used to read along, with it clause (a) as well: "13. The following free periods are allowed in addition to the free periods applicable as per description of goods: (a) Periods during which goods are detained by the Collector of Customs for examination under Section 17(3) and (4) for chemical test under Section 144 of the other than the ordinary processes of appraisement and certified by the Collector of Customs to be not attributable to any fault o.; negligence on the part of the Importers plus one working day. The Customs holidays will also be treated as free days in addition. (b) Where goods are detained by the Collector of Customs, on account of Import Trade Control formalities or for compliance of formalities prescribed under the Drug 's Act and certified by the Collector of Customs to be not attributable to any fault or negligence on the part of Importers, demurrage shall be recovered for this period at the rate of 30 per cent of the normal rate, i.e. the rate at which the goods would in cur demurrage had there been no detention by the Customs. This concession in demurrage shall be limited to a period of 30 days plus one working day and demurrage shall be recovered at the full rate (i.e., third slab) for detention beyond the above said period. " Under clauses (c) and (d) of Rule 13, period during which the goods are detained by the Port Health Authority and the periods during which the Board is unable to trace packages owing lo congestion of accommodation, wrong sorting or incorrect tallying are also treated as Free Days. The High Court dismissed the appellants suit for the following reasons: (1) The Scale of Rates fixed by the Board is in the nature of Bye Laws; (2) Bye Laws may be treated as ultra vires for the 731 reasons, inter alia, that they are repugnant to the statute under which they are made or that they are unreasonable; (3) Viewed as a bye law, Rule 13(b) under which the Board can charge demurrage for the period during which the goods are detained for no fault or negligence of the importer or his agent, is unreasonable and therefore void; (4) In principle, there can be no distinction between cases falling under clause (a) and those falling under clause (b) of Rule 13, and if no demurrage is leviable in respect of cases falling within clause (a), no demurrage could be charged in respect of cases falling within clause (b). The distinction made by the Board between the two kinds of cases is therefore arbitrary and unreasonable; (5) 'Demurrage ', being a charge for wilful failure to remove the goods within the free period can be believed only if the failure to remove the goods is due to the fault or negligence of the importer or his agent; (6) Having regard to this well accepted meaning of the word 'demurrage ', the authority give to the Board by section 42 of the Act to frame the scale of rates can be exercised only for the purpose of levying charges where the importer was not prevented by any lawful authority from clearing the goods from the transit area and he had defaulted or was negligent in clearing the goods; (7) Since Rule 13(b) empowers the Board to charge demurrage even when the goods are detained for no fault or negligence of the importer or his agent, it is beyond the authority conferred by section 42 and is therefore void; (8) All the same, if two views are reasonably possible" a construction which favours the validity of a rule or statute should be preferred to that which renders it void Therefore, under the scale of charges for demurrage provided in Chapter IV, the appellants can levy demurrage only in cases where the delay in clearing the goods is due to the fault or negligence of the importer or his agent. The first four of these reasons relate to the invalidity of Rule 13(b) viewed as a bye law while the last four relate to its invalidity on the ground that it is in excess of the power conferred by section 42 of the, Act. Both of these sets of reasons appear to us unsustainable. As stated in "Craies on Statute Law" (7th Ed., pp. 325 326), bye laws may be treated as ultra vires on the grounds, amongst others, that they are repugnant to the statute under which they are made or that they arc unreasonable. But the error of the High Court 's judgment lies in the assumption that the "Scale of Rates and Statement of Conditions" framed by the appellants under sections 42, 43 and 43 A are bye laws. Section 42 with which we are concerned confers authority on the Board to "frame a scale of rates at which and a statement of the conditions under which any of the services specified" in the section shall be performed. Section 43 confers an identical power in the Board in regard to certain other matters while section 43 A authorises the Board to prescribe consolidated rates. Provision for framing bye laws is made in Chapter XI called "Bye Laws" and section 95 which occurs in that Chapter mentions the various subjects on which the Board may frame bye laws. Under Chapter XI, the Board has no power to frame bye laws for fixing scales of rates or a statement of the conditions under which any of the services specified in sections 42, 43 and 43 A shall be performed. The nearest that section 95 touches the subject of rates is by clause (6) which refers to the 732 mode of the payment of the rates leviable under this Act. The Board having expressly empowered by section 42 to frame. I scale of rates and a statement of the conditions under which it shall perform the services specified in the section and the Board having in terms exercised that power under the aforesaid section, there is no justification for supposing that in framing the scale of rates and the statement of conditions, the Board has purported to frame a bye law. What the High Court has done is to assume, in the first place, that the Board has not exercised the power which it undoubtedly possesses and which in fact and in terms it did exercise. The High Court then assumed that the Board had exercised the power which it did not possess" a power which the Board has not even purported to exercise. Making these unfounded assumptions, the High Court invalidated Rule 13 (b) on the basis that it was a bye law and a bye law could be declared ultra vires on the ground that it is unreasonable. We are unable to accept the High Court 's view that the scale of rates prescribed by the Board under sections 42, 43 and 43 A consists, as it were, of so many bye laws or that Rule 13 is in the nature of a bye law. A bye law has been said to be an ordinance affecting the public. Or some portion of the public, impose by same authority clothed with statutory powers, ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non observance.(1) The Board 's power to frame the scale of rates and statement of conditions is not a regulatory power to order that something must be done or something may not be done. The rates and conditions govern the basis of which the Board performs the services mentioned in sections 42, 43 and 43 A. Those who desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board. Indeed, some of the services which the Board may perform are optional and if the importer desires to have the benefit of those services, he has to pay the charges prescribed therefore in the Scale of Rates. For example, any one wanting to use the Board 's premises for any of the purposes mentioned in clauses (a) to (d) of section 43 would have to pay the charges prescribed by the Board for the use of its premises. Similarly any one desiring to have the benefit of the Boards 's services in behalf of cranage or storage as specified in clauses (c) and (d) of section 42 shall have to pay for these services at the prescribed rates. Whether the services are from the importer 's point of view optional in the sense that he may or may not require them or whether the importer has no option save to avail himself of the basic services of the Board as for landing and keeping the goods in the transit area, the services have to be paid for at the scale of rates prescribed by the Board. In such matters, where services arc offered by a public authority on payment of a price, conditions governing the offer and acceptance of services are not in the nature of bye laws. They reflect or represent an agreement between the parties, one offering its services at prescribed rates and the other accepting the services as those rates. (1)See Halsbury 's Laws of England, 3rd Ed. 24, p. 510, paragraph 940 citing Kruce vs Johnson at p. 96. 733 As, generally, in the case of bye laws framed by a local Authority, there is in such cases no penal sanction for the observance of the conditions on which the services are offered and accepted. If the services are not paid for, the Board can exercise its statutory lien on the goods under section 51 and enforce that lien under section 56 of the Act; or else, the Board may take recourse to the alternative remedy of a suit provided for by section 62. With this, the entire reasoning of the High Court on the first aspect of he matter must fall because Rule 13(b) has been declared ultra vires on the basis that it is a bye law and, as such, it is arbitrary and unreasonable. But we would like to point out, since the High Court has taken pains to go into the matter quite elaborately, that even a bye law cannot be declared ultra vires on the ground of unreasonableness merely because the court thinks that it goes further than is necessary or that it does not contain the necessary qualifications or exceptions. In Kruse vs Johnson(1) a question was raised as to the validity of a bye law made by a county council for regulating street music. I Lord Russell of Killowen observed in that case . "When the Court is called upon to consider the bye laws of public representative bodies clothed with the ample authority which I have described, accompanied by the checks and safeguards which I have mentioned. I think the consideration of such bye laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, benevolently interpreted ' and credit ought to be given to those who have to administer them that they will be reasonably administered. " The learned Chief Justice said further that there may be "dases in which it would be the duty, of the court to condemn by laws made under such authority as these were made (by a county council) as invalid because unreasonable. But unreasonable in what sense ? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifest unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires. ' But it is in this and this sense only, as I conceive, that the question of reasonableness or unreasonableness can properly be regarded. A bye law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient or because it is not accompanied by an exception which some judges may think ought to be there." (1) , at pp. 734 In Slattery vs Naylor(1) it was observed that when considering whether a bye law is reasonable or not, the court need a strong case to be made out against it, and decline to determine whether it would have been wiser or more prudent to make the bye law less absolute, nor will they hold that it is unreasonable because considerations which the court would itself have regarded in framing such a bye law have been overlooked or rejected by its framers. n In the first place, Port Trusts are bodies of a public representative character who are entrusted by the legislature with authority to frame a scale of rates and statement of conditions subject to which they shall or may perform certain services. Port Trusts are not commercial organisations which carry on business for their own profit. Sections 39(1) and (2) of the Act cast on the Board an obligation, according to its powers, to provide all reasonable facilities, if so required by any owner, for various kinds of services mentioned in clauses (a), (b) and (d) of section 39(1), which include services in regard to landing of goods between vessels and docks in possession of the Board and receiving, storing or delivering goods brought within the Board 's premises. The Board under section 39(3) shall, if required, take charge of the goods for the purpose of performing the service. After the goods are thus taken charge of and a receipt given for them, no liability for any loss or damage which may occur to the goods attaches to any person to whom the receipt has been given or to the master or owner of the ship from which the goods have been landed. The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge is, under section 40 of the Act, that of a bailee under sections 151, 152 and 161 of the Contract Act, subject to some modifications. Thus rates which the Board levies are a consolidated charge for the various services it renders and the liability which it is compelled by statute to undertake. The Board of Trustees is a representative body consisting of 21 Trustees out of whom eleven are elected. The Collector of Customs the Municipal Commissioner, the General Managers of Railways, a representative each of the Mercantile Marine Department and the Defence Services of the Central Government, and two representatives of labour are the other members of the Board. Out of the eleven elected Trustees, one is elected by the Municipal Corporation and the remaining by provincial or local bodies representing commercial interests. The Board of Trustees is thus a broad based body representing a cross section of variety of interests. It is the Board thus constituted that frames the Scale of Rates and Statement of Conditions under which the services shall or may be performed by it. Every scale and every statement of conditions framed by the Board has to be submitted to the Central Government for sanction under section 44 and it is only when it is so sanctioned that it has the force of law. The requirement of sanction by the Central Government is a restraint on unwise, excessive or arbitrary fixation of rates. Section 44(2) confers on the Board the power, in special cases and for reasons to be record (1) , 452. 735 ed in writing, to remit the whole or any portion of rates or charges leviable according to any scale in force under section 44. Thus, the statute provides for the necessary safeguards, checks and counter checks as an insurance against fixation and levy of harsh or unjust rates. Section 109 of the Act provides that nothing in the Act shall affect any power vested in the Chief officer of Customs under any law for the time being in force. Section 49 of the confers power on the Assistant Collector of Customs, if he is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, to permit that the goods may, pending clearance, be stored in a public warehouse and if such a, facility is not available, then in a private warehouse. This provision together with section 44(2) of the Act constitutes a measure of mitigation. In face of these considerations, it is impossible to characterise the scheme for the levy of rates as arbitrary or unreasonable. The High Court contrasted clause (b) of Rule 13 with its clause (d) and held that there is no distinction between the two classes of cases and if cases falling under clause (a) are wholly exempt from the payment of demurrage, so ought to be those falling under clause (b). The error of this conclusion lies in equating cases falling under clause (b) with those falling under clause (a). The two clauses deal with different sets of cases: clause (a) deals with cases where the goods are detained for examination under sections 17(3) and (4) or for chemical test under section 144 of the , other than for the ordinary processes of appraisement; clause (b) deals with cases where the goods are detained on account of Import Trade Control formalities or for compliance of formalities prescribed under the Drugs Act. We see no warrant for the court substituting its own view as to the allowance of Free Days in a technical matter like the fixation of rates which has been considered by an expert Board of Trustees and whose decision has been confirmed by the Central Government. Equating the two classes of cases dealt with by clauses (a) and (b) of Rule 13 may seem to the court a more prudent or reasonable way of fixing scales of rates but that is not a correct test for deciding the validity of the impugned provision. There is a fundamental aspect of the fixation of rates which the High Court has overlooked. What is the object and purpose of the rates which the Board charges to the importer ? Port Trusts do not do the business of warehousing goods and the rates which the Board charges for storage of goods are not levied as a means of collecting revenue. The Board is under a statutory obligation to render services of various kinds and those services have to be rendered not for the personal benefit of this or that importer but in the larger national interests. Congestion in the ports affects the free movement of ships and of essential goods. The scale of rates has therefore to be framed in a manner which will act both as an incentive and as a compulsion for the expeditious removal of the goods from the transit area. Ships, like wagons, have to be kept moving and that can happen only if there IS pressure on the importer to remove the goods from the Board 's pre 736 mises with the utmost expedition. The appellants in their reply statement filed in the High Court have referred to the Report of the Committee set up in 1967 by the Ministry of Transport and Shipping, Government of India. The Committee consisted of top level experts, one each from the Ports of New York, London and Notterdam who made a general survey of the Ports and Harbours in India. The Committee observed in its Report: "To effect quick clearance of the cargo from the Harbour, the demurrage rates may be so fixed as to make it unprofitable for importers to use the port premises as a warehouse. "Viewed from this angle, the scale of rates cannot be characterised as unreasonable. That takes us to the question whether the scale of rates fixed by the Board is beyond the power conferred on it by section 42 of the Act. If section 42 were to authorise the Board to fix rates of 'Demurrage '. it might perhaps have been arguable that the Scale of Rates and the Statement of Conditions must conform to the accepted meaning of the word 'Demurrage '. But the statute has placed no such limitation on the power of the Board to fix the rates. By Section 42 power is conferred on the Board to frame "a scale of rates at which and a statement of the conditions under which any of the services 1> specified" in the section "shall be performed". And the Board has fixed the scale of rates and the statement of conditions for the services it may have to perform. It is difficult to see in what manner or respect the Board has exceeded its power under section 42. The High Court seems to have thought that the Board had the limited right to fix rates of demurrage and therefore rates could only be levied on goods which were not removed from the Board 's premises due to some fault or negligence on the part of the importer or his, agent. The High Court was probably misled in this conclusion by the use of word 'demurrage ' in clause (d) of section 42. But 'demurrage ' is surely not a service to be performed by the Board and is, on any view, a charge leviable on goods. Clauses (a) lo (d) of section 42 refer to various services like transshipment of passengers and goods, landing and shipment of passengers or goods, cranage or porterage of goods and wharfage or storage of goods. It is these services in respect of which section 42 authorises the Board to frame a scale of rates and the statement of conditions. The circumstances that the Board has used the expression 'Demurrage ' as a heading for Chapter IV of the Scale of Rates or that it has used that expression in Rules 13(b) and (c) cannot constitute a fetter on its powers to fix the rates. The validity of the exercise of that power has to be judged on the language of section 42 which is the source of the power. The High Court has cited many texts and dictionaries bearing on the meaning of 'Demurrage ' but these have no relevance for the reason that demurrage being a charge and not a service, the power of the Board is not limited to fixing rates of demurrage. Besides, it is plain that the Board has used the expression 'Demurrage ' not in the strict mercantile sense but merely to signify a charge which may be levied on goods after the expiration of Free Days Rule 13(b) itself 737 furnishes a clue to the sense in which the expression 'demurrage ' is used by the Board. It provides, inter alia, that "demurrage" shall be recovered at a concessional rate for a period of thirty days plus one working day where the goods are detained for compliance with certain formalities and where the Collector of Customs certifies that tile detention of goods is "not attributable to any fault or negligence on the part of Importers". The High Court was therefore in error in holding the scale of rates fixed by the Board as ultra vires and void on the grounds that it is unreasonable and that it is in excess of the power conferred by section 42 of the Act. The only question which now remains to be considered is whether the respondents are liable to pay the demurrage demanded of them by the appellants. The appellants ' claim against respondents 2 and 3 has no foundation in law and was rightly not pressed by the appellants ' counsel. Respondent 3 is the Collector of Customs who, obviously., cannot be made personally liable to pay the demurrage. Respondent 2 is the Union of India against whom and respondent 3. the appellant 's claim is said to reside partly in the region of "contract or quasi contract". We are unable to spell out any such basis on which the claim of the appellants could rest. The issuance of an incorrect 'Detention Certificate ' by the 3rd respondent cannot also help the appellants to fasten the liability for demurrage on respondents 2 and 3 on the ground of their negligence. As observed by the High Court, all the relevant facts were before the appellants who could, with reasonable care, have avoided the consequences flowing from the Certificate issued by the 3rd respondent. As regards the appellants ' claim against the 1st respondent, the High Court was prepared to hold the latter liable to pay the demur rage except for the fact that the scale of rates was unreasonable and beyond the power of the Board. As we have set aside the High Court 's findings on those points, it has to be examined whether the 1st respondent is liable to pay the demurrage. Unfortunately, parties fought in the High Court a legal battle and gave no importance to facts on which the liability of the 1st respondent may be said to rest. Facts must come before the law for, legal principles cannot be applied in a vacuum. No oral evidence was led by the parties and we find it difficult on a mere Perusal of documents to say that respondent 1 ought to be held liable to meet the appellants ' claim. Documents do not prove themselves nor indeed is the admissibility of a document proof by itself of the truth of its contents. Import Licence No. CL/ 53/3/02105 1 dated June 16, 1962 under which the goods were imported stood in the name of the State Trading Corporation of India. It issued an authorization in favour of the 1st respondent which, as the documents go, was liable to deliver the consignment to the nominees of the Corporation. The 1st respondent. it would appear, was only entitled to charge a commission for the work done by it in pursuance of the authorisation issued by the Corporation. The 1st respondent had no title to or interest in the goods except to deliver them 738 in accordance with the instructions of the Corporation. If the appellants were to enforce their statutory lien, the incidence of the demurrage would have fallen on the Corporation in whom the title to the goods was vested. The appellants permitted the goods to be cleared without then demanding the demurrage which they claimed later, thereby depriving the 1st respondent of an opportunity to reject the goods as against the supplier unless, of course, the Corporation was within to accept them and along with them the liability for the payment of demurrage. In the absence of any more facts we find it impossible on the record as it stands, to accept the appellants ' claim against the 1st respondent. Out of 15 issues framed in the suit, issues 1 and 10 only pertain to the liability of the 1st respondent and on those issues, the facts appearing; on the record are too scanty to support the appellants ' claim against the 1st respondent. We., therefore, hold that the claim against the 1st respondent must also fail In the result, we confirm the decree of the High Court dismissing the appellants ' suit, though for entirely different reasons. In the circumstances, there will be no order as to costs. P.H.P. Appeal dismissed .

The vendors sold the suit land,to the appellants (vendees) by a registered deed of sale for Rs. 43,000/ . The ' respondents filed the suit for possession by pre emption of the land in payment of Rs. 30,000/ on the allegations that the respondents were on the date of sale tenants of the land under the vendors. I They also alleged that the sale took place for Rs. 30,000/ only and the re maining amount was fictitiously mentioned in the deed of sale. The suit was ' dismissed on the ground that one suit on behalf of the four plaintiffs who were tenants of different parts of the land, was not maintainable. On appeal the suit was remanded for re trial. At the trial on remand, two plaintiffs withdrew from the suit. The trial court directed the remaining two plaintiffs respondents Sohan Lal and Nathi to deposit Rs. 6,300/_ and Rs. 5.670/ respectively on or before 1 April, 1969 less 1/5th of the pre emption amount already deposited by them. The Trial Court gave the respondent Sohan Lal a decree for possession by pre emption in respect of Killa Nos. 14/1 . 17 and 18/1 of Rectangle 37. The plaintiffs respondents, aggrieved by the order filed an appeal alleging that the decree should have been Passed for the whole of the land because the respondent Sohan Lal was also a tenant of Killa , No. 24 of Rectangle 37 under the vendors. On 29 July 1969. the Additional District Judge passed a decree for possession by pre emption in favour of respondent Sohan Lal of Killa No. 24 of Rectangle 37 on payment of Rs. 9,100/ and he was also directed to deposit this amount on or before 20 August, 1969. The decree in favour of Nathi was maintained without charge. The appellants filed an appeal before the High Court and it was contended before the High Court that respondents did not deposit the decretal amount by l April, 1969 as directed by the Trial Court and, therefore, the suit was liable to be dismissed under order 20 Rule 14 of the Code of Civil Procedure. The High Court accepted the appeal of the appellants against the plaintiff Nathi and dismissed the appeal against the plaintiff respondent Sohan Lal. The High Court said that since the lower appellate court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs. 9,100/ . the respondent was to comply with the appellate decree and not the decree of the Trial Court. Allowing the appeal by special leave, ^ HELD: (1) The directions given by the Trial Court are mandatory under the provisions contained in order 20 Rule 14 of the Code of Civil Procedure. A decree in terms of order 20 Rule 14, imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance bt the other. [600E F, G]. Naguba Appa vs Namdey reported in A.I.R. l 954 S.C. 50 and Dattaraya S/o Keshav Tawalay vs Shaikh Ali and Anr.[1969] 2 S.C.R. 514 relied on. (ii) It is only if the plaintiffs respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate court might have considered the passing of appropriate order in favour of pre emptors. The High Court should have allowed the appellants ' appeal and not made any distinction in dismissing plaintiffs respondent Nathi 's suit and allowing Plaintiff respondent Sohan Lal any extension of time to make the payment. [601F G] 599

Civil Appeal No. 824 of 1968. Appeal by Special Leave from the Judgment and order dated the 23 8 1967 of the Allahabad High Court in Civil Misc. (Review) application No. 32 of 1966 (in S.A. 4357/65). J. P. Goyal for the Appellant. V. section Desai and V. N. Ganpule for Respondent No. 1. The Judgment of the Court was delivered by SARKARIA, J. The following pedigree table illustrates the relationship of the parties: Hira Lal=Smt. Naraini Devi (plaintiff). (died in 1925). Kapoor Chand Nemi Chand Chandra Bhan (died in 1954) (Judgment debtor) (died in 1930) =Smt. Ramo Devi, (extinct) (Respondent 1) Decree holder. 5 L390 SCI/76 56 Smt. Ramo Devi, widow of Kapur Chand (shown in the above pedigree table) obtained a money decree against her husband 's brother Nemi Chand. In execution of her decree she got attached one half share in the double storeyed House No. 4416, situated at Agra representing it to be of the judgment debtor. Naraini Devi, widow of Hira Lal, filed an objection petition under 0.21, r. 58, Code of Civil Procedure against that attachment claiming the house to be her property. That objection was dismissed by the executing court on the 16th July, 1962. Thereafter, she filed a suit under 0.21, r. 63, Code 11 of Civil Procedure to establish her claim. The suit was decreed by the trial court. On appeal, the District Judge reversed the judgment t and dismissed the suit. Naraini Devi 's second appeal was summarily dismissed by the High Court. She filed a review petition which was rejected by the High Court on August 23, 1967. Hence, this appeal by special leave. i It is common ground between the parties that under a registered J award dated January 4, 1946, the plaintiff Smt. Naraini Devi was given a life interest in the house in dispute. The appellant 's contention is that her limited interest in the house was enlarged into that of a full owner by the operation of sub section (1) of section 14 of the Hindu Succession Act. As against this, the respondents maintain that her case falls under sub section (2) of section 14. The question thus turns on a construction of the award exhibit 2. We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed` by the respondent. This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house. This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers. A part of this house was in the occupation of a tenant at Rs. 32/ per month. Naraini Devi was given a right to get that rent. A part of it was in the personal occupation of Kapoor Chand. The award protects and assures his right of remaining in possession of the same. A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent and no more for her life time. Thus the award confers on her only a restricted estate in the house within the meaning of sub section (2) of section 14 which says: "Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restrict ed estate in such property." Mr. Goyal however, submits that her case would fall within this Court 's ruling in Badri Prasad vs Smt. Kanan Devi(1) according to (1) ; 57 which, if the widow has a pre existing right in the property, then the A case will fall under sub section (1), and sub section (2) which is in the nature of a proviso to sub section (1) of section 14 will not be attracted. The rule in Badri Prasad 's case (supra) is not applicable here. Ill that case the widow had acquired a share in the property by virtue of the Hindu Women 's Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devi 's husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre existing right or interest in the house in question. It was the award dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls; squarely within the ambit of sub section (2) of section 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings. For reasons aforesaid the appeal fails and is dismissed with no order as to costs.

'N ' a widow of 'H ', who, under the Hindu law then applicable and in the presence of her three sons did not get any share or interest in the house left by her late husband and therefore got a life interest by virtue of a registered award filed 3 suit under order 21 Rule 63 C.P.C. to establish her claim to the property that had been attached in execution of the decree against her second son obtained by her eldest daughter in law. 'N 's suit was decreed by the trial Court. The first appellate court reversed that decree. The second appeal and he review in the High Court failed. On appeal by special leave, rejecting the contention that "the appellants limited interest was enlarged into that of a full owner by the operation of sub sec. (I) of Section 14 of the Hindu Succession Act, the Court ^ HELD: (I) A reading of the award as a whole, leaves little doubt, that the only interest in the house created in favour of the widow was that she would be entitled to its rent, and no more for her life time. [56 F] (2) In the present case, the appellant did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. She had no pre existing right or interest in the property. [57 B] (3) The award created a restricted estate for her in the house, and [57 B] (4) The ease fell squarely within the ambit of sub section (2) of section 14 of the Hindu Succession Act and her interest came to an end on her death. [57 C] Badri Prasad vs Smt. Kanan Devi ; , not applicable.

N: Criminal Appeal No. 742 of 1979. From the Judgment and order dated 16.1.1979 of the Punjab and Haryana High Court in Crl. 656 of 1976. A.S. Sohal and P.N. Puri for the Appellant. Kiran Choudhri and T. Sridharan for the Respondent. The Judgment of the Court was delivered by 749 VENKATACHALIAH J. This appeal, by Special Leave, preferred against the Judgment dated April 26, 1976 of the High Court of Punjab & Haryana affirming the judgment dated 26 4 1976 of the Sessions Judge in S.C. No. S of 1976 convicting appellant for offences under Sections 302 and 120 B of the Indian Penal Code and sentencing her to imprisonment for life, raises certain questions as to the nature and extent of corroboration of an accomplice 's evidence; and as to the procedure for the trial of offences by a "child" under the East Punjab Children 's Act 1949. Appellant Balwant Kaur was said to be 15 1/2 years of age at the time of the commission of the offence alleged against her. From 14.11.1973 the whereabouts of appellant 's husband Pritam Singh, a police constable, were not known. His mother Mukhtiar Kaur (P.W. 19) reported this fact and expressed her apprehensions in the matter in her complaint to the Superintendent of Police. Appellant was arrested on 8.5.1975. Nand Singh and Ram Sarup were also arrested on 8.5. 1975. Ram Sarup became an approver. Appellant 's defence was one of total denial. The judgment of the High Court under appeal is common to Criminal Appeal No. 676 of 1976 preferred by Nand Singh who was convicted under Sections 302, 364, 201 and 120 B of I.P.C. and also sentenced to imprisonment for life. Appellant 's husband, Pritam Singh for whose murder appellant and the said Nand Singh had been arraigned, was, at the relevant time, a police constable at the Police Station West, Sector 11 Chandigarh. Nand Singh was another constable at the same Police Station. Nand Singh 's brother Bhag Singh and Pritam Singh were neighbours, residing in adjacent Government quarters in Sector 20 A, Chandigarh. Ram Sarup, who later turned approver, was another police constable on Guard duty at the Punjab Raj Bhavan, Chandigarh. The married life of Appellant and Pritam Singh, according to the prosecution, lacked connubial felicity and was marked by constant bickerings and quarrels, the cause for this discord being the addiction of Pritam Singh to liquor. It is the prosecution case that Pritam Singh was a dipsomaniac and was constantly subjecting appellant to corporeal intransigence. It was further alleged that appellant had developed illicit intimacy with Nand Singh. Ram Sarup, in the course of his visits 750 to Bhag Singh 's house met, and became friendly with Nand Singh and the two become accustomed to take liquor together. Ram Sarup also knew deceased Pritam Singh. It is alleged that on occasions Nand Singh, when he lost self control under the influence of liquor, used to confide in Ram Sarup of his illicit sexual exploits with appellant. This appears to have tempted Ram Sarup to ask Nand Singh to introduce Ram Sarup also to appellant for a similar intrigue. On November 13, 1973, in the afternoon when Ram Sarup was off duty, Nand Singh took Ram Sarup to his own quarters in Sector 20 A said to be at a short distance from the appellant 's residence and the two had liquor together. Thereafter, Nand Singh is stated to have taken Ram Sarup to the residence of, and introduced him to the appellant and persuaded her to gratify the desire of Ram Sarup also. Appellant and Ram Sarup are stated to have indulged in acts of illegal intimacy. Later, the same afternoon, the three met again at appellant 's home when, it would appear, appellant while narrating the privations and hardships endured by her at the hands of her husband broke down and implored Nand Singh and Ram Sarup to do away with Pritam Singh. She appears to have also offered that after Pritam singh 's death she would marry and live with Nand Singh, who was then unmarried. According to the prosecution, it was agreed amongst the three that the appellant should persuade her husband to reach Chandigarh bus stand the following day i.e. November 14, 1973 and that Nand Singh and Ram Sarup, who would be present three, would entice him away to Pinjore with the inducement of liquor and, do away with him there. Pursuant to this design and conspiracy, appellant is stated to have persuaded her husband to go to the bus stand at Chandigarh at 9.30 a.m. On 14.11.1973 where Nand Singh and Ram Sarup who were waiting for him as pre arranged took him to Pinjore by bus. There, all the three cumsumed liquor together. Nand Singh is also stated to have purchased "Ghotna" on the pretext that his sister in law had asked for the purchase of one. Thereafter, all the three agreed to go back Chandigarh on foot which took them along a 'dandi ' passing by the side of the Pinjore gardens. They reached the railway line near Surajpur Cement Factory and took the foot path towards Chandigarh. When the three reached a distance of almost 2 miles from Surajpur, Nand Singh suggested that they should climb up a hill on the way side to enjoy a panoramic view of Chandigarh. Accordingly, all the three started climbing. Ram Sarup (P.W. 2) was ahead; Pritam Singh was in 751 the middle with Nand Singh following behind him. Nand Singh is stated to have suddenly administered 2 3 Ghotna blows on the head of the unsuspecting Pritam Singh and told Ram Sarup (P.W. 2) to pin the tottering Pritam Singh down. Ram Sarup pulled Pritam Singh down whereupon Nand Singh gave 8 to 10 more blows with the Ghotna on the person of Pritam Singh. Then Nand Singh threw away the Ghotna and the two, namely, i.e. Nand Singh and Ram Sarup, hastened towards Chandigarh. However, after the two had gone 2 furlongs or so, Nand Singh urged Ram Sarup (P.W. 2) that they both go back to find out whether Pritam Singh was really dead or not. They, accordingly, returned and ensured that Pritam Singh had died. They removed the pants and Bush shirt of the deceased and concealed them in a bush. Then, the body of Pritam Singh was also concealed in the nearby hushes. The turban of the Pritam Singh had fallen down at the spot. Thereafter, the two returned to Chandigarh by night fall. Next day, i.e. On 15.11.1973, Nand Singh came to Raj Bhavan where Ram Sarup was on duty and told the latter that he had, in turn, informed Balwant Kaur of the death of Pritam Singh. This, in substance is the prosecution case as unfolded in the evidence of the Ram Sarup (P.W. 2) who turned approver. On 13. 12.1973, Mukhtiar Kaur (P.W. 19), the mother of deceased Pritam lodged a complaint about her missing son in writing with the Senior Superintendent of Police, Chandigarh. In that, it was stated that she had learnt from Pandit Sita Ram that a certain Naik Singh and his two sons of the village Lahor Khuda and Dev Singh, the Sarpanch of that village along with two other relatives of the Sarpanch had killed Pritam Singh, the alleged motive was that deceased Pritam Singh, when he was earlier serving in Lahorkhuda had developed illicit relations with Naik Singh 's daughter, Prito. At the trial Mukhtiar Kaur was examined to establish that this complaint was engineered by the appellant and Nand Singh to put the investigation on a wrong scent. Apparently, nothing was heard of the matter for along time till 3.4.1975, when Nand Singh was arrested by ASI Gulzara Singh (P.W. 24). On his information Exg. P. 8, a pair of shoes, a purse, 25 pieces of bones including an incomplete human skull were recovered. Dr. Inderjit Dewan (P.W. I) examined the bones and was of the opinion that they were the remains of a well built adult, but not old, male of a height of about S 9. According to P.W. 1, the person had died more than 4 months previously. The death was ascribed in all probability to the injuries to the skull administered by a blunt weapon. P.W. 1 could 752 not, however confirm whether the injuries were ante mortem or not. Appellant was arrested by ASI Subhash Chander (P.W. 23) on 8.5.1975 and Ram Sarup was also arrested the same day. After the completion of the investigation charges were brought against them for conspiracy and murder. The trial court on the basis of the approver 's testimony as corroborated by other evidence, held both Nand Singh , and the appellant guilty of the offences they were charged with and sentenced them to imprisonment for life. The High Court has dismissed their appeals and has confirmed the convictions and the sentences. Shri A.S. Sohai, Learned counsel appearing in support of the appeal urged that the evidence of the Approver in so far as the complicity of appellant is concerned, lacked corroboration on materials particulars and that no conviction could be sustained on such uncorroborated accomplice 's testimony. The development of the law touching the competency and credit of an accomplice as witness against others is not without its interesting antecedents. Historically, in the background of the political trials since the time of Henry VIII where 'King 's Evidence ' was the main dependence of the crown in its prosecutions, the question of the very admissibility of the evidence of the accomplice loomed large. In the 17th and the 18th centuries, it was ruled repeatedly by the English courts that an accomplice was a competent witness. His 'credit ' or the sufficiency of his evidence as a quantitative conception, however, remained in the background. Those were days when 'form ' pre dominated over the 'substance ' and the oath had a dead weight of its own. It was for this reason that struggle was made to keep out this evidence even at the threshold. On the further development in the law which slowly began to recognise the distinction between 'competency ' and 'credit ', Wigmore says: Wigmore on Evidence: 3rd Edition Vol. VII para 2054. G "As time went on, and the modern conception of testimony developed, the possibility of admitting a witness and yet discriminating as to the qualitative sufficiency of his testimony became more apparent; and the way was open for the consideration of this question. In a few instances, as the 1700s wore on, and even before then, judicial suggestions are found as to feasibility of such a discrimination. But not until the end of that century does any Court seem 753 to have acted upon such a suggestion in its directions to the jury. About that time there comes into acceptance a general practice to discourage a conviction founded solely upon the testimony of an accomplice uncorroborated. But was this practice founded on a rule of law? Never, in England, until modern times. It was recognised constantly that the judge 's instruction upon this point was a mere exercise of his common law function of advising the jury upon the weight of the evidence, and was not a statement of a rule of law binding upon the jury". An accomplice, by long legal tradition, is a notoriously infamous witness, one who being partipes criminis, purchases his immunity by accepting to accuse others. Section 114 Illus: (b) of the Evidence Act envisages the presumptive uncredit worthiness of an accomplice. But then, Section 133 provides that a conviction is not illegal merely because it rests upon an accomplice 's uncorroborated testimony. In indictments, particularly of serious crimes, the counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars. Judicial experience was, thus, elevated to a rule of law. "It is a practice" it is said "which deserves all the reverence of law. " The nature and extent of the corroboration must necessarily vary with the nature and circumstances of each case. Enunciation of any general rule, valid for all occasions is, at once, unwise and unpractical. The aspect as to the extent and content of independent corroboration is, again, an interesting area of study. One view was that independent evidence tending to verify any part of the testimony of the accomplice should suffice. The other view required that the corroborative evidence should not only show that part of the accomplice testimony is true; but should go further and also implicate the other accused. In R. vs Bhaskerville, the Court of Criminal appeal in England favoured and adopted the second view. Thirtyfive years ago, Bose J referring with approval to the principles in Bhaskerville said that this branch of the law in India is the same as in England and that the lucid exposition of it given by Lord Reading, cannot be bettered. 754 The felicitous formulation of the law on the matter by that great master of phrase, Bose J, which has now become classical, may be re called: " . But to this extent the rules are clear: (21) First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant of the accomplice, should in itself be sufficient to sustain conviction. (22) Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. (23) Thirdly, the corroboration must come from independent source and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another (24) Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime . " (See Rameshwar Kalyan Singh vs State of Rajasthan, ; In Rex vs Bhaskerville, [ Lord Reading, CJ noticed the different views as to the extent and scope of reasonable corroboration: ". The difference of opinion has arisen in the main in reference to the question whether the corroborative evidence must connect the accused with the crime. The rule of practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon the unconfirmed testimony of one who is admittedly a criminal . " 755 Resolving the difference of opinion it was held: "We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms is some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute". In Halsbury 's (IV Edition Vol. II para 454) the following passage obtains: "Corroboration of a witness 's testimony must be afforded by independent evidence which affects the defendant by connecting or tending to connect him with the offence charged. It must be evidence which implicates him, that is which tends to confirm in some material particular not only that the offence was committed, but also that the defendant committed it". As to independent nature of the corroboration learned Chief Justice observed in Bhaskerville case: " . Again, the corroboration must be by some evidence other than that of an accomplice, and therefore one accomplice 's evidence is not corroboration of the testimony of another accomplice: Rex vs Noakes . " As to the extent of the requisite reassurance by way of corroboration, learned Chief Justice said: " . It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime. Parke B gave this opinion as a result of twenty five years ' practice; it was accepted by the other judges; and has been much relied upon in later cases . " 756 " . Indeed, if it were required that the accomplice A should be confirmed in every detail of the crime, his evidence would not be essential to the case it would be merely confirmatory of other and independent testimony . " (page 664 in Rex vs Bhaskerville) In Halsbury 's Laws of England IV Edn. Vol. II page 268 this proposition is stated thus: "The word 'corroboration ' is not a technical term of art; it means by itself no more than evidence tending to confirm, support or strengthen, other evidence . " " . The corroboration need not consist of direct evidence that the defendant committed the offence nor need it amount to confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respects material to the charge under consideration. It is sufficient if it is circumstantial evidence of the defendant 's connection with the offence, but it must be independent evidence, and must not be vague However there were some observations in Director of Public Prosecutions vs Killbourne (1973) Appeal A.C. 729 which tended towards a departure from the rule in Rex vs Bhaskerville. In Killbourne case Lord Hailsham said and this is also the statement of the law in Halsbury IV Edition "Evidence which is admissible, relevant to the evidence requiring corroboration and (if believed) conformatory of that evidence in a material particular, is capable of being corroborative and, when believed, is corroboration". The above passage was not wholly in consonance with what Lord Reading had earlier said: ". For example confirmation does not mean that there should be independent evidence of that which the accomplice relates, or his testimony would be unnecessary Reg vs Mullins ( 1) per Maule J . " But, in R. vs Beck., [ , it was reiterated by way of clarification that corroborating evidence need not relate to 757 the particular evidence spoken to by a suspect witness, and that it was merely independent testimony which confirmed in some material particular not only the evidence that a crime had been committed but also that the accused person had committed it. Referring to the statement of Lord Hailsham in Killbourne case, All England law reports 1982(1) page 815(g) it was observed: "The learned editors of Archbold para 1416, after, in our judgment correctly, stating that the corroborative evidence need not relate to the particular incident or incidents spoken to by the "suspect witness", express the view that 'Lord Hailsham 's dictum that the corroborative evidence must be "relevant to the evidence requiring corroboration" may be misleading '. We agree. We do not think that Lord Hailsham LC was expressing any support for the proposition of counsel for the appellant. " The position of law in Rex vs Bhaskerville was, thus restored. 13. However, a marked tendency in England towards arresting the formalism in regard to the specific words to be used to caution the jury against the danger of accepting the testimony of the uncorroborated accomplice is now discernible. In R. vs Spencer [ ; the grievance of the convicted person was that the trial judge, in cautioning the jury, failed to use the word 'dangerous ' in describing the risks of injustice involved in convicting a person on the testimony of an uncorroborated accomplice. The Court of appeal and the House of Lords declined to set aside the verdict and said that the summing up did not involve some legalistic ritual to be incanted in the summing up. However, in regard to the quality and extent of corroboration, in R. vs Donat, [19861 , it was reiterated that to count as corroboration, it is not enough that a piece of evidence merely supports the accomplice 's credibility, however, convincingly and independently; but it must go a little further and implicate the accused. (See All England Reports: Annual Review 1986 page 158). In Sharvana Bhavan vs State of Madras, (AIR the corroboration was held to be of two kinds: the first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second which arises for conclusion after the court is satisfied about the credibility of the approver as to the corroboration in material particulars not only of the commission of the 758 crime but also of the complicity of other accused persons in the crime. If on the first area the court is not satisfied the second stage does not Arise. The position is attractively presented in Halsbury: (IV Edition Vol. II) Page 268. "Corroboration is required or afforded only if the witness requiring or giving it is,otherwise, credible; if testimony falls of its own inanition, the question of his needing or being capable of giving, corroboration does not arise. " However, the two areas of corroboration are not two separate, water tight compartments. The evidence as a whole will have to be examined to reach conclusions on both aspects. In Attorney General of Hongkong vs Wong Muko Ping, [ Lord Bridge of Harwich speaking for the Judicial Committee of the Privy council said: ". It is said that this two stage approach is implicitly indicated by passages from speeches in the House of Lords in two of the leading authorities". " . . The presence or absence of corroborated evidence may assist a jury to resolve, one way or the other, their doubts as to whether or not to believe the evidence of a suspect witness, it must, in their Lordship 's Judgment, be wrong to direct them to approach the question of credibility in two stages as suggested in the submission made on behalf of the defendant. The controversy in the present case in the ultimate analysis, belongs to the second area, whether the approver 's testimony as to appellant 's complicity in the conspiracy could safely be held to have been corroborated by independent evidence on the material particulars The facts that require sequentially to be established are that appellant 's married life was in a serious disarray: that she and Nand Singh were on terms of illicit intimacy; that she also submitted herself to Ram Sarup (P.W. 2) in an ex marital relation; that on 13.11.1973 she implored Nand Singh and Ram Sarup to free her from a cruel husband by doing away with him; that she agreed that she would, 759 thereafter, live with Nand Singh as his wife and that after coming to know of Pritam Singh 's death she deliberately missed her mother in law, Mukhtiar Kaur (P.W. 19) into making a report to the police containing false and misleading information in an attempt to draw a red herring across the trial. The evidence of P.Ws. 17 & 18 on the first two points has been discarded by the sessions court. It is not also suggested that after the murder of Pritam Singh, appellant began to live with Nand Singh. There was a considerable lapse of time between the death of Pritam Singh and their arrest. There is no evidence to show that, in the interregnum, there was any liasion between the two. 16. There is yet another impediment in accepting the evidence on an important area of the alleged conspiracy. The incriminating circumstances in the evidence of the approver appearing against the appellant had had to be put to the appellant in her examination under Section 313 Cr. The incriminating testimony of the approver pertaining to the case that on 13.11.1973 appellant wept and implored Nand Singh and Ram Sarup to do away with Pritam Singh and that appellant also agreed that she would, thereafter, live with Nand Singh has not been put to the appellant in the course of her examination under Section 313 Cr. P.C. Appellant was not afforded an opportunity to submit an explanation to it. That part of the evidence must for that reason, be excluded from consideration (See Harizan Mogha: 17. On a consideration of the entire matter, it appears to us that the approver 's evidence in regard to the complicity of the appellant in the conspiracy lacks corroboration on certain material particulars necessary to connect the appellant. A little more reassurance than is afforded by the State of evidence in the case is perhaps, necessary to convict appellant. Appellant, in the circumstances would be entitled to the benefit of doubt. At the time of the commission of the offence, the appellant, even on the basis of the observations, made by the session court, was about 15 xab years of age and was a "child" within the meaning of East Punjab Children 's Act 1949. The relevant date is the date of the commission of the offence. Section 27 of the Act provides: "27. Sentences that may not be passed on child Notwithstanding anything to the contrary contained in any law, 760 no person who as a child at the date of the commission of the offence shall be sentenced to death or transported or committed to prison for any offence or in default of payment of fine, damages or costs: Provided that a child who is fourteen years of age or upwards may be committed to prison where the court certifies that he is of so unruly or of so depraved a character that he is not fit person to be sent to a certified school and that none of the other methods in which the case may legally be dealt with is suitable". The sessions court has invoked the proviso and has held that appellant was so depraved a character that none of the other methods in which the case could legally be dealt with is suitable in her case. An examination of the legality or propriety of the procedure adopted in the case in the matter of the trial of a 'child ' under the East Punjab Children 's Act 1949 and as to the correctness of the view of the sessions court in appealing to the proviso to Section 27 and in sentencing appellant to imprisonment for life may not be necessary in this case, in view of our finding that appellant is entitled to the benefit of doubt. In the result, this appeal is allowed and while the conviction and sentence of the other non appealing accused is left undisturbed, the conviction and sentence of the appellant is set aside and appellant is directed to be set at liberty forthwith. N.P.V. Appeal allowed.

% The prosecution alleged that the married life of the appellant, who was said to be 151/2 years of age, was in a serious disarray, that she and the non appealing accused were on terms of illicit intimacy, that she also submitted herself to PW 2 in an extra marital relation, that on 13.11.73 she implored the non appealing accused and PW 2 to free her from a cruel husband by doing away with him, that she agreed that she would, thereafter live with the non appealing accused as his wife, that the three designed and conspired to do away with the deceased, in pursuance of which the appellant persuaded her husband to go to the bus stand at Chandigarh at 9.30 a.m. On 14th November, 1973, where the non appealing accused and PW 2 were waiting for him as pre arranged, and took him to Pinjore by bus, where they consumed liquor together and the non appealing accused purchased Ghotna, that while all the three were walking back to Chandigarh and climbed the way side hill the non appealing accused gave blows on the head of the unsuspecting deceased with the Ghotna, while PW 2 pinned him down, that they concealed the clothes and body of the deceased in the nearby bushes, that both of them returned to Chandigarh by night fall, and the nonappealing accused informed PW 2 that he, in turn, had informed the appellant of the death of her husband, that the mother of the deceased, PW 19, lodged a complaint on 13.12.73 about her missing son in writing with the Senior Superintendent of Police, Chandigarh, alleging that she had learnt that a certain person of the village Lahor Khoda with his two sons and the Sarpanch with his two other relatives had killed her son, the motive being that her son had developed illicit relations with the daughter of the person, that after coming to know of her husband 's death the appellant misled her mother in law PW 19. into making a H 746 report to the police containing false and misleading information in an attempt to draw a red herring across the trial. The non appealing accused was arrested on 3.4.75. On his information exhibit P8, a pair of shoes, purse, 25 pieces of bones including an incomplete human skull were recovered. The appellant and PW 2 were arrested on 8.5.75. After completing the investigation, charges were brought against the appellants and the two accused for conspiracy and murder. PW 2, who was one of the co accused, turned approver. The trial court on the basis of the approver 's testimony as corroborated by other evidence held the non appealing accused and the appellant guilty of the offences under sections 302 and 120 B of the I.P.C. and sentenced them to imprisonment for life. The High Court dismissed their appeals and confirmed the convictions and sentence. In the appeal to this Court, it was urged that the evidence of the approver insofar as the compicity of the appellant was concerned, lacked corroboration on material particulars and that no conviction could be sustained on such uncorroborated accomplice 's testimony. On the question as to: (1) the nature and extent of corroboration of an accomplice 's evidence; and (2) the procedure for the trial of offences by a 'child ' under the East Punjab Children 's Act, 1949, ^ HELD: 1.1 An accomplice, by long legal tradition, is a notoriously infamous witness, one who being partipes criminis, purchases his immunity by accepting to accuse others. Section 114, illustration (b) of the Evidence Act envisages the presumptive uncreditworthiness of an accomplice. But, then section 133 provides that a conviction is not illegal merely because it rests upon an accomplice 's uncorroborated testimony. [753C D] 1.2 In indictments, particularly of serious crimes, counsel of caution and the rule of prudence enjoin that it is unsafe to rest a conviction on the evidence of a guilty partner in a crime without independent corroboration on the material particulars. Judicial experience was, thus, elevated to a rule of law. lt is a practice which deserves all the reverence of law. [753D E] l.3 The nature and extent of the corroboration must necessarily 747 vary with the nature and circumstances of each case. Enunciation of any general rule, valid for all occasions is, at once, unwise and unpractical. [753F] 1.4 The corroboration has to be of two kinds; first belonging to the area of reassurance of the credit of the approver himself as a trustworthy witness; and the second which arises for conclusion after the court is satisfied about the creditibility of the approver as to the corroboration in material particulars not only of the commission of the crime but also of the complicity of other accused person in the crime. If on the first area the court is not satisfied, the second does not arise. However, the two areas of corroboration are not two separate, watertight compartments. The evidence as a whole will have to be examined to reach conclusions on both aspects. [757G H; 752C] Sharvana Bhavan vs State of Madras, AIR 1966 SC 1273 referred 1.5 The controversy in the present case in the ultimate analysis, belongs to the second area, whether the approver 's testimony as to appellant 's complicity in the conspiracy could safely be held to have been corroborated by independent evidence on the material particulars. [758F G] There was a considerable lapse of time between the death of decease and the arrest of the appellant and the non appealing accused. There is no evidence to show that, in the interregnum, there was any liasion between the two. The incriminating circumstances in the evidence of the approver appearing against the appellant that on 13.11.1973 appellant wept and implored the non appealing accused and PW 2 to do away with the deceased and that appellant also agreed that she would, thereafter, live with the non appealing accused had had to be put to the appellant m the course of her examination under section 313 Cr. P.C. but this has not been done. Appellant was not afforded an opportunity to submit an explanation to it. That part of the evidence must for that reason, be excluded from consideration. [759C E] Harijan Magha Jesha vs State of Gujarat, , referred to. On a consideration of the entire matter, the approver 's evidence in regard to the complicity of the appellant in the conspiracy lacks corroboration on certain material particulars necessary to connect the 748 appellant. A little more reassurance than is afforded by the state of evidence in the case is perhaps necessary to convict appellant. The appellant in the circumstances would be entitled to the benefit of doubt. [759F] At the time of the commission of the offence, the appellant, even on the basis of the observations made by the sessions court, was about 15 years of age and was a 'child ' within the meaning of East Punjab Children 's Act, 1949. The sessions court invoked the proviso to section 27 of the Act and held that the appellant was so depraved a character that none of the other methods mentioned in the section in which the case could legally be dealt with was suitable in her case. [759G; 760C] In view of the finding that the appellant is entitled to the benefit of doubt, any examination of the legality or propriety of the procedure adopted in the case in the matter of trial of a 'child ' under the East Punjab Children 's Act, 1949 and the correctness of the view of the sessions court in appealing to the proviso to section 27, and sentencing appellant to imprisonment for life is not necessary . [760 C D] Appeal allowed. Conviction and sentence of the appellant set aside and appellant directed to be set at liberty. However, conviction and sentence of the other non appearing accused left undisturbed. [760E] Wigmore on Evidence: 3rd Editition Vol. VII para 2054, Rex vs Bhaskerville, , Rameshwar Kalyan Singh vs State of Rajasthan ; , Director of Public Persecutions vs Kill bourne, [1973] Appeal A.C. 729/All England law reports 1982(1) page 815(g), R. vs Beck, , R. vs Spencer, ; , R. vs Donat, , Attorney General of Hongkong vs Wong Muko Ping and Halsbury 's Laws of England IV Ed. II p. 268, para 454 referred to.

Appeal No. 244 of 1964. Appeal from the judgment and order dated September 21, 1962 of the Mysore High Court in Civil Revision Petition No. 929 of 1958. G. section Pathak and R. Gopalakrishnan, for the appellants. section G. Patwardhan, V. Kumar and Naunit Lal, for the respondent No. 1. 235 May, 8, 1964. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by certificate raies the question whether a minor who was admitted to the benefits of a partnership can be adjudicated insolvent on the basis of debt or debts of the firm after the partnership was dis solved, on the ground that he attained majority subsequent to the said dissolution, but did not exercise his option to become a partner or cease to be one of the said firm. The facts are not in dispute and may be briefly stated. Mallappa Mahalingappa Sadalge and Appasaheb Mahalingappa Sadalge, respondents 2 and 3 in the appeal, were carrying on the business of commission agents and manufacturing and selling partnership under the names of two firms "M. B. Sadalge" and "C. N. Sadalge". The partnership deed between them was executed on October 25, 1946. At that time Chandrakant Nilakanth Sadalge, respondent 1 herein, was a minor and he was admitted to the benefits of the partnership. The partnership had dealings with the appellants and it had become indebted to them to the extent of Rs. 1,72,484. The partnership was dissolved on April 18, 1951. The first respondent became a major subsequently and he did not exercise the option not to become a partner of the firm under section 30(5) of the . When the appellants demanded their dues, the respondents 2 and 3 informed them that they were unable to pay their dues and that they had suspended payment of the debts. On August 2, 1954, the appellants filed an application in the Court of the Civil Judge, Senior Division, Belgam, for adjudicating the three respondents as insolvents on the basis of the said debts. The 1st respondent opposed the application. The learned Civil Judge found that respondents 2 and 3 committed acts of insolvency and that the 1st respondent had also become partner as he did not exercise his option under section 30(5) of the Partnership Act and, therefore, he was also liable to be adjudicated along with them. The first respondent preferred an appeal to the District Judge, but the appeal was dismissed. On second appeal, the High Court held that the 1st respondent was not a partner of the 236 firm and, therefore, he could not be adjudicated insolvent for the debts of the firm. The creditors have preferred the present appeal against the said decision of the High Court. Learned counsel for the appellants, Mr. Pathak, contends that the 1st respondent had become a partner of the firm by reason of the fact that he had not elected not to become a partner of the firm under section 30(5) of the Patnership Act and, therefore, he was liable to be adjudicated insolvent along with his other partners. The question turns upon the relevant provisions of the, (5 of 1920) and the . Under the provisions of the , a person can only be adjudicated insolvent if he is a debtor and has committed an act of insolvency as defined in the Act: see sections 6 and 9. In the instant case respondents 2 and 3 were partners of the firm and they be came indebted to the appellants and they committed an act of insolvency by declaring their inability to pay the debts .and they were, therefore, rightly adjudicated insolvents But the question is whether the first respondent could also be adjudicated insolvent on the basis of thE said acts of insolvency committed by respondents 2 and 3. He could be, if he had become a partner of the firm. It is contended that he had become a partner of the firm, because lie did not exercise his option not to become a partner thereof under section 30(5) of the Partnership Act. Under section 30(1) of the Partnership Act a minor cannot become a partner of a firm but he may be admitted to the benefits of a partnership. Under sub sections (2) and (3) thereof he will be entitled only to have a right to such share of the properties and of the profits of the firm as may be agreed upon, but he has no personal liability for any acts of the firm, though his share is liable for the same. The legal position of a minor who is admitted to a partnership has been succinctly stated by the Privy Council in Sanyasi Charan Mandal vs Krishnadhan Banerji(1) after considering the material provisions of the Contract Act, (1)[1922] I.L.R. , 570. 237 which at that time contained the provisions relevant to the law of partnership, thus : "A person under the age of majority cannot become a partner by contract. . . . and so according to the definition he cannot be one of that group of persons called a firm. It would seem, therefore, that the share of which section 247 speaks is no more than a right to participate in the property of the firm after its obligations have been satisfied. " It follows that if during minority of the 1st respondent the partners of the firm committed an act of insolvency, the minor could not have been adjudicated insolvent on the basis of the said act of insolvency for the simple reason that he was not a partner of the firm. But it is said that sub section (5) of section 30 of the Partnership Act made all the difference in the case. Under that sub section the quondam minor at any time within six months of his attaining majority, or of his obtaining knowledge that he had been admitted to the benefits of partnership, whichever date is later, may give public notice that he has elected to become or that he has elected not to become a partner in the firm and such notice shall determine his position as regards the firm. If he failed to give such a notice, he would become a partner in the said firm after the expiry of the said period of six months. Under sub section (7) thereof where such person becomes a partner, his rights and liabilities as a minor continue up to the date on which he becomes a partner, but he also becomes personally liable to third parties for all acts of the firm done since he was admitted to the benefits of partnership and his share in the property and profits of the firm shall be the share to which he was entitled as a minor. Under the said two sub sections, if during the continuance of the partnership a person, who was admitted at the time when he was a minor to the benefits of the partnership, did not within six months of his attaining majority elect not to become a partner, he would become a partner after the expiry of the said period and thereafter his rights and liabilities would be the same as those of the other partners as from the date he was admitted to the partnership. 238 It would follow from this that the said minor would there after be liable to the debts of the firm and could be adjudicated insolvent for the acts of insolvency committed by the partners. But in the present case the partnership was dissolved before the first respondent became a major; from the date of the dissolution of the partnership, the firm ceased to exist, though under section 45 of the Act, the partners continued to be liable as such to third parties for the acts done by any of them which would have been the acts of the firm if done before the dissolution until public notice was given of the dissolution. Section 45 proprio vigore applies only to partners of the firm. When the partnership itself was dissolved before the first respondent became a major, it is legally impossible to hold that he had become a partner of the dissolved firm by reason of his inaction after he became a major within the time prescribed under section 30(5) of the Partnership Act. Section 30 of the said Act presupposes the existence of a partnership. Sub sections (1), (2) and (3) thereof describe the rights and liabilities of a minor admitted to the benefits of partnership in respect of acts committed by the partners; sub section (4) thereof imposes a disability on the minor to sue the partners for an account or payment of his share of the property or profits of the firm, save when severing his connection with the firm. This sub section also assumes the existence of a firm from which the minor seeks to sever his connection by filing a suit. It is implicit in the terms of sub section (5) of section 30 of the Partnership Act that the partnership is in existence. A minor after attaining majority cannot elect to become a partner of a firm which ceased to exist. The notice issued by him also determines his position as regards the firm. Sub section (7) which describes the rights and liabilities of a person who exercises his option under sub section (5) to become a partner also indicates that he is inducted from that date as a partner of an existing firm with co equal rights and liabilities along with other partners. The entire scheme of section 30 of the Partnership Act posits the existence of a firm and negatives any theory of its application to a stage when the firm ceased to exist. One cannot become or remain a partner of a firm that does not exist. It is common case that the first respondent became a major only after the firm was dissolved. Section 30 of the 239 Partnership Act, therefore, does not apply to him. He is not a partner of the firm and, therefore, he cannot be adjudicated insolvent for the acts of insolvency committed by respondents 2 and 3, the partners of the firm. The order of the High Court is correct. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

The respondent No. 1 while he was a minor was admitted to the benefits of a partnership constituted of respondents 2 and 3. The partnership owed a certain amount to the appellants. The partnership was dissolved and subsequently respondent No. 1 became a major but he did not exercise the option not to become a partner under section 30(5) of the . Respondents 2 and 3 committed acts of insolvency and the appellants filed an application for adjudicating the three respondents as insolvents. The first respondent resisted the application without success but on second appeal the High Court held that he was not a partner of the firm and hence he could not be adjudicated an insolvent for the debts of the firm. The present appeal was filed on a certificate granted by the High Court. The appellant contended before this Court that the 1st respondent had become a partner of the firm by reason of the fact that he had not elected to become a partner under a. 30(5) of the Partnership Act and therefore he was liable to be adjudicated an insolvent. Held:(i) A person under the age of majority cannot become a partner by contract and he cannot be one of that group of persons called a firm. It therefore follows that if during minority of the 1st respondent the partners of the firm committed an act of insolvency, the minor could not have been adjudicated insolvent on the basis of the said act of insolvency for the simple reason that he was not a partner of the firm. Sanyasi Charan Mandal vs Krishnadhan Banerji, (1922) I.L.R. , relied on. (ii)It is implicit in the terms of sub section (5) of section 30 of the Partnership Act that the partnership is in existence,. A minor, after attaining majority, cannot elect to become a partner of a firm which ceased to exist. The entire scheme of section 30 of the Partnership Act posits the existence of a firm and negatives any theory of its application to a stage when the firms ceased to exist. (iii)Since the 1st respondent became a major after the partnersship was dissolved section 30 of the Partnership Act does not apply to him. He is not a partner of the firm and therefore he cannot be adjudicated insolvent for the acts of insolvency committed by respondents 2 and 3, the partners of the firm.

ivil Appeal Nos. 815 and 1284 of 1978 Appeals by special Leave from the Judgment and order dated 20 12 1977 of the Delhi High Court in Civil Writ No. 616176. Soli J. Sorabjee, A. C. Gulati, A. K. Ganguli, G. section Chatterjee and B. B. Swahney for the Appellant in CA No. 815/78. Lal Narain Sinha, Att. Miss A. Subhashini and Girish Chandra for the Appellant in CA No. 1284 and Respondent No. 1 in CA No. 815178. The Judgment of the Court was delivered by SEN, J. These appeals by special leave against a judgment of the Delhi High Court turn on the construction of certain provisions of the . The appeals raise a question of far reaching importance namely, whether a raising contractor of a coal mine is an owner within the meaning of sub section (1) of section 4 of the (hereinafter referred to as the Nationalisation Act), and if so, whether the fixed assets like machinery, plants, equipment and other properties installed or brought in by such a raising contractor vest in the Central Government. They also give rise to a subsidiary question, namely, whether subsidy receivable from the erstwhile Coal Board established under section 4 of the upto the specified date, from a fund known as Conservation and Safety Fund, by such raising contractor prior to the appointed day, can be realised by the Central Government by virtue of their powers under sub section (3) of section 22 of the Nationalisation Act, to the exclusion of all other persons including such contractor and applied under sub section (4) of section 22 towards the discharge of the liabilities of the coking coal mine, which could not be discharged by the appointed day. To make the points intelligible, it is necessary to state a few facts. By an agreement dated February 7, 1969 made between Messrs Balihari Colliery Co. Pvt. Ltd. (hereinafter referred to as the 'owner ' of the one part and Messrs Industrial Supplies Pvt. Ltd. (hereinafter referred to as 'the petitioners ') of the other part, it was recited as follows: "WHEREAS the owners are the owners of a Working Colliery comprising an area of 800 Bighas more or less and known 379 as Balihari Colliery particularly described in the first Schedule A hereunder written held under the lease and subleases mentioned in the said Schedule and in connection therewith have built various structures, dhewrahs coolie lines (hereinafter referred to as the said buildings) and also installed and put up various machinery, plants, tools, implements and utensils (hereinafter referred to as the said machinery therein; AND WHEREAS the owners have appointed INDUSTRIAL SUPPLIES PRIVATE LIMITED as Managing Contractor of their said colliery and the said Managing Contractor has agreed to act as such Managing Contractor for the period and upon the terms and conditions herein contained:" Under the said agreement the petitioners were appointed to be the Managing Contractors of Kutchi Balihari Colliery for a period of 20 years. Under cl. 7(a) the petitioners were required at their own cost to install fixed assets like equipment, machinery and plants and also invest in the form of current assets like stores in the said colliery and to work the same as raising contractors. By cl. 7(b) the additional machinery so installed and the chattels and utensils so brought in by the petitioners were to remain the property of the petitioners absolutely and on the determination of the agreement they were entitled subject to the provisions of cl. 9, to remove such additional fixed assets and current assets. Clause 9 gave an option to the owners to purchase the additional machinery, chattels and utensils referred to in cl. 7. Clause 25 of the agreement is material for our purposes and it reads: "25. That in case the said colliery is nationalised these presents shall stand determined and all moneys then due and owing by the owners to the Managing Contractor or by the Managing Contractor to the owners under the provisions hereof shall at once become due and payable by the owners to the Managing Contractor or by the Managing Contractor to the owners as the case may be. If as result of such nationalisation the machinery, chattels and utensils installed at and/or brought into the said colliery by the Managing Contractor under the provisions of clause 7 of these presents or any one or more of them or the buildings and structures created by it at the said colliery under the provisions of clause 8 of these presents are taken over by the authorities concerned then and in such event the Managing Contractor shall be entitled to compensation payable for or attributable to the said machinery, chattels and utensils and the buildings and structures so taken over and the owners shall be entitled to receive compensation for all other properties comprised in the said colliery. " 380 Under the said agreement, the petitioners installed from time to. time various fixed assets like machinery, plants and equipment and erected structures and raised new roads within the said colliery and brought in various current assets and movables for the efficient working of the said mine. The petitioners were also raising contractors in respect of another coking coal mine known as 'Khas Dharmaband Colliery ' owned by Messrs Khas Dharmaband Colliery Co. Pvt. Ltd., subsequently known as 'New Dharmaband Colliery '. They had similarly brought over various assets including stores which were being used in the said colliery. Under an agreement of October 1969, the New Dharmaband Colliery was brought over by Messrs Sethia Mining & Mfg. Corporation Ltd. An inventory was prepared of the assets like plants, machinery and stores belonging to the petitioners which were lying in the colliery, the value of which was approximately Rs. 1,21,000, On October 171 1971, the resident promulgated the Coking Coal Mines (Emergency provisions) ordinance 1971 to provide for . the taking over by the Central Government, in the public interest of the management of 214 coking coal mines and 12 coke oven plants, including the coal mines in question, pending nationalisation of such mines. The ordinance was replaced by the . Thereafter, Parliament enacted the to complete the process of nationalisation of the coking coal mines and coke oven plants. It was entitled as 'An Act to provide for the acquisition and transfer of the right, title and interest of the owners of the coking coal mines specified in the First Schedule and the right, title and interest of the owners of such coke oven plants as are in or about the said coking coal mines with a view to reorganising and reconstructing such mines and plants for the purpose of protecting, conserving and promoting scientific development of the resources of coking coal needed to meet the growing requirements of the iron and steel industry and for matters connected therewith or incidental thereto ', "Appointed day" under section 2(a) of the was October 17, 1971, while that under section 3(a) of the , is May 1, 1972. According to the petitioners, the total value of the fixed and current assets and movables of Kutchi Balihari Colliery taken over by the Central Government on October 17, 1971 was to the tune of Rs. 11,85,591.00. As regards New Dharmaband Colliery they allege that between October 1969 and October 17, 1971, Messrs Sethia Mining 381 & Mfg. Corporation Ltd., had utilised some of the stores lying in the colliery to the extent of Rs. 50,000.00 and the balance of the stores lying in the colliery as on October 17, 1971 was approximately Rs. 72,000.00. Since April 1969 when the petitioners became raising contractors of Kutchi Balihari Colliery and until October 17, 1971 when the management of the said colliery was taken over by the Central Government, the petitioners allege that they had undertaken, at their cost, operations for sand stowing and hard mining and had accordingly submitted bills to the Coal Board established under section 4 of the Coal Mines (Conservation and Safety) Act, 1952 for subsidy through the owners from time to time. As on October 17, 1971 the amount of subsidy payable to them was about Rs. 4,50,000. On May 5, 1976 the petitioners filed a Writ petition in the Delhi High Court seeking a declaration that sub section (1) of section 4 does not provide for the acquisition of the right, title and interest of the petitioners inasmuch as being raising contractors they were not an owner within the meaning of section 3(n) of the Nationalisation Act and, therefore, they were entitled to dismantle and remove the fixed assets like machinery, plants and equipment installed in the two mines and also to remove the movables and current assets thereof like furniture, stores, etc. and were further entitled to recover the amount of subsidy of about Rs. 4,50,000 collected by the Central Government from the erstwhile Coal Board. They, accordingly, sought a writ or direction in the nature of mandamus requiring the Central Government to return the assets like machinery, plants, equipment and other assets and movables and all amounts collected by way of subsidy or other dues, or in any event pay Rs. 16,35,591 with interest thereon from May 1, 1972 till the date of payment. The High Court substantially disallowed the claim of the petitioners, holding that they fall within the meaning of the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with section 2(1) of the and that as such the various machinery, plants, equipment and other filled assets, current assets and movables belonging to them lying in the two coal mines were included in the expression "mine" as defined in section 3(i) of the Nationalisation Act, and therefore, the right, title and interest of the petitioners therein stood vested in the Central Government under sub section (1) of section 4 free from all incumbrances. It, however, held that the amount of subsidy of Rs. 4,50,000 receivable from the Coal Board by way of reimbursement towards cost of sand stowing and hard mining operations carried on by the petitioners, could not be treated to be as an "amount due to the coking coal mine" within sub section (3) of section 22 and, therefore, could not be 382 utilised by the Central Government under sub section (4) of section 22 for discharge of the liabilities of the coking coal mine. It was contended by the petitioners that they were neither the owners nor immediate occupiers or managing contractors of the coal mines in question, but were merely raising contractors thereof and, therefore, they did not come within the purview of the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with section 2(1) of the . It was, therefore, said that the plants, equipment and machinery and other assets, and current assets and movables belonging to them as on October 17, 1971 could not, and did not, vest in the Central Government under sub section (1) of section 4 of the Nationalisation Act. It was urged that the High Court was in error in construing the definition of the term 'owner ' as defined in section 2(1) of the so as to include a raising contractor, by laying emphasis on the words 'as if he were ' in the last sentence of the definition, and particularly so, because the Act itself, separately and/or clearly distinguishes between an 'owner ' and a 'contractor '. It was further contended that due to the absence of the word 'includes ' in the last sentence, in the definition of 'owner ' in section 2(1) of the , a 'contractor ' cannot be treated to be an 'owner '. It was said that the object of the fiction in section 2(1) of the was for the limited purpose of making such a raising contractor responsible for the due observance of the provisions of that Act and such a deeming provision could not be invoked for construing the purpose and object of the Nationalisation Act which were different, i.e., for the purpose of acquiring machinery, plants and equipment and other assets belonging to such raising contractor, lying within the mine, under sub section (1) of section 4 of the Act. We are afraid, we cannot accept these contentions. The construction that is sought to be placed on the definition of 'owner ' in section 3(n) of the Nationalisation Act read with section 2(1) of the , upon the basis of which the argument proceeds would, if accepted, frustrate the very object of the legislation. The Nationalisation Act provides by sub section (1) of section 4 that the right, title and interest of the owners in relation to the coking coal mines specified in the First Schedule, on the appointed day, i.e., on October 17, 1971 shall stand transferred to and shall vest absolutely in the Central Government free from all incumbrances. In the Nationalisation Act, 'owner ' is defined in section 3(n) thus: "3(n) "owner", (i) when used in relation to a mine, has the meaning assigned to it in the ; 383 (ii) when used in relation to a coke oven plant, means any person who is the immediate proprietor or lessee or occupier of the coke oven plant or any part thereof or is a contractor for the working of the coke oven plant or any part thereof ;" Section 2(1) of the reads as follows: "(1) "owner", when used in relation to a mine, means any person who is the immediate proprietor or 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 case of a mine owned by a company, the business whereof is being carried on by a managing agent, such managing agent; but does not include a person who merely receives a royalty, rent or fine from the mine, or is merely the proprietor of the mine, subject to any lease, grant or licence for the working thereof, or is merely the owner of the soil 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;" In support of the contention that the petitioners could not be regarded as occupiers and, therefore, do not come within the definition of 'owner ' under section 3(n) of the Nationalisation Act, reliance was placed on the decision in The Chief Inspector of Mines & Anr. vs Lala Karamchand Thapar etc. While a raising contract may not be a lease and, therefore the contractor not a lessee, we find no reason why he should not be treated to be an occupier within the meaning of section 3(n). Under the terms of the agreement dated February 7, 1969, the petitioners acquired complete dominion and control over the colliery in question for a period of 20 years. It is common ground that the said agreement was by a registered instrument and even though this perhaps may not amount to a leases there can be no doubt that it was a licence coupled with a grant. The petitioners were by virtue of cl. 7(a} of the agreement entitled to install at their own cost such additional machinery, tramways, ropeways etc. , in connection with the transport of coal raised and to bring in chattels for the purpose of discovery and removal of coal. They were entitled under cl 7(b} to remove such additional machinery that may be installed and such chattels and utensils as may be brought in by them to the said collieries unless of course, the owners exercised their option to purchase the same under cl. 9. In view of these terms, it is futile to contend that the petitioners were not occupiers of the mines. They had the actual use and occupation of the coal mine in question. 384 We have carefully gone through the judgment in Lala Karamchand Thapar 's case and, if we may say so, the decision is distinguishable on facts. There the question was whether the managing agent of a company owning a colliery was an occupier of the colliery, and the Court negatived this observing: "From the very collocation of the words "immediate proprietor, or lessee or occupier of the mine", it is abundantly clear that only a person whose occupation is of the same character, that is, occupation by a proprietor or a lessee by way of possession on his behalf and not on behalf of somebody else is meant by the word "occupier" in the definition. Thus, a trespasser in wrongful possession to the exclusion of the rightful owner would be an occupier of the mine, and so be an "owner" for the purpose of the Act. " The Court further observed: "That must be because possession on behalf of somebody else was not in the contemplation of the legislature such "occupation" as to make the person in possession an "occupier" within the meaning of section 2(1)." These observations, if we may say so, with great respect, are rather widely stated. They are indeed susceptible of a construction that a raising contractor being in possession on behalf of a proprietor or the lessee of a mine in possession is not an 'occupier ' within the meaning of section 3(n) of the Nationalisation Act read with section 2(1) of the . We are quite sure that was not the intention of the Legislature. There is no reason why the word 'occupier ' should not be understood to have been used in its usual sense, according to its plain meaning. In common parlance, an 'occupier ' is one who 'takes ' or (more usually) 'holds ' possession: Shorter oxford Dictionary, 3rd edn., vol. 2, p. 1433. In the legal sense, an occupier is a person in actual occupation. The petitioners being raising contractors were, under the terms of the agreement dated February 7, 1969 entitled to, and in fact in actual physical possession and enjoyment of the colliery and were, therefore, an occupier thereof. That being so, the petitioners being in possession, in their own right, by virtue of the substantial rights acquired by them under the agreement, were not in possession on behalf of somebody else and, therefore, the decision in Lala Karamchand Thapar 's case cannot apply. It is next urged that the Nationalisation Act itself makes a distinction between an 'owner ' and a 'managing contractor ', there being separate provisions made with regard to both. It is said that in view of this. there is no legal justification to read the word 'contractor ' 385 for the word 'owner ' in sub section (1) of section 4. The contention is wholly misconceived and cannot be accepted. The Nationalisation Act no doubt separately defines 'owner ' and 'managing contractor '. The definition of managing contractor in section 3(i) reads: "3(i) "managing contractor" means the person, or body of persons, who, with the previous consent in writing of the State Government has entered into an arrangement, contract or under standing, with the owner of a coking coal mine or coke oven plant under which the operations of the coking coal mine or coke oven plant are substantially controlled by such person or body of persons ," The words and expressions used and defined in the Act have the meaning, respectively, assigned to them 'unless the context otherwise requires '. The expression 'managing contractor ' finds place in Chapter VI, which deals with the power, functions and duties of the Commissioner of Payments appointed under sub section (I) of section 20, for the purpose of disbursing the amounts payable to the owner of each coking coal mine or coke oven plant. It appears in sub section (2) of section 26, which provides: "(2) In relation to a coking coal mine or coke oven plant, the operations of which were, immediately before the 17th day of October, 1971 under the control of a managing contractor, the amount specified in the First Schedule against such coking coal mine or in the Second Schedule against such coke oven plant shall be apportioned between the owner of the coking coal mine or coke oven plant and such managing contractor in such proportions as may be agreed upon by or between the owner and such managing contractor, and in the event of there being no such agreement, by such proportions as may be determined by the Court. " Under cl. 25 of the agreement, it was agreed upon between the parties that (i) in the event the colliery was nationalised, the agreement shall stand determine and all moneys then due and owing by the owners to the petitioners and vice versa shall at once become due and payable, and (ii) in the event of such nationalisation, if the machinery, . chattels and utensils installed at and/or brought into the colliery by the petitioners or the buildings and structures erected by them are taken over by the authorities, they shall become entitled to compensation payable for or attributable to the said machinery, chattels and utensils and buildings and structures so taken over and the owners shall be entitled to receive compensation for all other properties comprised in the said colliery. The expression 'managing contractor ' as defined in section 3(i) of the Nationalisation Act comes into play only 386 for the purpose of appointment of compensation under sub section (2) of section 26. The submission that the term 'owner ' used in sub section (1) of section 4 of the Nationalisation Act excludes a 'managing contractor ' is against the scheme of the Act. The term 'owner ' in sub section (1) of section 4 of the Act must bear the meaning given in the definition contained in section 3(n). It was asserted that the petitioners were really not the managing contractors but wrongly described as such in the agreement. A bare perusal of the agreement would, however, be destructive of the argument. It is a document drawn consisting of 46 clauses defining the mutual rights and obligations of the parties. , The petitioners were conferred all the rights to work the mine for winning, getting and raising coal. The so called 'remuneration ' payable to them was virtually the price of coal supplied leaving to the owners a margin of profit. Even the liability for payment of rent, royalty, taxes etc. , in relation to the mine was saddled on the petitioners. In view of these terms, they cannot be heard to say that they were not the managing contractors though they have been so described in the preamble to the agreement and in each and every clause thereof. It is, however, asserted that the functions of a managing contractor. namely, appointment of managers, were not entrusted to the petitioners but were actually assigned to Messrs Madhusudan & Co. under a separate agreement. The submission is spelled out from the terms of cl. 11 relating to employment of workers of the colliery. All that was done was that the erstwhile owners had by this clause reserved to them selves the power to appoint managers. Such reservation does not take the petitioners out of the definition of managing contractor under 6. 3(i) of the Nationalisation Act, as they still had substantial control over the mine. The plea that not they but someone else was the managing contractor is only an after thought. The petitioners having bound themselves 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 alternative. that the term 'owner ' as defined in section 3(n) of the Nationalisation Act read with s: 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 urged that the word 'includes ' is not there. There was no need for Parliament to insert the word 'includes ' 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. 387 Parliament, with due deliberation, 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 assesses 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 category 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 observance of the Act. It is needless to stress that the contains various provisions 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. It is now axiomatic that when a legal fiction is incorporated in a statute, the Court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The Court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words "as if he were" in the definition of owner in section 3(n} of the Nationalisation Act read with section 2(1) of the is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so. The oft quoted passage in the judgment of Lord Asquith in East End Dwelling Co. Ltd. Fine bury Borough Council brings out the legal effect of a legal fiction in these words: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have 388 flowed from or accompanied it. The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. " The whole object and purpose of the Nationalisation Act is to expropriate private ownership of coking coal mines and all interests created therein. It provides by sub section (1) of section 4 that on the appointed day, the right, 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 incumbrances. Now unless the term 'owner ' in sub section (1) of section 4 is given an extended meaning so as to include a contractor for the working of a mine or any part thereof, the very object of the legislation would be frustrated. It has to be presumed that Parliament was fully aware of the normal pattern of working of all the coal mines, i.e., by employment of raising contractors. Any other construction would lead to a manifest absurdity and attribute to Parliament a result which it never intended. It would result in the contractors escaping from the consequences of vesting under sub section (1) of section 4 of the Act and permit them to dismantle and remove the additional machinery, plants and equipment which were being utilised for the working of mines. This brings us to the next question, namely whether the amount of Rs. 4,50,000 receivable by the petitioners from the erstwhile Coal Board, was an amount impressed with a trust, being advanced for a specific purpose, i.e., for the purpose of stowing and other safety operations and conservation of coal mines, and could not be regarded as "any money due to the coking coal mines" within sub section (3) of section 22 of the Act and the Central Government, therefore, could not appropriate the amount of subsidy and utilize it under sub section (4) thereof for meeting the liabilities of the coking coal mines. The conclusion of the High Court upon this point is contained in the following passage: "The amount of subsidy due could not be current assets of the coking coal mine because it had to be utilised for a certain definite specified purpose. In the instant case cost of stowing and other safety operations had already been incurred and the subsidy was by way of reimbursement. The amount was already identified as belonging to the petitioner and is on the analogy or in the nature of trust money impressed with a specific purpose." 389 In reaching that conclusion, it relied upon the decisions in Barclays Bank Ltd. vs Quistclose Investments Ltd. and Coal Products Private Ltd. vs I.T.O., which are both distinguishable. They enunciate the principle that when property is entrusted for specific purpose, it is clothed with a trust. It seems somewhat illogical that the equitable doctrine of resulting trust should be brought into play in the construction of the provisions of a legislation dealing with nationalisation like the . In Barclays Bank Ltd. vs Quistclose Investments Ltd., the House of Lords dealt with a question as to rights of set off following the liquidation of a company. The principle was applied to a sum of money lent to a company (later wound up) for a specific purpose, viz., payment of dividend, which was not implemented; the money, being still identifiable, was held to be impressed with a trust, and accordingly did not enure to the benefit of the general body of creditors, but was recoverable by the lender. In Coal Products Private Ltd. vs I.T.O. there was an extension of this principle by a Single Judge of the Calcutta High Court to "assistance" which was payable to the assessee and was sought to be 1 attached by the Income tax Department by way of garnishee proceedings under section 226(3)(i) of the Income tax Act, 1961. There was an application made for grant of assistance under r. 49 of the Coal Mines (Conservation and Safety Rules, 1952. There were conditions attached to the grant under r. 54. There was an affidavit filed before the Calcutta High Court showing that the grant was subject to the condition that it would be utilised for the purpose of stowing and other connected operations in the coal mine. The High Court quashed the garnishee notice on the ground that the Income tax Department was not entitled to any part of the money for the payment of income tax liabilities of the assessee, as it could only be utilized for the purpose of stowing and other safety operations and conservation of coal mines. F Two questions arise, both of which must be answered in favour of the Union of India. The first is whether the payment of Rs. 4,50,000 was advanced for a special purpose, i.e., as 'assistance ' under r. 49 and not 'by way of reimbursement '. The second is whether, in that event, the money having been advanced for a special purpose, and that being so clothed with a specific trust, it could not be adjusted by the Central Government under sub section (4) of section 22 of the Nationalisation Act towards the liabilities of the coking coal mines. It is not difficult to establish precisely on what terms the money was advanced by the erstwhile Coal Board. On behalf of the petitioners, it is not disputed that the bills for the subsidy were for the H 390 cost of stowing and connected safety operations and of hard mining operations which, the petitioners had already prior to October 17, 1971, at their own cost, carried out. If that be so, the inevitable conclusion is that the amount of subsidy in question was like any other amount due to the coking coal mine, prior to the appointed day, and therefore did not fall outside the purview of sub section (3) of section 22. The payment in question was not by way of 'assistance ' receivable from the erstwhile Coal Board for carrying out of stowing and other safety operations and conservation of the coal mines. In the present case, the petitioners on their own showing had already carried our sand stowing and hard mining operations and had admittedly applied for subsidy by way of reimbursement. The payment of Rs. 4,50,000 was, therefore, one to reimburse for the expenditure already undertaken. Indubitably, the amount in dispute was payable 'by way of reimbursement '. The petitioners were, therefore, free to utilise the money in any manner they liked. In other words, the grant was not impressed with any particular purpose or purposes. Even if the subsidy receivable from the erstwhile Coal Board was by way of 'assistance ', the amount of Rs. 4,50,000 was recoverable by the Central Government in whom the coking coal mines have vested under sub section (1) of section 4 of the Nationalisation Act and not by the petitioners. It is, however, needless to stress that if the grant were by way of 'assistance ' under r. 49 of the Coal Mines (Conservation and Safety) Rules, 1952, the grant being conditional, the Central Government would in that event. be bound to comply with the requirements of r. 54 and apply the same for the purposes for which it was granted viz., for the purposes of showing or other safety operations and conservation of coal mines. For these reasons, the judgment of the High Court partly allowing the claim of the petitioners with regard to the subsidy amount of Rs. 4.50,000 is set aside, and the writ petition is dismissed: Accordingly, the appeal of the Union of India is allowed and that of the Industrial Supplies Pvt. Ltd., is dismissed with costs throughout. Civil Appeal No. 815/78 dismissed, and Civil Appeal No. 1284/78 S.R. allowed.

The appellant University offered integrated 5 years programme of study leading to the award of M.A. degree in several disciplines and languages. The programme was spread over ten semesters in 5 academic years. The courses in the discipline in which a student was formally registered were known as the 'core courses ' while the other courses for which also the student had to prescribe were known as 'tool courses ' and 'optional courses '. The respondent was a student of the five year integrated programme of study in the Master of Arts degree in Russian Language at the appellant University. In the first two semesters, he failed to take the sessional test in any of the 'core courses ' in Russian and consequently he was not allowed to sit for the end semester examinations. He, however, appeared for the examinations in the 'tool courses ' and the 'optional courses ' in the first two semesters. In the third semester the respondent requested permission of the University to repeat the courses of the first semester so as to enable him to pass them. The University permitted him to do so but he failed in all the five courses in which he was permitted to do so. Dissatisfied with his performance the Centre of Russian Studies recommended to the Board of Studies that the respondent 's name be struck off the rolls and his name was accordingly removed from the rolls. The High Court, allowed the respondent 's writ petition on the ground that: (1) no opportunity to show cause was given to him before his name was struck off the rolls, and (2) that the University did not apply its mind to the question whether the respondent 's performance was unsatisfactory. In the appeal to this Court on the question: whether the respondent was entitled to an opportunity of being heard, before removing him from the rolls of the University. Allowing the appeal: ^ HELD: 1. In the absence of allegations of bias or mala fides, the declaration by an academic body that a student 's academic performance is unsatisfactory is not liable to be questioned in a Court on the ground that the student was not given an opportunity of being heard. [623 E F] This is not a case of expulsion pursuant to a claim by the authorities of a University to discipline the student at their discretion and the right of the 619 student to freedom and justice. The case is merely one of assessment of the academic performance of a student which the prescribed authorities of the University are best qualified and the Courts are least qualified to judge. [623 A B] Herring vs Templemen & Ors. & 584; Regina vs Aston University Senata referred to.

Civil Appeal No. 575 of 1970. From the Judgment and Decree dated 17 2 1966 of the Allahabad High Court in Special Appeal No. 92 of 1960. section section Javali and B. R. Aggarwal for the Appellant. R. K. Garg and V. J. Francis for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. Hulas Chand and Bilas Chand, original owners of a certain plot of land in Saharanpur, granted a permanent lease of the land to Patel Mills Ltd., in May, 1930. The annual rent 823 was Rs. 75/ . The lease was empowered to use the land for any purpose whatsoever. The rights of the lessee were expressly made transferable. Though the lease was permanent, there was a condition that the lessor could forfeit the lease if the lessee failed to pay rent for three consecutive years. On November 1, 1932 Hulas Chand and Bilas Chand transferred their interest to Budh Singh and Jialal. Jugal Kishore, became entitled to the rights of Budh Singh and Jialal by purchase under sale deeds dated April 17, 1943 and May 11, 1943. But, Shankerlal and Piareylal (present plaintiff) filed a suit for presumption against the vendors and Jugal Kishore and as a result of the decree passed in the suit, they became entitled to the lessor 's interest in the suit plot of land on August 13, 1945. Meanwhile the lessee Patel Mills went into liquidation and Mehra was appointed voluntary liquidator of the company on May 11, 1937 by a special resolution at a meeting of the creditors of the company. Benaras Bank Ltd., was the biggest creditor of the Company. So the liquidator negotiated the sale of all the assets of the Company to the Benaras Bank Ltd., for a sum of Rs. 70,000/ and on February 23, 1939 executed an agreement of sale after receiving the consideration. The lease hold interest in the suit plot was also included as one of the assets in the agreement of sale. As a meeting held on May 4, 1939 the creditors accepted the final report of the voluntary liquidator. The report was sent to the Registrar of Joint Stock Companies, and registered on September 9, 1939. The company thus stood dissolved with effect from December 9, 1939. Subsequently on March 1, 1940 the Benaras Bank Ltd, itself went into liquidation. The Official Liquidator of the Benaras Bank Ltd. found that there was no duly executed deed of transfer executed by the voluntary liquidator of the company in favour of the Benaras Bank Ltd. in respect of the lease hold interest in the suit plot of land. At the instance of the official liquidator of the bank, Shri Mehra the erstwhile voluntary liquidator of the company executed a deed of sale on January 28, 1941 and had it duly registered. On March 9, 1943 the official liquidator transferred the lease hold interest in the suit plot of land to the defendant appellant. We have mentioned that Patel Mills Ltd., stood dissolved with effect from December 9, 1939. Budh Singh and Jialal had earlier, i.e. on April 12, 1939, accepted rent from the voluntary liquidator of the company. After the dissolution of the company and the transfer of the lease hold interest by the voluntary liquidator to the Benaras Bank Ltd. Budh Singh and Jialal sent a notice dated January 11, 1941 to the liquidator of the Benaras Bank Ltd. through their lawyer demanding payment of arrears of rent for four years and asserting that the 15 91SCI/80 824 lease was forfeited consequent on the lessee 's failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. Rent was accordingly paid and was accepted by Budh Singh and Jialal. Later, on March 21, 1946, Jugal Kishore who had purchased the rights of Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. Shankerlal and Piarey Lal who became entitled to the lessor 's interest in the suit plot of land as a result of the decree from pre emption which they obtained against Jugal Kishore and his vendors, filed the suit out of which the appeal arises to recover possession of the land. Their case was that the lease hold interest in the land was not validly transferred by the voluntary liquidator and therefore, the defendant acquired no right in the land. Several defences were raised. It was claimed that the voluntary liquidator had the authority in law to execute the deed of sale and formally complete a transaction which had already taken place. It was also claimed that the predecessors in the interest of the plaintiffs having accepted rent from the official liquidator of the bank, the plaintiffs were estopped from contending that the transfer in favour of the bank was not valid. Section 53A Transfer of Property Act was also invoked as a defence to the action of the plaintiffs. It was lastly pleaded that the plaintiffs had no right to sue for possession as the lease hold interest in the land had escheated to the Government on the dissolution of the Company. The suit was dismissed by the Trial Court. The judgment and decree of the Trial Court were affirmed by the 1st Appellate Court and a learned single Judge of the High Court in second appeal. The learned Single Judge found in favour of the defendant on the question of estopped, escheat and authority of the voluntary liquidator to execute the sale deed but found against the defendant on the applicability of section 53A of the Transfer of Property Act. On appeal by the plaintiffs under clause 10 of the Letters Patent a Division Bench of the High Court reversed the judgment and decree of the Subordinate Courts and decreed the suit. The Division Bench held that the voluntary liquidator had no authority to execute the deed of sale after the dissolution of the company and that there was neither estopped nor escheat. The Division Bench also held that section 53A of the Transfer of Property Act did not protect the defendant. The defendant has preferred this appeal after obtaining a certificate from the High Court under article 133(1)(b) of the Constitution. The submissions of Shri Javali learned counsel for the appellant on the question of applicability of section 53A of the Transfer of Property 825 Act and the authority of the voluntary liquidator after the dissolution of the company to execute the deed of sale may be easily disposed of. We do not think that section 53A of the Transfer of Property Act is attracted to the facts of the present case. The right under section 53A is available against the transferor (effecting the incomplete transfer) and any person claiming under him. It is difficult to understand how the successor in interest of a lessor can ever be said to a person claiming under a lessee making an incomplete transfer of the lease hold interest. Nor do we find force in the submission of the learned counsel that the voluntary liquidator had legal authority, after dissolution of the company to execute the deed of sale so as to formally complete the transaction which had already been entered into. Reliance was placed by the learned counsel for the appellant on the decision of Farwell, J., in Pulsford vs Demanish(1). In that case a liquidator was guilty of gross dereliction of duty. In the words of Farwell J., "A more gross dereliction of duty by a liquidator I have seldom heard of". Though in possession of sufficient assets of the liquidating company to pay all its debts in full the liquidator took no steps to ascertain the creditors of the liquidating company or to see that they were paid. Instead he sold the business and assets of the company to a purchasing company who covenanted to pay all the debts and liabilities of the liquidating company. The purchasing company did not pay the debts. The liquidating company was dissolved. The creditors had no remedy by which they could recover their debts. A creditor of the liquidating company sued the liquidator for recovery of damages. It was held that the liquidator was guilty of negligence in the discharge of his statutory duty and was liable in damages to the unpaid creditors of the liquidating company. What was decided in the case was not that a liquidator could represent the erstwhile company after it was dissolved but that a liquidator could be sued in damages for breach of a statutory duty which he had failed to perform while functioning as liquidator. We do not think that this case is of any assistance to the appellant. We are unable to appreciate how after the company was dissolved the liquidator could still claim to represent the company and execute a registered deed of sale. Once the company was dissolved it ceased to exist and the liquidator could not represent a non existing company. If the liquidator was to discharge any duty or perform any function on behalf of the dissolved company he should have express statutory authority. The Companies Act 1913 contained no provision enabling the liquidator to do any act on behalf of a dissolved company. section 209(H) of the Companies Act, 1913 enjoined the liquidator as soon as the affairs of the company were wound up to make up an account of the winding up and to call a gene 826 ral meeting of the company and a meeting of the creditors for the purpose of laying the accounts before the meetings. The liquidator was then required to send to the Registrar a copy of the account and to make a return to him of the holding of the meetings. The Registrar on receiving the accounts and the returns was required to register them an on the expiration of three months of registration the company was to be deemed as dissolved. The only duty cast upon the liquidator thereafter was that under section 244(B). It was that the liquidator should on the dissolution of the company pay into the Reserve Bank of India, to the credit of the Central Government in an account called the Companies Liquidation Account any money representing unclaimed dividend or any undistributed assets in his hands on the day of dissolution. No other duty was stipulated to be performed by the liquidator under the provisions of the Companies Act, 1913, after the dissolution of the company. We are, therefore, unable to agree with the submission of the learned counsel that the liquidator had the jurisdiction to execute the deed of sale dated January 28, 1941 after the company had been dissolved. The next question which we must consider is what was the effect of the dissolution of the company on the lease hold interest which the company had in the land. No term of the lease has been brought to our notice by which the lease would stand extinguished on the dissolution of the company. If the company had a subsisting interest in the lease on the date of dissolution such interest must necessarily vest in the Government by escheat or as bona vacantia. In India the law is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved Corporation passes to the Government by escheat or as bona vacantia. Of course such property will be subject to trusts and charges, if any, previously effecting its vide M/s. Pierce Leslie & Co. Ltd., vs Violat Ouchterlong Wapshare & Ors.(1). It is also to be noticed here that section 244(B) of the Companies Act 1913, as well as section 555(2) of the expressly enjoin a duty on the liquidator to deposit, on the dissolution of the company, into an account in the Reserve Bank of India known as the Companies Liquidation Account any money representing unpaid dividend or undisputed assets lying in his hands at the time of dissolution. The learned counsel for the appellant relied upon the decisions of the Allahabad High Court in Tulshi Ram Sahu & Anr. vs Gur Dayal Singh & Anr.(2) and Mussamat Ramman Bibi vs Mathura Prasad & Anr.(3). Both were cases of fixed rate tenancies. As pointed out 827 by the Full Bench in Tulsi Ram Sahu & Anr. vs Gur Dayal Singh & Anr.,(1) one of the incidents of a fixed rate tenancy was that provided by section 18 of the Agra Tenancy Act 1901 which prescribed that a right of occupancy would stand extinguished when a fixed rate tenant died leaving no heir entitled under the Act to inherit the right of occupancy. It followed therefrom that the land had to revert to the landlord and could not go to the Government by escheat. On the other hand in Sonet Kooer vs Himmat Bahadur & ors.(2). The Privy Council held that on the failure of heirs to a tenant holding land under Mukerrori Tenure there was nothing in the nature of the tenure which prevented the Crown from taking the Mukerrori by escheat, subject to the payment of rent to the Zamindar. If the lease hold interest of the company in the land became vested in the government on the dissolution of the company it must follow that the suit at the instance of the plaintiffs was not maintainable. The next question for consideration is whether the plaintiffs were estopped from denying the validity of the sale in favour of the Benaras Bank Ltd., and the character of the possession of the Benaras Bank. Ltd., and its successors in interest. As already mentioned by us Budhsingh and Jialal sent a notice dated January 11, 1941, through their lawyer demanding of the liquidator of the Benaras Bank Ltd., payment of arrears of rent for four years and asserting that the lease was forfeited consequent on the lessee 's failure to pay rent for a continuous period of three years. The liquidator denied the claim of right of the lessor to forfeit the lease but admitted the claim for rent. The liquidator paid the rent and it was accepted by Budh Singh and Jialal. Later also the evidence shows that Jugal Kishore the purchaser from Budh Singh and Jialal also accepted rent from the official liquidator of the Benaras Bank Ltd. This course of conduct of Budh Singh and Jialal and their successor Jugal Kishore clearly indicates the acceptance, by them, of the position that the Benaras Bank Ltd. had succeeded to the rights of the company in the lease hold interest. Further, the official liquidator of the Benaras Bank Ltd. said first tried to sell the lease hold interest by public auction. When that sale did not fructify because of the failure of the highest bidder to deposit the sale price, the lease hold interest was sold to the defendant with the sanction of the Company Judge. At no point of time did the predecessors in interest of the plaintiffs raise the slightest objection to the sale of the leas hold interest. It was thereafter that the defendant obtained the permission 828 of the Municipal Board, Saharanpur, and raised construction on the land. The plaintiffs themselves admittedly reside near about the land in dispute. They did not raise any objection to the raising of the constructions. The plaintiffs as well as the defendants appeared to proceed on the common understanding that the defendants had succeeded to the interest of Patel Mills Ltd., in the lease hold interest. We are, therefore, of the view that the plaintiffs were estopped from contending that the defendant had no interest in land. The amount only right of the plaintiffs was to receive the rent. The result of our discussion is that the appeal is allowed and the suit is dismissed with costs throughout. It is, however, made clear that the plaintiffs have the right to receive rent from the defendants. P.B.R. Appeal allowed.

The appellant was convicted and sentenced to two years ' imprisonment and fine of Rs. 2,000 and imprisonment for six months and fine of Rs. 500 for car lifting and scooter poaching. On the question of sentence. Allowing the appeals, ^ HELD : (a) The sentence of imprisonment is reduced to the extent of the period already undergone; but the sentences of fine and the alternative period of imprisonment in case of default are maintained. [865 H] (b) The long protracted litigation from 1971 onwards is some deterrent for a young man in his 20s. The youthful age of the offender is a factor which deserve consideration. A long period of incarceration may brutalise a boy and blunt his finer sensibilities so that the incarceration may perhaps be more criminal than the one at the point of entry. The offender having served a term of nearly six months must have realised that the game of crime does not pay. [864 D, 865 C] (c) Payment of fine brings home the sense of responsibility in a surer fashion than even short terms of imprisonment in some cases. [865 C]

minal Appeal No. 143 of 1961. Appeal by special leave from the judgment and order dated May 22, 1961, of the Punjab High Court, Chandigarh in Criminal Revision No. 1448 of 1960. section K. Kapur, for the appellants. Harnam Singh Chadha and Harbans Singh, for the respondent. February 13. The judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave raises the question of true construction of section 488(8) of the Code of Criminal Procedure. Jagir Kaur, the first wife of jaswant Singh, was married to him in 1.930. Tile said jaswant Singh 76 was employed in the police force in Africa. The Maklawa ceremony took place about 7 years after the marriage, when the respondent was away In Africa. Thereafter, the first appellant was taken to her mother in law 's house, and after living there for a few years she returned to her parental house. 5 or 6 years thereafter, jaswant Singh came to India on 5 months ' leave and the couple lived in jaswant Singh 's or his mother 's house at Hans Kalan it is not clear to whom the house belongs for a period of 5 months and thereafter jaswant Singh left for Africa. Before going to Africa, jaswant Singh married another wife and took her with him to Africa. After 5 or 6 years, he came back to India on leave and took the first appellant also to Africa. There she gave birth to a daughter the second appellant. As disputes arose between them, he sent her back to India, promising to send her money for her maintenance but did not (lo so. In the year 1960, he came back to India. It is also in evidence that he had purchased property in Ludhiana District for Rs. 25,000/ . When he was admittedly in India, the first appellant filed a petition under section 488 of the Code of Criminal Procedure in the Court of the First Class Magistrate, Ludhiana, within whose jurisdiction the respondent was staying at that time. The petition was filed by the first appellant on behalf of herself and also as lawful guardian of the second appellant, who was a minor, claiming maintenance at Rs. 200/ per month for both of them on the ground that the respondent deserted them and did not maintain them. The respondent filed a counter affidavit denying the allegations and pleading that the said court had no on the ground that he never resided within its district nor did he last reside with the first appellant in any place within its.jurisdiction. The learned Magistrate held that the petitioner appellant was the wife of the respondent and that the Court had jurisdiction to entertain the petition as the 77 husband and wife last resided together in the District of Ludhiana. On the merits, he held that the first wife and her daughter were entitled to maintenance and awarded for the wife maintenance at the rate of Rs. 100/ per month and for the daughter at the rate of Rs. 50/ per month. The respondent preferred a revision against that order to the Additional Sessions judge, Ludhiana, and the learned Addi tional Sessions judge, agreed with the learned Magistrate both on the question of jurisdiction and also on the right to maintenance and dismissed the revision. The husband preferred a revision to the High Court of Punjab against that order. The High Court disagreed with both the lower Courts on the question of jurisdiction. It held that the husband 's permanent home was Africa and his two visits to Ludhiana for temporary periods did not make him one who resided in that district or who last resided with his wife therein. On that view, it set aside the order of the learned Additional Sessions judge and dismissed the petition. Hence the present appeal. Mr. Kapur, learned counsel for the appellants, contended that the respondent had last resided with his wife in his house in village Hans Kalan in the District of Ludhiana and was also in the said District at the time the application under section 488 of the Code of Criminal Procedure was filed by the first appellant and, therefore, the learned Magistrate had territorial jurisdiction to entertain the application. In any view, he argued, the respondent submitted to the jurisdiction of the Magistrate and, therefore, he could no longer question the validity of his order on the ground of want of jurisdiction. On the other hand, the learned counsel for the respondent sought to sustain the order of the High Court for the reasons mentioned therein. At the outset we must say that the first appellant did not raise the plea of submission 78 either in the pleadings or in any of the three Courts below. The question is a mixed question of fact and law. This Court will not ordinarily allow such questions to be raised for the first time before it and we do not see in this case any exceptional circumstances to depart from that practice. We cannot therefore, permit the first appellant to raise this belated plea. The only question in the appeal is whether the Magistrate of Ludhiana had jurisdiction to entertain the petition filed under section 488 of the Code of Criminal Procedure. The question turns upon the interpretation of the relevant provisions of section 488(8) of the Court, which demarcates the jurisdictional limits of a Court to entertain a petition under the said section. Section 488 (8) of the Code reads : "Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.". The crucial words of the sub section are, "resides", "is" and "where lie last resided with his wife". Under the Code of 1882 the Magistrate of the District where the husband or father, as the case may be, resided only had ' jurisdiction. Now the jurisdiction is wider. It gives three alternative forums. This, in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this section are in the nature of civil proceedings. the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So, the words should be liberally construed ' without doing any violence to the language. 79 The first word is "resides". A wife can file a petition against her husband for maintenance in a Court in the District where he resides. The said word has been subject to conflicting judicial opinion. In the Oxford Dictionary it is defined as : "dwell permanently or for a considerable time; to have one 's settled or usual abode ; to live in or at a particular lace". The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a causal stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would be better served if the word "resides" was understood to include temporary residence. The juxtaposition of the words "is" and " 'last resided" in the sub Section also throws light on the meaning of the word "resides". The word " 'is", as we shall explain later, confers jurisdiction on a Court on the basis of a causal visit and the expression "last resided", about which also we have something to say, indicates that the Legislature could not have intended to use the word "resides" in the technical sense of domicile. The word "resides" cannot be given a meaning different from the word "resided" in the expression " 'last resided" and, therefore, the wider meaning fits in the setting in which the word "resides" appears. A few of the decisions cited at the Bar may be useful in this context. In Santpoornam vs N. Sundaregan (1), it was held that the word "resides" implied something more than (1) , 80 a brief visit. but not such continuity as to amount to a domicile. In Khairunissa vs Bashir Ahmed (1), on a consideration of the relevant authorities it wits pointed out that a casual or a flying visit to a place was excluded from the scope of the word "resides". A full Bench of the Allahabad High Court, in Flowers vs Flowers (2), expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not. covered by the word "resides". In Balakrishna vs Sakuntala Bai (3) it was held that the expression "reside" implied something more than "stay" and implied some intention to remain at a place and not merely to pay it a casual visit. In Charan Das vs Surasti Bai (2), it was held that the sole test on the question of residence was whether a party had animus manendi, or an intention to stay for an indefinite period, at one place; and if he had such an intention, then alone could he be said to "reside" there. The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that "resides" in the sub section means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word "resides" thus : a person resides in a place if he through choice makes it his abode permanently or even temporarily ; whether a person has chosen to make a particular place his abode depends upon the facts of each case. Some illustra tions may make our meaning clear : (i) A, living in (1) Bom. (2) All. (3) A.I.R. 1942 Mad. (4) A.I.R. 1940 Lah. 449, 81 a village, goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two. (2) A, a tourist, goes from place to place during his peregrinations and stays for a few days in each of the places he visits, A, a resident of a village, who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for about 6 months. (4) A, a permanent resident of a town, goes to a city for higher education, takes a house and lives there, alone or with his wife, to complete his studies. In the first two cases, A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he "resides" in the places he visits. In the last two illustrations, though A has a permanent house elsewhere, he has a clear intention or animus manendi to make the places where he has gone for medical relief in one and studies in the other, his temporary abode or residence. In the last two cases it can be said that though he is not a domicile of those places, he "resides" in those places. The cognate expression "last resided" takes colour from the word " 'resides" used earlier in the sub section. The same meaning should be given to the word " resides" and the word " 'resided", that is to say, if the word "resides" includes temporary residence, the expression "last resided" means the place where the person had his last temporary residence. But it is said that even on that assumption, the expression can only denote the last residence of the person with his wife in any part of the world and that it is not confined to his last residence in any part of India. If the words "where he last resided with his wife" are construed in vacuum, the construction suggested by the learned counsel for the respondent may be correct; but by giving such a wide meaning to the said expression we would be giving extra territorial operation to the 82 Code of Criminal Procedure. Section 2 (1) of th Code extends the operation of the Code to the whole of India except the States of Jammu & Kashmir; that is to say, the provisions of the Code, including section 488 (8) thereof, have operation only throughout the territory of India, except the States of Jammu & Kashmir. If so, when sub section (8) of section 488 of the Code, prescribing the limits of Jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence with his wife in the territories of India. It cannot obviously mean his residing with her in a foreign country, for an Act cannot confer jurisdiction on a foreign court. It would, therefore, be a legitimate construction of the said expression if we held that the district where be last resided with his wife must be a district in India. In In re Drucker (No. 2) Basden, Ex Parte the words "or in any other place out of England," in sub section (6) of section 27 of the Bankruptcy Act, 1883, fell to be construed. The words were wide enough to enable a Court in England to order that any person who, if in England, would be liable to be brought before it under the section, shall be examined in any place out of England, including a place not within the jurisdiction of the British Crown. The Court held that the words must be read with some limitation and the jurisdiction conferred by that section does not extend to places abroad which are not within the jurisdiction of the British Crown. Wright, J., rejecting the wider construction sought to be placed on the said words, observed at p. 211 : "It seems to me that that restriction in prima facie necessary. It is impossible to suppose that the Legislature intended to empower the Court to order the examination of persons in (1) 83 foreign countries ; for instance, in France or Germany." In Halsbury 's Laws of England, Vol. 36, 3rd edn., at p. 429, it is stated : ". . the presumption is said to be that Parliament is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance, and with no other conduct. In other words, the extent of a statute, and the limits of its application, are prima facie the same. " It may be mentioned that the said observations are made in the context of Parliament making a law in respect of a part of the territory under its legislative jurisdiction. If it has no power at all to make a law in respect of any foreign territory, the operation of the law made by it cannot obviously extend to a country over which it has no legislative control. It is, therefore, clear that section 488(8) of the Code, when it speaks of a district where a person last resided with his wife, can only mean "where he last resided with his wife in any district in India other than Jammu & Kashmir. " The third expression is the word "is". It is inserted between the words "resides" and "last resided". The word, therefore, cannot be given the same meaning as the word "resides" or the expression "last resided" bears. The meaning of the word is apparent if the relevant part of the subsection is read. It reads : "Proceedings under this section may be taken against any person in any district where he. . is. . ." The verb "is" ' connotes in the context the presence or the existence of the person in the district when the proceedings are taken. It is much wider than the word "resides": it is not limited by the animus manendi 84 of the person or the duration or the nature of his stay. What matters is his physical presence at a particular point of time. This meaning accords with the object of the chapter wherein the concerned section appears. It is intended to reach a person, Who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country, but returns to that district or a neighbouring one on a casual or a flying visit. The wife can take advantage of his visit and file a petition in the district where he is during his stay. So too, if the husband who deserts his wife, has no permanent residence, but is always on the move, the wife can catch him at a convenient place and file a petition under section 488 of the Code. She may accidentally meet him in a place where he happens to come by coincidence and take action against him before lie leaves the said place. This is a salutary provision intended to provide for such abnormal cases. Many illustrations can be visualized where the utility of that provision can easily be demonstrated. To summarize : Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief. Proceedings under the section can be taken against the husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he last resided in any district in India or where he happens to be at the time the proceedings are initiated. Let us now apply the said principles to the instant case. To recapitulate the relevant facts : the respondent was born in India in Ludhiana District; he was married to the first appellant in the year 1930; he migrated to Africa and took up a job there 85 as a police officer; he came back to India in or about 1943 and lived with the first appellant in a house at Hans Kalan for about 5 months and thereafter he left again for Africa; 5 or 6 years thereafter, he again came to India on leave and took her to Africa where she gave birth to a daughter; the appellant was sent back to India and she was staying in Ludhiana District with the child; the respondent 's mother is staying in the aforesaid village in the same district and it is also not disputed that the respondent has purchased property worth Rs. 25,000/ in Ludhiana District in the name of his minor children by his second wife; when the petition was filed he was admittedly in the district of Ludhiana indeed, notice was served on him in that district, he filed a counter affidavit, obtained exemption from personal appearance at the time of hearing and thereafter left for Africa. It is not necessary in this case to express our opinion on the question whether on the said facts the respondent "resides" in India; but we have no doubt that he "last resided" in India,. We have held that temporary residence with animus manendi will amount to residence within the meaning of the provisions of the sub section. When the respondent came to India and lived with his wife in his or in his mother 's house in village Hans Kalan, he had a clear intention to temporarily reside with his wife in that place. He did not go to that place as a casual visitor in the course of his peregrinations. He came there with the definite purpose of living with his wife in his native place and he lived there for about 6 months with her. The second visit appears to be only a flying visit to take her to Africa. In the circumstances we must hold that he last resided with her in a place within the jurisdiction of the First Class Magistrate, Ludhiana. That apart, it is admitted that he was in a place within the jurisdiction of the said Magistrate on the date when the appellant filed her application for maintenance against him. Thee said Magistrate had jurisdiction 86 to entertain the petition, as the said proceedings can be taken against any person in any district where he "is". We, therefore , hold that the First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition under section 488 (8) of the Code. The next question relates to the quantum of maintenance to be awarded to the appellants. The Magistrate, on a consideration of the entire evidence, having regard to the salary of the respondent, and the value of the property he purchased awarded maintenance to the wife at the rate of Rs. 100/ per month for herself and at the rate of Rs. 50/ per month for the maintenance of her minor child. The Additional Sessions judge, on a reconsideration of the evidence, accepted the finding of the learned Magistrate and confirmed the quantum of maintenance awarded by him. The finding is a concurrent finding of fact the correctness whereof cannot ordinarily be questioned in a revision petition in the High Court. that is why the only question argued before the High Court was that of jurisdiction. As we have held that the view accepted by the High Court was wrong, we set aside the order of the High Court and restore that of the Magistrate First Class, Ludhiana. In the result the appeal is allowed. Appeal allowed.

The appellants and the respondents trace their interest and rights through their geneology to one Veeranna who died in 1906. One of his sons Pitchayya, predeceased him in 1905 and it is alleged that sometime before his death Pitchayya took Venkayya, the son of his brother Chimpirayya, in adoption. It is further alleged that a partition of the joint family properties between Veeranna and his four sons took place. Venkayya died in 1938 having a son Subbarao. Chimpirayya died in 1945 having executed a will whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his predeceased daughter. He also directed Raghavamma, the wife of his brother Pitchayya, to take possession of the entire property belonging to him, manage it and to hand over the same to his two grand children when they attained majority. Chimpirayya excluded his daughter in law Chenchamma from management as well as inheritance. But Raghavamma allowed Chenchamma to take possession of the property. Subbarao died in 1949. In 1930, Raghavamma filed a suit for possession of the property impleading Chenchamma as the first defendant, Kamalamma as the second defendant and Punnayya as the third defendant. 934 Chenchamma, the first defendant and the present first respondent, contended that Venkayya was not given in adoption and that there was no partition as alleged by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. The trial Judge came to the conclusion that the plaintiff had not established adoption of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other and in the result dismissed the suit. On appeal, the High. Court upheld the above two findings of the trial judge. A new pica was raised by the appellant before the High Court that the will executed by Chimpirayya contained a clear intention to divide and that this declaration constituted a severance in status enabling him to execute a will. The High Court rejected this contention also and in the result dismissed the appeal. On appeal by certificate, the appellants contended that the findings of the High Court on adoption as well as on partition were vitiated by the High Court not drawing the relevant presumptions permissible in the case of old transactions, not appreciating the great evidentiary value of public documents, ignoring or at any rate nor giving weight to admissions made by parties and witnesses, adopting a mechanical instead of an intellectual approach and perspective and above all ignoring the consistent conduct of parties spread over a long period. inevitably leading to the conclusion that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the court should have held on the basis of the entire evidence that there was a division in status between Chimpiravva and Pitchayya, conferring on Chimpirayya the right to , bequeath his divided share of the family property. (3) The will itself contained recitals emphasizing the fact that he had all through been a divided member of the family and that on the date of execution of the will he continued to possess that character of a divided member so as to entitle him to execute the will in respect of his share and, therefore, the recitals in the will themselves constituted an unambiguous declaration of his intention to divide and the fact that the said manifestation of the intention was not communicated before his death to Subbarao or his guardian Chenchamma could not affect his status as a divided member. (4) Chenchamma, the guardian of Subbarao, was present at the time of execution of the will and, therefore, even if communication was 935 necessary for bringing about a divided status, it was made in the present case. The respondents raised a preliminary objection, that the certificate issued by the High Court did not contain any issue relating to adoption or partition. Hence, this Court should not allow the appellants to raise these questions. Secondly, it was contended that since the question, whether declaration in the will constituted a partition was raised in the High Court for the first time it should not be allowed to be raised. It war. further urged that on the issues of partition and adoption, there were concurrent findings of fact by the trial Court and the High Court and this Court should not interfere. Held that a successful party can question the maintain ability of the appeal on the ground that a certificate was wrongly issued by the High Court in contravention of article 133 of the Constitution, but if the certificate was good, the provisions of that Article did not confine the scope of the appeal to the certificate. This Court has the power to review the concurrent findings of fact arrived at by the lower courts in appropriate cases. But this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such as "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave , injustice has been done ' . It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. The present case is not one of those exceptional cases where a departure from the salutary practice adopted by this Court is justified. Case Law referred to. There is an essential distinction between burden or proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgments of the lower courts, therefore, only pertain to the domain of appreciation of evidence. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. In the present case, the appellant has failed to discharge that burden. 936 The burden is upon that person who sets up partition to prove that fact. The general principle is that a Hindu family is presumed to be joint unless the contrary is proved. The finding whether there was partition or not is a finding of fact. An interference in the concurrent findings of fact on this point by the courts below is not justified. Bhagavati Prasad Shah vs Dulbi Rameshwari Juar, , referred to. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and un equivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severality. One cannot declare or manifest his mental state in a vaccum. To declare is to make known, to assert to others. Others must necessarily be those affected by the said declaration. Therefore, a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. A declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation. Adujallath Kathusumma vs Adujalath Beechu, I.L.R. 1950 Mad. 502, Suraj Narain vs Iqbal Narain, All.80 (P. C.), Ramalinga Annavi vs Narayanan Annavi, (1922) I. L. R. C.), Sayed Kasam vs Jorawar Singh, Cal. 84 (P. C.), Soundararayanl vs Arunachalam Chetty, Mad. 159 (P.C.), Bal Krishna vs Ram Krishna, C.), Babu Ramasaray Prasad Choudhary vs Radhika Devi, (1935) 43 L. W. 172 (P.C.), Kamepalli Avilamma vs Manmen Venketaswamy, , Rama Ayyar vs Meenakshi Ammal, (1930) 33 L. W. 384, Narayana Rao vs Purshothama Rao, I. L. R. and Indira vs Sivaprasad Rao, I. L. R. , discussed . Once the declaration is expressed and brought to the knowledge of the person affected, it relates back to the date of 937 declaration or the expression of intention to separate. As the doctrine of relation back involves retroactivity, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the above principles to the present case it must be held that on the death of Chimpirayya his interest devolved on Subbarao since it has not been established that Subbarao or his guardian had knowledge of the contents of Chimpirayya 's will before Chimpirayya died.

Special Leave Petition (Civil) No. 8001 of 1986 From the Judgment and order dated 8.7.1986 of the Allahabad High Court in W.P. No. 9664 of 1986. U.R. Lalit and T. Sridharan for the Petitioner. The Judgment of the Court was delivered by MISRA, J. The short question which arises for consideration in this case is whether a suit is maintainable in a civil court for an injunction restraining the Hearing Authority appointed under section 68 D of the (hereinafter referred to as 'the Act ') from proceedings with the hearing of matters under that provision and from approving a scheme published under section 68 C of the Act either with or without any modification. The petitioner is the holder of a permit issued under Chapter IV of the Act to ply a stage carriage on Bulandshahr Siana Garh Bugrasi Brijghat Bhasians Shambhaoli Babugarh Jadol Jahangirabad route in the State of Uttar Pradesh. The State Transport Undertaking of the State of Uttar Pradesh published a scheme dated March 7, 1975 in the U.P. Gazette dated April 5, 1975 under section 68 C of the Act pro posing to operate its stage carriages to the exclusion of all private operators on the route referred to above. The petitioner filed his objections to the said scheme along with several others. After a number of adjournments the Hearing Authority empowered under section 68 of the Act was able to conclude the proceedings by April 26, 1979 and it is alleged that the Authority in the course of the hearing ob served that it would finalise and approve the scheme by 21.5.1979. Before the Hearing Authority could give its approval to the scheme under section 68 D of Act, the petitioner filed original Suit No. 145 of 1979 on the file of the Civil Judge, Bulandshahr for a declaration that the above scheme published under section 68 C of the Act was illegal, void and ultra vires and for an injunction restraining the defendants in the suit from finalising and approving the scheme and acting upon it after it was published. The State Transport Undertaking, i.e., the Uttar Pradesh State Road Transport Corporation, the State of Uttar Pradesh and the Regional Transport Authority, Meerut were impleaded as the defendents in the suit. The defendants contested the suit. L one of the pleas raised in their written statement was that the suit was 543 not maintainable in a civil court for the reliefs prayed for by the petitioner. During the pendency of the suit the petitioner filed an application before the Civil Court for staying the hearing of the suit till the disposal of a special leave petition before this Court since the question relating to the maintainability of suits of similar nature was involved in the said special leave petition. The learned Civil Judge declined to grant the request of the petitioner and fixed the suit for arguments on November 8, 1985. Aggrieved by the order of the Civil Judge, the petitioner filed a revision petition before the Additional District Judge, Bulandshahr. That revision petition was dismissed. Against the order of Additional District Judge, the petitioner filed a writ petition. On the file of the High Court of Allahabad. That petition was also dismissed. This special leave petition is filed against the order of the High Court of Allahabad. We have heard the learned counsel for the petitioner in this case on the question of maintainability of the suit out of which this petition arises. The question for consideration in this case is, as mentioned above, whether a suit is maintainable in a civil court for an injunction restraining the Hearing Authority under section 68 L) of the Act from proceeding with the hearing and approving the scheme either with or without modification. The contention of the respondents before the trial court was that the suit was not maintainable for the reliefs prayed for by the petitioner since the jurisdiction of the civil courts in such matters was impliedly barred. Chapter IVA of the Act was introduced into the Act by Act 100 of 1956. Section 68 D of the Act provides that the provisions of the Chapter IVA and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of the Act or any other law for the time being in force or in any instrument having effect by virtue of any such law. Chapter IVA contains certain special provisions relating to the State Transport Undertakings. A 'State Transport Undertaking ' is defined by section 68 A(b) of the Act as any Undertaking providing road transport J service where such undertaking is carried on by (i) the Central Government or a State Government; (ii) any Road Transport Corporation, established under section 3 of the ; and (iii) any municipality or any corporation or company owned or controlled by the Central Government or one or more State 544 Governments, or by the Central Government and one or more State Governments. Chapter IVA of the Act provides for the preparation and approval of a scheme enabling the State Transport Undertaking to operate road transport services to the exclusion complete or partial of other persons. The procedure laid down for the preparation of the scheme is contained in sections 68 C and 68 D of the Act. Section 68 C of the Act provides that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly co ordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion, complete or partial, of other persons or other vise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the service proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the official Gazettee and also in such manner as the State Government may direct. Section 68 D of the Act provides that on the publication of any scheme in the official Gazette any person already providing transport facilities by any means along or near the area or route proposed to be covered by the scheme, any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government and any local authority or police authority within whose jurisdiction any part of the area or route proposed to be covered by the scheme lies, may within thirty days from the date of its publication in the official Gazette file objections to it before the State Government. The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter if they so desire, approve or modify the scheme. The scheme as approved or modified as stated above shall then be published in the official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route. Under section 68 I of the Act the State Government is authorised to make rules for the purpose of carrying into effect the provisions of this Chapter. The rules which are promulgated provide for the details relating to the manner in which objections or representations can be filed under section 68 D(i) and the procedure to be followed at the hearing of persons who have filed such objections 545 and/or representations and the representatives of the State Transport Undertaking. The rules also provide for the particulars to be incorporated in the scheme published under section 68 C of the Act. From the above provisions it is clear that on the publication of the scheme under section 68 C of the Act any person who is aggrieved by the proposed introduction of the scheme is entitled to file his representations and objections and to appear before the Hearing Authority under section 68 D of the Act and make his submissions in support of his objections or representations. Sub section (ii) of section 68 D of the Act authorises the Hearing Authority to approve the scheme either with or without modification. By necessary implication it can also reject a scheme if it feels that it is not necessary to introduce the scheme. When the scheme is approved or modified under section 68 D of the Act, such approved or modified scheme is required to be published in the official Gazette and on such publication it becomes final. It is thus seen that Parliament has created a special machinery by the provisions contained in Chapter IVA of the Act for bringing jnto force an approved or modified scheme which would have the effect of excluding completely or partially other persons from operating motor service vehicles on any route or in any area. After the scheme become final, as provided in sub section (iii) of section 68 D of Act, the transport authorities concerned can issue permits only in accordance with the scheme and the other provisions contained in Chapter IVA of the Act . This Court in H. C. Narayanappa and Ors. vs The State of Mysore and Ors., ; at page 753 has observed that the scheme approved or modified and published under section 68 D of the Act may properly be regarded as 'law ', within the meaning of Article 19(6) of the Constitution, made by the State excluding private operators from notified routes or notified areas, and immune from the attack that it infringes the fundamental right guaranteed by Article 19(1)(g) of the Constitution. Section 9 of the Code of Civil Procedure, 1908 provides that the courts (subject to the provisions contained therein) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is no doubt true that there is no express provision in the Act taking away the jurisdiction of the civil courts to try a suit in which the validity of the proceedings under Chapter IVA of the Act is called in question. But we are of opinion that the jurisdiction of the civil courts is impliedly barred from entertaining suits of the present nature. The jurisdiction of the State Government (the Hearing Authority under section 68 D of the Act) is exclusive in character and it is not open to a civil court to issue an order of injunction restraining the Hearing Authority from proceeding 546 with the hearing of the case and exercising its statutory functions. Whenever statute uses the expression that a decision of an authority shall be final, the jurisdiction of a civil court to go into the correctness or otherwise of the decision is taken away. We have gone through the plaint presented in this case. It is not disputed that the scheme had been duly published under section 68 C of the Act by an authority which had the power to publish it and that the authority which was hearing the case under section 68 D of the Act had the power to do so. All the contentions urged in the plaint relate to the merits of the scheme and the desirability of bringing the scheme into force. All such objections relating to the merits of a scheme or the desirability of bringing such scheme can be raised by an aggrieved person before the Hearing Authority under section 68 D of the Act and it is for the Hearing Authority to consider such objections and representations and to pass appropriate orders thereon. Where the Statute gives finality to the orders of a special tribunal the civil courts jurisdiction must be held to be excluded insofar as the merits to the case is concerned. If jurisdiction is so excluded, the civil courts have jurisdiction only to examine whether the provisions of the Statute have not been complied with or the tribunal had or had not acted in conformity with the fundamental principles of judicial procedure. In cases of the present nature where invariably reliance is placed by the private operators on Article 19(1)(g) of the Constitution, a writ petition lies before the High Court. In such cases a suit is hardly the remedy which can be availed by them. If suits of this nature are allowed to be entertained, the very object of the several provisions of Chapter IVA of the Act can be frustrated by interested parties by resorting to a civil court with the sole object of delaying the implementation of a scheme. Such attempts should be curbed at the earliest opportunity. The learned Civil Judge was right in declining to stay the further proceedings in the suit. This is a suit which should have been rejected at the threshold under order 7 rule 11 of the Code of Civil Procedure on the ground that it did not disclose a cause of action. We, therefore, do not find any ground to interfere with the orders of the High Court, the District Judge and the Civil Judge. The Civil Judge is directed to dispose of the suit in the light of the observa tions made in this order. The petition fails and is dismissed. P.S.S Petition dismissed.

The appeals raise the question whether in a case where the Land Acquisition officer takes temporary occupation, the person interested in the land was entitled to solatium on the compensation decreed in a proceeding under s.35 of the land Acquisition Act. The High Court refused to allow it. Dismissing the appeals, the Court ^ HELD: 1. The provisions of section 23(2) of the Land Acquisition Act providing for payment of statutory solatium are not attracted to a case of compensation under section 35 of that Act. [470H] 2. Temporary occupation of land, provided in Part Vl of the Act, is distinct from, and is not included in, acquisition of land under Part II of the Act because in acquisition in exercise of the right of eminent domain title of the owner is extinguished and the property vests in the State, whereas when temporary occupation is taken the title of the owner remains untouched. [470C D] Tan Bug Taim vs Collector of Bombay, AIR 1946 Bom. 216 referred to. Clause "secondly" in section 23(1) of the Act is not applicable to temporary occupation covered by section 35 of the Act. Statutory solatium as provided in section 23(2) of the Act does not apply to a case of damage covered by clause "secondly" in section 23(1) itself. "Market value" occurs in the first clause of section 23(l) of the Act and sub section (2) of section 23 refers to market value. Solatium has reference to market value and the 469 mandate to pay solatium is only in respect of market value. compensation under section 35 of the Act has no reference to market value and the actual loss sustained by the persons interested in the land only is intended to be compensated.[470F H]

Appeals Nos. 131 and 132 of 1960. Appeals from the judgment and decree dated April 4, 1952, of the Madras High Court in Appeal No. 816 of 1947 and No. 83 of 1948. A. V. Yiswanatha Sastri, R. Ganapathy Iyer, K. Parasaran and G. Gopalakrishnan, for the appellants. K. Bhimassankaran, Durgabai Deshmukh, A. Narayana Swami and R. Thiagarajan, for the respondents 2 to 4. R. Gopalakrishnan, for respondent No. 2 (In C. A. No. 132 of 1960). November 19. The judgment of the court was delivered by SUBBA RAO, J. These appeals filed by a certificate issued by the High Court of judicature at Madras raise a question of Hindu Law pertaining to marriage in 'Asura form '. The material facts may be briefly stated : To appreciate the, facts and the contentions of the parties the 247 following genealogy may be usefully extracted Muthusami Naicker | | | Senior wife Junior wife | | Konda Bommu Naicker Kamayasami Naicker (died 23.10.1873) (died 31. 7. 1901) | | | | Kandaswami Naicker Ponnuthayee Naicker (died 31. 7. 1881) (died 13.3 1938) | Banmuga Valla | Konda Bommu Naicker | (died 21.1 1901) | | | | | | | Dorairaja Muthusami Kama Parama | alias (2nd Plff) yasami sivam Married | Thanipuli (3rd Plff)(4th Plff) Errammal | chami (died 2.2.1933) | (1st Plff) | | Bangru Ammual | (died 14.12.1930) | | | married also 8 other wise of whom the last to die were: (a) Meenakshi Ammual (died 5.6. 1938) (b) Krishna Ammual (died 10.11.1938) (c) Vellayammal alias Chinathayammal (died 2.5. 1940). 248 Thevaram is an ancient impartible zamindari in Madurai District. Shanumugavalla Konda Bommu Naicker was zamindar from 23.8.1876 to 20.1.1901. On his death on January 21, 1901 Bangaru Ammal, his daughter, got his entire estate under the will executed by him. To discharge the debts incurred by her father Bangaru Ammal executed on March 13, 1913 a mortgage of her properties for a sum of Rs. 2,15,000/ in favour of one Chidambram Chettiar. On his death his son Veerappa Chettiar filed on April 16, of 1925 against Bangaru Ammal in the Subordinate judge 's Court, Dindigul for the recovery of a sum of Rs. 5,49,6338 7 being the balance of the amount due under the said mortgage. The suit was compromised and on July 28, 1928, a compromise decree was passed therein. Under the compromise decree the mortgaged properties were divided into three Schedules A, B & C and it was provided that if a sum of Rs. 3,75,000/ was paid by July 31, 1931, the mortgage must be deemed to have been fully discharged but in default the properties in Schedule A of the decree were to become the absolute properties of the plaintiff. B Schedule properties i.e., some of the pannai lands and the C Schedule properties, i.e., those already alienated by Bangaru Ammal were released from the mortgage. One K. V. Ramasami Iyer, the Manager of the estate was appointed Receiver of the A Schedule properties and he was directed to deposit the surplus income into court towards the payment of the amount due under the compromise decree. Before the expiry of the period prescribed under the said decree Bangaru Ammal died on December 14, 1930, and her mother Errammal claiming to be her heir on the ground that Bangaru Ammal 's marriage was held in 'Asura form ' filed I.A. No. 190 of 1931 in the court of the Subordinate judge, Dindigul, for directing the Receiver to hand over the estate to her. Veerappa Chettiar in his turn filed I.A.No.170 of 1932 for 249 directing the Receiver to deliver possession of A Schedule properties on the ground that the term prescribed under the compromise decree had expired and the balance of the amount due under the decree was not paid to him. In the petition filed by Errammal she raised the question of the validity and the binding nature of the compromise decree on her. After elaborate inquiry on February 1, 1933, the learned Subordinate judge, though he held that the marriage of Bangaru Ammal was in 'Asura form ', dismissed her petition for the reason that the mortgage was valid and binding on her and allowed the petition filed by Veerappa Chettiar directing the delivery of the possession of A Schedule properties to him. On February 2, 1933, Veerappa Chettiar had taken delivery of A Schedule properties and on July 19, 1933 he was registered as proprietor of Thevaram estate by the Collector of Madura. On February 2, 1933, Errammal died executing a will dated January 30, 1933, in favour of her nephew Thangachami Naicker. It may also be mentioned that three of the co widows of Shanmugavalla survived Errammal. They died one after another and the last of them Vellayammal passed away on May 2, 1940. Thangachami Naicker along with one of the widows filed appeals to the High Court against the said judgments but those appeals were dismissed by the High Court on the ground that they were not maintainable. As Thangachami Naicker interfered with the right of Veerappa Chettiar with regard to certain tanks and water courses in Zamindari he filed 0. section 2 of 1934 in the Subordinate judge 's court of Dindigul against Thanchami Naicker and obtained a decree declaring his right to the said tanks. The appeal filed by Thanchami Naicker against that decree was also dismissed with costs on April 10, 1940. In execu tion of the decree for costs Veerappa Chettiar got the property alleged to be in possession of Thanchami 250 Naicker attached. One section Michael (son of Thanchami Naicker) objected to the attachment of the said property on the basis of a sale in his favour by the alleged reversioners to the estate of Bangaru Ammal. That petition was dismissed on August 23, 1944. The said claimant section Michael filed 0. section No. 52 of 1944 in the court of the Subordinate judge, Dindigul for setting aside the said claim order. To that suit Veerappa Chettiar and Thangachami Naicker were made party defendants. On January 31, 1945 the alleged reversioners to the estate of Bangaru Ammal filed 0. section 14 of 1,945 in the Court of the Subordinate judge, Dindigul against Veerappa Chettiar, his younger brother and defendants 3 & 9 who were alleged to be the tenants in possession of some of the items of the plaint Schedule properties. The plaintiffs in that suit are the grandsons of one Kandaswamy Naicker shown in the genealogy a paternal uncle of Shanmugavalla Konda Bommu Naicker. They claimed that they are the reversioners to the estate of Bangaru Ammal on the ground that Bangaru Ammal was married in 'Asura form '. It is alleged in the plaint that succession opened in their favour when Vellayammal died on May 2, 1940 and that the compromise decree passed against Bangaru Ammal was not binding on them and that in any view the property set out in Schedule C and C 1 attached to the plaint did not pass to Veerappa Chettiar under the said decree. The contesting defendants in both the suits pleaded that the marriage of Bangaru Ammal was not in 'Asura form ', and therefore the plaintiffs in 0. section 52 of 1944 were not the reversioners to the estate of Bangaru Ammal, that the compromise decree was binding on the estate and that C and C 1 Schedule properties also passed to the decree holder thereunder and that in any view the suit was barred by time. 251 It is seen from the foregoing narration of facts that the same questions of fact and law arise in both the suits for the title of the plaintiffs in 0. section No. 52 of 1944 was derived under a sale deed from the plaintiffs ' in 0. section No. 14 of 1945. Therefore the plaintiffs ' claim in the former suit will stand or fall on the plaintiffs ' title in the latter suit. For that reason both the suits were heard together by the Subordinate judge and appeals arising from his common judgment by the High Court. The learned Subordinate judge held on the evidence that the marriage of Bangaru Ammal with the Mannarkottai zamindar was in Asura form as Mannarkottai zamindar had spent Rs. 300/ to Rs. 575 for Bangaru Ammal 's marriage and that circumstance was in view of certain decisions of the High Court would make it an Asura marriage. He further held that the aforesaid compromise decree was binding on the plaintiffs. As regards C and C. 1 Schedule properties lie held that they had passed to Veerappa Chettiar under the compromise decree as part of the Thevaram Zamindari and that the plaintiffs were not in possession within 12 years of the suit in regard to item 70 of the C Schedule. On those findings he dismissed O.S. No. 14 of 1945 with costs. In O.S. 52 of 1944 he held that the plaintiff therein acquired a valid title as he purchased the land in dispute therein from the plaintiffs in the other suit who are the reversioners to the estate of Bangaru Ammal and that the decree in execution of which the said property was attached was not binding on the estate of said Bangaru Ammal. In that view he decreed the said suit. As against the decree passed in O.S. 52 of 1944, Veerappa Chettiar filed an appeal in the High Court of Madras being A.S. No. 816 of 1947. As against decree in O.S. 14 of 1945 dismissing the 252 plaintiffs ' suit they filed an appeal to the High Court being A.S. 83 of 1948. Veerappa Chettiar filed cross objections therein. Both the appeals were heard together by the High Court. The High Court held that in Bangaru Ammal 's marriage the practice of giving Kambu or flour or what is called the taking of Mappetti (millet flour box) before the betrothal was followed and that the marriage expenses were entirely borne by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties and therefore the marriage was Asura. The High Court further held that under the compromise decree only Melwaram right in C and C. 1 Schedule properties passed to Veerappa Chettiar but as there was no clear evidence as to who was in actual possession of the said lands and as the persons in actual occupation of the land were not impleaded in the suit, it was necessary in the interest of the parties to reserve the right of the plaintiffs to recover possession of C and C. I Schedule lands in an appropriate proceedings instituted for the purpose. In regard to item No. 70 of C. Schedule land the High Court agreed with the finding of the Subordinate judge. The High Court also negatived the plea of limitation, with the result A.S. No. 816 of 1947 was dismissed with costs and A.S. No. 83 of 1948 subject to the said modification was dismissed with costs. Hence the appeals. Both the appeals were heard together as they raised common points. The arguments of Mr. A.V. Viswanatha Sastri, the counsel for the appellant, may be summarised thus : The marriage of Bangaru Ammal with a Mannarcottai Zamindar was not held in Asura form and therefore the plaintiffs in O.S. 52 of 1944 being her father 's uncle 's grand children were not reversioners to her estate. According to Hindu Dharamshastras the main distinction between Brahma, and Asura form of marriages is that while in the 253 former there is a gift of the bride, in the latter there is a sale of the bride. Except a bare allegation in the plaints that the said marriage was held in Asura form the plaintiffs did not give any particulars or set tip any custom in the community to which the parties to the marriage belonged. They have adduced evidence to the effect that a sum of Rs. 1,000/ was paid as parisam by the Mannarcottai Zamindar to the bride 's father for taking the bride but both the courts having rightly held that the said payment was not established by the evidence erred in making out a case of a different consideration for the marriage. The first court held wrongly that the fact that Mannarcottai Zamindar spent Rs. 300/ to Rs. 575/for the marriage expenses would make it an asura marriage while the High Court went further and erroneously held that there was a general custom in the community to pay the bride 's price by way of giving Kambu grain and Kambu flour at the time of the settlement of marriage and that for the bridegroom 's party to bear the expenditure for celebrating the marriage and that in the case of Bangaru Ammal 's marriage the said Kambu was given and that the expenditure for the marriage was incurred by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties. Apart from the fact that no such custom was pleaded, there was no evidence to sustain the said custom. That apart the mere giving of Kambu as a ceremonial relic of the past or the bearing of the expenditure on the marriage wholly or partly by the bridegroom 's party could not be a bride 's price as contemplated by the Sastras, for the bride 's father in those events could not be said to have received any price for the bride. In short the learned counsel attacks both the legal and the factual findings arrived at by the High Court. The gist of the learned counsel for the Mr. Bheemasankaran 's contention may 254 be briefly stated thus: According to Dharam Shastras there were eight forms of marriage in Hindu Law, four approved and four unapproved. But as centuries rolled by most of them became obsolete and at present there are only two forms of marriage, Brahmu and Asura. Whatever may have been their comparative merits in the bygone days, they have now come to be recognized as two valid 1, forms of marriage that can be followed without any sense of inferiority by all the castes. Though in remote antiquity the Asura form of marriage night have involved a real sale transaction, at present it would be enough to constitute such a marriage if a ritual form was observed indicating the consciousness of the community or the parties contracting the marriage that it was an Asura marriage. This consciousness may be indicated by the ceremonial giving of Kambu at the time of betrothal or by the bridegroom 's party meeting the expenses wholly or substantially of the marriage. Thai apart in the present case there is clear evidence that the practice in the community to which Bangaru Ammal and her husband belonged that Kambu is given by the bridegroom 's party to the bride 's party at the time of betrothal and the bridegroom 's party bears the expenditure of the marriage which clearly indicate that the bride 's father or in his absence by the bride 's relatives entitled to give her away in marriage get a clear benefit for giving the bride, and further there is evidence that the said practice was followed in the case of Bangaru Ammal 's marriage. What is more to constitute a Brahmu marriage there should be a 'Kanyadhan ' but in this case it has been found that there was no 'Kanyadhan ' and therefore if the marriage of Bangaru Ammal could not have been in 'Brahma form ' it could have been only in the alternative form, namely Asura form. Before we advert to the arguments advanced we would like to make some general observations. 255 We are not concerned here with the relatives importance of the said two forms of marriages at the present day but only with the conditions laid down by Shastras for the said two forms of marriage and with a question as to which form was adopted in Bangaru Ammal 's marriage. Nor are we concerned with a question whether the institution of marriage in Brahmu form is now maintained in its original purity. We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. that is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration ' for the sale. It may be mentioned that in this case the learned counsel for the respondents does not rely upon any custom even in the later sense but only on the practice obtaining in the community in support of the evidence that the said practice was followed in Bangaru Ammal 's marriage. The main question therefore is what are the ingredients of an Asura form of marriage. As the Manu Samhita has always been treated by sages and commentators from the earliest time as being of a paramount authority, let us look to it for guidance. The following verses from Manu Samhita as translated by Manmatha Nath Dutt Shastri read as follows: CHAPTER III, Verse 21: They (different types of marriages) are known as the Brahma, Daiva A 'raha, Prajapatya, A 'sura, Gandharva, Rakshasa and Paisacha, which forms the eighth. 256 Verse 24: The four forms of marriage the seers have ordained as proper for Brahmanas : only the Rakshasa form as proper for Kshatriyas, and the A 'sura form as proper for Vais 'yas and S 'udras. Verse 25: Thus out of these five forms of marriage, three are lawful, and two are sinful (unlawful). Let a man never marry a wife either in the Pisacha or in the A 'sura form since these two forms are prohibited. Verse 27: The form (of marriage) in which well attired bride, decorated with ornaments, is given in marriage to an erudite, good charactered bridegroom especially invited by the bride 's father himself to receive her, is called Brahma. Verse 31: The form, in which the bridegroom, on paying money to her father and to herself, out of the promptings, of his own desire, receives the bride in marriage, is called A 'sura. Verse 51 : An erudite father of a girl shall not take anything by way of Sulka from her bridegroom. By taking a dowry out of greed, he becomes the seller of his off spring. Verse 53: Even the acceptance of abovine pair (by the father of the bride from the bridegroom) is designated as a dowry by certain authorities, (the acceptance of) 257 a dowry be it costly, or be it of insignificant value, constitutes the sale of the girl. Verse 54 : A marriage in which the bride 's relations do accept the dowry (voluntarily presented by the bridegroom 's father, etc.) is no sale (of the bride), since such a present is but an adoration of the bride done out of love or affection. Verse 98 (of Chapter IX) Even a S 'udra must not take any price it. duty or pecuniary consideration) for the hands of his daughter when giving her away in marriage. Such acceptance of money constitutes a sale of the girl in disguise. The gist of the verses is that before Manu Smriti came into existence the A 'sura form was considered to be proper for Vaishs and Sudras but it was prohibited for the Brahmins and Kashatriyas. But Manu was emphatic that the said form of marriage was sinful for all castes including the Shudras. There is no ambiguity in the verses in regard to the general prohibition to all castes ' for Verse No. 98 emphasizes that even a S 'udra must not take any price for the hand of his daughter when giving away in marriage. The next question is what is the criterion of an A 'sura marriage according to Manu. A contrast between the terminology in the definition of Brahma marriage and that of A 'sura marriage brings out clearly his intention. The following words stand out in the definitions. They are 'dana ' (giving) 'Kanyapradanam ' (the taking of the bride), "Dravina ' (wealth), 'dattava ' (after having given), 'Saktitah ' (as much as he can), 'Svacchandya ' (as according to his will). The word 'Apradana ' is used in the 258 definition of A 'sura marriage in contradistinction to the word 'dana ' in Brahmu form of marriage, while a, in the Brahmu form of marriage the father makes a gift of the bride, in the A 'sura form the bridegroom takes the bride otherwise than by a gift. In the former the father gives the bride decorated with ornaments, while in the latter the bridegroom takes the bride after giving wealth to the father of the bride and the bride. While in the former the father voluntarily gives the bride in the latter the bridegroom out of his own will pays as much money as he can to the father and takes his bride. The words Saktitah ' and 'Svacchandya ' imply that the payment is made because the bridegroom can and the girl is taken because he wills that is to say a bridegroom who seeks the hand of a bride takes her as he can afford to buy her from her father. The transaction is equated to that of a sale, for all the ingredients of sale were present. If there is any ambiguity that is dispelled by Verse 51 and Verse 54. In Verse 51 Manu makes it clear that by taking a dowry out of greed the father becomes the seller of his off spring. 'Sulka ' means the taking of a gratuity or price. The expression 'dravina ' in Verse 31 is clarified by the use of the word 'Sulka ' in Verse 51. What is prohibited is Sulka or the price for the bride. Verse 54 brings out the distinction between 'Sulka ' or 'dravina ' paid by the bridegroom as a price for the bride and the dowry given for the bride as a present out of love or affection or in adoration of the bride. Verse 98 further empbasizes that what Manu prohibits is the sale of a bride for price. A 'sura marriage, according to Manu, is a transaction of sale in which the girl is sold for a price. Practically the same meaning though expressed in different phraseology is given by other Hindu Law givers. The following translations given by Max Muller in the "Sacred Books of the East ', of 259 the various sages may now be extracted Baudhayana text 1, II, 20 (7) '(If the bridegroom receives a maiden) after gladdening (the parents) by money (that is) the rite of the Asuras (asura). ' Verse 2 : 'Now they quote also (the following verses) It is declared that a female who has been purchased for money is not a wife. She cannot (assist) as sacrifices offered to the Gods or the manes. Kasyapa has stated that she is a slave. ' Baudhayana Prasad Adhyaya 11, Kandika 21 Verse 3 : 'Those wicked men who, seduced by agreed, give away a daughter for a fee, who (thus) fall (after death) into a dreadful place of punishment and destroy their family down to the seventh (generation). Moreover they will repeatedly die and be born again. All (this) is declared (to happen), if a fee (is taken ). , Vasishtha Chapter I Verse 35. 'If, after making a bargain (with the father, a suitor) marries (a damsel) purchased for money, that (is called) the Manusha rite. ' Narada Chapter XII Ver8e 42. When a price is (asked for the bride by the father and) taken (by him), it is the form termed Asura. 'Gautama, 'Chapter IV Verse 11. The form of marriage in which a bride is purchased for money, is called the A 'suram. ' 260 Vishnu Chapter XXIV Verse 24. If the damsel is sold (to the bridegroom), it is called an Asura marriage. 'Yagngavalkya ' : 'The asura by largely giving of money ; the Gandharva by mutual consent; the Rakshasa by forcible taking by waging war and Paisacha by deceiving the girl ' Translation of Srisachandra Vidyaamava : 1918 Edition page 126 : In the Mitakshara the said text is commented upon thus : .lm15 " The Asura marriage is that in which money is largely given (to the father and others in exchange for the girl). 'Apastamba ':"If the suitor pays money (for his bride) and marries her (afterwards) that (marriage is called) the Asura rite. ' 'Kautilya ': Arthasastra: Sulkadanat Asura ' the word used is "Sulka" Medhatithi, in his commentary on Verse 54 of Manu Samhita points out that the receipt of money or money 's worth for the benefit of the girl (Kanyarthe) does not amount to her sale, and is desirable as it tends to enhance her self esteem and also raises her in the estimation of others, and concludes with the observation that receipt of a dowry for the girl (kanyartham danagrahanam) is prescribed by thus stating the good arising from it (arthavadena) : Vide at 772. Apte 's Dictionary : page 239 : Col. III. Asura is explained thus : 'One of the eight forms of marriage in which the bridegroom purchase ; the bride from her father or other paternal kinsmen ' Manu 331 and Yagnayavalkya 1.61 are cited 261 The said sages and commentators accepted the view expressed by Manu and in effect described A 'sura marriage as the transaction where a bridegroom purchases a girl for a price paid to the father of the girl or to kinsmen who are en titled to give her in marriage. The distinction between the bride 's price and the presents to the bride is also recognized. The learned judges of the High Court relying upon the text of Apasthamba observed that 'the payment to the bride 's father is for the purpose of complying with Dharma and not as a consideration for an commercial transaction. The interpretation may explain away on Dharmic principles the sordid nature of the transaction, but does not detract from its essential incidents. We, therefore, hold that A 'sura marriage is nothing more than a transaction of marriage whereunder a bridegroom takes a bride for the price paid by him to the bride 's father or others entitled to give her and therefore in substance it is a sale of the bride. It is said that the incurring of the expenditure of the marriage by the bridegroom is also a consideration for giving the bride. In this context reliance is placed on the Law and Custom of Hindu Castes by Arthur Steel. This book was written in 1868. The author appears to have collected the laws and customs obtaining in the Presidency of Bombay, and had compiled them for the purpose of convenience of reference. At page 24 the author says: 'There are eight kinds of marriages recognized in the Sastras : 1, Brahm, where the charges are incurred solely by the girl 's father; x x x x x 5, Usoor, where she is taken in exchange for wealth, and married; this species is peculiar in the Wys and Soodra castes, B.S.(Mit), See Munoo, 3.20,34. It is considered as Uscorwiwuha, and stree soolk, and the money, if unpaid, is an unlawful debt, B 2, 199. The definition of Asura by the author does not carry the matter further, for it is consistent with that 262 given in the Hindu law Texts but what is relied upon is his definition of Brahmu marriage as one where charges are incurred solely by the girl 's father. From the said definition a converse proposition is sought to be drawn viz : that marriage would be Asura marriage if the charges were incurred mainly by the bridegroom 's father. Firstly the definition of Brahmu marriage by the learned Author does not conform with the definition of the said marriage by the lawgivers. Secondly it does not follow from the passage that if the bridegroom 's father incurs the expenditure the marriage is an Asura marriage. If that be so, the author would have stated in his definition of Asura marriage that such incurring of the expenditure would make a marriage an Asura marriage. This valuable compilation of the laws and customs of the day does not throw any light on the question now raised before us. Let us now see whether there is any merit in the contention that the concept of sale for a price has by progress of time lost its content and that at the present time a mere form of sale irrespective of a real benefit to the bride 's father would meet the requirements of an Asura , marriage. No text or commentary taking that view has been cited to us. Indeed the case law on the subject does not countenance any such subsequent development. The earliest decision on the subject cited to us is that ofthe Divisional Bench of the Bombay High Court "Jaikisondas Gopaldas vs Harkisondas Hulleshandas '.Green j, defines the Asura marriage at page 13 'The essential characteristic of the Asura form ofmarriage appears to be the giving of money or presents by the bridegroom or his family to the father or parental kinsmen of the bride,, or, in tact, a sale of the girl by her father or other relation having the disposal of her in marriage in (1) Bom. 9. 263 consideration of money or money 's worth paid to them by the intended husband or his family. ' In 'Vijarangam and Damodhar vs Lakshuman and Lakshmi ' (1) West j . gives in interesting background to the origin of the institution of the Asura marriage and observes: "Of the several Shastras called by the plaintiffs and the defendants in this case, all agree that the giving and receiving of money for the bride is the distinctive mark of the Asura form of marriage. " In 'Muthu Aiyar vs Chidambara Aiyar, the money was paid by the bridegroom 's people to the bride 's father to meet expenses of marriage. The Subordinate judge found on the evidence that the bride 's father received the money for his own purposes and not for bride 's benefit and therefore the marriage was an Asura one. The High Court in a short judgment accepted the finding and said. "it being found that a money payment was made to Thailu 's father we are not prepared to differ from the courts below in their opinion as to the nature of the marriage. " This decision is relied upon in support of the contention that where the bridegroom incurs the expenditure of the marriage such a marriage is Asura marriage. But this decision is not a considered one. The appeal being a second appeal, the learned judges accepted the finding of fact given by the Subordinate Judge, namely that the money payment was made to the bride 's father and were not prepared to differ from it. The disinclination of the learned judges to interfere in the second appeal on a question of fact cannot throw any light on the point that has directly arisen before us. Chandavarkar J. in 'Chunilal vs Surajram '(3) accepted the aforesaid definition when he said: 'Where the person who gives a girl in marriage received (1) (1871) 8 Born. F. C. Reports 244. (2) (3) Bom. 264 money consideration for it, the substance of the transaction makes it, according to Hindu Law, not a gift but a sale of the girl. The money received is what is called bride price; and that is the essential element of the Asura form. The fact that the rites prescribed for the Brahmu form are gone through cannot take it out of that category, if there was pecuniary benefit to the giver of the girl. The Hindu law givers one and all condemn such benefit and the Shastras, regarding it as an ineradicable sin, prescribe no penance for the sale of a bride. " The learned judge also accepted the presumption that every marriage under the Hindu Law is according to the Brahma form but it can be rebutted by evidence. In 'section Authikesavulu Chetty vs section Ramanujan Chetty ' (1) at the betrothal ceremony a married woman of the caste to which the parties belonged proceeded from the bridegroom 's house to the house of the bride carrying certain presents consisting of cocoanuts, betel and nut, garlands, black beads, saffron red powder, etc. in a tray. There was also a pagoda and a fanam in it. There was also an arrangement at that time that the bridegroom 's father had to pay certain amount to the bride and the bride 's father had also to give some jewels to the bridegroom. It was contended that the marriage was an Asura marriage. The learned judges said that the distinctive mark of the Asura marriage was the payment of money for the bride, and that the payment of a pagoda and 2 1/2 annas could not have been intended to be the consideration for the bride where the bride 's father spent thousands of rupees himself and gave presents of considerable value to the bride and the bridegroom. This decision, therefore, emphasises that mere payment of small amounts as a compliment to one of the parents cannot be treated as a consideration for the sale of the bride. It also lays down that all the circumstances of the case will have to be looked into to ascertain whether any amount was paid as price for the bride. (1) Mad. 265 A Divisional Bench of the Madras High Court in 'Gabrielnathaswmi vs Valliammai Ammal ' (1) negatived the contention that the mere fact that a bride 's parents received what is known as 'parisam ' it would lead to the conclusion that the marriage of the girl took place in Asura form and not in Brahma form. The learned judges observed: "It may be that parisum is a relic of what in old days was regarded as the price for the bride. x x x x The real test is whether in the community or among the parties the payment of 'parisam ' was tacitly understood as being substantially a payment for taking the girl in marriage. That will depend generally upon the evidence in the case. " They also reaffirmed the presumption under Hindu Law in; the following words : 'Ordinarily the presumption is that whatever may be the caste to which the parties belong, a marriage should be regarded as being in the Brahma form unless it can be shown that it was in the Asura form '. This decision deals with 'parisam ' with which we are also concerned in these appeals. This is an authority for the proposition that the use of the word 'parisam ' is not decisive of the question that it is a bride 's price, but that it must be established in each case whether the payment small or large, in cash or kind, is made as a bride 's price i. c. as consideration for the bride. In "Ratnathanni vs Somasundara Mudaliar" (2) a sum of Rs. 200/ was paid to the bride 's mother for the expenses of the marriage as a term of the contract of the marriage. On that finding Ramesam. ' J. concluded that the payment was made for the benefit of the bride 's mother as in the absence of the payment, she would have had to find the amount in some other way, by borrowing or pledging her jewels or other properties and therefore the marriage was in Asura form. The learned judge relied upon Steel 's observation that the parents should incur the expenditure of the marriage in the Brahma form and presumably (1) A.I.R. 1920 Mad. 884. (2) 266 drew a contrary inference that if the bridegroom 's party met the expenditure it would be an Asura marriage. The learned judge also relied upon that decision in 'Muthu Aiyar vs Chidambara Aiyar '(1). Spencer, J. in a separate judgement agreed with him. As we have pointed out we do not see any justification in the Hindu Law texts in support of the view that the bearing of the expenditure of the marriage by the bridegroom is a test of an Asura marriage. The fact that the expenditure of the marriage is borne by bridegroom 's party cannot in any sense of the term be a consideration given to the father for taking the bride. Ramesam J. sitting singly in 'Samu Asari vs Anachi Ammal ' (2) restated his view in a more emphatic form. He observed: 'It seems to me immaterial whether it is the whole of the expenses of the marriage or a substantial portion of it. To the extent the bride 's father gets contribution of that kind from the bridegroom 's father, he benefits by it; though he does not pocket it, but he spends for the marriage. . At the same time the learned judge observed that under certain circumstances payments made to the bride 's parents which are either small or relatively small having regard to the scale in which the expenses of the marriage are incurred do not make a marriage an Asura marriage. This decision therefore makes a distinction between courtesy presents given to the bride 's parents and whole or substantial portion of the expenditure incurred by the bridegroom 's father. While we agree that courtesy presents to the bride 's parents cannot by themselves conceivably make a marriage an Asura one, we find it difficult to hold that the incurring of expenditure by a bridegroom satisfies the test of consideration for the bride. In 'Kailasanatha Mudaliar vs Parasakthi Vadivanni ', (3) Varadachar J., speaking for the (1) (2) (3) Mad. 267 Court lays down the test of the Asura marriage in the following manner : "The distinctive feature of the Asura form of marriage is the giving of money or money 's worth to the bride 's father for his benefit or as consideration for his giving the girl in marriage. " The learned judge distinguishes the case of "Samu Asari vs Anachi Ammal ' (1) on the ground that there money was held to have been paid for the father 's benefit though utilized by him to meet the expense of the marriage which he must have defrayed out of his own fund and points out also the distinction between payment to the father for his own benefit and payments to the bride received by kinsmen not for their own use. In that case a jewel was presented by the bride 's father and placed on the bride 's neck at the time of the betrothal ceremony as ' parisam ' and the value of the jewel was not even the subject of a bargain but merely left to the pleasure of the bridegroom 's father. The learned judge observed that such a gift could in no sense be called bride 's price. In 'Sivangalingam Pillai vs K. V. Ambalavana Pillai, (2) the bride 's father gave a large amount and also jewels to the bride and plaintiff 's brother in law on behalf of the bridegroom gave the bride 's father a present of Rs. 1,000/ and a cloth worth Rs. 65/ . It was also agreed that all the expenses of the marriage should be borne by the bridegroom. It was contended that the said presents and the incurring of expenditure on the marriage was a consideration for the bride and therefore the marriage was in an Asura form. The Divisional Bench rejected the contention. Pandrang Row J. observed at page 481: "It is a well known fact that, whatever the custom is, the bridegroom and his people also spend a considerable sum of money in respect of the marriage whenever they can afford it. Such expenditure obviously does not convert the marriage which is otherwise in the Brahma form into one which is in (1) (2) A.I.R. 1938. 479. 268 the Asura form. " The learned judge proceeded to state at page 480 thus : "So far as our Presidency is concerned, all marriages among Hindus are presumed to be in the Brahma form unless it is proved that they were in the Asura form; in other words, it is incumbent on the party who alleges that a particular marriage was in the Asura form to prove that bride price was paid in respect of the marriage by the bridegroom or his people to the bride 's father" and the present given to the bride 's father the learned judge remarked that this customary present would not necessarily amount to payment of bride 's price. Abdur Rahman J., added that 'if a party wishes to assert that the marriage was Asuric in form, he must establish that some price was paid for the bride in pursuance of either of an express or implied contract to the bride 's father or on his account. " This judgment we may say so with respect puts the principle on a correct legal basis and brings out in bold relief the distinction between bird 's price on the one hand and the presents and the expenditure incurred in respect of the marriage by one or the other of the parties on the other hand Patanjali Sastri J., in 'V.S. Velavutha Pandaram vs section Suryamurthi Pillai ' (1) approached the case if we may say so from a correct perspective. There a sum of Rs.500/ was paid by the bridegroom to the bride 's father for the specific purpose of making jewels for the bride in pursuance of a stipulation for such gift as a condition of giving the girl in marriage. The learned, judge held that the said payment was not bride 's price and did not make the marriage an Asura marriage. The learned judge in passing referred to the case of 'Samu Asari vs Anachi Ammal ' (2), and observed as follows : " 'As the father was benefitted by such contribution in that he was relieved to that extent from defraying such expenses (1) (2) 269 himself, the marriage was one in the Asura form. This view has been criticised in the latest edition of Mayne 's Hindu Law as not really warranted by the Hindu Law texts, and the point may have to be reconsidered when it arises. " Patanjali Sastri, J., again considered this point in Second Appeal No. 2272 of 1945. There on the occasion of the marriage one sovereign was given along with the other presents to the bride 's father as Memmekkanoni. The question was whether the mere adoption of this customary form per se brought the marriage within the category of an Asura or unapproved marriage. The learned judge expressed the view that the payment of memekanom no longer signifies in substance and in truth consideration for the transfer of the girl but has survived as a token ceremonial payment forming part of the marriage ritual. The said judgment was confirmed by a Divisional Bench of the said High Court in 'Vedakummpprath Pillai Muthu appellant vs Kulathinkai Kuppan '. (1) Balakrishna Ayyar, J., speaking for the Bench neatly summarised the law on the subject at page 804 thus : "One essential feature of an Asura marriage, the feature which makes the form objectionable, is that the father of the bride receives a gratuity or fee for giving the girl in marriage. Ordinarily, it would be expected of every decent and respectable father when he selects a husband for his daughter to make his selection uninfluenced by any considerations other than the welfare of the girl. But when he receives a payment for his personal benefit, a very objectionable factor would influence his selection and it is clearly this which the ancient lawgivers took objection to and therefore relegated the form to the category we call 'disapproved '. When the father accepts money and allows his greed or avarice to sway his judgment, he thereby converts what is intended to be a sacrament into a commercial transaction. " With respect we are in full agreement with the observations of the learned judge. Commenting upon the (1) 270 argument built upon the payment of one sovereign to the bride 's father the learned judge observed : "In most, though not necessarily in all cases, the payment has lost all its original significance and survives only as a ritualistic form '; it has become a ceremonial symbol devoid of any content or meaning or purpose. x x x x Now when a father gives such a large amount as stridhanam and receives one sovereign in compliance with traditional form it would be very wrong to say that he had been selling or mortgaging the girl and that he received the sovereign from greed or love of gain. " The foregoing discussion leads to the following results . Under Hindu Law marriage is a sacrament and it is the religious duty of the father to give his daughter in marriage to a suitable person but if he receives a payment in cash or in kind as a consideration for giving his daughter in marriage he would be converting a sacrament into a commercial transaction. Brahma marriage satisfies the said test laid down by Hindu Law. But from Vedic times seven other forms of marriage were recognized based on custom and convenience. Asura form is one of the eight forms of marriage. The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride 's father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride 's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an A 'sura marriage. There is also nothing in the texts to indicate that the bearing 271 of the expenditure wholly or in part by the, bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride 's father or others entitled to give her in marriage do not take any consideration for the marriage, or any way benefit thereunder. The fact that the 'bridegroom 's party bears the expenditure may be due to varied circumstances. Prestige, vanity, social custom, the poverty or the disinclination of the bride 's father or some of them may be the reasons for the incurring of expenditure by bridegroom 's father on the marriage but the money so spent is not the price or consideration for the bride. Even in a case where the bride 's father though rich is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom 's father had not incurred the said expenditure in whole or in part, the bride 's father might have to spend some money, on that account such as indirect result could not be described as price or consideration for giving the bride. Shortly stated Asura marriage is a marriage where the bride 's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage. The test is two fold: There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride. When this element of consideration is absent, such a marriage cannot be described as Asura marriage. As the Asura marriage does not comply with the strict standards of Hindu Law it is not only termed as an unapproved marriage, but it has been consistently held that whenever a question arises whether a marriage is a Brahmu or Asura, the presumption is that the marriage is in Brahma form and the burden is upon the person who asserts the con trary to prove that the marriage was either an Asura or any other form. 272 With this background let us look at the facts of the case. Though in both the plaints it is stated that Bangaru Ammal had been married in Asura form, no particulars are given but in the evidence the plaintiff 's witnesses in one voice depose that the custom in the Rakambala caste to which Bangaru Ammal and her husband belonged, is to give money in the shape of 'parisam ' to the bride 's father at the time of the betrothal. The witnesses who depose to Bangaru Ammal 's marrage say that at the time of her betrothal a sum of 1,000/ was paid as ' parisam '. Both the Courts did not accept this evidence and they held that it had not been established that a sum of Rs. 1,000/ was paid as 'parisam ' at the time of the betrothal of Bangaru Ammal. This finding is not attacked before us. It is argued that the evidence discloses that there is a practice in the said caste to give Kambu as IT parisam ' to the bride 's father as a bride 's price and the said practice supports the evidence that in the case of the marriage of Bangaru Ammal also such a 'parisam ' was paid as consideration for the marriage. On the question of the said alleged practice the evidence does not support it. P. W. I to P. W. 10 depose. that "parisam ' is paid in cash for marriages in their community varying from Rs. 150/ to Rs. 1,000/ . This evidence has been rightly ' disbelieved by both the courts. The evidence does not bear out the case of giving of 'parisam ' in Kambu. Some of the witnesses also depose to the payment of Rs. 1000/ as 'parisam ' at Bangaru Ammal 's marriage but that was not accepted by the courts. The evidence destroys the case that 'parisam ' was paid at her marriage in Kambu. No witness examined in the two cases says that Kambu is paid at the marriages of the members of the community or was paid at the time of Bangaru Ammal 's marriage as a consideration for the marriage but it is said that the witnesses who had been 273 examined in the earlier suit whose evidence has been marked by consent in the present case deposes to that fact. Errammal, the mother of Bangaru Ammal, whose evidence is marked as P. 11 (R) deposes that when Thevaram Zamindar married her the 'parisam ' was only Rs. 1,000/ and that when her daughter was married, the 'parisam ' was also Rs. 1000/ . In cross examination she says that according to the custom of the community, it is the practice to bring a mapelli for the nischithartham (betrothal function) and it is customary also to bring cumbu and flour at the time of the marriage and sprinkle it in the marriage hall. This evidence indicates that the 'parisam ' is only given in cash but Kambu is brought at the time of the marriage and sprinkled in the marriage hall presumably for the purpose of purification. This evidence does not show that Kambu is given as "parisam ' for taking the bride. Sermalai Naicker who gave evidence in an earlier suit which is marked as P. 11 (a) belongs to Rajakambala caste. In his chief examination he says that he paid Rs. 200/ as 'parisam ' at the time of the marriage and paid Rs. 300/ as "parisam ' for the marriage of his son and received Rs. 200/ as 'parisam ' for the marriage of his daughter. In cross examination he says that on the betrothal day only one kalam of cumbu and cash are given to the bride 's party and that the Kambu is used by the bride 's people and that at the time of the marriage 3 or 4 marakkals of cumbu are again brought which is thrown over the bride and the bridegroom byway of blessing. He adds that throwing of the kambu is a ritual in marriage ceremonies and that Kambu and cash are called "Parisam '. This evidence brings out the distinction between cash paid as the 'Parisam ' and Kambu brought to conform with the traditional ritual. 274 R.W. 3 in the earlier suit whose evidence is marked as D. 317 says that he was a guru of the Rajakambala caste and that he performed the marriage of Moolipatti zamindar. He further says that Kambu is taken by the bridegroom 's party to the bride 's house when the betrothal takes place and that seven pieces of jaggery, a cloth etc. are also taken and that no money is given in the caste. We do not see how this evidence supports the practice of paying kambu as 'parisam '. indeed his evidence shows that Kambu is taken only as a part of the ritual and he is definite that no 'parisam ' is paid in the caste. Ramasami Naicker Zamindar of Ammaianaickoor. was examined in the previous suit and his evidence is marked as D 416. He is definite in the chief examination that no 'parisam ' is paid in his community. He says that it is rather undignified to receive 'Parisam ' and that he has not seen any parisam paid in his caste. Whether this witness is speaking truth or not, his evidence does not support the plaintiff. From the aforesaid evidence it is not possible to hold that either there is a practice in the Rajakambala family to give Kambu as 'parisam ' for the bride or kambu was paid as 'parisam ' at the time of the betrothal ceremony in connection with Bangaru Ammal 's marriage. Reliance is placed upon Nelson 's Manual of the Madhura Country published in 1.865. At page 82 of Part II in that /Manual the following passage appears : "After this, the price of the bride, which consists usually of 7 kalams of kambu grain, is solemnly carried under a canopy of white cloth towards the house of the bride 's father 275 its approach being heralded by music and dancing. The procession is met by the friends of the bride who receive the price, and allege together to the bride 's house. " Similarly, in Thurston 's Castes and Tribes of Southern India published in 1902 in Volume VII under the heading 'Thotti Naickers ' at page 192, the following passage is given "The bride price is 7 kalams of Kambu and the couple may cat only this grain and horsegram until the wedding is over. " The evidence adduced in this case does not support the said statement. Even if those formalities are observed, they are only the relics of the past. That practice represents only a symbolic ritual which. has no bearing upon the reality of the situation. Indeed the witnesses in the present case realizing the ritualistic character of the said observances seek to base the case of the Plaintiffs on a more solid foundation but have miserably failed in their attempt. These passage s therefore do not help the plaintiffs. The next question is whether the expenditure for the marriage was incurred by the bridegroom 's party i. e. by the Mannarcottai Zamindar. The learned Subordinate judge held on the evidence that Thevaram Zamindar spent a large amount of money for the marriage but the Mannarcottai Zamindar also spent a sum of Rs. 300/ or Rs. 575/ for the marriage expenses. He expressed the view that if the matter was res integra, he would have held that the incurring of such an expenditure by the bridegroom 's party would not have made the marriage. an Asura marriage but felt bound by some of the decisions 276 of the Madras High Court to come to the opposite conclusion. The learned judges of the High Court came to the conclusion that the marriage expenses in their entirety were borne by the Mannarcottai Zamindar and it must have been either in pursuance of the custom or arrangement among the community. The evidence as regards the custom of the bride groom 's party incurring the expenses of the marriage is unconvinc ing. Indeed the learned counsel for the respondent does not rely upon custom but he prefers to base his case on the finding of the High Court that the entire marriage expenditure was incurred by the Mannarcottai zamindar. Let us now consider the evidence in this regard in some detail. P.W. 1 says in his evidence that Bangaru Ammal was the only child of the Thevaram Zamindar, that he was very affectionate to her and that he spent heavily for the marriage though he was not able to say how much he spent. P. W. 4 also says that Thevaram Zamindar gave her lot of jewels and finally gave her his entire estate. The evidence that Thevaram Zamindar spent large amounts on the marriage and gave lot of jewels to Bangaru Ammal must be true, for even in 1895 when the marriage of Bangaru Ammal took place it is inconceivable that the marriage would have been celebrated with a few hundred rupees that was given by the Mannarcottai zamindar. He must have spent much larger amount than that consistent with his status and position in life and particularly when he was celebrating the marriage of his only daughter. Now coming to the documentary evidence in support of the contention that Mannarcottai Zamindar met the entire expenditure, the respondents relied upon P. , P. and P. is a letter dated August 8, 1885, written by persons representing the Mannarcottai zamindar to the 277 Thevaram Zamindar office. Therein he stated :"You should soon get ready there all the materials and samans for the shed and 'Panthal ' in connection with muhurtham. We will start and come without fail". This letter does not show that Mannarcottai Zamindar gave the money for the materials and samans for the said 'Panthal '. It was only an intima tion that everything should be made ready for the marriage as Mannarcottai people would be coming there without fail. Exhibit P. 23 is the account of expenditure incurred on Bangammal 's marriage from 1.9.1895 to 5.9.1895. It is said that it represents the amount spent on behalf of Mannarcottai zamindar and the amount recouped from him. The document is not very clear. The account does not appear to represent the entire expenditure incurred at the time of marriage because the entry about charges for pounding 50 kalams of paddy shows that 50 kalams of paddy must have been supplied from Thevaram stores and there is nothing on the account to show that 50 kalams were purchased on Mannarcottai account. Be that as it may this account only shows that Mannarcottai zamindar paid about Rs. 300/ but the learned counsel for the respondents argued relying upon exhibit P. 27 that even the balance of Rs. 295/14/in exhibit P. 23 shown as the excess amount spent by Thevaram Estate was paid off by the Mannarcottai zamindar to the Thevaram Zamindar. Exhibit P. 27 is an entry dated September 30, 1885 in the account book of Thevaram Zamindar. It show that the Maha raja meaning Thevaram Zamindar gave to Thevaram office Rs. 290. It does not establish the respondent 's version. The only merit of the contention is that the two figures approximate each other. If that figure represents the amount paid by Mannarcottai Zamindar to Thevaram in full discharge of the amount due from the former to the latter, the entry would have run to the effect that the balance of the amount due from Mannarcottai under Ex.p.23 was paid and it would have been credited in Mannarcottai 278 account. It may have been that the sum of Rs. 290/was the balance out of the amount that Thevaram Zamindar took with him when he went to Mannarcottai for meeting his expenditure. The other accounts P. 25 and P. 26 filed in the case are neither full nor clear and no definite conclusion could be arrived at on the basis of the said account. We therefore hold on the evidence and probabilities that Thevaram Zamindar had spent large amounts in connection with the marriage and Mannarcottai zamindar spent only about Rs. 300/ in connection with the said marriage. Such a finding does not bring the marriage within the definition of Asura marriage as explained by us. earlier. The expenditure incurred by the bridgegroom 's party was not and could not have been the consideration for the Thevaram Zamindar giving his daughter in marriage. It is contended that the High Court found that there was no 'Kanyadhan ' at the time of the Bangaru Ammal 's marriage and as 'Kanyadhan ' was necessary ingredient of Brahmu marriage, Bangaru Ammal could not have been married in that form. The High Court relying upon the evidence of Veluchami Naicker who is stated to be the Guru of the caste held that 'Kanyadhan ' had not been observed in Bangaru Ammal 's marriage. The learned counsel for the appellant contests the correctness of the finding and he relies upon some invitations in support of his contention that 'Kanyadhan ' was observed in Bangaru Ammal 's marriage but the documents are not clear on the, point. The Guru only narrates some of the ceremonies held in marriages in the community but he does not expressly state that the ceremony of 'Kanyadhan ' was not observed at Bangaru Ammal 's marriage. In this state of evidence the presumption in. Hindu Law that the marriage was performed in Brahmu form must be invoked. As we have pointed out under the Hindu Law whether a marriage was in Brahmu form or Asura form the Court will presume 279 even where the parties are Shudras that it was in the Brahmu form. Further where it is proved that the marriage was performed in fact the Court will also presume that the necessary ceremonies have been performed. See 'Mauji Lal vs Chandrabati Kumari '(1). This presumption has not been rebutted in this case. That apart the argument of the learned counsel for the respondents mixes up an essential ingredient of the Brahmu marriage, namely the gift of the girl to the bridegroom with a particular form of ritual adopted for making such a gift. In both forms of marriages a girl is given by father or in his absence by any other person entitled to give away the girl to the bridegroom. In the case of Brahmu marriage it takes the form of a gift while in the case of Asura marriage as price is paid by the bridegroom, ,it takes the form of a sale. As we have held that in Bangaru Ammal 's marriage no consideration passed from the bridegroom to the bride 's father, the father must be held to have made a gift of the girl to the bridegroom. To put in other words there was 'Kanyadhan ' in Bangaru Ammal 's marriage. We therefore reject this contention. Lastly reliance is placed on the conduct of the appellant in not questioning the correctness of the finding given by the learned Subordinate judge in his application for delivery that the marriage was in Asura form. The learned counsel for the appellant sought to explain his conduct but in our opinion nothing turns upon it. If the marriage was not in Asura form as we held it was not, the conduct of the appellant could not possibly make it an Asura marriage. In this view it is not necessary to give opinion on the other questions raised in the appeals. In the result the decrees of the High Court are set aside and both the suits are dismissed with costs throughout. One hearing fee. Appeals allowed (1) (1911) L.R. 38 I.A.122.

The main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form. The contention of the appellant was that it was not in Asura form. Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged. They had given evidence that 'a sum of Rs. 1000 was paid as 'Parisam ' to the father of bride but that evidence had been rejected by both the courts. Respondents pointed out to the giving of Kambu by bridegroom 's party to the bride 's party at the time of betrothal and expenditure of Rs. 300/ by bridegroom 's party in connection with the marriage of Bangaru Ammal and maintained that it was Asura marriage. Held, that the marriage of Bangaru Ammal was not in Asura form but in Brahma form. There was nothing to show that there was a practice in the family to give Kambu as 'Parisam for the bride or Kambu was paid as 'parisam ' at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal. The father of the bride had spent large amounts and the bridegroom 's party had spent only about Rs. 300/ in connection with the said marriage. The expenditure incurred by the bridegroom 's party was not and could not have been the consideration for the father giving his daughter in marriage. There is a presumption in Hindu Law that every Hindu marriage is in Brahma form and that pre sumption has not been rebutted in this case. The court was entitled to presume that the necessary ceremony of Kanyadan must have been performed. As no consideration passed from the bridegroom to the father of the bride, the father must be held to have made a gift of the girl to the bridegroom. 245 The essence of the Asura marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride 's father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornament given is not the consideration for taking the bride but only given to the bride or even to the bride 's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an Asura marriage. There is also nothing in the texts to indicate that the bearing of the expenditure wholly or in part by the bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride 's father or others entitled to give her in marriage do not take any consideration for the marriage, or in any way benefit thereunder. The fact that the bridgeroom 's party bears the expenditure may be due to varied circumstances. Prestige, vanity, social custom, the poverty or the disinclination of the bride 's father or some of them may be the reasons for the incurring of expenditure by bridegroom 's father on the marriage but the money so spent is not the price or consideration for the bride. Even in a case where the bride 's father, though rich, is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom 's father had not incurred the said expenditure in whole or in part, the bride 's father might have to spend some money on that account, such an indirect result could not be described as price or consideration for giving the bride. Asura marriage is a marriage where the bride 's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage. The test is two fold. There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride. When this element of consideration is absent, such a marriage cannot be described as Asura marriage. Jaikisondas Gopaldas vs Harikisandas Hulleshandas Born. 9, Vijarangam vs Lakshman, (1871) 8 Born. H. C. Report. 244, Muthu Aiyar vs Chidambara Aiyar, , Chunilal vs Surajram, (1909) I. L.R. 33 Born. 433, section Authikesayulu Chetty vs section Ramanvjan Chetty" (1909) 1. L. R. , Gabrielnathaswami vs Valliammai Ammal, A. 1. R. , Ratnathanni vs Somasundara 246 Mudaliar, , Samu Asari vs Anachi Ammal, ; Kailasanath Mudaliar vs Parasakthti Vadivanni, Mad. 488, Sivangalingam Pillai vs K. V. Ambalayana Pillai, A. 1. R. ; V. section Velavutha Pandaram vs section Suryamurthi Pillai (1941) 2 M. L. J. 770 and Vedakummapprath Pillai vs Kulathinkai Kuppan, , referred to.

Appeal No. 212 of 1961. From the judgment and decree dated December 11, 1957, of the Bombay High Court in First Appeal No. 640 of 1957. G. section pathak, N. D. Karkhanis, B. Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. C.K. Daphtary, Solicitor General of India, N.S. Bindra and R. H. Dhebar for P. D. Menon, for the respondents. February 8. The judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question which this appeal raises for our decision is whether the appellant Shankar Narayan Ranade has established his title to the running water of the river Valdevi which runs through his Inam village Vadner. The said village had been granted to the ancestors of 887 the appellant by the Peswa Government in 1773 A.D. This grant was continued by the British Government when the British Government came in power. The river Valdevi has its origin in the hills of Trimbak and from those hills it flows to Vadner and then to Chehedi where it joins the river Darna and thus loses its individuality. The total length of this river is about 25 miles, while its length within the limits of Vadner village is about 2 miles 82 furlongs. The Darna river after its conjunction with Valdevi proceeds towards Sangvi and there is merged with Godavari river : The appellant is one of the sharers in the Inam village of adner and he brought the present suit No. 12/1950 in the Court of the Civil judge (Senior Division) at Nasik, claiming reliefs against the Union of India and the State of Bombay, respon dents 1 & 2 respectively, on the basis of his title to the running water of the said river. It appears that in 1942, during the period of the 11 Would War, the Military authorities constructed barracks and other residential quarters for the army personnel within and outside the limits of Vadner. They also built a dam across the river Valdevi within the limits of Vadner and dug a well near the bank of the river. This well was fed with water carried by two channels drawn from the river. When the water reached the well, it was pumped from the well and duly stored in four reservoirs where it was filtered and then it was carried by means of pipes to the residential area occupied by the military personnel. The appellant then approached the military authorities and also the Government of Bombay and claimed compensation for the use of the water and the lands by the military authorities. Since his request for adequate compensation was not met, he filed the present suit on March 11, 1950, in a representative character under O. 1 r. 8 C. P. C. 888 In this suit, the appellant speaking for himself and for the other sharers in the Inam village of Vadner alleged that the jagirdars of the village were, full owners of the entire area of that village, including the land, the stream and the water flowing through the stream within the limits of the village. According to the plaint, the acts of diversion of water committed by the military authorities had deprived the appellant and the other Inamdars of their right to utilise that water for their own gains and thus, had caused injury and damage to them. As compensation for this damage, the appellant claimed Rs. 1,11,250/ from the respondents. The appellant further made a claim for Rs. 750/ as compensation for the use of his land by the military authorities. The diversion of water and the use of land continued from 1942 to 1949. Some other incidential reliefs were also claimed by the appellant. Respondent No. 2 contested the appellant 's claim. It urged that the Inamdars were not the grantees of the soil, but were the grantees of the royal share of the revenue only; and it was urged that in any case, they had no ownership over the flowing water of the Valdevi river. Respondent No. 1 adopted the written statement of respondent No. 2 and filed the Purshis in that behalf. According to the respondents, the river Valdevi had become a notified canal by virtue of a notification issued on February 17, 1913 under section 5 of the Bombay Irrigation Act, 1879, and in consequence, the Inamdars had lost their rights, if any, in the waters of the said river and respondent No. 2 had the absolute right of the use of the said water. A plea of limitation was also made by both the respondents. The learned trial judge made findings in favour of the appellant on all the issues. He held that the Inamdars were the grantees of the soil, that the 889 river Valdevi and its flowing water belonged to them, that the notification on which reliance was placed by the respondents was invalid, that the acts of the military authorities were unauthorised and that the appellant was consequently entitled to the compensation for the use, by the military authorities, of the water of the river and his lands and also for the loss of his income from the river bed. According to the trial Court, the appellant was entitled to this compensation only for two years before the date of the suit and the rest of his claim was barred by time. Accordingly, it passed a decree in favour of the appellant for an amount of Rs. 26,788/1/as compensation for the use of water up to December 31, 1949, directed that the compensation for the use of water for the period subsequent to January 1, 1950 should be ascertained in execution. proceedings, and awarded compensation @ Rs. 100/ per annum for the use of the land, and Rs. 50/ per annum for the loss of income from the river bed during the period that the act of the military authorities continued. This decree was challenged both by the appellant and the respondents by cross appeals Nos. 634/1954 and 640/1953 respectively. 'The appellant claimed a larger amount of compensation, whereas, according to the respondents, no compensation was payable in respect of the alleged diversion of the running water of the river Valdevi. It appears that before the High Court, the respondents did not dispute the finding of the trial Court that the Inamdars were the grantees of the soil and conceded that the rights of the Inamdars such as they were to the waters of the river Valdevi had not been extinguished by the notification issued under the Bombay Irrigation Act. It was, however, urged that the Valdevi river being a notified canal, the military authorities could have used its water by making appropriate applications under 890 sections 17 and 27 of the said Irrigation Act; but since there was no evidence to show that any such applications had been made, the said point did not survive. The main argument urged by the respondents in their appeal was that the appellant was not the owner of the running water of the stream and so, he had no right to claim any compensation for the alleged diversion of the said water by the military Authorities. The High Court has substantially accepted this contention. It has held that as owners of the lands in the village situated on both banks of the river the Inamdars were entitled to the use of the water of the river as riparian owners and what belonged to them was water which they took out from the river and appropriated to their use; they were, however, not entitled to claim title over the flowing water of the river and so, the diversion of the flowing water of the river cannot sustain their claim for compensation. The decree passed by the trial Court in respect of compensation for the wrongful use of the lands was not challenged by the respondents. In the result, the High Court modified the decree passed by the trial Court by setting aside that part of it which related to, the compensation for the use of the water of the Valdevi river by the military authorities and confirmed the rest of the directions issued by the decree. It is against this decree that the appellant has come to this Court with a certificate issued by the High Court ; and the main point which has been urged before us by Mr. Pathak on behalf of the appellant is that the high Court was in error in rejecting the appellant 's claim that the Inamdars of the village were the owners of the running water of the river Valdevi during its course within the limits of the Inam village of Vadner. In support of the appellant 's case, Mr. Pathak has urged that in construing the Sanad on which the appellant 's title is founded, it would be necessary to 891 bear in mind two important considerations. The first consideration is that the flowing water of a river constitutes property which can belong to a citizen either by grant or otherwise and assistance is sought for this argument from the provisions of section 37 of the Bombay Land Revenue; Code (Act V of 187(9). Section 37 (1) provides, inter alia, that all public roads, lanes and paths which are not the property of individuals, belong to the Crown, and amongst the items of property specified in this clause are included rivers, streams, nallas, lakes, tanks and all canals and watercourses, and all standing and flowing water The argument is that this sub section Postulates that the items of property specified by it can belong to private individuals, and it provides that if they are not shown to belong to private individuals, they would vest in the State. Therefore, in construing the Sanad, We ought to remember that the river and its flowing water constitute property which can be granted by the Ruler to a citizen. The other consideration on which Mr. Pathak has relied is that tinder the provisions of section 8 of the Transfer of Property Act, it should be assumed that unless a different intention is expressly or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Mr. Pathak contends that assuming that prior to the grant, the Peshwa Government as the ruling power of the day was the owner of the river and its flowing water,, when the said Government made a grant to the appellant 's predecessors, the principle enunciated by section 8 of the Transfer of Property Act should be applied and the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessary implications. 892 Bearing those two considerations in mind, let us consider the terms of the Sanad itself. The Sanad is drawn in terms which are consistent with the pattern prevailing in that behalf in those days and contains the usual familiar recitals. The relevant portion of the Sanad reads as follows : " 'Seeing the respectable Erahsins, performing Snan Sandhya (bath and prayer) leading ascetic life, devoted to the performance of their duties as laid down in Shrities and Smrities, the Government has constructed houses there and given to (them). Thinking that if the same are given to them, it would be beneficial to the Swami and to the Kingdom of Swami, the village of mouje Vadner, Pargana aforesaid in (a) (b) Swarajya as well as Moglai Dutarfa (on both sides) has been given to them as Nutan (New) (c) (d) Inam together with Sardeshmukhi, Inam Tizai, (e) (f) (g) Kulbab Kulkanu, Hali Patti, and Pestr Patti excluding (the rights of) Hakkadar and Inamdar and together with water, trees, grass, wood stones and hidden treasures, for maintenance of their families." The Sanad then defines the shares in the current revenue of the said village amongst the respective shares. In the concluding portion, it makes certain other provisions with which we are not concerned in the present appeal. This Sanad was executed in 1773 A. D. During the British rule, this Sanad was confirmed in 1858 A. D. It is common ground that the material terms which have been construed for the purpose of determining the title of the appellant are contained in the earlier sanad. It would be noticed that the Sanad refers to the rights in water, trees, grass, wood, stones and hidden 893 treasures. It is well settled that the word "water (jal)" refers to water in tanks or wells and does not refer to the flowing water of the river. Indeed, if a grant of the river including its flowing water is intended to be made, the Sanad would have definitely used the word " 'river (nadi)", because it is wellknown that when rivers, drains or culverts are intended to be gifted, the Sanads usually use the words "nadi and nalla". Therefore, on a plain construction of the relevant words used in the Sanad, there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the flowing water of the river. The specific reference to water meaning water of the well or the pond serves two purposes ; it defines the kind of water which is conveyed, and by necessary implication, excludes the grant of flowing water of the river. Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word "water" means only water in the ponds or wells and does not refer to the flowing water of the river, vide Annapurnabai Gopal vs Government of Bombay (1). Therefore, the two considerations on which Mr. Pathak strongly relied in support of his construction of the Sanad do not really assist him. The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so, by necessary implication, excludes the flowing water of the river. Mr. Pathak, however, suggests that it is not disputed by the respondents that the Sanad in question grants title to the soil of the village and is not confined to the royal share of the revenue only ; and he, argues that the grant of the soil necessarily means the grant of the bed of the river while it flows within the limits of the Inam village. If the bed of the river has been granted to the appellant 's predecessors by the Sanad, why does it not follow that the water flowing (1) , 894 on the said bed during the said limits belongs to the appellant ? The title to the running water of the river must, Mr. Pathak says, go with the title to the bed of the river. There are two difficulties in accepting this contention. The first difficulty is that the use of the word "water (jal)" in the Sanad, as we have already held, excludes the running water of the river. Besides, it is by no means clear that the title to the flowing water of the river necessarily goes with the title to the bed of the river. As was observed by Lord Selborne in Lyon vs Fish mongers ' Company. " 'The title to the soil constituting the bed of a river does not carry with it only exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. Therefore, the argument that the grant of the soil of the village including the bed of the river must necessarily include the grant of the title to the flowing water of the river can not be accepted. In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles & 2 furlongs. It is not a case where the whole of the stream of the river from its origin to its merging in another river runs entirely through this village. If a river takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village, that would be another matter. In the present case, if the appellant 's right to the following water of the river is conceded, it would mean that the Inamdars would be able to divert the water completely and destroy the rights of the other riparian owners whose lands are situated outside the village. They may be able to pollute the water or do anything with it to the prejudice of the said riparian owners. Such rights cannot be claimed by the appellant unless the Sanad in his favour makes the grant 895 of,the running water in terms. As we have already seen, the Sanad not only does not make any such grant, but by necessary implication also excludes the running water from the purview of the grant. Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellant 's right as the riparian owner and that, according to him, would furnish him with a cause of action for claiming damages against the respondents. In this connection, Mr. Pathak invited our attention to the observations of Parke, B. in Embrey vs Owen. (1). "Flowing water," said Parke, B., "is public juris in this sense only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes ; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only for an unreasonable and unauthorised use of this common benefit that any action will lie." In this connection, Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State for India vs Subbararayudu (1). In that case, the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim. "A riparian owner observed Viscount Dunedin, "is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream. In ordinary cases, the fact that his land abuts on the stream makes him the proprietor of the bed of the (1)(1851) 6 E,.c. 353 : ; (2) (1931) L,R. 59 I.A. 56, 63 64, 896 stream usque ad medium filum. But he may not be. He may be ousted by an actual grant to the person on the other side, or he may be and often is ousted by the Crown when the stream is tidal and navigable, the solum of the bed belongs to the Crown. " It was also observed that "the right of a riparian owner to take water is first of all, for domestic use, and then for other uses connected with the land, of which irrigation of the lands which form the property is one. This right is a natural right and not in the strict sense of the word an easement, though in many cases it has been called an easement. " We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was, the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water melons etc., and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the 'village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellant 's claim that the acts of the military authorities had prejudicially affected the appellant 's rights as a riparian owner to the use of the water, and that means, on the record 897 there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner. The result is, the appeal fails and is dismissed with costs, two sets; one hearing fee. Appeal dismissed.

The appellant was one of the sharers in the Inam village of vadner and brought a suit against respondents claiming relief on the basis of his title to the running water of river valdevi. During World War 11, the military authorities constructed residential quarters within and outside the limits of vadner. They built a dam across the river within the limits of vadner and dug a well near the bank of the river which was fed by the river water and the water was carried to the residential areas. The diversion of water and the use of land continued from 1942 to 1959, which deprived the appellant and the other Inamdars of their right to utilise that water for their own gain and of others ; this had caused injury and damage to them, for which, the appellant claimed compensation from the respondents. According to the respondents, by virtue of a notification under section 5 of the Bombay Irrigation Act, 1879, the river had become a notified canal and consequently the Inamdars had lost their rights, if any, in the waters of the said river. They also took a plea of limitation. The trial court decreed the suit and held that the appellant was entitled to the compensation only for two years before the date of the suit and the rest of his claim was barred by time. The decree was challenged both by the 886 appellant and the respondents by cross appeals in the High Court. The High Court dismissed the appeal with modifications. Then followed an appeal to this court on certificate. Held, that the use of the word "water " in the sanad, pro perly construed, excludes the running water of the river and it could not be said that title to the flowing water of the river went with the title to the bed of the river. If the sanad made no grant of the running water in terms, the appellant could not claim the same as the riparian owner. Anapurnabai Gopal vs Government of Bombay (1931) 47 Bom. L. R. 839 and Lyen vs Fish Mongers ' Company [1876] 1 App. Cas. 662, referred to. Held, further, that the appellant could not be allowed to make an alternative case on the ground of his rights as a riparian owner as there was neither any allegation in the plaint nor any evidence on the record to that effect.

Appeal No. 614 of 1966. Appeal by special leave from the judgment and order dated March 24, 1965 of the Andhra Pradesh High Court in Civil Revision Petition No. 966 of 1962. A. V. V. Nair, for the appellant. P. Ram Reddy and B. Parthasarathy, for the respondent. The Judgment of the Court was delivered by Mitter, J. This appeal by special leave is from a common judgment and order of the High Court of Madras disposing of three Revision Applications arising out of O.P. No. 95 of 1948 filed under section 4(3) and (4) of the Andhra Pradesh (Andhra Area) Estates Communal Forest and Private Lands (Prohibition of Alienation) Act, 1947 (hereinafter called the 'Act). The central question in this appeal is, whether certain transfers of lands alleged to be forest lands made by the 6th respondent herein became void and inoperative under section 4 of the Act. The said respondent who was a big landholder granted a patta to his wife, 7th respondent, for Ac. 100 00 of 'land on November 9, 1944. Another patta was similarly granted to the appellant in respect of Ac. 90 00 of land on November 25, 1944 On the same day, respondent No. 6 granted a third patta for Ac. 331 200 00 of land to respondents 2 to 5. The Act came into force on October 25, 1947. On October 15, 1948 Original Petition No. 95 of 1948 was filed in the District Court of Eluru by two ryots for a declaration that the alienations we 're void and did not confer any rights on the alienees. Thereafter the said petition was split into two parts, O.P. 95/1943 being directed against respondents 1 to 6 while O.P. No. 95 (a) of 1948 was directed against the 7th respondent. The petitions were disposed of by an order of the District Judge dated July 18, 1950 holding that lands covered by the pattas were forest lands and all the alienations were void and inoperative. A civil Revision Petition was filed in the High Court of Madras by respondents 1 to 5 against the order of the District Judge. This was numbered as C.R.P. No. 22 of 1951. Respondent No. 7 filed a Miscellaneous Petition No. 9534 of 1950 in the High Court of Madras. By order dated 6th August 1952 both the petitions were dismissed by a single Judge of the Madras High Court. This order was how ever set aside in a Letters Patent Appeal filed by respondents 1 to 5 (No. 261 of 1952) wherein it was held that the petitioners as ryots had no right to maintain the petition but reasonable opportunity should be given to the State to get transposed as the petitioner. The State Government thereafter got itself transposed as the petitioner. The District Court however held that he petition was not maintainable by reason of the repeal of the Act by reason of the passing of a subsequent Act, XXVI of 1948 styled the Madras Estates (Abolition and Conversion into Ryotwari ) Act, 1948, hereinafter referred to as the Act of 1948. Against this the State Government filed a Revision Petition in the High Court of Andhra Pradesh numbering 1555 of 1955. The High Court held that the dismissal of the petition on the ground of repeal of the Act was improper and that the petition should be disposed of on the merits and remitted the matter to the District Judge. By a judgment dated November 30, 1960 the District Judge allowed the petition negativing the contentions of the respondent but holding that the lands were forest lands and transfers thereof were void. The appellant and others filed Civil Revision Petitions in the High Court of Andhra Pradesh which were disposed of and dismissed by a common judgment dated August 24, 1965. Hence this appeal. The points urged before us by learned counsel for the appel lant were: (1) The Act applied only to lands which were admittedly forest lands and the operation thereof could not be extended to lands in respect of which there was a dispute as to the nature thereof. It was argued that any such dispute could only be decided by the Settlement Officer and not by the District Judge. (2) The Act was a temporary Act and all proceedings thereunder came to an end with the repeal of the Act; and (3) A notification 332 by the State Government describing the land as forest land was as essential pre requisite to the application of the Act. The purpose of the Act was to prohibit the alienation of communal, forest and private lands in estates in the Province of Madras and the preamble to the Act shows that it was enacted to prevent indiscriminate alienation of communal, forest and private lands in estates in the Province of Madras pending the enactment of legislation for acquiring the interests of landholders in such estates and introducing ryotwari settlement therein. No fixed duration of the Act was specified and it is impossible to hold that merely because of the above preamble the Act became a tempo rary Act. The definition of 'forest land ' is given in section 2(b) of the Act reading : "forest land" includes any waste lands containing trees and shrubs, pasture land and any other class of land declared by the State Government to be forest land by notification in the Fort St. George Gazette; Sub section (1) of section 3 prohibited landholders from selling, mortgaging, converting into ryoti land, leasing or otherwise assigning or alienating any communal or forest land in an estate without the previous sanction of the District Collector, on or after the date on which the Ordinance which preceded the Act came into force, namely, the 27th June, 1947. Section 4(1) provided that : "Any transaction of the nature prohibited by section 3 which took place, in the case of any communal or forest land, on or after the 31st day of October 1939 . . shall be void and inoperative and shall not confer or take away, or be deemed to have conferred or taken away, any right whatever on or from any party to the transaction : This sub section had a proviso with several clauses. Our attention was drawn to clauses (iii), (iv) and (v) of the proviso but in our opinion none of these provisos was applicable to the facts of the case so as to exclude the operation of sub section (1) of section 4. Under sub section (3) of section 4. "If any dispute arises as to the validity of the claim of any person to any land under clauses (i) to (v) of the proviso to sub section (1), it shall be open to such person or to any other person interested in the transaction or to the State Government, to apply to the District Judge of the district in which the land is situated, for a decision as to the validity of such claim. " 333 Under sub section (4) the District Judge to whom such application is made was to decide whether the claim to the land was valid or not after giving notice to all persons concerned and where the application was not made by the State Government, to the Government itself, and his decision was to be final. Madras Act XXVI of 1948 was passed on ' April 19, 1949 being an Act to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras, and the introduction of ryotwari settlement in such estates. Apparently because of the preamble to the Act it was contended that with the enactment of the repeal of the Permanent Settlement by the Act of 1948 which also provided for the acquisition of the rights of landholders in permanently settled estates, the Act stood repealed. We fail to see how because of the preamble to the Act it can be said that it stood repealed by the enactment of the later Act unless there were express words to that effect or unless there was a necessary implication. It does not stand to reason to hold that the alienation of large blocks of land which were rendered void under the Act became good by reason of the passing of the later Act. Our attention was drawn to section 63 of the later Act which provided that "If any question arises whether any land in an estate is a forest or is situated in a forest, or as to the limits of a forest, it shall be determined by the Settlement Officer, subject to an appeal to the Director within such time as may be prescribed and also to revision by the Board of Revenue." In terms the section was only prospective and it did not seek to impeach any transaction which was effected before the Act and was not applicable to transactions anterior to the Act. In our opinion section 56(1) of the later Act to which our attention was drawn by the learned counsel does not fall for consideration in this case and the disputes covered by that section do not embrace the question before us. Madras General Clauses Act, 1 of 1891 deals with the effect of repeals of statutes. Section 8 sub section (f) thereof provides that "Where any Act, to which this Chapter applies, repeals any other enactment, then the repeal shall not a) to (e) (f) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine. penalty, forfeiture or punishment as aforesaid; and any such investigation legal proceeding or 334 remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. This shows that even if there was a repeal any investigation started before the repeal would have to be continued and legal proceedings under the Act could be prosecuted as if the repealing Act had not been passed. There is also no force in the contention that unless there was a notification under section 2(b) of the Act declaring a particular land to be forest land, the applicability of the Act would be excluded. The definition of forest land ' in that section is an inclusive one and shows that 'forest land ' would include not only waste land containing trees, shrubs and pasture lands but also any other class of lands declared by Government to be forest land. This does not mean that before a piece of land could be said to be forest land there would have to be a notification by the Government under the Act. Lastly, counsel contended that sub section (1) of section 20 of the later Act as originally enacted applies to forest lands and therefore the later Act became applicable thereto. The original section was however substituted for another by section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) (Amendment) Act, 1956 which was to be deemed to have come into force on April 19, 1949 being the date on which the Act of 1948 originally ,came into force. The section as it now stands did not confer any jurisdiction on the Settlement Officer to determine any question as to whether any land was forest land within the meaning of the Act and consequently the adjudication by the District Judge under sub section (4) of section 4 was quite competent. Accordingly we dismiss the appeal, but do not think it necessary to make any order for costs relating thereto. R.K.P.S. Appeal dismissed.

The appellant is a non resident shipping company with its local office in Calcutta. For its assessment to income tax for the years 1952 53 to 1956 57 the appellant filed returns disclosing taxable income computed on the basis of its annual turn over in its Indian trade but did not furnish particulars of its world income. The Income tax Officer computed the taxable business income for each year by application of a special formula which was accepted by the appellant. However, in computing the income, the Income tax Officer only allowed normal depreciation and other trade allowances admissible under the income tax Act 1922 and did not allow any initial depreciation or additional depreciation in respect of the ships of the appellant in any of the assessment years, because the ships acquired by the appellant were not introduced into the Indian business in the years in which they were newly acquired. The, orders of assessment were confirmed by the Appellate Assistant Commissioner but the Tribunal held that in respect of all the four ships, additional depreciation wag 'admissible under section 10(2) (vi a) of the Act, as claimed. The High Court, on a reference, answered the question against the assessee. HELD : Additional depreciation was not admissible to the appellant as an allowance in the computation of the taxable income by the special formula adopted by the Income tax Officer. It was common ground that the, appropriate method for determining the profits was the second method in r. 33. But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances. The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under r. 33, claim that additional depreciation should be allowed. [8 E] The Supreme Court in the present appeal was exercising an advisory jurisdiction and could not decide whether the computation of taxable income by the Incometax Officer by the application of the formula evolved by him was correct. Additional depreciation is a statutory allowance in the determination of taxable profit under section 10 of the Act, and in the case of a non resident where, actual income cannot be determined, and resort is had to r. 33, not when an empirical method is adopted for computation of the taxable income.

Appeal No. 81 of 1953. Appeal under article 132(1) of the Constitution of India from the Judgment and Order, dated the 18th April, 1951, of the High Court of Judicature for the State of Orissa at Cuttack in Judicial Case No. 60 of 1951. H. J. Umrigar, Sri Narain Andlay and Rajinder Narain for the appellant. Porus A. Mehta and P. g. Gokhale for the respondent. November 25. The Judgment of the Court was delivered by BHAGWATI J. The appellant who is a legal practitioner residing within the limits of the Kendrapara Municipality and practising as a mukhtar in the criminal and the revenue Courts there filed his nomination paper for election as a Councillor of the Municipality on the 15th March, 1951. That nomination paper was rejected by the Election Officer on the 25th March, 1951, on the ground that he was employed as a legal practitioner against the Municipality in a case U/S 198 of the Bihar and Orissa Municipal Act which was pending in the Sub Divisional Magistrate Court. The appellant then filed on the 4th April, 1951, a petition before the High Court of Orissa under article 226 of the Constitution praying that a writ or order of prohibition be issued to the State Government and the Election Officer restraining them from holding the election to the Kendrapara Municipality under the Orissa Municipal Act, 1950 or the Municipal Election Rules, 1950. This petition was rejected by the High Court but the High Court granted the appellant a certificate under article 132(1) of the Constitution for leave to appeal to this Court. The Orissa Municipal Act, 1950 (Orissa Act 23 of 1950) was passed by the local Legislature and received the assent of the Governor on the 7th November, 1950, and was published in the official gazette on the 11th November, 1950. Section I of the Act runs as under 1006 (1) This Act may be called the Orissa Municipal Act, 1950. (2) It shall extend to the whole of the State of Orissa. (3) It shall come into force in such area or areas on such date or dates as the State Government may appoint from time to time (5) Any notification, order or rule and any appointment to an office, may be made or election held under this Act, after it shall have received the assent of the Governor and shall take effect on this Act coming into force. Section 16 of the Act prescribes the disqualifications of candidates for election and provides (1) No person shall be qualified for election to a seat in a Municipality, if such person (ix ) is employed as a paid legal practitioner on behalf of the Municipality or as legal practitioner against the Municipality On the 11th November, 1950, the Secretary to the Government, Local Self Government Department addressed to all District Magistrates of the State letter No. 1336/L.S.G. intimating that the Government had decided that general elections should be held on the basis of adult suffrage as provided in the Act in 12 Municipalities including the Kendrapara Municipality. Notification No. 2015 L.S.G. was issued on the 13th December, 1950, under section 13 read with section 1 (5) of the Act fixing the 1st day of March, 1950, as the relevant date for voters in the election as regards their residential qualification in the Municipality. Notification No. 65 L.S.G. issued on the 4th January, 1951, published rules made in exercise of the powers conferred by clauses (1) and (2) of sub section (2) of section 387 of the Act called the "Municipal Election Rules, 1950. " Redistribution of wards was effected by Notification No. 167 L.S.G. dated the 10th January, 1951, and two Notifications Nos. 519 and 521 L.S.G. were issued on the 24th January, 1951, fixing 1007 the numbers of Councillors and of the reserved seats for each Municipality. The 15th March, 1951, was fixed as the date for filing the nominations and the 25th March, 1951, for scrutiny of nomination papers. The 20th April, 1951, was the date fixed for the holding of the election. All these steps were taken by the Government in anticipation acting under the powers reserved under section 1 (5) of the Act and it was only on the 15th April, 1951, that the Act was extended to the Kendrapara Municipality by a notification under section 1 (3) of the Act. The appellant contended (1) that the Act had not come into operation in the Kendrapara Municipality till the 15th April, 1951, that the disqualification prescribed by section 16(1) (ix) could not consequently have been incurred by him on the 15th March, 1951, when he filed his nomination paper, that the rejection of his nomination paper therefore on that ground by the Election Officer on the 25th March, 1951, was illegal and no election could be held on the 20th April, 1951, as was sought to be done under the provisions of the Orissa Municipal Act, 1950, or the Municipal Election Rules, 1950, and (2) that in any event the disqualification prescribed under section 16(1) (ix) of the Act violated his fundamentals rights guaranteed under article 14 and article 19(1) (g) of the Constitution. Both these contentions were in our opinion rightly negatived by the High Court. Section 1 (5) of the Act in express terms provides that after the Act has received the assent of the Governor elections could be held under the Act but were only to take effect on the Act coming into force, which means the coming into force of the Act in such area or areas on such date or dates which the State Government might appoint from ' time to time under section 1 (3) of the Act. There is thus contemplated under the very provisions of sec tion 1 (5) the holding of elections under the Act in spite of the fact that the Act had not come into force in a particular area. Ordinarily the statute enacted by a State Legislature comes into force as soon as it receives 1008 the assent of the Governor. Section 1 (3) of the Act however postpones the commencement of the Act which means that section 1 (3) came into operation immediately the Governor gave his assent to the Act. Section 1 (5) is nothing but a proviso to section 1 (3) and must be regarded also to have come into operation simultaneously with section 1 (3). Section 1 (5) having thus come into force at once on the Act having received the assent of the Governor on the 7th November, 1950, if elections were to be held under the Act before the rest of the Act came into force in any particular area. ' all incidental steps for the holding of such elections were certainly contemplated to be taken and those steps which would be thus taken in anticipation of the Act coming into force in a particular area were certainly authorised by the terms of section 1(5) by necessary implication, because no elections could be held unless all the preliminary steps for holding the same were taken. It would be necessary for holding elections to prescribe the residential qualification, to distribute the wards, to fix the numbers of Councillors and of reserved seats, to frame election rules with reference to the filing of nominations, the scrutiny of the nomination papers and also the holding of elections. All these preliminary steps would have to be taken if the elections were to be held and section 1(5) clearly contemplated the taking of these steps in authorising elections to be held under the Act. No doubt the Act was not to be in force in a particular area until the relevant notification was issued by the State Government and until the Act came into force the disqualifications prescribed in section 16(1) of the Act would not normally attach to candidates for election. The election rules also would be framed in exercise of the power reserved under the Act and if the Act had not come into force much less could the election rules come into operation and bind the candidates. This argument could have availed the appellant if the State Legislature had not enacted section 1(5) of the Act and the defect could not have been cured by the provisions of section 23 of the Orissa General Clauses Act (Orissa Act I of 1937) which was relied upon by 1009 the respondent. That section only enables the making of rules or bye laws or the issue of the preliminary orders in anticipation of the Act coming into force, which rules, bye laws or orders however would not come into effect till the commencement of the Act. The clear provisions of section 1(5) of the Act however expressly empowered the State Government to hold elections and thereby validated all the preliminary steps taken for the purpose of holding such election, the only reservation made being that even though the election under the Act be held such election was not to take effect till the Act came into force in the particular area. This contention of the appellant therefore fails. The contention that the disqualification prescribed in section 16(1)(ix) violates the fundamental rights of the appellant under article 14 and article 19(1)(g) is equally untenable. Article 14 forbids class legislation but does not forbid reasonable classification for the purposes of legislation. That classification however cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. In other words the classification must have a reasonable relation to the object or the purpose sought to be achieved by the impugned legislation. The classification here is of the legal practitioners who are employed on payment on behalf of the Municipality or act against the Municipality and those legal practitioners are disqualified from standing as candidates for election. The object or purpose to be achieved is the purity of public life, which object would certainly be thwarted if there arose a situation where there was a conflict between interest and duty. The possibility of such a conflict can be easily visualised, because if a Municipal Councillor is employed as a paid legal practi tioner on behalf of the Municipality there is a likelihood of his misusing his position for the purposes of obtaining Municipal briefs for himself and persuading the Municipality to sanction unreasonable fees. Similarly, if he was acting as a legal practitioner against the Municipality he might in the interests of his client misuse any knowledge which he might have obtained 129 1010 as a Councillor through his access to the Municipal records or he might sacrifice the interests of the Municipality for those of his clients. No doubt having regard to the best traditions of the profession very few legal practitioners would stoop to such tactics, but the Legislature in its wisdom thought it desirable to eliminate any possibility of a conflict between interest and duty and aimed at achieving this object or purpose by prescribing the requisite disqualification. The classification thus would certainly have a reasonable relation to the object or purpose sought to be achieved. It was however urged that besides this category there are also other categories where there would be a possibility of conflict between interest and duty and that in so far as they were not covered by the disqualifications prescribed by section 16(1) of the Act the provision disqualifying the category to which the appellant belonged was discriminatory. It was particularly pointed out that a client who had a litigation against the Municipality was not prevented from standing as a candidate for election whereas the legal practitioner who held a brief against the Municipality was disqualified, though the ban against both these categories could be justified on ground of avoidance of conflict between interest and duty. The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution. The right of the appellant to practise the profession of law guaranteed by article 19(1) (g) cannot be said to have been violated, because in laying down the disqualification in section 16(1) (ix) of the Act the Legislature does not prevent him from practising his profession of law but it only lays down that if he wants 1011 to stand as a candidate for election he shall not either be employed as a paid legal practitioner on behalf of the municipality or act as a legal practitioner against the Municipality. There is no fundamental right in any person to stand as a candidate for election to the Municipality. The only fundamental right which is guaranteed is that of practising any profession or carrying on any occupation, trade or business. There is no violation of the latter right in prescribing the disqualification of the type enacted in section 16(1) (ix) of the Act. If he wants to stand as a candidate for election it is but proper that he should divest himself of his paid brief on behalf of the Municipality or the brief against the Municipality in which event there will be certainly no bar to his candidature. Even if it be taken as a restriction on his right to practice his profession of law, such restriction would be a reasonable one and well within the ambit of article 19 clause 5. Such restriction would be a reasonable one to impose in the interests of the general public for the preservation of purity in public life. We therefore see no substance in this contention of the appellant also. The appeal accordingly fails and stands dismissed with costs. Appeal dismissed.

Under section 110(1) of the if a proper officer has ,reason to believe ' that any goods are liable to confiscation under the Act, he may seize such goods. Section 124 provides that no order confiscating any goods shall be made unless the owner of the goods is given notice in writing informing him of the grounds on which it is proposed to confiscate the goods. Under section 110(2) where any goods are seized under sub section (1) and no notice in respect thereof is given under section 124 within six months ,of the seizure, the goods shall be returned to the person from whose possession they were seized; provided, the period of six months may 'on sufficient cause being shown ' be extended by the Collector of Customs for a period not exceeding six months. On March 19, 1963 goods were seized from the respondent and, on September 19, 1963 an extension for a period of four months was applied for by the customs authorises and was granted by the Collector on the , round that certain inquiries yet remained to be made by them. On February 20, 1964, that is, one month after the extended period had expired, the Collector passed an order granting further extension for two months. Both the extension orders were passed without giving any opportunity to the respondent. The respondent challenged the second extension and the High Court held that the orders of extension were bad as the Colle ctor had to decide the application for extension judicially. In appeal lo this Court, HELD : The power of extension under the proviso was quasi judicial, or at any rate, one requiring a judicial approach, and therefore, an opportunity of being beard ought to have been given to the respondent before ,ordering extension. [811 B C] (a) The policy of the Legislature is, that in view of the extraordinary power of seizure the inquiry should ordinarily be completed within six months, but in exceptional cases, the legislature entrusted to a superior officer the power of extension on sufficient cause being shown. The Collector is not expected to pass extension orders mechanically or as a matter of routine but only on being satisfied that there exist facts which indicate that investigation could not be completed for bona fide reasons within the time of 6 months laid down in section 110(2), [808 C E, F G] (b) Whereas section 110 (1) uses the expression reason to believe for enabling a customs officer to seize the goods, the proviso to sub section (2) uses the expression sufficient cause being shown. Sub Section (1) does not contemplate an inquiry at the stage of seizure, the only requirement being the satisfaction of the concerned officer that there are relevant reasons to believe that the goods are liable to confiscation by reason of illegal im 803 portation. The words sufficient cause being shown mean that the Collector must determine on materials placed before him that they warrant extension of time. Further, the civil right to have the seized goods restored which accrues on the expiry of the initial six months is defeated on exten Therefore, when the ' statute requires the determination being grantedtion of a sufficient cause on facts produced before the Collector it should be held to be a quasi judicial function or at least a function requiring judicial approach; and there is no, distinction between extension orders passed before and those passed after the expiry of the initial or the extended period. [808 H; 809 A, C D; 811 C D] (c) When an order is made in bona fide exercise of power and within the provisions of the Act, which confer such power, the order is immune from interference by a court of law and therefore, the adequacy of the cause shown may not be a ground for interference, but the Collector has to hold an inquiry on facts, that is, on material placed before him, and consider the pros and cons of the question. [809 D E; 811 E] (d) By holding such inquiry there is no danger of disclosure of facts which would be detrimental to the investigation. The only disclosure would be about the fact that investigation at some place or places and about certain matters was still incomplete and pending. As between the tight of the person from whom the goods were seized and the supposed danger to the investigation, the matter is not so weighted that it should he held that the Legislature could not possibly have contemplated a judicial approach by the Collector when he orders of extension of time. [813 G H; 8 14 B D] Kraipak vs Union of India, [1970] .1 S.C.R. 457, followed. Lakhanpal 's case; , and De Verteuil vs Knaggs, , referred to Sheikh Mohammed Sayeed vs Asstt. Collector of Customs, A.I.R. 1970 Cal. 134, Ganeshmul Channilal Gandhi vs Collector of Central Excise, A.I.R. 1968 Mys. 89 and M/s. Prakash Cotton Mills Pvt. Ltd. vs Asstt. Collector of Central Excise, Bombay, M.P. No. 127/1963 dt. 31 8 1970, overruled.

No. 435 of 1958. Appeal from the judgment and order dated September 20, 1956 of the Allahabad High Court in special Appeal No. 243 of 1955. Naunit Lal for the appellant. G.N. Dikshit and C. P. Lal for the Respondent. February 8. The following Judgment of the Court was delivered by MUDHOLKAR, J. This is an appeal by certificate from the judgment of the High Court of 107 Allahabad reversing the decision of a single Judge of that Court directing the issue of a writ of Mandamus against the respondents under article 226 of the Constitution. The points which arise for consideration in the appeal are whether the appellant who was at the relevant time the lessee of a right to collect tolls from persons, vehicles etc., crossing the river by public ferry at Pipraghat, District Ballia was bound to allow State carriage buses belonging to the Government of Uttar Pradesh to cross the river by the ferry without collecting any toll or was entitled to claim abatement of rent from the Government under the proviso to s.15 of the Northern India Ferries Act 1878 (hereafter referred to as the Act). In order to appreciate the points a few facts need to be stated. There is a ferry at the village Pipragbat, district Ballia for crossing the river and the right to collect tolls in respect of that ferry is put to public auction annually. The highest bidder at the auction gets the right. The rent or licence fee is collected from him in monthly installments during the year with respect to which the right was purchased by the licensee. The appellant was the highest bidder for the year 1954 and the licence fee payable by him was Rs. 31,751/ . The practice right upto 1954 was to allow the lessee to collect a toll of Rs. 5 1 0 from every stage carriage bus. Till March 9 of that year only privately owned stage carriage buses used to ply on the route in which the ferry crossing was comprised. Thereafter the route has been taken over by the Roadways Department of the State of Uttar Pradesh. From March 9 to March 16, the appellant realised tolls at Rs. 5.1 0 from the State owned stage carriage buses when he was informed by a letter by the first respondent that he should allow the Roadways buses to use the ferry for crossing and recrossing the river on credit till March 31, 1954 and should thereafter submit his bill with 108 respect to the tolls to the Roadways Department of the Government He was also informed that further orders will be issued on April 1, 1954. The appellant accordingly allowed the Roadways buses to use the ferry for crossing and recrossing the river and submitted his bill to the Roadways Department on March 31, 1954. That bill was, however, not paid. On April 1, 1954 he received two communications from respondent No. 1 by one of which hi) was informed that no toll is leviable on the Roadways vehicles and by another he was asked to pay the monthly installment of the licence fee without making any deduction therefore consequent upon the exemption of the Roadways buses from tolls. The appellant had moved the High Court of Allahabad.under article 226 of the Constitution for the issue of a writ directing the respondent "to refrain from precluding the petitioner from charging tolls from the Roadways buses", to issue a writ commanding the respondents to allow abatement to the appellant and to issue an interim direction to the respondents asking them to refrain from realising the unpaid monthly installments of the licence fees till the decision was given. Before the petition was decided the appellant 's licence had run out and, therefore, at the hearing the appellant confined himself to one relief, that is, commanding the respondents to allow rebate one account of the exemption of the Roadways buses from liability to pay the tolls. The petition was, however, not amended. We may incidentally mention that apart from the reliefs above referred to, the appellant claimed two more reliefs, one of which was to pass any such other and further order as may be deemed fit and proper. The learned single Judge of the High Court who decided the petition in the first instance came 109 to the conclusion that the appellant was entitled to abatement of rent under the third paragraph of a. 15 of the Act and directed the issue of a writ to the respondents directing them to " 'perform their statutory duty relating to abatement of rent" payable by the appellant consequent on the exemption of Roadways buses from payment of tolls under the aforesaid provision before claiming or recovering arrears of rent from him. The respondents preferred an appeal under the Letters Patent which was heard by a Division Bench of the Allahabad High Court. The learned Judges held that a licensee is not entitled to abatement of rent unless the Government makes a declaration under s.15 of the Act subsequent to the grant of licence to him. It pointed out that the G.O. No. 1946/17 ,51 dated December 11, 1951 upon which reliance was placed by the learned single Judge being prior in point of time to the grant of the licence to collect tolls to the appellant, did not entitle him to claim abatement. It, however, held that the appellant may be entitled to claim abatement of rent or licence fee under the general law but that such a relief could be claimed only in a suit but not in a proceeding under article 226 of the Constitution. They thus allowed the appeal and dismissed the petition. Section 15 of the Northern India Ferries Act, 1878 runs thus : "Toll., according to such rates as are from time to time fixed by the State Government, shall be levied on all persons, animals, vehi cles and other things crossing any river by a public ferry and not employed or transmitted on the public service: Provided that the State Government may from time to time, declare that any persons, animals, vehicles or other things shall be exempt from payment of such tolls. 110 Where the tolls of a ferry have been let under section 8, any such declaration, if made after the date of the lease, shall entitle the lessee to such abatement of the rent payable in respect of the tolls as may be fixed by the Commissioner of the division or such other officer as the State Government may, from time to time, appoint in this behalf by Dame or virtue of his office. " The proviso to the section confers upon the State Government power to declare from time to time any , persons, animals, vehicles etc., exempt from payment of such tolls. Before the question of allowing abatement of rent or licence fee can arise it must first be established that there was a valid exemption with respect to any vehicles etc., under section 15 of the Act. The section also provides that where such declaration is made subsequent to the grant of licence to collect tolls under section 8 the licensee is entitled to abatement of rent: The Government order to which reference has been made in the two judgments of the High Court runs as follows: "Subject: Exemption from payment of toll. I am desired to say that a question has been raised whether the Roadways Motor Vehicles should be exempt from payment of ferry tolls while crossing any river by a public ferry. Government have given their full consideration to this matter and have come to the conclusion that the motor vehicles run by the Roadways with the operational staff accompanying them on duty fall under the exemption granted from payment of ferry toll in paragraphs 2(a) of notification No. 252/ IX 209/(10) dated March 16, 1925 111 (published on page 347 of the District, Board Manual). 2.lam, however, to observe that the passengers traveling in these vehicles with their goods and all the private goods, being transported in the Roadways trucks shall be liable to the payment of tolls as heretofore according to the rates fixed by the Local Government. 3.The District Magistrate, District Board and ferry contractors in your division may please be informed accordingly. " It may be pointed out that this order, if what appears to be merely a communication addressed to certain authorities can be regarded as a Government order, does not, itself confer any exemption with respect to the buses run by the U. P. Roadways but sets out the opinion of the Government that such buses must be regarded as being exempted under a notification of March 16, 1925 issued under "section 15 of the Act. That notification reads thus: "2. The following shall be exempt from the payment of tolls: (a)All persons animals and vehicles crossing any river by a public ferry when employed or transmitted on the public or District Board service. " Admittedly at that date the State was no running any bus services in the United Provinces (now the State of Uttar Pradesh). May be there were no Government owned buses at all in any other province of India at that time. Moreover it would not be reasonable to assume that a State enterprise of this kind was even in the contemplation of. the LT. P, Government at that time. At that time, apart from running some railways the State had not entered the commercial field. It is in the light of these facts that the language of the notification of March 16, 1925, must be interpreted. 112 What the notification exempts is a vehicle crossing the river on 'public or district board service '. Could it be said that plying motor buses by way of commercial activity is running it on a public service? It is undoubtedly not easy to define what is "public service" and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private indi viduals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public. It does not, however, cease to be a com mercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides. Since that is so, it is difficult to see what difference there is between the activity carried on by private individuals and that carried on by Government. By reason of the fact that a commercial undertaking is owned and run by the State 113 it does not ipso facto become a 'public service '. It is not disputed before us that the Roadways department of the Government of U. P. is running a profit making and a profitable activity by excluding every kind of competition. In the circumstances, therefore, we find it impossible to hold that its vehicles crossing over ferries can be regarded as crossing on public service. They are, therefore, not entitled to any exemption under the notification of March 15, 192 5. Since they are not entitled to any exemption the question of abatement of rent does not arise. It is true that the petitioner, as already stated, confined himself at the stage of arguments in the High Court to the relief of abatement, because of change of circumstances which took place between the date of filing his petition and its hearing. He did so evidently upon a misunder standing of the legal position with regard to the scope of the notification of March 16. However, the appellant has raised ,in alternative contention in his Statement of the case to the effect that the Roadways buses which carry passengers are used by the Government for carrying on a commercial undertaking and that; there fore they do not come within the exemption made by the notification of the year 1925. In view of this and of the fact that the petition which contains a prayer for grant of ,other relief ' has not been amended and is thus in its original form we see no difficulty in granting appropriate relief to the appellant. In the result we allow the appeal and set aside the judgment of the Division Bench as well as of the single judge of the High Court of Allahabad and direct that a writ in the nature of mandamus shall issue to the respondents directing them to pay to the appellant full tolls with respect to every 114 crossing of the, Roadways buses over the ferry between March 16, 1954, and the date on which the licence in favour of the appellant expired. The costs of the appellant here and in the High Court will be borne by the respondents. Appeal allowed.

The appellant being the highest bidder at a public auction got the right to collect the toll in respect of ferry for crossing the river of Piprighat for the year 1954. The practice upto 1954 was to allow the licensee to collect the toll from every stage carriage bus. Till March of the year 1954 only privately owned stage carriage buses used to ply on the route. Thereafter the route was taken over by the Roadways department of the State of Uttar Pradesh. The applicant was informed inter alia that no toll was leviable on the Roadways Vehicles and was asked to pay the monthly installments of the license fee without making any deduction therefore consequent upon the exemption of the Roadways buses from tolls. The point for consideration inter alia is whether the 106 appellant was bound to allow the state carriage buses of U.P. Government to cross the river by ferry without collecting any toll. Held, that the notification No. 252/IX 209/(10) dated March 16, 1925 exempts a vehicle crossing the river on 'public or district board service ', and it could not be said that plying motor buses by way of commercial activity is running it on a public service. The vehicles of the Roadways department of the Government of Uttar Pradesh crossing over ferries cannot be regarded as crossing on public service. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensur ing the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public, but it does not cease to be a commercial activity if it is run with profit motive. The vehicles of the Roadways crossing the river cannot be exempted under the Notification of March 15,1925. Held, further that activities undertaken in the exercise of the sovereign power of the state or of Governmental functions are undoubtedly to be regarded as public services but a pure business undertaking though run by the Government cannot be classified as public service. An activity however beneficial to the people and however useful cannot reasonably be regarded as public service and cease to be a commercial undertaking if it is of a type which may be carried on by private individuals and is carried on by Government with a distinct profit motive. By reason of the fact that a commercial undertaking is owned and run by the State, it does not ipso facto become a "public service".

ivil Appeal No. 1048 of 1980. From the Judgment and Order dated 11.3.80 of the Rajas than High Court in S.A. No. 52 of 1980. section Ganesh and P.H. Parekh for the Appellant. S.S. Khanduja for the Respondent. The Judgment of the Court was delivered by SHARMA, J. This appeal by special leave is directed against the decision of the Rajasthan High Court confirming the decree of eviction of the appellant from certain prem ises under section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act), on the ground that he had denied the title of the respondent landlord. The appellant has been in possession of the structure in ques 332 tion since 1953, when he was inducted therein by the owner one Nawab M. Ali Khan. In 1969 Nawab M. Ali Khan died, and it appears that some dispute arose between his legal repre sentatives and the present respondent No. 1. It further appears that the dispute was finally settled in favour of the respondent No. 1 and according to the case of the appel lant he duly recognised him as his landlord and started paying rent. In 1973 the appellant received a notice from the Municipal authorities asking him to remove the disputed structures on the ground that it was erected on Government land. According to the appellant 's case, the notice was issued at the instance of the respondent No. 1, who was anxious to evict the appellant. The appellant, in the situa tion, was forced to file a suit in the civil court challeng ing the validity of the notice and praying for injunction against the Municipal authorities from interfering with his possession. The respondent No. 1 filed the present suit on the twin Founds of default in payment of rent and denial of his title. The case of default in payment of rent was re jected but the suit was decreed on the ground of denial of title. On appeal, the Additional District Judge confirmed the decree. The appellant 's second appeal was also rejected by the High Court at the admission stage. The appellant 's plaint in the earlier suit by which it is suggested that he challenged the respondent 's title was filed in the present case and marked as Ext. The first appellate court has while recording its finding against the appellant observed that the statements in the plaint amount to disclaimer and, in any event, it appears that the appellant failed to acknowledge the land lord 's title therein and consequently he was liable to eviction under clause (f) of section 13(1) of the Act, which reads as follows: "13. Eviction of tenants. (1) Not withstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant (xxx) so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied . (a). . . . . . . . . . . . . . . . . (f)that the tenant has renounced his charac ter as such or denied the title of the landlord and the 333 latter has not waived his right or condoned the conduct of the tenant; or" We do not agree. There is no statement in the plaint at all challenging the landlord 's right and there was no occasion for the appellant to deal with this aspect in view of the scope of his suit. On the other hand, the pleading shows that he described the nature of his possession as that of a tenant and the interest of the present respondent No. 1, who was defendant No. 2 in that suit, as that of a landlord. Mr. S.S. Khanduja, the learned counsel for the re spondent, relied on the last sentence of paragraph 1 of the plaint, as mentioned below, and contended that since the defendant No. 2 was not one of the heirs of the deceased Nawab M. Ali Khan, this sentence should be read as denial of his title: "He sold out some portion of his property in his life time and the remaining property came to be owned by his heirs i.e. defendants No. 2 to 6. " Firstly it has to be noticed that although the respondent was wrongly described as an heir, his title to the property was acknowledged. Further this sentence cannot be read in isolation. The position is explained in paragraph 5 of the above noted plaint in the following terms: "5. That the land where the stall type Kachhi shops of the plaintiffs have been constructed, the Defendant No. 2 has built his house after taking the land on a long term lease from Nawab Mukarram Ali Khan. In between these there is a Pakka 'Dola '. There is dispute about the ownership of the land between the Defendant No. 2 and the Defendant No. 3 to 6 since the death of Nawab Mukarram Ali Khan in the year 1969. Later on the matter has been compromised in between the four heirs, the Defendant No. 2 developed a bad motive and he wants that anyhow the plaintiffs should be evicted from the premises as early as possible and he. should occupy the same. " The argument is that the title of the respondent (defendant No. 2 in the earlier case) was nowhere accepted in the plaint. After mentioning the dispute between him and the legal representatives of the deceased Nawab the appellant did not proceed to clarify the position. So far as 334 the statement in paragraph No. 1 of the plaint is concerned, the grievance is that the title of the landlord was denied, if not completely then at least in part by describing the defendants 3 to 6 as co owners with him. We are not in a position to agree with the contention of the learned counsel that for these reasons the appellant has to be evicted. Even interpreting the plaint in a manner as favourable to the landlord as may be possible, it has to be accepted that the document cannot be construed to clearly deny the respond ents ' title in unambiguous terms. One thing that is conspic uous is that the appellant did not claim any title in him self. We expressly described the character of his possession as that of a tenant. Is it in this situation permissible to forfeit his lease on the ground of disclaimer of title? In providing disclaimer as a ground for eviction of a tenant in clause (f) of section 13(1) of the Act, the Legislature decided to give effect to the provisions of clause (g) of section 111 of the . The principle of forfeiture on disclaimer is rounded on the rule that a man cannot appro bate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms. The decision of this Court in Mohammad Amir Ahmad Khan vs Munic ipal Board of Sitapur and another, A.I.R. 1965 S.C. 1923, relied upon by the learned counsel for the appellant high lights this aspect. The facts in that case would show that the tenant there had made statements against his landlord which were far more serious than those in the case before us and still was not penalised. It may be appreciated that in the present case the 1973 suit was not directed against any of the defendants excepting the Municipality and the state ments in the plaint referred to above were made by way of giving the background in which the impugned notice by the Municipal officers had been issued. No relief against the other defendants including the present respondent was prayed for. Examining the entire plaint in this background we are of the opinion that the ground contemplated under section 13(1)(f) of the Act is not made out. We, therefore, set aside the judgments of the courts below and dismiss the suit. The appeal is accordingly allowed with costs through out. N.P.V. Appeal allowed.

The appellants are tenants of the premises belonging to the Respondent, and have been carrying on business as a partnership firm in the said premises. The respondent filed an eviction petition against the appellant firm and another firm, on the ground that the appellant had unlawfully and without the consent of the Respondent sub let the premises to the other firm. The Trial Court passed a decree for eviction, against which the appellants preferred an appeal to the Appellate Authority. The Appellate Authority dis missed the appeal and upheld the finding of unlawful sub letting by the appellants. The appellants preferred a Civil Revision petition before the High Court, which was also dismissed. The present appeal by special leave is against the High Court 's decision. On behalf of the appellants, it was contended that since the eviction petition had been filed without joining the partners of the other firm (the sub tenant) the eviction petition was not maintainable at all. Dismissing the appeal, HELD: 1. The objection that the eviction petition was filed against the appellants firm and the other firm, was not maintainable as it had been filed without joining any of the partners of the said other firm as respondents or serv ing them as partners, had not been raised at all till the stage of special leave and it is not open to the appellants to raise such an objection at a very late stage and thereby delay matters for a number of years. [419F; 420C] 418 Chhotelal Pyarelal, the partnership firm and others vs Shikharchand, , distinguished. There is evidence to show that the other firm was carrying on business at the said premises and that the said firm carried on business in the said premises even for some time during which the appellants firm had ceased to carry on the business there. Moreover, although a notice was given by the respondent to the appellants and the other firm to produce their income tax returns, assessment orders as well as account books and ledgers for the relevant period, these were not produced. It was open to the Trial Court, from these circumstances, to come to the conclusion that had the account books and ledgers been produced, they would have shown that rent was received by the appellants from the other firm which would justify the finding of subletting. [420D F]

ION: Criminal Appeal No. 96 of 1957. Appeal by special leave from the judgments and orders dated September 24, 1956, of the Circuit Bench of the Punjab High Court at Delhi and dated September 26, 1956, of the Punjab High Court at Chandigarh in Criminal Writ No. 128 D of 1956. Appellant in person. C. K. Daphtary, Solicitor General of India, and R. H. Dhebar, for the respondent. May 24. BY THE COURT. We dismiss the appeal by a majority of 4 to 1 (A. K. Sarkar J. dissenting) for reasons to be recorded later. 463 1957. September 17. The Judgment of Bhagwati, Jafer Imam, section K. Das and J. L. Kapur JJ. was delivered by section K. Das J. Sarkar J. delivered a separate judgment. section K. DAS J. This is an appeal by special leave, and the appellant is Puran Lal Lakhanpal. '6n July 21, 1956, the Government of India in the Ministry of Rome Affairs passed an order of preventive detention against the appellant in which it was stated, inter alia, that with a view to pre venting the appellant from acting in a manner prejudicial to the security of India and the relations of India with for eign powers, it was necessary to make an order against the appellant. The order then concluded " Now, therefore, in exercise of the powers vested in the Central Government by cl. (a) (i) of sub section (1) of section 3 of the Preventive Deten tion Act, 1950 (Act No. IV of 1950), as amended, the Central Government hereby orders that the said Shri Puran Lal Lak hanpal, son of Shri Diwan Chand Sharma, be detained. " The appellant was arrested and taken in custody on the same date On July 24, 1956, the grounds of detention were commu nicated to the appellant under section 7 of the Preventive Deten tion Act, No. IV of 1950, hereinafter referred to as the Act. The case of the appellant was then sent to an Advisory Board constituted under section 8 of the Act, and the Advisory Board having reported that there was, in its opinion, suffi cient Gause for detention of the appellant, the Central Government confirmed the order of detention on August 20, 1956, and stated further that the appellant ",shall continue in detention for a period of twelve months from the date of his detention". This order was passed under sub section (1) of section 11 of the Act. Before that date, however, the appellant moved the Punjab High Court as also this Court challenging the legality of his detention and asked for the :issue of a writ in the nature of a writ of habeas corpus. The petition to this Court was dismissed and as nothing turns upon that petition, no further reference need be 464 made to it. In the petition to the Punjab High Court under article 226 of the Constitution, the appellant was permitted to urge an additional ground to the effect that sub section (1) of section 11 of the Act was unconstitutional inasmuch as it offend ed against article 22(4)(a) of the Constitution. This consti tutional point was referred to and decided by a Division Bench of the Punjab High Court by an order dated September 24, 1956. The High Court held that sub section (1) of section 11 of the Act was neither repugnant to nor inconsistent with the provisions of article 22(4) of the Constitution. A single Judge of the High Court then dealt with the petition of the appellant on merits and dismissed it by an order dated September 26, 1956. The appellant then moved the Punjab High Court unsuccessfully for leave to appeal to this Court. He then moved this Court, and obtained special leave to appeal from the aforesaid orders of the Punjab High Court dated September 24, and September 26, 1956, respectively. We heard the appellant, who argued his case ill person, on May 22, 23 and 24, 1957. At the conclusion of the arguments on the last day of the term before the commencement of the vacation, we intimated to the appellant the majority deci sion of the Court that his appeal was dismissed, but stated that reasons for the decision would be given later. These reasons we now propose to give in the paragraphs that fol low. The first and foremost point which the appellant has urged in support of his appeal is the constitutional point, that is, the validity of sub section (1) of section 11 of the Act. The argument of the appellant is that sub section (1) of section 11 of the Act does not conform to the constitutional mandate given by sub cl. (a) of cl. (4) of article 22 of the Constitution. Therefore, our primary duty is " to lay the Article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former ". Article 22 of the Constitution, in so far as it is relevant for our purposes, is in these terms: "22. (1). . . . . . . . . (2). . . . . . . . . 465 (3) Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien ; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall autho rise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention: Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provi sions of any law made by Parliament under sub clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, commu nicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; and 466 (c) the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4). " Section 11 of the Act, which is challenged as unconstitu tional states : " 11. (1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the deten tion of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the deten tion of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. " Now, the point taken by the appellant is this. According to him, the expression such detention ' occurring in sub cl. (a) of cl. (4) of article 22 refers not merely to the original order of preventive detention but to the detention of a person for a period longer than three months; therefore, the Advisory Board when it makes . its report is required under the Sub clause to record its opinion that there is suffi cient cause not merely for the original order of detention but also for detention of that person for a period longer then three months. It is contended that such an opinion was not recorded by the Advisory Board in the present case, and Sub section (2) of section 10 of the Act merely required the report of the Advisory Board to specify its opinion as to whether or not there was sufficient cause for the detention of the appellant. The appellant 's contention is that sub section (1) of section 11 of the Act, in so far as it permits the appropriate Government to continue the detention of the person concerned beyond a period of three months without a specific report from the Advisory Board that there is sufficient cause for his detention for more than three months, is ultra vires; because it does not conform to sub cl. (a) of cl. (4) of article 22, nor does it give effect to the true meaning of the expression 'such detention ' occurring in the ;aid sub clause. 467 On behalf of the respondent, the argument is that the ex pression 'such detention ' occurring in sub cl. (a,) of cl. (4) of article 22 refers back to 'preventive detention ' occur ring in the first line of el. (4), and under the said sub clause the Advisory Board is to give its opinion as to whether there is sufficient cause for the detention of the person concerned; there is no duty cast on the Advisory Board to determine the period of detention, and the failure of the Advisory Board to state in its report that there is sufficient cause for the detention of the person concerned for more than three months is no violation of the constitu tional mandate contained in the said sub clause. We have to determine the correctness or otherwise of these rival contentions. No decision directly deciding the point at issue has been brought to our notice. There are, howev er, certain observations made in A. K. Gopalan vs The State of Madras (1), with regard to the meaning and effect of sub cl. (a) of cl. (4) of article 22, to which a reference must now be made. At page 117 of the report, Kania C. J. said: " Article 22(4) opens with a double negative. Put in a positive form it will mean that a law which provides for preventive detention for a period longer than three months shall contain a provision establishing an advisory board, (consisting of persons with the qualifications mentioned in sub clause (a)), and which has to report before the expira tion of three months if in its opinion there was sufficient cause for such detention. This clause if it stood by itself and without the remaining provisions of Article 22, will apply both to the Parliament and the State Legislatures. The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under Article 22(7)(b). Again the whole of this sub clause is made inoperative by article 22(4)(b) in respect of an Act of preventive detention passed by Parliament under clauses (7)(a) and (b) Inasmuch as the impugned Act is an Act of the (1) ; , 117. 60 468 Parliament purported to be so made, clause 22(4) has no operation and may for the present discussion be kept aside." His Lordship was considering the Act of 1950 previous to the amendments subsequently made therein from 1951 onward, and the observations appear to establish the following three points: first, clause (4) of article 22, put in affirmative form, has reference to a law which provides for preventive detention and authorises detention for a period longer than three months; second, the expression 'such detention ' has again reference to such a law providing for detention beyond a period of three months; and lastly, el. (4) of article 22 had no application to the Act of 1950 as it then stood. We shall presently show that the first and the second points do not really support the appellant 's contention, and the last had particular reference to sections 9 and 12 of the Act of 1950, as it then stood. The appellant has, however, pointed out that under the Act as it now stands, every order of deten tion has to be placed before the Advisory Board (a. 9 of the Act) and the Advisory Board has to report about every order of detention (section 10 of the Act). Though under section II A of the Act the maximum period for which any person may be detained in pursuance of a detention order which has been confirmed under section 11, is twelve months from the date of detention, the Act now contains no provisions as to the circumstances under which, or the class or classes of cases in which, a person may be detained for a period longer than three months without obtaining the opinion of the Advisory Board; therefore, the argument of the appellant is that the last point made by the observations of Kania C.J. is no longer valid in view of the amendments made in the Act of 1950. We have proceeded in this case on the footing that sub cl. (a) of el. (4) of article 22 applies to the Act as it stands after the amendments, and even on that footing there is, in our opinion, no inconsistency between that sub clause and the impugned provisions of the Act, as we shall present ly explain. In his dissentient judgment in Gopalan 's case (supra), Fazl Ali J., made the following observations with 469 regard to cl. (4) of article 22. Said his Lordship at pages 170 and 171 of the report : " In connection with the first point, the question arises as to the exact meaning of the words I such detention ' occur ring in the end of clause (4)(a). Two alternative interpre tations were put forward: (1) 'such detention ' means preven tive detention; (2) 'such detention ' means detention for a period longer than three months. If the first interpreta tion is correct, then the function of the advisory board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the advisory board will be to report to the Government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agree with the second interpretation. Prima facie, it is a serious matter to detain a person for a long period ( more than three months) without any enquiry or trial. But article 22(4) (a) provides that such detention may be ordered on the report of the advisory board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital question before the Government, namely, whether prolonged detention (detention for more than three months) is justified or not. Under article 22 (4) (a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty nine days, an advisory board is to say whether his initial detention was justified. On the other hand '. the determination of the question whether prolonged detention (detention for more than three months) is justified must necessarily involve the determination of the question whether the detention was justified at all, and such an interpretation only can give real meaning and effec tiveness to the provision. The provision being in the nature of a 470 protection or safeguard, I must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view. " These observa tions, it is urged, support the appellant 's contention. Patanjali Sastri J. (as he then was) took a view different from that of Fazl Ali J. in Gopalan 's case (supra), and made the following observations at pages 209 and 210 of the report: " It was argued that the words I sufficient cause for such detention ' in sub clause (a) of clause (4) had reference to the detention beyond three months mentioned in clause (4) and that this view was supported by the language of sub clause (a) of clause (7) whereby Parliament is authorised to prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months without the opinion of an advisory board. In other words, learned counsel submitted, the combined effect of clauses (4) and (7) was that no person could be detained for a period over three months without obtaining the opinion of an advisory board that there was sufficient cause for detention for the longer period, except in cases where Parliament passed a law autho rising detention for such period even without the opinion of an advisory board. Thus, these two clauses were concerned solely with the duration of the preventive detention, and so was the advisory board which those clauses provided for that purpose. I am unable to accept this view. I am inclined to think that the words 'such detention ' in sub clause (a) refer back to the preventive detention mentioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers, would hardly be in a position to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Depart ment of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point. All that an 471 advisory board can reasonably be asked to do, as a safeguard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide. The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period. Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the person detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate depart mental channel. Each of these steps may, in the course of official routine, take sometime, and three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report. " These observations are undoubtedly against the contention of the appellant. It is necessary to consider the whole scheme of article 22 in order to appreciate the true scope. and effect of cl. Article 22 provides for protection against arrest and deten tion in certain cases. Clauses (1) and (2) refer to arrest and detention in certain circumstances and provide for certain safeguards. Clause (3) then states, inter alia, that nothing in cls. (1) and (2) shall apply to any person who is arrested or detained under any law providing for " preventive detention"; in other words, a law relating to " preventive detention" is put in a special category and is dealt with in clauses (4) to (7). The power to legislate laws of preventive detention is given to Parliament and the State Legislatures by the Constitution. This power, howev er, is not absolute, but is controlled by the provisions of cls. (4), (5), (6) and (7) of article 22. The maximum period of detention is not prescribed by the Constitution, but Parliament may by law prescribe such a period. The Consti tution contemplates that any law which authorises detention for more than three months should be subject to certain safeguards, 472 as provided in cl. (4) of article 22 which directs that the case of a detained person under any law authorising deten tion for more than three months must be the subject of a report by an Advisory Board. The Advisory Board is to report whether there is sufficient cause for such detention. If the Advisory Board reports that the detention is justi fied, then only the detaining authority determines the period of detention. On the other hand, if the Advisory Board reports that the detention is not justified, the detained person must be released. Clause (4) of article 22 does not state that the Advisory Board has to determine whether the person detained should be detained for more than three months. What it has to determine is whether the detention is at all justified. The setting up of an Adviso ry Board to determine whether such detention is justified is considered as a sufficient safeguard against arbitrary detention under any law of preventive detention which autho rises detention for more than three months. The matter before the Advisory Board is the subject of detention of the person concerned and not for how long he should be detained. Clause (7) of article 22 is an exception to cl. (4) of that Article. It authorises Parliament alone to pass a law of preventive detention authorising detention of a person for more than three months without obtaining the opinion of an Advisory Board so long as the circumstances under which and the class or classes of cases in which a person may be detained for a longer period than for three months are set out in the enacted law. The Constitution evidently does not contemplate detention of the person for a period of three months or less as sufficiently serious to have the safeguard of a report by an Advisory Board to the effect that there is sufficient cause for detention. Under the Constitution an Advisory Board is to be set up for all cases of detention under a law authorising detention for more than three months. When the case of a detained person is placed before the Advisory Board under such law it must be assumed that the Advisory Board knows that if it reports that the detention is justified, the detenu may be detained for more than three 473 months and up to the maximum period provided by the law. The expression " such detention" in article 22 (4) (a) refers to preventive detention and not to how long the person is to be detained. Moreover, it is clear that clause (4) lays down prohibition against any law providing for detention for more than three months without a provision foran Advisory Board, and cl. ' (5) provides for furnishing the grounds of detention and affording an opportunity of making a representation against the order of detention. But these safeguards are subject to cls. (6) and (7). Under the former, facts, the disclosure of which the detaining authority considers against the public interest, are not required to be furnished. Under the latter, Parliament may prescribe the circumstances under and the class or classes of cases in which a person may be detained for a period longer than three months without obtaining the opinion of an Advisory Board. The Constitu tion has therefore in one case given discretion to the Executive not to furnish facts in certain circumstances and in the other case left it to Parliament to prescribe cases or classes of cases in which reference to the Board need not be made. Therefore, both the furnishing of grounds and the report of the Board are, in a sense, limited safeguards. Considering the circumstance that the detention is of a preventive nature, the Executive has necessarily to consider whether a person should be detained and the period for which he should be detained. It could not have been the intention to give the power of determining the necessity of detention of a particular person to the Executive, and leave to anoth er authority the Board in this case to say whether the detention should be for three months or more. In the very nature of things the decision as to the period of detention must be of the detaining authority, because it is the au thority upon which responsibility for detention has been placed. The reference to the Board is only a safeguard against Executive vagaries and high handed action and is a machinery devised by the Constitution to review the decision of the Executive 474 on the basis of a representation made by the detenu, the grounds of detention, and where the order is by an officer, the report of such officer. It is not a limitation on the Executive 's discretion as to the discharge of its duties connected with preventive detention. ; it is a safeguard against misuse of power. What then is the scheme of the Act under our consideration ? An order of detention is made under section 3 of the Act. If the order is made by any officer under sub section (2) of section 3, a report has to be submitted to the State Government to which the officer is subordinate and the order does not remain in force for more than twelve days unless in the meantime it has been approved by the State Government. Under section 7 of the Act, the grounds of detention have to be communicated to the detenu, as soon as may be but not later than five days from the date of detention. Section 8 relates to the con stitution of an Advisory Board. Under section 9 in every case where a detention order has been made under the Act, the appropriate Government shall, within thirty days from the date of detention under the order, place before the Advisory Board the grounds on which the order has been made and the representation, if any, made by the detenu. Section 10 prescribes the procedure of the Advisory Board and lays down that the Advisory Board must submit its report to the appro priate Government within ten weeks from the date of deten tion. Sub section (2) of section 10 states that the report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. Then comes section I I which we have already quoted in extensor The scheme of the Act has been explained in several deci sions of this Court. In Makhan Singh Tarsikka vs State of Punjab (1), it was stated that whatever might be the posi tion under the of 1950, before it was amended in 1951, under the Act as amended in 1951, the Government must determine what the period of detention should be only after the Advisory Board to which the case (1)) , 370. 475 is referred reports that the detention is justified. Patan jali Sastri C. J. observed: " It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported." In Dattatreya Moreshwar Pangarkar vs State of Bombay(1) Mukherjea J. (as he then was) said: " It is now settled by a pronouncement of this Court that not only it is not necessary for the detaining authority to mention the period of detention when passing the original order under section 3(1) of the , but that the order would be bad and illegal if any period is specified, as it might prejudice the case of the detenu when it goes up for consideration before the Advisory Board. The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for deten tion of the person concerned. It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appro priate Government and it can under section 11 (1) of the Act i confirm the detention order and continue the detention of the person concerned for such period as it thinks fit '. In my opinion, the words 'for such period as it thinks fit ' presuppose and imply that after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to whether the original order of detention should be confirmed and if so, for what further period the detention is to continue. Obviously, that is the proper stage for making an order or decision of this description as the (1) [I952] S.C.R. 612, 626, 61 476 investigation with regard to a particular detenu such as is contemplated by the is then at an end and the appropriate Government is in full possession of all the materials regarding him. " At page 637 of the report, the learned Judge further said: " Under the Constitution, the detention of a ,person under any law providing for preventive detention cannot be for a period of more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the detention of the person concerned. The Constitution itself has specified the maximum limit of the initial detention and detention for a period longer than three months can only be made on the basis of the report of the Advisory Board. " In view of these observations, it is quite clear what the scheme of the Act is. The Act authorises a possible deten tion of more than three months; the order of detention is therefore referred to the Advisory Board, and it is only when the Advisory Board makes its report that the appropri ate Government fixes the period of detention under sub section (1) of section 11 of the Act. For all these reasons, we hold that Sub section (1) of section 11 of the Act does not contravene any of the provisions of article 22 and is accordingly valid. We now proceed to give our reasons with regard to those points on merits which have been urged before us by the appellant. The appellant has contended that the grounds of detention communicated to him are all vague, except ground No. 2, and that the grounds so communicated did not give him an opportunity of making an effective representation, a right guaranteed to him under el. (5) of article 22. The grounds except ground No. 2 were these: "1. That since the last two yars you are in constant touch with foreign correspondents in India and representatives of foreign countries to whom you have been spreading reports and information about conditions in the State of Jammu and Kashmir which are false and calculated to prejudice the relations of 477 India with foreign powers and also to prejudice the security of the State. That you are in constant touch with certain persons in Pakistan and Pakistani occupied part of Jammu and Kashmir who are hostile to India and you are assisting these persons in their activities which are prejudicial to the security of India. 4.That you are receiving financial assistance from persons in Pakistan and Pakistani occupied part of Jammu and Kashmir for supporting and furthering your aforesaid prejudicial activities. 5.That you are in regular connection with persons in India who are engaged in promoting false propaganda against India in relation to Kashmir and have been attending their secret meetings for planning action and propaganda in relation to Kashmir prejudicial to the security of India. The Central Government is satisfied that you are likely to act in a manner prejudicial to the security of India and in a manner prejudicial to the relations of India with foreign powers and with a view to prevent you from so acting has passed the order for your detention. " The same document which communicated the grounds of deten tion to the appellant also contained the following statement in paragraph 7: " The Central Government is satisfied that it is against the public interest to disclose to you any facts or particulars as to dates, persons and places and the nature of your activities and the assistance received or otherwise than those which have been already mentioned. " The argument of the appellant is that by refusing to dis close any facts or particulars as to dates, persons and places, the detaining authority has really deprived the appellant of the valuable right guaranteed to him under cl. This contention of the appellant is concluded by the recent decision of this Court in Lawrence Joachim Joseph D 'Souza vs The State of Bombay (1). It (1) ; 478 was held therein that the right of the detenu to be fur nished with facts or particulars was subject to the limita tion mentioned in cl. (6) and even if the grounds communi cated were not as precise and specific as might have been desired, the appropriate authority had the right to withhold such facts or particulars, the disclosure of which it con sidered to be against the public interest. Such a privilege having been exercised in the present case, the appellant cannot be heard to say, apart from the question of mala fides, that the grounds did not disclose the necessary facts or particulars, or that in the absence of such facts or particulars, he was not in a position to make an effective representation. In The State of Bombay vs Atma Ram Sridhar Vaidya(1) this Court has unanimously held that under section 3 of the Act, it is the satisfaction of the appropriate authority which is necessary for an order of detention, and if the grounds, on which the appropriate authority has said that it is so satisfied, have a rational connection with the objects which are to be prevented from being attained, the question of satisfaction cannot be challenged in a court of law except on the ground of malafides. It has been further held by the majority that cl. (5) of article 22 confers two rights on the detenu, namely, first, a right to be informed of the grounds on which the order of detention has been made, and secondly, to be afforded the earliest opportunity to make a representation against the order. If grounds which have a rational connection with the objects mentioned in section 3 are supplied, the first condition is complied with. But the right to make a representation implies that the detenu should have such information as will enable him to make a representation and if the grounds supplied are not suffi cient to enable the detenu to make a representation, he can rely on the second right. The second right, however, is again subject to the right of privilege given by cl. (6) and as has been pointed out in Lawrence D 'Souza 's case, (supra), the obligation to furnish grounds and the duty to consider whether the disclosure of any facts involved therein is against public interest, are both (i) ; 479 vested in the detaining authority and not in any other. As in Lawrence D 'Souza 's case (supra), it is unnecessary in the present case to consider the theoretical contention as to whether or not article 22(6) of the Constitution overrides the constitutional right to be furnished grounds under article 22(5) to the extent of denying all the particulars and leaving the grounds absolutely vague. We are of the opinion that in the present case the grounds furnished to the appel lant, though not as precise and definite as might be de sired, gave him a sufficient opportunity of exercising his right under cl. (5) of article 22 of the Constitution. With regard to ground No. 2, the appellant, has urged the following points. Ground No. 2 communicated to the appel lant is in these terms: " 2. That you addressed a Press Conference at New Delhi on the 18th day of February, 1956, which was attended by a large body of Press Correspondents of foreign countries and that you made a speech (copy of contents of which is hereto annexed) containing various false statements about the conditions of the people of Kashmir. The combined effect of these statements is prejudicial to the security of India and to the relations of India with foreign powers. Extracts of such statements are given below: (then follow the extracts). " It is argued (1) that detention on this ground is more punitive than preventive; (2) that it is not relevant to the objects for which the appellant has been detained, namely, the security of India and her relations with foreign powers; and (3) that there are verbal inaccuracies in reciting the ground, with particular reference to what happened at the Press Conference on February 18, 1956. We have considered each one of these arguments and are of the view that not one of them has any substance. Firstly, the ground no doubt relates to what happened on February 18, 1956; that does not, however, mean that the detention of the appellant is punitive in character. What the appellant is likely to do in future must, to a large extent, 480 be inferred from his past conduct. Secondly, we think that the ground has a rational connection with the objects which the appellant has to be prevented from attaining. The objects of the appellant 's detention are to prevent him from acting in a manner prejudicial to (1) the security of India and (2) her relations with foreign powers. Both these object,%, we think, come within the ground in question. Thirdly, the verbal inaccuracies relied on by the appellant are all so inconsequential in nature that we do not think it necessary to state them in detail. By way of an example, it may be stated that in the extract enclosed with the ground, there is a statement to this effect: "it would be no exag geration to state that were a plebiscite to be held there today, over 90% of Kashmiris would vote against India etc. " In his actual statement, however, the appellant said: "It would not be an exaggeration to state that were a plebiscite to be held there today, over 90% of Kashmirs would vote against India etc." The only difference between the two is that instead of the word 'not ', the word 'no ' has been used in the extract; otherwise, there is no difference between the two statements. Such verbal differences are not inaccu racies at all, and we are unable to accept the contention of the appellant that the detaining authority did not apply its mind to the grounds communicated to him. Lastly, the appellant has raised the question of mala fides. This question has been considered at great length by the learned Judge of the Punjab High Court who dealt with the petition of appellant. The appellant referred in his affi davit to some of his activities from 1954 onwards and to certain events which happened between 1954 and 1956. He also referred to certain statements alleged to have been made by the Prime Minister and the Home Minister, and he averred that both of them were annoyed with him for his activities and therefore the order of detention was not bona fide. We are unable to accept this contention. We agree with the learned Judge of the High Court that the activities of the appellant and the events of 1954 to 1956 referred to by the appellant, do not in any way 481 show that the order of detention made against the appellant was made for any ulterior purpose or for purposes other than those mentioned in the detention order. On the question of mala fldes, it is not a relevant consideration whether the activities of the appellant were liked or disliked by the authorities concerned. The only relevant consideration is if the order of detention was made for ulterior purposes or purposes other than those mentioned in the detention order. On the materials placed before us, we unhesitatingly hold that no mala fides have been established. These are our reasons for the order which we passed on May 24, 1957, dismissing the appeal. SARKAR J. This appeal arises out of an application for the issue of a writ of habeas corpus. In my view the appeal can be disposed of on one ground, and in this judgment I propose to deal with that ground alone. On July 21, 1956, the appellant was taken into custody under an order of detention passed against him by the Government of India under the (Act, IV of 1950). On July 24, 1956, the appellant was served with the grounds on which the order of detention had been passed as required by the Act. The appellant thereafter made a representation against the order which was con sidered by the Advisory Board, constituted under the Act. On August 22, the appellant was served with another order made by the Government of India wherein it was stated that the Advisory Board bad reported that there was in its opinion, sufficient cause for the detention of the appellant. This order fur ther stated that in view of the report of the Advisory Board the Government of India confirmed the detention order earli er made against the appellant and that the appellant should continue in detention for a period of 12 months from the date of his detention. The appellant challenged the legali ty of these orders of detention and moved the High Court of Punjab for the issue 482 of an appropriate writ for his release. The petition was dismissed by the High Court. Hence this appeal. The petitioner challenges the validity of the orders of detention on the ground that the provision of the , under which they were made is ultra vires the Constitution. I have come to the conclusion that this objection to the Act is sound and that is why I do not find it necessary to discuss the other contentions raised by the appellant. The contention of the petitioner is based on article 22(4)(a) of the Constitution. The relevant portion of the article is set out below: (4) No law providing for preventive detention shall autho rise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion suffi cient cause for such detention : Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub clauses (a) and (b) of clause (7). . . . . . . . . . . (7) Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may. be detained for a period longer than three months under any law providing for preven tive detention without obtaining the opinion of an ' Advisory Board in accordance with the provisions of sub clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law provid ing for preventive detention; . . . . . 483 The position, therefore, is that unless Parliament by law otherwise prescribes, the provisions of cl. (4)(a) of article 22 have to be complied with by any law providing for preven tive detention. Parliament has passed no law prescribing otherwise. The , has, there fore, in order to be constitutional to satisfy article 22(4)(a). The appellant 's contention is that it does not do this. Though the words used are somewhat obscure, it is fairly clear, as was accepted at the Bar, that the required provision for the report of the Advisory Board has to be made in the law authorising preventive detention and it is not by the force of article 22(4)(a) itself that that report has to be obtained. The present Act authorises a maximum period of detention of 12 months from the date of detention. It is therefore a law providing for preventive detention and it authorises the detention of a person for a longer period than three months. It must hence contain provisions satisfying sub cl. (a) of el. (4) of article 22 if it is intended to detain a person under it for a period longer than three months. It has to provide that if under it detention for a period longer than three months is to be ordered then an Advisory Board, con stituted as specified, must report that there is in its opinion sufficient cause for such detention. So much is not in dispute. The difficulty is caused by the words " such detention ". The appellant contends that they mean detention for a period longer than three months and therefore an Act authorising preventive detention for more than three months has to provide that the Advisory Board must report that there is sufficient cause for detention for a period longer than three months. The Act in this case does make provi sions for the constitution of the Advisory Board and for submitting all cases of detention irrespective of their periods of detention to it for its opinion as to whether or not there is sufficient cause for detention, but it does not provide that where it is intended to detain a person for a period longer than three months then the Advisory Board must report that there was sufficient 62 484 cause for detention for a period longer than three months. The provision for the opinion of the Advisory Board is contained in section 10(2) of the Act which is in the following terms: section 10(2). The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned. If therefore the appellant is right in his contention that the words " such detention " mean detention for a longer period than three months then the provisions of the Act authorising detention for more than three months must be held to be ultra vires. The question is, what do these words mean? As a matter of pure construction of the language used in sub cl. (a) it seems tome that the words " such detention " must mean detention for a longer period than three months. The word "such" means, of the kind or degree already de scribed. Of the meanings of the word" such" given in the Oxford Dictionary this I find to be the only one appropriate in the present context. Learned counsel for the respondent did not suggest any other meaning. Now what is the kind or degree of detention that is earlier described in the clause ? The only kind that 1 find is detention for a longer period than three months. That being so, I feel compelled to accept the appellant 's contention. The learned Solicitor General opposing the appeal contended that the words "such detention " were capable of two mean ings, namely, detention simpliciter and detention for a period longer than three months. He advanced certain rea sons why of the two possible constructions the first one should be accepted. I will come to the reasons later. Before doing so I wish to state that I am unable to agree that the words " such detention " are capable of two mean ings. Clause (4) contemplates a law of preventive detention but does not authorise such law. Such a law is within the legislative competence of the Parliament and the State legislatures : See article 246 of the Constitution, item 9 of list I and item 3 of list III in the Seventh Schedule 485 to the Constitution. Having contemplated such a law, what cl. 4 proceeds to do is to lay down that, that law shall not authorise the detention of a person for a longer period than three months unless the Advisory Board has reported that there is in its opinion sufficient cause for such detention. It only imposes a limitation on the power to pass laws authorising preventive detention. This is what Das J. said in A. K. Gopalan vs The State of Madras (1). He there said (p. 324), it articles 21 and 22 have put a limit on the power of the State given under article 246 read with the legis lative lists". Therefore the only object that cl. (4) purports to deal with is detention for a period longer than three months under a law of preventive detention the exist ence of which it assumes. Hence the words " such detention " must necessarily refer to detention for a period longer than three months. There is nothing else to which it can refer. Preventive detention without reference to the period of it is not in contemplation of cl. (4) at all. A law for preventive detention is mentioned. The words " such deten tion " cannot possibly refer to that law. That law may, no doubt, provide for detention for a shorter period but such shorter detention is not mentioned in the clause nor really in its contemplation at all. So no question of the words " such detention " referring to the shorter detention arises. But suppose the learned Solicitor General was right in his contention that the words, in the context they are used, are capable of referring both to preventive detention simplicit er and to preventive detention for a period longer than three months, are there reasons for preferring the first of the two alternative constructions ? I am unable to find any. The learned Solicitor General said that if the words were referable only to a detention for a period longer than three months then people detained for a shorter period would be deprived of the safeguard of the opinion of the Advisory Board and lose the chance of being set free if it expressed the view that there was no sufficient cause for detention. That no doubt would be so. But I find (i) ; 486 nothing in the language of cl. (4) to show that such a safeguard was intended. If the language does not support such an intention, then of course this argument must fail, however much the court may like the safeguard to be provided in all cases of detention. If it was the intention of the Constitution to provide such a safeguard it would not have required that the report of the Advisory Board should be made before the expiry of the three months. That is what Fazl Ali, J., said in Gopalan 's case (1) at page 171 : " Under article 22 (4) (a), the Advisory Board has to submit its report before the expiry of three months and may there fore do so on the eighty ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty nine days, an advisory board is to say whether his intial detention was justified. " As the Constitution could not have contemplated the situa tion mentioned by Fazl Ali, J., it could not have intended that all cases of detention irrespective of their periods must also be placed before the Advisory Board. It follows that it did not mean to provide the safeguard referred to by the learned Solicitor General. In fact, all the other learned Judges who heard Gopalan 's case (1), excepting Patanjali Sastri, J., expressed the same view. I set out below what they said: Kania, C.J., (page 118 of the Report): "Reading article 22 clauses (4) and (7) together it appears to be implied that preventive detention for less than three months, without an advisory board, is permitted under the Chapter on Fundamental Rights, provided such legislation is within the legislative competence of the Parliament or the State Legislature, as the case may be. " Mahajan, J., (p. 228): " If the intention of the Constitution was that a, law made on the subject of preventive detention had to be tested on the touchstone of reasonableness, then it would not have troubled itself by expressly making provision in article 22 about the precise scope of the limitation subject to which such a law could be made (1) ; 487 and by mentioning the procedure that the law dealing with that subject had to provide. Some of the provisions of article 22 would then have been redundant, for instance, the provision that no detention can last longer that three months without the necessity of such detention being exam ined by an advisory board. Again at p. 237: " Clause (4) of article 22 enjoins. . . that no law can provide for preventive detention for a longer period than three months without reference to an advisory board. " Mukherjea, J., (p. 281): " Preventive detention can be provided for by law for rea sons connected with six different matters specified in the relevant items in the legislative lists, and whatever the reasons might be, there is a provision contained in article 22 (4) (a) which lays down that detention for more than three months could not be permitted except with the sanction of the advisory board. " Das, J., (p. 326): "In short, clause (4) of article 22 provides a limi tation on the legislative power as to the period of prevent ive detention. Apart from imposing a limitation on the legislative power, clause (4) also prescribes a procedure of detention for a period longer than three months by providing for an advisory board. " The learned Solicitor General then contended that article 22 dealt both with preventive detention and other kinds of detention. Thus clauses (1) & (2) dealt with other kinds of detention while clause (4) and the remaining clauses of the article dealt with preventive detention. Clause (3) said that nothing in clauses (1) and (2) shall apply to a person detained under any law providing for preventive detention. The learned Solicitor General contended that the words " such detention " in clause (4) were intended to refer to preventive detention without reference to its duration as distinguished from the other kinds of detention referred to in clauses (1) and (2). He sought to reinforce his argument by contending that preventive detention 488 for a period longer than three months was not a separate kind of preventive detention and therefore the words " such detention " referred to the only kind of preventive deten tion mentioned in the article, namely, preventive detention simpliciter and without any reference to the period of detention. I am again unable to agree. It is true that the detention contemplated in the words " such detention " is preventive detention. Clauses (4) to (7) of the article deal with preventive detention alone and with no other kind of detention. Therefore, in these clauses there was no necessity of distinguishing preventive detention as such from other kinds of detention and of using the word "such for marking this distinction. So read the words such deten tion " really mean such preventive detention. The question then arises, which preventive detention? The answer must be, one variety of preventive detention as distinguished from other varieties. It is also true that preventive detention for a period longer than three months is none the less preventive deten tion and is not another kind of detention. At the same time preventive detention for a period longer than three months is not the same thing as preventive detention for a shorter period. It is quite conceivable that with regard to differ ent periods of detention permissible under a law relating to preventive detention different provisions may be made. Preventive detention certainly interferes with a person 's liberty. It is an inroad on his freedom. It may be that the makers of the Constitution having given the legislatures power to enact laws providing for preventive detention interfering with a person 's liberty did not think it fit to provide any limitation on such power when such detention, was to be for a relatively shorter period but thought it fit to restrict the power in the case of detention for what they conceived to be a long period. If such was the intention, then the makers of the ' Constitution would obviously make a distinction between preventive detention for a shorter period and preventive detention for a longer period. To say that there is no distinction between these kinds of preven tive detention is to assume that the makers of the Constitu tion, never 490 its opinion sufficient cause existed for a detention for a longer period or not, the report, when made, must necessari ly be taken to have expressed such an opinion and the arti cle therefore must be deemed have been complied with. This argument, of course. , assumes that the words " such deten tion " mean detention for a period longer than three months. It assumes that the article requires that where the law of preventive detention authorises a detention for a longer period it is necessary to obtain the opinion of the Advisory Board that there is sufficient cause for detention for such period. Now there is nothing in the article to prevent an Act authorising preventive detention providing for the opinion of the Advisory Board being obtained as to there being sufficient cause for the detention in any case of detention. Such a provision in a law of preventive deten tion would be perfectly legal. The present Act in fact contains such a provision. Therefore, it cannot be said that whenever a law provides for an opinion of the Advisory Board being obtained as to the sufficiency of the cause for detention, the opinion in view of article 22(4)(a) necessarily is as to the sufficiency of the cause of detention for a period longer than three months. Besides, if, as the present argument assumes, it is obligatory in a law autho rising preventive detention for a period longer than three months to provide for a, report of the Advisory Board statin expressly its opinion as to the sufficiency of the cause for the detention for the period mentioned, I am unable to appreciate that such an obligation is satisfied by not making the required provision but by showing that by neces sary implication the required opinion is deemed to have been given, even though in fact it may not have been given. The question is not what the report is to be seemed to have stated nor even what it has in fact stated, but what the statute should provide. If the statute has not made the obligatory provision it must be held to be bad. It would be a strange argument to say that it must be good because though it did not contain the required provision it must in view of the Constitution be deemed to contain it, 489 intended to make the distinction. For such an assumption I find no justification. Indeed, what I have read from the judgment of this Court in Gopalan 's case, would show that the distinction between preventive detention simpliciter and preventive detention for a period longer than three months was in the mind of the makers of the Constitution, for it is there said that no reference to the Advisory Board is con templated by the Constitution excepting in a case of deten tion for a period longer than three months. The present argument of the learned Solicitor General is on the basis that one of the possible constructions of the words " such detention " is detention for a period longer than three months. That being so, and the word " such " meaning in the ordinary English language, of the kind al ready described, even if two kinds of detention, namely, preventive detention simpliciter and detention for other reasons, have been earlier mentioned, the kind mentioned nearest to the word "such" must be the kind intended by it. Therefore again the words " such detention " must be taken as referring to detention for a period longer than three months. Indeed cl. (4) and the other clauses have nothing to do with other kinds of detention than preventive deten tion. The word " such " cannot therefore seek to make a distinction from a thing occurring in a wholly separate provision of the article, namely, clauses (1) and (2). That being so, I am unable to agree that the words " such deten tion " refer to preventive detention simpliciter. I now turn to another question that arose. It was said that article 22 (4) (a) applies only to a law which authorises detention for more than three months; that it is such a law alone which must provide for the opinion of the Advisory Board being obtained. It was contended that, therefore, whenever a law authorising preventive detention provides for a reference to the Advisory Board, it necessarily provides for a report as to whether there is sufficient cause for a detention for a period longer than three months, and that being so, no matter whether any provision had been made that the Advisory Board must state whether in 491 It was then said that as it is not for the Advisory Board to decide the period of detention to be ordered there can be no point in providing that its opinion, whether there were sufficient cause for detention for a period longer than three months or not, should be obtained. It seems to me that whether there is any point in obtaining such opinion or not it is wholly irrelevant to enquire. If the language of the Constitution requires such opinion to be obtained, it has to be obtained. I have stated that the language indubi tably requires such opinion to be obtained. The language cannot have a different meaning because, otherwise, the provision would be without any point at all. Furthermore, I am unable to see why if the Government fixes the period of detention, it is unnecessary where the period is to exceed three months to provide for the opinion of an independent body being obtained as to whether there is sufficient cause for detention for that period. In my view it is eminently reasonable to make such a provision. When a person 's liber ty is to be curtailed for a longer period, a safeguard may be considered necessary which it may not be when the cur tailment contemplated is for a comparatively shorter period. I will repeat that the reasonableness of such a provision is implicit in what I have read from the judgment in Gopalan 's case (1). It is said there that it is only in the case of detention for a period longer than three months that the Constitution requires a provision that the Advisory Board 's opinion should be obtained. This view is clearly brought out by Fazl Ali, J., when he said in that case at page 171: "Prima facie, it is a serious matter to detain a person for a long period (more than three months) without any enquiry or trial. But article 22(4)(a) provides that such detention may be ordered on the report of the advisory board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind (1) ; 63 492 to the vital question before the Government, namely, whether prolonged detention (detention for more than three months) is justified or not. " I have so long discussed the question whether the words " such detention " mean preventive detention simpliciter or preventive detention for a period longer than three months as a question of construction with. out reference to the authorities. In fact, there is no conclusive authority on the point, but some have been referred to. These I now proceed to consider. The first case referred to is Gopalan 's case (1). That was also a case concerned with the issue of a writ of habeas corpus, and it turned on the very Act that is before the Court now, as it stood in 1950. At the date the order for detention in that case was made the Act provided that in certain class of cases a person might be detained for a period longer than three months without obtaining the opin ion of the Advisory Board in accordance with the provisions of article 22(4)(a). Such a provision is sanctioned by el. (7)(a) of that article. The order for detention made in that case was of a kind where reference to the Advisory Board was not obligatory. That being so, it was not neces sary for the court in that case to decide the precise mean ing of the words " such detention ". None the less, how. ever, three of the learned judges indicated their views on the question and the other three do not seem to have dealt with it. Kania, C. J., expressed the opinion that the words "such detention" meant detention beyond the period of three months. Referring to the proviso to sub cl. (4)(a), he stated (p. 117): " The proviso to this clause further enjoins that even though the advisory board may be of the opinion that there was sufficient cause for such detention, i.e., detention beyond the period of three months, still the detention is not to be permitted beyond the maximum period, if any, prescribed by Parliament under article 22(7)(b)." The learned Chief Justice therefore was of the view that under article 22(4)(a) the Advisory Board had to be (1) ; 493 of the opinion that there was sufficient cause for detention beyond the period of three months. Mr. Justice Fazl Ali expressed himself more clearly on the subject and said (pp. 170 171): " In connection with the first point, the question arises as to the exact meaning of the words " such detention " occur ring in the end of clause (4)(a). Two alternative interpre tations were put forward: (1) it such detention " mans preventive detention; (2) ".such detention" means deten tion for a period longer than three months. If the first interpretation is correct then the function of the advisory board would be to go into the merits of the case of each person and simply report whether there was sufficient cause for his detention. According to the other interpretation, the function of the advisory board will to be report to the Government whether there is sufficient cause for the person being detained for more than three months. On the whole, I am inclined to agree with the second interpretation. Prima, ' facie, it is a serious matter to detain a person for a longer period (more than three months) without any enquiry or trial. But article 22(4)(a) provides that such detention may be ordered on the report of the advisory board. Since the report must be directly connected with the object for which it is required, the safeguard provided by the article, viz., calling for a report from the advisory board, loses its value, if the advisory board is not to apply its mind to the vital question before the government, namely whether prolonged detention (detention for more than three months) is justified or not. Under article 22(4)(a), the advisory board has to submit its report before the expiry of three months and may therefore do so on the eighty ninth day. It would be somewhat farcical to provide, that after a man has been detained for eighty nine days, an advisory board is to say whether his initial detention was justified. On the other hand, the determination of the question whether pro longed detention (detention for more than three months) is justified must necessarily involve the determination of the question whether the detention was justified at all, an such an interpretation only 494 can give real meaning and effectiveness to the provision. The provision being in the nature of a protection or safe guard, I must naturally lean towards the interpretation which is favourable to the subject and which is also in accord with the object in view." Patanjali Sastri, J., preferred the other view but he rea lised that the view taken by Fazl Ali, J., was also a possi ble view. He expressed himself in these words on the sub ject (at page 210): "I am inclined to think that the words "such detention" in sub clause (a) refer back to the preventive detention men tioned in clause (4) and not to detention for a longer period than three months. An advisory board, composed as it has to be of Judges or lawyers , would hardly be in a posi tion to judge how long a person under preventive detention, say, for reasons connected with defence, should be detained. That must be a matter for the executive authorities, the Department of Defence, to determine, as they alone are responsible for the defence of the country and have the necessary data for taking a decision on the point. All that an advisory board can reasonably be asked to do, as a safe guard against the misuse of the power, is to judge whether the detention is justified and not arbitrary or mala fide. The fact that the advisory board is required to make its report before the expiry of three months and so could submit it only a day or two earlier cannot legitimately lead to an inference that the board was solely concerned with the issue whether or not the detention should continue beyond that period. Before any such tribunal could send in its report a reasonable time must elapse, as the grounds have to be communicated to the persons detained, he has to make his representation to the detaining authority which has got to be placed before the board through the appropriate depart mental channel. Each of these steps may, in the course of official routine, take some time, and three months ' period might well have been thought a reasonable period to allow before the board could be required to submit its report, 495 Assuming, however, that the words "such detention" had reference to the period of detention, there is no apparent reason for confining the enquiry by the advisory board to the sole issue of duration beyond three months without reference to the question as to whether the detention was justified or not. Indeed, it is difficult to conceive how a tribunal could fairly judge whether a person should be detained for more than three months without at the same time considering whether there was sufficient cause for the detention at all. I am of opinion that the advisory board referred to in clause (4) is the machinery devised by the Constitution for reviewing orders for preventive detention in certain cases on a consideration of the representations made by the persons detained. This is the view on which Parliament has proceeded in enacting the impugned Act as will be seen from sections 9 and 10 thereof, and I think it is the correct view. It follows that the petitioner cannot claim to have his case judged by any other impartial tribu nal by virtue of article 21 or otherwise. " For the reasons earlier stated I prefer to accept the view expressed by Mr. Justice Fazl Ali. The next case referred to is Makhan Singh Tarsikka vs The State of Punjab (1). This was also a case for the issue of a writ of habeas corpus for the release of a person detained under the same Act as it stood in July 1951. In this case the first order for detention, that is to say the order made before the reference to the Advisory Board itself fixed the period of detention. It was held that that was illegal because the Act made it plain that it is only after the Advisory Board to which the case has been referred reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the ini tial order in, the present case was, therefore, contrary to the scheme of the Act and cannot be supported. On this ground the petition for the issue of a writ was allowed. This case was obviously not (1) ; 496 concerned with article 22(4)(a) and does not in any manner decide the question before me. I am, therefore, unable to find any assistance from it. Lastly, reference was made to Dattatreya Moreshwar Pangarkar vs The State of Bombay(1). That again was concerned with an application for the issue of a writ of habeas corpus and also turned on the present . There, after the initial order for detention which did not mention any period, the case had been referred to the Advisory Board which reported that there was sufficient cause for detention and then the Government issued an order stating that it confirmed the detention order issued against the detenu. The question was whether this confirmatory order was in terms of section II (1)(a) of the same Act as in this case as it stood in 1952. That section provided that where the adviso ry board had reported that there was sufficient cause for detention, the Government might continue the detention for such period as it .thought fit. It was contended that the section required the period of detention to be mentioned in the confirmatory order and as the confirmatory order did not specify the period it was bad and did not justify the deten tion. It was held that such omission did not invalidate the order. Again it will be seen that this case was not con cerned with article 22(4)(a). We were referred to certain observations of Mr. Justice Mukherjea in this case in sup port of the proposition that the words " such detention " in article 22(4)(a) meant detention simpliciter. These observa tions are set out below (pp. 626 27): " It is now settled by a pronouncement of this court that not only it is not necessary for the detaining authority to mention the period of detention when passing the original order under section 3(1) of the , but that the ' order would be bad and illegal if any period is specified, as it might prejudice the case of the detenu when it goes up for consideration before the Advisory Board. The Advisory Board again has got to express its opinion (1) (1952] S.C.R. 612. 497 only on the point as to whether there is sufficient cause for detention of the person concerned. It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained. Once the Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken subsequently is left entirely to the appropriate Government and it can under section 11(1) of the Act confirm the detention order and continue the deten tion of the person concerned for such period as it thinks fit. " It was sought to be argued that Mukherjea, J., intended to say that all that the Advisory Board was required to do was to express its opinion on the question of justification of the detention simpliciter. This may be so, but Mr. Justice Mukherjea was construing the which admittedly made that provision. He was not saying that article 22(4)(a) also said the same thing. Indeed what I have read earlier from his judgment in Gopalan 's case (1) would show that his view about article 22(4)(a) was otherwise. Again the learned Judge was not concerned with the question whether the relevant provision of the was ultra vires the Constitution. Furthermore, for the reasons earlier stated, the fact that the Government decides the term of detention does not indicate that it is not intended that when detention for a period longer than three months is contemplated, it is not necessary to obtain the opinion of the Advisory Board as to whether there was sufficient cause for detention for the period. Reference was also made to the following portion of the judgment of Mahajan, J. (2), occurring at p. 637 of the report: "Under the Constitution, the detention of a person under any law providing for preventive detention cannot be for a period of more than three months unless the Advisory Board is of the opinion that there is sufficient cause for the detention of the person concerned." (1) ; , (2) ; 498 It was suggested that the learned Judge indicated that all that was necessary was for the law to provide for an opinion of the Advisory Board as to the justification of the deten tion itself irrespective of whether it was to be for a period longer than three months. It is clear that here Mahajan, J., was not considering the meaning of the words " such detention". He was not concerned with deciding whether these words meant detention simpliciter or detention for a period longer than three months. His observations in Gopalan 's case(1) that I have earlier set out, would in my view indicate that the Advisory Board is required to give an opinion as to whether detention for a longer period than three months is justified or not. It cannot therefore be said that Mahajan, J., held the view that the words " such detention " in article 22(4)(a) mean simply preventive deten tion. I therefore come to the conclusion that there is nothing either in Makhan Singh 's case (2) or Dattatreya Moreshwar Paugarkar 's case (3) which takes a view contrary to that which I have taken. , In the result I would allow the appeal. (1) [195o] S.C.R. 88.

The appellant was arrested under section 3 Of the (lV Of 1950) as amended by the amending Act Of 1951. The grounds of his detention were communicated to him as required by section 7 Of the Act and his case was thereafter put up before the Advisory Board constituted under section 8 of the Act. The Board reported that there was sufficient reason for his detention and thereupon the Cen tral Government acting under s.11 (1) of the Act confirmed the order of detention and directed that such detention should continue for a period of twelve months from the date of detention. The appellant challenged the validity of this order by an application to the Punjab High Court under article 226 of the Constitution for a writ of habeas corpus and contended that sub section (1) of section 11 of the Act was constitu tionally invalid as it contravened the provision of article 22(4)(a) of the Constitution. The High Court found against him. The same point was canvassed in appeal to this Court and it was contended that the expression 'such detention ' occurring in sub cl. (a) of cl. (4) of article 22 referred to detention for a period longer than three months mentioned in cl. (4) Of the Article and section 11(1) of the Act, in so far as it permitted detention for more than three months without a specific report from the Advisory Board that there was sufficient cause for detention for more than three months, was ultra vires. It was contended on behalf of the Union of India that the expression ,such detention ' referred to 'preventive detention ' occurring in the first line of cl. (4) of article 22 and what an Advisory Board contemplated by sub cl. (a) of that clause was intended to do was only to give its opinion as to whether there was sufficient cause for the detention itself and not as to the period of deten tion. Held (per Bhagwati, jafer Imam, section K. Das and J. L. Kapur Jj. Sarkar J. dissenting). The contention advanced on behalf of the respondent was correct and the appeal must fail. The expression 'such detention ' in article 22(4)(a) of the Constitution refers to preventive detention and not to any period for which such detention should continue and section 11(1) of the does not contravene the provision of article 22(4)(a) of the Constitution, 461 The true scope and effect of cl. (4) of article 22 must be judged in the light of the entire scheme envisaged by article 22 and so understood, it becomes clear that the Constitution could not have intended that while the determination of the necessity of preventive detention should be left to the Executive, the determination of the period for which such detention should continue should be left to the Advisory Board. In the very nature of things any decision as to the period of such detention can be taken only by the detaining authority upon which has been placed the responsibility for the detention. The reference to the Advisory Board is intended to be a safeguard against any possible misuse of its power by the Executive and affords a machinery for the review of its decision on the basis of the representation made by the detenu, the grounds of detention or the report of any Officer who may have passed the order. It is not a limitation on the Executive 's discretion as to the discharge of its duties connected with preventive detention. A. K. Gopalan vs The State of Madyas, ; , referred to. An examination of the scheme of the Act shows that its provisions are in conformity with the relevant provisions of the Constitution. While the Act authorises detention for more than three months, it does provide for a reference of the order of detention to the Advisory Board and it is only after the Advisory Board has made its report that the Gov ernment can fix the period of detention under section 11(1) of the Act. Makhan Singh Tarsikka vs State of Punjab, ; and Dattatreya Moreshway Pangaykar vs State of Bombay, ; , referred to. Held further, that where the appropriate authority refuses to disclose any facts or particulars as to dates, persons and place, on the ground that such disclosure would be against public interest, under cl. (6) of article 22, the person in detention cannot be heard to say, apart from the question of mala fides, that the grounds did not disclose the necessary facts or particulars or that in the absence of such facts or particulars he was not in a position to make an effective representation. In the present case the grounds gave him a sufficient opportunity to make an effec tive representation. Lawrence Joachim Joseph D 'Souza vs The State of Bombay, ; and State of Bombay vs Atma Ram Sridhay Vaidya, ; , relied on. The test of the mala fides of the Executive in passing an order of preventive detention is whether the Executive in making such order was actuated by any ulterior purposes other than those mentioned In the order of detention. 462 Per Sarkar, J. The expression 'such detention in article 22(4)(a) of the Constitution means detention for a period longer than three months and cannot mean detention simplic iter. The object of article 22(4) is to impose a limitation on the power which the Parliament and the State Legislatures have, under article 246 of the Constitution, to enact laws for preventive detention by making such detention, where it is to be extended beyond three months, dependent on the opinion of an Advisory Board. There is nothing in the language of article 22(4) to show that the safeguard the Constitution intended to provide by the opinion of the Advisory Board is available in other cases of detention. A. K. Gopalan vs The State of Madras, ; referred to. It cannot be said that since the Act provides for the ob taining of the opinion of the Advisory Board as to the sufficiency of the cause for detention, that opinion, in view of article 22(4)(a), necessarily is as to the sufficiency of the cause for detention for more than three months. Where the statute does not contain the provision that the Advisory Board must report that in its opinion there is a sufficient cause for detention for more than three months, as required by article 22(4)(a) of the Constitution, the lacuna cannot be deemed to be cured by implication. A statute which authorises detention for a period longer than three months without making a provision that the opinion of the Advisory Board must be obtained that there is sufficient cause for detention for a period longer than three months is to that extent invalid. Makhan Singh Tarsikka vs The State of Punjab, (1952) S.C.R. 368 and Dattalreya Moreshwar Pangarkay vs The State of Bom bay; , , considered.

Appeal No. 116. of 1964. Appeal from the judgment and order dated September 13, 1960, of the Allahabad High Court in Special Appeal No. 212, of 1956. J. P. Goyal and B. P. Jha, for the appellants. A. V. Ranganadham Chetty and A. V. Rangam, for the res pondents. At the time when the present suit was brought, the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (U.P. Act III of 1947) (hereinafter called 'the Act ') was in force. Section 3 of the Act imposes certain restrictions on the landlord 's right to eject his tenant from the premises to which the Act applies. Broadly stated, the effect of the provisions contained in section 3(1) is that a landlord can evict his tenant if he satisfies two conditions. The first condition is that he must obtain the permission of the District Magistrate to file such a suit; and the second condition is that he must provethe existence of one or the other of the seven grounds; enumeratedin clauses (a) to (g) of section 3(1). We shall presently refer to therelevant provisions of this section. In their plaint, the appellants pleaded that they needed the premises in suit to carry on their own business in the shop, and they alleged that they had applied for permission to the District Magistrate, Moradabad, under section 3 (1 ) of the Act; that the said permission had been refused by him, whereupon they had moved the Commissioner in his revisions jurisdiction under section 3(2) of the Act; and that the Commissioner had given them permission to file the suit. That is how the appellants claimed to have satisfied both the, conditions prescribed by section 3 (1). The appellants further claim 555 ed ejectment of the respondents and asked for a decree for damages. for use and occupation of the suit premises from 11th April, 1953 to 11th July, 1954 Rs. 35/ per month. The suit (No. 349, of 1954) was filed on the 14th July, 1954. The respondents resisted the claim made by the appelants on. several grounds. They urged that the suit was bad for non joinder of necessary parties; that the permission to sue granted to the appellants by the Commissioner was not valid in law; that the rent note executed by them was not admissible in evidence; and that the notice given by the appellants under section 106 of the Transfer of Property Act was also invalid in law. On these pleadings, the learned Munsif, Chandausi, framed appropriate issues. Evidence wag led by both the parties in support of their respective contentions. The learned trial Judge recorded findings in favour of the appellants on all the issues and decreed their suit with costs on the 25th March, 1955. The respondents then preferred an appeal (Civil Appeal No. 213 of 1955) in the Court of the District Judge, Moradabad, and urged that the findings recorded by the trial Judge were erroneous and asked for the reversal of the decree passed by him. The learned District Judge rejected the respondents ' contentions and confirmed the decree under appeal on the 2nd June, 1955. That took the respondents to the High Court at Allahabad in second appeal (No. 1106 of 1955). The learned single Judge of the said High Court who heard this appeal, upheld the respondents ' contention that the permission granted by the Commissioner under section 3(3) of the Act was invalid in law; and so, he came to the conclusion that the appellants ' suit was incompetent. This judgment was delivered on the 26th July, 1956. The learned Judge, however, allowed the appellants leave to file a Letters Patent Appeal. The Letters Patent Appeal was placed before a larger Bench of three learned Judges of the High Court, because it was thought that the question raised by the appellants was of some importance. On the question as to whether the permission granted by the Commissioner was valid or not, the learned Judges who heard the appeal differed. Two of the learned Judges held that the said permission was invalid, whilst the third learned Judge held that it was valid. In accordance with the majority opinion the Letters Patent appeal.preferred by the appellants was dismissed on the 13th September, 1960. The appellants then applied for 556 and obtained a certificate from the High Court and it is with the said certificate that this appeal has come to this Court. At the hearing of this appeal, the first point which Mr. Goyal for the appellants has raised for our decision is that the courts below had no jurisdiction to consider the question about the validity of the permission granted by the Commissioner. He contends that section 3 of the Act provides a self contained code for the grant of permission, and all questions in relation to the grant or refusal of the said permission have to be decided by the appropriate authorities constituted under the Act. Once the question about the grant of permission asked for by a landlord is determined by the appropriate authorities, their decision is final and cannot be questioned in a civil court. In support of this argument, Mr. Goyal has based himself on the provisions contained in section 3 (4) and section 16 ,of the Act. Section 3 (4) provides that the order of the Commissioner under sub section (3) shall subject to any order passed by the State Government under section 7 F, be final. Similarly, section 16 provides that no order made under this Act by the State Government or the District Magistrate shall be called in question in any Court. The combined effect of these two provisions, according to Mr. Goyal, is to exclude the jurisdiction of the civil courts to entertain the question about the correctness, propriety or legality of the order passed by the Commissioner in the present case whereby he granted permission to the appellants to bring the present suit. In order to appreciate the validity of this argument, it is necessary to consider the scheme of the, relevant provisions of the Act. Section 3(1) reads thus.: "Subject to any order passed under sub section (3) no suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds". It is unnecessary to cite the said grounds, because it is not disputed that the ground of personal need set out by the appellants justifies their claim for the respondents ' ejectment. Section 3(2) and (3) as they stood at the relevant time read thus : "(2) The party aggrieved by the order of District Magistrate granting or refusing to grant the permission referred to in sub section (1) may, within 30days from the date of the order or the date on which it is communi 5 57 cated to him, whichever is later, apply to the Commissioner to revise the order. (3) The Commissioner shall, as far as may be, hear the application within six weeks from the date of its making, and, if he is satisfied that the District Magistrate has acted illegally or with material irregularity or has wrongly refused to act, he may confirm or set aside. the order of the District Magistrate". We have already referred to section 3(4). It would thus be seen that the scheme of section 3 is that if a landlord wants to bring a suit to eject his tenant, he has to apply to the District Magistrate for permission to do so. The District Magistrate may grant or refuse to grant such permission. After the District Magistrate makes an order on the landlord 's application, the party aggrieved by the order can apply in revision to the Commissioner within 30 days; and the Commissioner, in exercise of his revisional jurisdiction, has to deal with the revision application under section 3(3). If he is satisfied that the District Magistrate has acted illegally or with material irregularity, or has wrongly refused to act, he can make an appropriate order; and the order thus made by him is final under sub section (4), subject to any order that the State Government may pass under section 7 F of the Act. Section 7 E provides for the revisional powers of the State Government in very wide terms. It reads thus : "The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in section 3 or requiring any accommodation to be let or not to be let to any person under section 7 and may make such order as appears to it necessary for the ends of justice". It is clear that the power conferred on the State Government by section 7 F to revise the orders passed by the Commissioner under section 3 (3 ) is very wide. In the first place, the State Government need not necessarily be moved by any party in that behalf. It may call for the record suo moto and it can exercise its powers in the interests of justice. In other words, whenever it is brought to the notice of the State Government either by a party aggrieved by the order passed by the Commissioner, or otherwise, that the order passed by the Commissioner is unfair or unjust, the State Government may in the ends of justice pass an appropriate order revising the order made by the Commissioner. That, in brief, is the 558 scheme of. the relevant provisions of the Act relating to the grant of permission to the landlord to sue his tenant in ejectment. Mr. Goyal contends that the words of section 3 (4) read with section 16 are clear and unambiguous, and they indicate that the jurisdiction of the civil courts is completely excluded in relation to the question as to whether permission has been properly or validly granted or refused by the appropriate authorities exercising their powers under the relevant provisions of the Act. It cannot be seriously disputed that the jurisdiction of the civil courts to deal with civil causes can be excluded by the Legislature by special Acts which deal with special subject matters; but the exclusion of the jurisdiction of the civil courts must be made by a statutory provision which expressly provides for it, or which necessarily and inevitably leads to that inference. In other words, the jurisdiction of the civil courts can be excluded by a statutory provision which is either express in that behalf or which irresistibly leads to that inference. One of the points which is often treated as relevant in dealing with the question about the exclusion of civil courts ' jurisdiction, is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is : does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions ? Applying these two tests, it does appear that the words used in section 3 (4) and section 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any court. this is an express provision excluding the civil courts ' jurisdiction. Section 3 (4) does not expressly exclude the jurisdiction of 'the civil courts, but, in the context, the inference that the civil courts ' jurisdiction is intended to be excluded, appears to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in contending that the jurisdiction of the civil courts is excluded in relation to matters covered by the orders included within the provisions of section 3 (4) and section 16. This conclusion, however, does not necessarily mean that the plea against the validity of the order passed by the District Magistrate, or the Commissioner, or the State Government, can never be raised in a civil court. In our opinion, the bar created by the relevant provisions of the Act excluding the jurisdiction of the civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, 559 lead to the conclusion that the impugned order is a nullity. Take,, for instance, the case of an order purported to have been passed by a District Magistrate who is not a District Magistrate in law. If it is shown by a party impeaching the validity of the order in a civil court that the order was passed by a person who was not a District Magistrate, the order in law would be a nullity, and such a plea cannot be ruled out on the ground of the exclusion of the jurisdiction of the civil court. Similarly, if an order granting permission to a landlord is passed by a District Magistrate of one District when the property in question is situated in another district outside his jurisdiction, a party would be entitled to urge before a civil court that the permission purported to have been granted by the District Magistrate is wholly invalid and a nullity in law. Let us take another case to illustrate the position. If section 3 had provided that before a District Magistrate grants permission to the landlord to sue his tenant, he shall issue notice to the tenant and give him an opportunity to represent his case before the application of the. landlord is dealt with on. the merits; and in the face of such a statutory provision, the District Magistrate grants permission ex parte without issuing notice to the tenant; in such a case, the failure of the District Magistrate to comply with the mandatory provision% prescribed in that behalf, would render the order passed by him completely invalid, and a plea that an order has been passed by the District Magistrate without complying with the mandatory provision of the Act, would be open for examination before a civil court. Likewise, in the absence of such a statutory provision, if it is held that the proceedings before the appropriate. authorities contemplated by section 3 are in the nature of quasi judcial proceedings and they must be tried in accordance with the principles of natural justice, and it is shown that in a given case, an order has been passed without notice to the party affected by such order, it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and it existence should be ignored by the civil court. Such a plea cannot, in our opinion, be excluded by reason of the provisions contained in section 3 (4) and section 16 of the Act. In this connection, we may incidentally refer to a recent deciSion of this Court in Lala Shri Bhagwan & A nr. vs Shri Ram Chand and Another(1). In that case, this Court upheld the decision of the Allahabad High Court which had set aside the order passed by the appropriate authority under the relevant provisions the Act on the ground that in passing the said order, principles of natural (1) ; 560 justice had not been followed. The view which was taken by this Court in that case was that the proceedings taken by a landlord under section 3 are proceedings of a quasi judicial nature and the appropriate authorities, in exercising their powers in relation to such proceedings, must act in accordance with the principles of natural justice. It must, however, be made clear that in that ,case, the question as to whether such a plea can be raised in a civil court having regard to the bar created by sections 3 (4) and 16 of the Act, was not raised and has not been considered. We ought to point out that the provisions contained in sec tions 3(4) and 16 undoubtedly raise a bar against pleas which ,challenge the correctness or propriety of the orders in question. The merits of the order are concluded by the decision of the ,appropriate authorities under the Act and they cannot be agitated in a civil court. But where a plea seeks to prove that the impugned order is a nullity in the true legal sense, that is a plea which does not come within the mischief of the bar created by sections 3(4) and 16 of the Act. Similar questions have often been considered by judicial ,decisions to some of which we will now refer. In The Secretary ,of State for India in Council vs Roy Jatindra Nath Chowdhury and A nr., (1) dealing with the effect of section 6 of the Bengal Alluvion and Diluvion Act (IX of 1847), the Privy Council observed that the finality of the orders specified in the said section had to be read subject to two conditions; the first was that the said orders should not suffer from any fundamental irregularity, that is to say, "a defiance or noncompliance with the essentials of the procedure"; and the second condition was that the alleged defiance or non compliance, with the essentials of the procedure must be strictly proved by the party alleging it. This decision show that if the special statute prescribes certain mandatory conditions subject to which the orders in question can be passed, and the said mandatory provisions are violated, the validity of the said orders ,can be challenged in a civil proceeding. Similarly, if principles ,of natural justice are not complied with, the orders passed in violation of the said principles would be wholly inoperative in law and their validity can be impeached in civil proceedings. The same principle has been emphasised by the Privy Council in Secretary of State vs Mask & Co.(1). In that case, though the words used in sections 188 and 191 of the Sea Customs Act (1878) were held to exclude the jurisdiction of the civil courts, (1) A.I.R. 1924 P.C. 175. (2) 67 1. A. 222 561 the Privy Council observed that even where jurisdiction is excluded, the civil courts have jurisdiction "to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". This latter clause presumably covers cases where orders are passed in violation of the principles of natural justice. In M/s Kamala Mills Ltd. vs The State of Bombay(1), while dealing with a similar point, this Court has considered the effect of the two decisions of the Privy Council, one in the case of Mask & Co.(1), and the other in Raleigh Investment Company Ltd. vs Governor General in Council(3). The conclusion reached by this Court in M/s. Kamala Mill 's case(1) also supports the view which we are taking in the present appeal. Therefore, while upholding the contention raised by Mr. Goyal that the jurisdiction of the civil courts is barred, we wish to make it clear that this contention will not avail Mr. Goyal if the respondents ' plea, if upheld, would render the permission granted by the Commissioner totally invalid land a nullity. The second point which then calls for our decision in the present appeal is: is the permission granted by the Commissioner without jurisdiction and as such, a nullity ? The majority decision of the Allahabad High Court is in favour of the respondents; and Mr. Goyal 's argument is that the said decision is inconsistent with the true scope and effect of the provisions prescribed by section 3 (3) of the Act. The decision of this point lies within a very narrow compass. The majority decision is that the jurisdiction conferred on the Commissioner under section 3(3) is exactly similar to the jurisdiction conferred on the High Court under section 115 of the Code of Civil Procedure. It will be recalled that. 115 of the Code confers revisional jurisdiction on the High Court to make such order as it thinks fit in a given case, if the subordinate court whose order is brought before the High Court under section 115 "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 (c) to have acted in exercise of its jurisdiction illegally or with material irregularity". There is no doubt that the requirements of clauses (a), (b) & (c) all centre round the question about the jurisdiction of the subordinate court, and the view which has been accepted by the majority decision under appeal is that the same limitation must be imported in construing (1) ; (3) 74 T. A. 50, at pp. 62 63. (2) 67 I.A. 222. 56 2 the scope of the authority and power conferred on the Commissioner by section 3(3). Let us examine whether this conclusion is right. In construing the provision of section 3 (3), one factor which is patent is that it ,does not refer to any considerations of jurisdiction at all. In fact, it is not easy to conceive of a limitation as to jurisdiction being relevant in section 3(3), because the said provision deals with .orders passed by District Magistrates, and the District Magistrates normally would have jurisdiction to deal with applications made by landlords. But quite apart from this aspect of the matter, the words used in section 3(3) are unambiguous. There are 'three ,categories of cases in which the Commissioner can interfere with the order passed by the District Magistrate. If the District Magistrate has acted illegally, the Commissioner can interfere with his order; so can he interfere with the order if the District Magistrate has acted with material irregularity; and lastly, the Commissioner can interfere with the order of the District Magistrate if the District Magistrate has wrongly refused to act. This last clause is wide enough to empower the Commissioner to correct the error committed by the District Magistrate in making an order brought before it; quite clearly if the District Magistrate refuses to grant permission and the Commissioner thinks that in doing so, he has committed an error, that would be a case where the District Magistrate has wrongly refused to act, and that would give the,Commissioner jurisdiction to exercise his revisional power. It is significant that the revisional application can be made to the Commissioner only against orders passed by the District Magistrate granting or refusing to grant such permission. It is, we think, fallacious to assume that a party can move the Commissioner under section 3(3) in cases where the District Magistrate just refuse to make an order on the application made by the landlord for permission to bring a suit against the tenant. If a District Magistrate just does not deal with the application and passes no, order on it, the party aggrieved may be justified in applying for an appropriate writ to the High Court or adopt some other suitable remedy in law; but a revision in such a case does not appear to be competent under section 3 (3). Besides, the illegality or the irregularity to which section 3 (3) refers need not necessarily be correlated with questions of jurisdic tion. Therefore, we are satisfied that the High Court was not justified in introducing a limitation pertaining to questions of jurisdiction in determining the scope of the width of the revisional ,visional power conferred on the Commissioner by section 3 (3). That is why it must be held that the High Court was in error in coming to the conclu 563 sion that the permission granted by the Commissioner in exercise of the powers conferred on him by section 3 k 3) is invalid in law. As we have already emphasised, the only plea which can be raised before a civil court in relation to orders passed under the relevant provisions of the Act can be a plea which, if sustained, would render the order wholly invalid and as such, a nullity. No other plea can be raised, because all other pleas are barred by sections 3 (4) and 16 of the Act. In this connection, we may incidentally point out that by a subsequent amendment of section 3(3), the Legislature has made it clear that its intention is to confer wide jurisdiction on the Commissioner. The amendment in question has been introduced by Act 17 of 1954. The amended provision reads thus : " 'The Commissioner shall hear the application made under sub section (2), as far as may be, within six weeks from the date of making it, and he may, if he is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate or as to the regularity of proceedings held before him, alter or reverse his order, or make such other order as may be just and proper". There is no doubt that under this amended provision, the Commissioner can deal not only with the legality, but also with the correctness and propriety of the order passed by the District Magistrate. In our opinion, the position about the Comissioner 's powers was not different even under the unamended provision. It may also be relevant to point out that the power conferred on the State Government at all material times by section 7 F was very wide. As we have already indicated, in exercise of its powers under section 7 F, the State Government can pass such orders as appear to it to be necessary in the ends of justice. Therefore, there is no doubt that the relevant provisions of the Act did not intend, even prior to the amendment of 1954, to limit the jurisdiction of the Commissioner only to cases where irregularity or illegality bad been committed by the District Magistrate in granting or refusing, to grant permission. The result is, the appeal is allowed, the order passed by the High Court in the Letters Patent Appeal is set aside, and that of the District Court restored with costs throughout. Appeal allowed.

By the Taxation Laws (Extension to Merged States and Amendment) Act of 1949 the Income tax Act. 1922 was applied to the territories of the former Indian States which were merged with the former British Indian Provinces under the States Merger (Governors ' Provinces) Order. By such application, the income received, accrued or arisen or deemed to be received, accrued or arisen to any person resident within the territory of the merged State became chargeable to income tax. With a view to avoid hardship to residents of former Indian States, caused by the sudden application of the high rates of taxation, the Central Government issued the Merged States (Taxation Concessions) Order of 1949 under a. 60A of the Income tax Act. Under Paragraphs 6 and 6A of Us Order income of residents of the merged States became charageable to tax under the Indian Income tax Act, but the income of any previous year ending after 31st March 1948 was to continue to get for a limited Period the benefit of lower rates of tax operative under the law in force in the States before merger. This concession was to apply, under paragraph 4 of the Order, only to so much of the income, profits and gains included in the total income of an assessee as would, had he been resident in the taxable territories, have been exempt under section 14(2)(c) of the Income tax Act if the Taxation Laws Extension Act had not bee passed, that is, in respect of income arising or accuring to him :within territory of the merged State. In the Calendar years 1948 and 1949, the assessee, who was resident and ordinarily resident within British India in 1948, received certaining as dividend in the State of Baroda which was one of the merged States. The Income tax Officer upheld its claim that the dividend income had accrued or arisen in the Baroda State and as the income was not brought into British India, it was exempt from liablility to tax under section 14(2)(c) of the Income tax Act. The Appellate Tribunal held that the dividend income arose in Baroda State, but by reason of the definition of "taxable territories" in section 2(14A) of the Income tax Act, the income attracted liability to tax and did not qualify for the rebate equal to the difference between the British Indian rate and the Baroda State rate in respect of the dividend income, under paragraph 6 of the Taxation Concessions Order. The High Court also, on a reference, held that the assessee was not entitled to the rebate. In appeal to this Court, the assessee contended that by the application of the Taxation Laws Extension Act, all residents in the taxable territory become liable to pay tax at the Indian rates, but with a view to maintain the status quo ante, it was intended by the Taxation Concessions Order, to restore the State rates of taxation to residents in the former Indian States, and also to continue the exemption in respect of the income of the former British India residents, arising or accruing 5 80 in the territory of the merged States within the limits prescribed by section 14(2) (c). HELD : in terms the concession is not given to residents of the territories of British India, and the context does not warrant an implication to the contrary. [587 C D] There is nothing in paragraph 4 of the Concessions Order which seeks to grant exemption from liability to tax in respect of income which prior to merger of the States was not liable to tax by virtue of section 14(2) (c), but has, since the application of the Income tax Act, become so liable. The paragraph applies to income. which would, if the Taxation Laws Extension Act had not been passed, have been regarded as accuring or arising in an Indian State, and the assessee would in respect of that income, had he been a resident of the taxable territory before merger, have been exempt under section 14(2)(c). It is true that by this interpretation of paragraph 4 British Indian residents are denied the benefit of the exemption under section 14(2)(c) in respect of income arising or accruing in the territories of the merged State. But the use of the expression "had he been resident in the taxable territories" implies that the benefit is not to tenure to persons who were before the merger entitled to the exemption under section 14(2)(c). [587 A B, D]

ivil Appeal No. 2948 of 1984 275 From the Judgment and Order dated 20.1.1984 of the Delhi High Court in L.P.A. No. 145 of 1982. G. Ramaswami, Additional Solicitor General, S.C. Dhanda, C.S. Vaidyanathan, P. Chowdhary and S.R. Sethia for the Appellant. Respondent No. 1 In person, Girish Chandra, Ms. Sushma Relan and P. Chowdhary for Respondents. The Judgment of the Court was delivered by PATHAK, CJ. This is an appeal by special leave against a judgment of a Division Bench of the High Court of Delhi in a Letters Patent Appeal upholding the judgment of a Single Judge of the High Court in a writ petition filed by the first respondent for a declaration that he continues to be in the service of the Jawaharlal Nehru University. The sets forth as the objects of the Jawaharlal Nehru University "to dissemi nate and advance knowledge, wisdom and understanding by teaching and research and by the example and influence of corporate life, and in particular the objects set out in the first Schedule. " The powers of the University extend to establishing within the Union Territory of Delhi or outside that territory such Special Centres as may be necessary for the furtherance of its objects, to create such teaching, administrative and other posts as the University may deem necessary, and to make arrangements thereto, and to appoint or recognise persons as Professors, Readers or Lecturers or otherwise as teachers of the University. Section 7(b) of the Act declares that where the University establishes and maintains any institution or body outside the Union Territo ry of Delhi then the powers and jurisdiction of the Univer sity will extend to such institution or body subject to the rules and regulations of the University within whose juris diction the institution or body is situate. On 21 September, 1970 the Additional Secretary, Ministry of Education and Youth Services wrote to the Vice Chancellor of the University informing him of the intention of the Government of India, to establish a Central University at Shillong to serve the needs of the North Eastern Region of India, and that in August, 1969, the University Grants Commission had approved the proposal of the Manipur Adminis tration to have a Post graduate Centre at Imphal under the auspices of the Gauhati University, and considering the fact that the 276 proposed Central University for the Hill Areas was also intended to cater to the needs of Manipur, it would be appropriate, he said, that the Jawaharlal Nehru University should establish a Centre at Imphal also which could later be made over to the proposed new University to be estab lished by the Centre. On 3 October, 1970, a resolution was passed by the Executive Council of the Jawaharlal Nehru University agreeing with the proposal of the Ministry of Education to set up an Institute of Post graduate Studies at Imphal. A committee was set up to study the problems con nected with the setting up of such an Institute and to submit concrete proposals in that regard. On 12 June, 197 1, the Executive Council of the University recorded their agreement in principle to the proposal of the Ministry of Education to set up an Institute of Post graduate Studies at Imphal and noted that the committee had submitted its re port. Then on 12 June, 197 1, the Executive Council passed a resolution that a Centre of Post graduate Studies be set up at Imphal under section 5(2) of the . On 27 January, 197 1, the appellant University informed the respondent that he had been selected for the post of Research Assistant in the Department of South Eastern Stud ies, School of International Studies of the University, that the appointment would be temporary for a period of six months and his services could be terminated on one month 's notice on either side. On 25 April, 1973, the term of tempo rary appointment as Research Assistant in the School of International Studies was extended by the appellant Univer sity for a further period of six months with effect from 4 June, 1973. Thereafter, by letter dated 29 November, 1973 the Vice Chancellor of the appellant University offered the respondent the post of Associate Fellow in the Post graduate Studies Centre of the University at Imphal for a period of one year in the first instance, the appointment being made on ad hoc basis, and his regular appointment at the Centre of the Post graduate Studies at Imphal or at the New Delhi campus of the University would be subject to the recommenda tions of the Selection Committee. It was stated that he was expected to take part in the teaching and research pro grammes of the University. He was directed, in case he accepted the offer, to join the Post graduate Centre, Imphal (Manipur) as early as possible. On the same date the re spondent accepted the offer of appointment as "Associate Fellow", Centre of Post graduate Studies, Imphal, under the terms and conditions of the Vice Chancellor 's letter of that date. On 3 December. 1973 the respondent reiterated his acceptance of the offer of appointment as "Associate Fellow" at the Centre of Post graduate Studies, Imphal, and stated that he was reporting for duty to the Head of the Centre for Political Studies, School 277 of Social Sciences, New Delhi with effect from 3 December, 1973 so that after necessary briefing at the Centre he would proceed to Imphal as early as possible. Thereafter by Office Order No. 2376 dated 24 August, 1974 the term of appointment of the respondent as "Associate Fellow" at the Centre of Post graduate Studies, Imphal, was extended for a period of one year from 3 December, 1974 to 2 December, 1975. By Office Order No. 2440 dated 23 September, 1974 the respond ent 's term of appointment in the same capacity at the said Centre was now enlarged from 3 December, 1974 to 2 December, 1976. His existing scale of Rs.400 40 800 50 950 was revised to Rs.700 40 1100 50 1600 by Office Order No. 295 dated 21 June, 1975 with effect from 1 January, 1973. It appears that the temporary appointment of Associate Professor in Politi cal Science at the Centre of Post graduate Studies, Imphal, was extended upto 3 August, 1987 or until the post was filled on a regular basis whichever is earlier. Thereafter on 23 December, 1977 an advertisement was issued by the Jawaharlal Nehru University, Centre of Post graduate Stud ies, Imphal (Manipur) for appointment to, inter alia, the posts of Associate Professor/Fellow and Assistant Professor/Assistant Fellow in the Political Science. The respondent applied for the post of Associate Professor but the Selection Committee did not find him suitable for that post and recommended him for the lower post of Assistant Professor. By letter dated 29 April, 1978 the Jawaharlal Nehru University offered him the appointment of Assistant Professor in Political Science on an ad hoc basis in the Centre of Post graduate Studies, Imphal, for a period of one year or until his services were required by the Centre, whichever was earlier. The respondent, however, wrote back on 2 May, 1978 stating that he had not applied for the post of Assistant Professor in Political Science and that he deserved to be appointed as Associate Professor at the Imphal Centre. By letter dated 21 March, 1979 the Jawaharlal Nehru University offered the respondent the post of Assist ant Professor in the Political Science Division at the Centre of Post graduate Studies of the University at Imphal for a period of two years. He was informed that in all matters relating to leave and other conditions of service he would be required to enter into an agreement with the Centre of Post graduate Studies, Imphal. This agreement was never executed. On 29 August, 1979 the respondent joined as As sistant Professor in accordance with the terms mentioned in the University 's letter dated 21 March, 1979. Thereafter the respondent was appointed as Assistant Professor by a Resolu tion of the Jawaharlal Nehru University dated 29 October, 1979 on a regular basis with effect from the date of his initial appointment dated 29 August, 1979 and he was con firmed with effect from that date. 278 In 1980 proceedings were taken to transfer the Imphal Centre from the Jawaharlal Nehru University to the Manipur University. To effectuate this the Syndicate of the Manipur University passed a Resolution on 19 December, 1980 detail ing the terms for the transfer of the Centre to the Manipur University, and the Manipur University and the Manipur Government requested the Jawaharlal Nehru University for transferring the Centre accordingly. The Jawaharlal Nehru University by its Resolution dated 3 February, 1981 accepted the proposal and authorised the Vice Chancellor to transfer the Centre to the Manipur University. The date for transfer was fixed as 1 April, 1981. Meanwhile, the Manipur Legisla ture passed the Manipur University Act, 1980, which was assented to by the Governor on 28 May, 1980. Section 1(4) of the Act provided that on and from the date on which the Act came into force in respect of post graduate education and research, the Jawaharlal Nehru University would cease to exercise jurisdiction over the Centre of Post graduate Studies in Imphal, and that the State Government of Manipur may make provision for the transfer of employees from the Jawaharlal Nehru University, Centre of Post graduate Stud ies, Imphal to the Manipur University. Thereafter an order dated 31 March, 1981 was made by the Governor of Manipur providing that the members of the faculties of the Jawahar lal Nehru University, Centre of Post graduate Studies, Imphal, immediately before its merger into the Manipur University would, on and from the 1 April, 1981, become members of the staff of the Manipur University on the same terms and conditions of service as they were entitled to immediately before that day. Meanwhile on 3 February, 1981, the Syndicate of the Jawaharlal Nehru University provided for the transfer of the Centre to the Manipur University. It was resolved that the said Jawaharlal Nehru University for Post graduate Studies would cease to exist as such and the Divisions of the Centre would become the Divisions of the Manipur University and function accordingly. It was further resolved that the members of the faculty employed by the Jawaharlal Nehru University, Centre of Postgraduate Studies, Imphal, immediately before its merger into the University would on and from that date. become members of the staff of the Manipur University. The respondent filed a writ petition in this Court on 27 March, 1981 challenging his transfer from the Jawaharlal Nehru University to the Manipur University, and that peti tion was dismissed as withdrawn on 21 September, 198 1. Thereafter the respondent filed a writ petition on 22 May, 1982 in the Delhi High Court praying for the quashing of the Resolution of the Jawaharlal Nehru University on 3 February, 198 1 transferring his services to the Manipur University. The learned 279 Single Judge of the High Court held that the respondent could not be obliged to join the Manipur University, that he was confirmed as Assistant Professor in the employment of the Jawaharlal Nehru University in its Imphal Centre and was entitled to continue in service until he attained the age of 60 years and that the services had not been specifically terminated. Accordingly, the writ petition was allowed and the respondent was deemed to continue, in the service of the Jawaharlal Nehru University and if no equivalent post was available for him in 1981 in the Jawaharlal Nehru University had he had become surplus, the said University was at liber ty to dispense with his services. In appeal, the Division Bench of the High Court upheld the view that the services of the respondent could not stand automatically transferred from the Jawaharlal Nehru University to the Manipur Univer sity with effect from 1 April, 1981 by operation of law and that the order dated 31 March, 1981 transferring the employ ees at the Imphal Centre to the Manipur must be considered as implying or assuming that the concerned employee had exercised an option to join the Manipur University. The learned Judges also rejected the contention of the appellant that there was an automatic termination of the respondent 's service without notice or order or discharge or dismissal. They held further that the Centre at Imphal was commenced and conducted as part and parcel of the Jawaharlal Nehru University that the respondent must be regarded as an em ployee continuing with the Jawaharlal Nehru University even upon the transfer of the Centre from that University. They further observed that if, in the result, the strength of the staff should be surplus, the principle of "last come first go" had to be applied, and that the application of the principle was to be effected with reference to the cadre to which the respondent belonged and also to the discipline in which he was competent. In the event of it being found that he constitutes a class by himself, his services could be absorbed in some suitable post in the Jawaharlal Nehru University. In this appeal the main contention of the appellant is that the respondent was appointed at the Centre of Post graduate Studies, Imphal, and when the Centre was trans ferred to the Manipur University, his services were automat ically transferred to that University, and consequently he could not claim to be an employee of the appellant Universi ty. The argument proceeds on the assumption that the Centre of Post graduate Studies at Imphal was an independent entity which existed by itself and was not a department of the appellant University. The submission proceeds on a fallacy. The Centre of Postgraduate Studies was set up at Imphal as an activity of the appellant University. To give expression to that activity the appellant University set up and orga nised the Centre at Imphal and appointed a teaching 280 and administrative staff to man it. Since the Centre repre sented an activity of the appellant University the teaching and administrative staff must be understood as employees of the appellant University. In the case of the respondent, there can be no doubt whatever that he was, and continues to be, an employee of the appellant University. There is also no doubt that his employment could not be transferred by the appellant University to the Manipur University without his consent, notwithstanding any statutory provision to that effect whether in the Manipur University Act or elsewhere. The contract of service entered into by the respondent was a contract with the appellant University and no law can con vert that contract into a contract between the respondent and the Manipur University without simultaneously making it, either expressly or by necessary implication, subject to the respondent 's consent. When the Manipur University Act pro vides for the transfer of the services of the staff working at the Centre of Postgraduate Studies, Imphal, to employment in the Manipur University, it must be construed as a provi sion enabling such transfer of employment but only on the assumption that the employee concerned is a consenting party to such transfer. It makes no difference that the respondent was not shown in the list of Assistant Professors of the appellant University or that the provision was not indicated in its budget; that must be regarded as proceeding from an erroneous conception of the status of the respondent. The position in law in clear, that no employee can be trans ferred, without his consent, from one employer to another. The consent may be express or implied. We do not find it necessary to refer to any case law in support of this con clusion. Inasmuch as the transfer of the Centre of Post graduate Studies from the appellant University to the Manipur univer sity could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University. The transfer of the Centre of Post graduate Studies to the Manipur University may be regarded as resulting in the abolition of post held by the respondent in the appellant University. In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle "last come, first go" will apply, and someone junior to the respondent must go. If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched. But it appears that the respondent has been adjusted against a suitable post in the appellant University and has been working there without break during the pendency of this 281 litigation, and we cannot, therefore, permit the appellant University to retrench him. In the result, the appeal fails and is dismissed with costs. R.S.S. Appeal dis missed.

This appeal by the Sales Tax authorities was directed against the judgment and order of the Orissa High Court, passed under article 226 of the Constitution, quashing five orders of assessment covering five quarters made against the respondents who carried on the business of collection and sale of Kendu leaves in the erstwhile Feudatory State of Pallaliara to which, on its merger into the province of Orissa on January 1, 1948, the provisions of the Orissa Sales Tax Act, 1947, were extended on March 1, 1949. On the same date the Government of Orissa issued a notification under section 4(1) of the Act which was in the following terms: " In exercise of the powers conferred by sub section (1) of Section 4 Of the Orissa Sales Tax Act, 1947 (Orissa Act XIV of 1947), as applied to Orissa State, the Government of Orissa are pleased to appoint the 31st March, 1949, as the date with effect from which every dealer whose gross turnover during the year ending the 31st March, 1949, exceeded Rs. 5,000 shall be liable to pay 521 under the said Act on sales effected after the said date Section 4 Of the Act, inter alia, provided : " (1) . with effect from such date as the Provincial Government may by notification in the Gazette, appoint, being not earlier than 'thirty days after the date of the said notification, every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified. (2) Every dealer to whom sub section (1) does not apply shall be liable to pay under this Act with effect from the commencement of the year immedi ately following that during which his gross turnover first exceeded Rs. 5,000 ". The goods were admittedly delivered for consumption at various places outside the State and the Sales Tax Officer as well as the Assistant Collector in appeal, proceeding on the basis that the sales took place in the State, held that the respondents were liable to Sales Tax for all the five quarters, two of which fell before the commencement of the Constitution and three thereafter. The contention of the respondents before the High Court was that the notification under section 4(1) Of the Act was invalid as it ran counter to the provisions of that sub section and no part of that charging section could, therefore, come into force. It was further contended that the assessment for the three quarters following the commencement of the Constitution was invalid by reason or article 286 of the Constitution. The High Court found entirely in favour of the assessee : Held (per Das C. J., Venkatarama Aiyar, section K. Das and Vivian Bose, jj.), that the decision of the High Court in so far as it related to the three post Constitution quarters was correct and must be upheld. The orders of assessment for those quarters contravened both article 286 of the Constitution and section 30(r)(a)(1) of the Orissa Sales Tax Act and were without jurisdiction and must be set aside. So far as the two pre Constitution quarters were concerned, the assessees were clearly liable under section 4(2) of the Act. Per Das C. J. and Venkatarama Aiyar J. The first part of the impugned notification, appointing the date from which the liability was to commence, was in consonance with section 4(1) Of the Act and, therefore, clearly intra vires, whereas the second part, indicating the class of dealers on whom the liability was to fall, went beyond that section and must, therefore, be held to be ultra vires and invalid. But since the two parts were severable, the invalidity of the second part could in no way affect the validity of the first part which brought the charging section into operation and the assessees were liable for the two pre Constitution quarters under section 4(1) as well. Per section K. Das and Vivian Bose JJ. It would not be correct to say that the second part of the notification was a mere surplusage severable from the rest of the notification. Liability to pay the 522 tax under section 4(1) of the Act could arise only on the issue of a valid notification in conformity with the provisions of that sub section and as there was no such notification the assessees were not liable under section 4(1) Of the Act which did not come into operation. Subsections (1) and (2) Of section 4 are mutually exclusive, and their periods of application being different both could not apply at the same time and no notification was necessary to bring into operation sub section (2) Of the Act. The goods having been admittedly sold and delivered for consumption outside the State of Orissa, under article 286 (1)(a) read with the Explanation as also under section 30(1)(a)(1) of the Act, the sales were outside the State of Orissa and, consequently, the assessment for the three post Constitution quarters were without jurisdiction. The State of Bombay vs The United Motors (India) Ltd., ; and The Bengal Immunity Company Limited vs The State of Bihar, , relied on. Per Sarkar J. There could be no liability under section 4(1) Of the Act till a date was appointed thereunder, and where the notification, as in the instant case, fixing such a date, was not in terms of that sub clause, there was no fixing of a date at all and the sub clause could not come into play and no liability could arise under it. It was impossible to ignore the second part of the notification in question as a mere surplusage since the notification read as a whole had one meaning and another without it. The Government could not be heard to say that what it had said in the notification was not what it actually meant. Both the sub clauses Of section 4 having been brought into force at the same time by the same notification, they applied to all dealers together and contemplated a situation in which the liability of a dealer under sub cl. (1) might arise. It was apparent from the scheme of the Act that sub cl. (2) was not intended to have any operation till a date was appointed under sub cl. (1) and a liability under it might have arisen.

N: Criminal Appeal No. 211 of 1974. Appeal by special leave from the Judgment and order dated 19 4 1974 of the Delhi High Court in Crl. A. No. 186/72. Frank Anthony, section K Dholakia and R. C. Bhatia for the Appellant. H. section Marwah and R. N. Sachthey for the Respondent. The Judgment of the Court was delivered by CHINNAPPA REDDY, J. The appellant Hazari Lal was convicted by the learned Special Judge, Delhi, of offences under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act, 1947, and Section 161 of the Indian Penal Code. On the first count he was sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 500. On the second count he was sentenced to suffer rigorous imprisonment for a period of two years. The two sentences were directed to run concurrently. The convictions and sentences were confirmed by the High Court of Delhi. 1056 The case which the prosecution set out to prove before the Trial Judge was briefly as follows: The scooter rickshaw belonging to Sri Ram (P.W.3) and driven by his driver Ram Lubhaya (P.W. 6) was involved in an accident on July 12, 1969. The scooter rickshaw and a tonga which were involved in the accident were taken to the Police Station, Kashmere Gate by the accused, a Police constable attached to that station. P.W. 3 obtained orders from the Magistrate for the release of his vehicle and went to the Police Station to obtain delivery of the vehicle. The accused, who was present took him outside and told him that the vehicle would be given to him only if he paid a bribe of Rs. 60. P.W. 3 then went away. He went to the Anti Corruption Department and made statement to Inspector Paras Nath, P.W. 8. After recording the statement of P.W. 3, P.W. 8 sent for two persons Davinder Kumar (P.W. 4) and Kewal Krishan. The statement of P.W. 3 was read out to P.W. 3 in the presence of the two Panch witnesses Davinder Kumar and Kewal Krishan. P.W. 3 then produced six currency notes of the value of Rs. 10 each. The numbers of the notes were noted and they were treated with phenol phthelene powder. After the usual instructions were given to P.W. 3 and the panch witnesses, the raiding party proceeded towards Kashmere Gate. P.W. 3, P.W. 6 and Kewal Krishan went into the Police Station, while P.W. 8 and others stayed outside. The money was handed over to the accused who took it and put it inside the right hand pocket of his trousers. P.W. 6 and Kewal Krishan then came out and signalled to P.W. 8 whereupon P.W. 8 and the Panch witnesses went inside the Police Station. The accused was present inside. As soon as he saw the party led by P.W. 8 he took out the currency notes from the right side pocket of his trousers and threw them across the wall into the adjoining room. P.W. 8 instructed some of the police officers accompanying him to rush to the adjoining room and to keep a watch over the notes which must have fallen there. He then introduced himself to the accused and took him to the adjoining room. Some of the notes were lying on the table of the Duty Officer in that room while others had fallen on the ground near the chair of the Duty officer. The six notes were collected in the presence of the witnesses and their numbers were compared with the numbers noted before they proceeded on the raid. The numbers tallied. The accused was questioned by the Inspector and he denied that he had demanded any bribe and kept silent about the acceptance of the bribe. Both the hands of the accused were dipped in sodium carbonate solution and the solution which was previously colourless turned pink. The same test was repeated 1057 with the handkerchief which was taken out of the right hand side pocket of the accused and also with the trousers of the accused. Each test resulted in the bicarbonate solution turning pink. After completion of the investigation a charge sheet was laid against the accused being for offences under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act and section 161 of the Indian Penal Code. All that has been mentioned in the previous paragraph was what the prosecution set out to prove before the Trial Court. But many of the witnesses turned volte face. P.W. 3 stated in his evidence that on the first occasion when he went to the Police Station to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar. It was the Hawaldar and not the accused that demanded the bribe of Rs. 60 from him. According to him at the time of the raid, when he, P.W. 6 and Kewal Krishan went inside the Police Station they found the accused there and asked him to take the sum of Rs. 60 and return the scooter rickshaw. P.W. 3 stretched his hand with the money towards the pocket of the accused 's trousers but the accused said the money might be paid to the person for whom it was meant. He refused to receive the money and jerked P.W. 3 's hand with his hand as a result of which the notes came to be flung across the wall into the neighbouring room. He told the Inspector that the notes had been flung across the wall and that the accused had neither demanded the amount from him nor accepted the money from him. On the other hand the accused had refused to take the money from him. The Inspector recovered the notes from the neighbouring room, placed them on the table and thereafter subjected the handkerchief and the pocket of the accused 's trousers to the phenol phthelene test. The implication of this part of the evidence was that it was as a result of the handling of these articles by the Inspector that they came to have phenol phthelene powder and that was the reason why the solution turned pink. P.W.3 was treated as hostile and cross examined by the prosecution with reference to the earlier statements made by him. P.W. 6 followed suit and he too was declared hostile and cross examined by the prosecution with reference to his earlier statements. Of the two panch witnesses Kewal Krishan was not examined as he had become mentally deranged before the trial of the case. Davinder Kumar was examined as P.W. 4. This witness supported the prosecution case in some particulars but in regard to other particulars he made statements contrary to his earlier statements. He was also treated as hostile and cross examined by the prosecution. In substance his chief examination was to the affect that P.W.3, P.W.6 and 1058 Kewal Krishan went inside the Police Station, while he stayed outside with the Inspector P.W. 8. P.W.3, P.W.6 and Kewal Krishan came out after sometime and stated that the accused had accepted the bribe. The raiding party then went inside. On seeing the Inspector the accused got suspicious and threw away the currency notes across the wall into the neighbouring room. In examination in chief he also stated that before they proceeded to the Police Station for the raid, statement of both P.W.3 and P.W.6 had been recorded. He stated that after the bribe was given P.W.3 also came out and signalled to P.W.8 that the bribe had been given. Another statement made by him in chief examination was that he was unable to remember if the Inspector questioned the accused at the time of the raid. As these statements were contrary to his earlier statements he was cross examined by the prosecution. Paras Nath, (P.W.8) spoke to the complaint made to him by P.W.3. , the action that he took, the raid etc. Regarding the actual raid he stated that P.W.3, P.W.6 and Kewal Krishan first went inside the Police Station. After sometime, P.W.6 and Kewal Krishan came out and signalled that P.W.3 had passed the bribe money and that P.W.3 and the accused were in the room. When he went in, the accused took out the notes from the right side pocket of his trousers and threw them across the wall into the adjoining room. He then spoke to the test made by him etc. On this evidence both the learned Sessions Judge and the High Court found the accused guilty of the two offences with which he was charged. Shri Frank Anthony, learned counsel for the appellant submitted that the Courts below had made free use of the statements made by the witnesses in the course of the investigation as if such statements were substantive evidence. If those statements were excluded from consideration there would be no evidence of any demand or acceptance of bribe by the accused. All that the prosecution would be left with would be the evidence of the Inspector and P.W.4 to the effect that the accused took out the currency notes from the right side pocket of his trousers and flung them across the wall into the adjoining room. That evidence according to the learned counsel would not be sufficient, even if accepted, to draw the presumption under section 4(1) of the Prevention of Corruption Act. Reliance was placed upon the decision of this Court in Sita Ram vs The State of Rajasthan,(1) and Suraj Mal vs The State (Delhi Administration (2). 1059 The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re examination of the witness for the limited purpose of explaining any matter referred to in his cross examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of section 32(1) of the Indian Evidence Act or permitted to be proved under section 27 of the Indian Evidence Act. S.145 of the Evidence Act provides that a witness may be cross examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H. section Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act which is, "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists. " We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred. After excluding irrelevant material we are left with the evidence of P.W.8 and that of P.W.4 whose evidence corroborates that of P.W.8 in several material particulars. We, however, wish to say that the evidence of P.W.8 is entirely trustworthy and there is no need to seek any corroboration. We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon 1060 corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact. While on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations of a learned single judge in Kharaiti Lal vs The State,(1) that persons holding clerical posts and the like should not be called as panch witnesses, as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case. We do not think we can accept the submission of Shri Frank Anthony. The respectability and the veracity of a witness is not necessarily dependent upon his status in life and we are not prepared to say that Clerks are less truthful and more amenable than their superior officers. From the evidence of P.W.8 and that of P.W.4 we may take the following facts as established: P.W.3 made a report to P.W.8. He produced six currency notes of the denomination of ten rupees whose numbers were noted and which were treated with phenol phthelene powder. Thereafter the notes were handed over to P.W.3. P.W.3, P.W.6 and Kewal Krishan went inside the Police Station. After sometime P.W.6 and Kewal Krishan came out and gave a signal. P.W.8 then went inside the Police Station. On seeing him the accused who was inside the Police Station with P.W.3 took out some currency notes from the right side pocket of his trousers and threw them across the partition wall into the adjoining room. The notes which were so thrown out by the accused, were found to be the same notes which had been treated with phenol phthelene and handed over to P.W.3 before the raid. The handkerchief which was taken out of the right side pocket of the trouser of the accused as well as the 1061 right side pocket itself were subjected to a test which showed that they too had come into contact with phenol phthelene powder. It may be noted that the circumstance that the handkerchief (Ex. P 4) recovered from the right side pocket of the pant on the person of the accused was subjected to the colour test which indicated the presence of phenol phthelene powder on that handkerchief was put to the appellant in his examination under section 313, Criminal Procedure Code. Instead of giving any explanation as to how this phenol phthelene powder came on the handkerchief lying in his pocket, the appellant replied. "I know nothing about it. " From these facts the irresistible inference must follow, in the absence of any explanation from the accused, that currency notes were obtained by the accused from P.W.3. It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from P.W.3. Under s.114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to s.114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from P.W.3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from P.W.3, the presumption under s.4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the Courts below. We will now refer to the two decisions of this Court on which Shri Frank Anthony relied. In Sita Ram vs The State of Rajasthan, (supra) the evidence of the complainant was rejected and it was held that there was no evidence to establish that the accused had received any gratification from any person. On that finding the presumption under s.4(1) of the Prevention of Corruption Act was not drawn. The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant 1062 was not considered. All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under s.4(1) of the Prevention of Corruption Act. The Court did not consider the further question whether recovery of the money alongwith other circumstances could establish that the accused had obtained gratification from any person. In the present case we have found that the circumstances established by the prosecution entitled the Court to hold that the accused received the gratification from P.W.3. In Suraj Mal vs The State (Delhi Administration) (supra) also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money. There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the Court would certainly be entitled to draw the presumption under s.4(1) of the Prevention of Corruption Act. In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases. In other words there can be no precedents on questions of facts. The appeal is, therefore, dismissed. P.B.R. Appeal dismissed.

The appellants in both the appeals were allotted a plot each "provisionally subject to the final approval of Government" and possession thereof was also given in 1956. Six years later by letter dated 31 10 62 they were informed that "the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled". Steps were to be taken for the eviction as per the said letter of cancellation, but before any action was taken, the District Magistrate requisitioned the said plots for defence purposes under section 29 of the Defence of India Act, 1922. The letters of requisition were addressed to the appellants and possession taken. No steps were taken by the Department for taking formal or symbolical possession of the plots in question after they were requisitioned by the Magistrate. Later on, while derequisitioning the said plots under section 35(1) of the Defence of India Act 1962, the Magistrate "specified the Director of Industries, Kanpur as the person to whom the possession of the said plots shall be given". Possession was given accordingly and the Director of Industries in CA 560/70 in turn allotted the plot covered in it to one Mrs. B. K. Anand respondent 5 therein. The writ Petitions filed by the appellants in the High Court challenging the said orders failed and hence the appeal by special leave. Allowing CA 559/70 and dismissing CA 560/70, the Court, ^ HELD: The inquiry envisaged under sub section (1) of section 35 of the Defence of India Act, 1962, is necessitated only if facts and events taking place after requisition necessitate it. Otherwise not. As for example, suppose, possession of a property is taken from X and after requisition he dies and dispute starts between his heirs as to who is entitled to get back the property. A summary and prima facie inquiry may be made under sub section (1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government. Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub section [814 C E] Facts anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken. If it were not so then it would be enlarging the scope of the inquiry envisaged under sub section (1) of section 35 of 810 the Act and the power of the Government to adjudicate upon anterior title of the various claimants to the property. This is not the scope of the inquiry. [814 E F] Technically speaking on a correct interpretation of the law the property on de requisition ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requisition. The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub section (2) of section 29. He may not be the owner of the property. But on requisition possession was taken from him. [814 C D, F G] [The Court, however, passed a qualified and conditional order in terms].

Appeal No. 599 of 1961. Appeal from the judgment and order dated March 13, 1958, of the Bombay High Court in I.T. R. No. 40 of 1957. R. Ganapathy Iyer and R. N. Sachthey, for the appellant. A. V. Viswanatha Sastri and I. N. Shroff, for the respondent. September 17. The judgment of the Court was delivered by 85 HIDAYATULLAH, J. This is an appeal on a certificate of fitness granted by the High Court of Bombay against the judgment of the High Court dated March 13, 1958, on a reference, made by the Income Tax Appellate Tribunal. The Commissioner of Income Tax, Bombay City I, is the appellant and the jubilee Mills Ltd., Bombay, the respondent. The only question raised in this appeal is the application of s.23A of the Income tax Act to the assessee company. The assessee company is a limited liability company with a paid up capital of Rs. 15,25,000/ . Its paid up capital is made up as under: I Lakh Ordinary Shares of Rs. 10 each Rs. 10,00,000 5,000 Cumulative Preference Shares of Rs. 25 paid up. Rs. 1,25,000 4,000 Second Preference Shares of Rs. 100 each fully paid up. Rs. 4,00,000 The Second Preference Shares do not entitle the holders to vote. Thus shares of the assessee company carrying votes are 1,05,000. This was the position on June 30, 1947. We are concerned with the assessment year 1948 49 corresponding to the previous year ended on June 30, 1947. In that year, the company was assessed on a total income of Rs. 7,47,639/ . The Income Tax Officer calculated the tax at Rs. 3,27,091, and t`e balance available for distribution was Rs.4,20,548. In that year, the company ought, if section 23A was applicable, to have distributed 60% of the above amount. The company, however, declared dividends which in the aggregate amounted to Rs. 24,750. The Income Tax Officer, with the previous approval of the Inspecting Assistant Commissioner applied the provisions of section 23 A of the Income Tax Act and held that the company was deemed to have declared dividend of Rs. 3,97,788/ . The assessee company was being managed by a firm called Mangaldas Mehta & Co. That firm 86 consisted of 14 partners of whom seven were the directors of the assessee company. The members of the Managing Agents who were also directors held between them 35,469 ordinary shares and 880 First Preference Shares. The remaining seven members of the Managing Agents, who were not directors of the assessee company, held respectively 41,659 and 370 shares of the two categories. 75 shares were held by Girdhardas & Co. Ltd. to which company admittedly section 23 A was applicable. Some of the members of the Managing Agency firm held on behalf of their minor children or on behalf of their joint families 9,899 Ordinary Shares and 937 First Preference Shares. The following is a detailed break up of the share holdings: Category 'A ' ; Share in Shares held by Directors Holding the part Holding who are partners in the of nership of the firm of Managing Agents ordinary of firm 1st Pre shares of Mg. ference Agents ' Shares firm 1. ,, Shri Homi Mehta 50 8/128 Nil 2. ,, Sheth Mathuradas Man galdas Parekh 6,466 14/128 273 3. ,, Madanmohan Mangaldas 11,052 14/128 273 4. ,, Madhusudan Chamanlal Parekh 3,616 7/128 20 5. ,, Mahendra Chamanlal Parekh 3,616 7/128 20 6. ,, Surendra Man galdas Parekh 7,053 14/128 274 7. ,, Indrajit Chamanlal Parekh 3,616 7/128 20 35,469 880 87 Category 'B ': Share in Shares; held by the partners Holding the part Holding of the Managing Agents of Ordi nership of the firm excluding the holding nary firm of 1st Pref. of the Directors who are shares Mg. Shares. also partners as shown Agents ' above. firm 1. Shri Harshavadan Mangaldas 11,053 14/128 274 2. Savitagavri Chamanlal Parekh 3,750 7/128 16 3. Shri Viren a minor by dra Chaman his mother lal Parekh and guardian Mrs. Savitaga vri Chaman lal Parekh. 6,328 7/128 20 4. Shri Man mohan Chamanlal Parekh do 4,462 7/128 20 5. Shri Kamalnayan Chamanlal Parekh do 4,962 7/128 20 6. Shri Nutan Chamanlal Parekh do 4,962 7/128 20 7. Shri Hussein Essa 6,142 8/128 Nil 41,659 370 88 Category 'C ': Shares represented by the Holding of Pref. Shares Directors ordinary Holding of Shares the 1st. Sheth Madhusudan Chamanlal Parekh (No. 4 in 'A ' above) as Karta of the joint Family estate of Sheth Chamanlal Girdhardas Parekh 3,899 937 2. Sheth Mathuradas Mangaldas Parekh (No. 2 in 'A ' above) as guardian and father of minor, Ben Purnima Mathuradas 1,000 3. do do Ben Veena 1,000 4. do do Ben Sunita 1,000 5. do do jagatkumar Mathuradas 1,000 6. Sheth Surendra Mangaldas Parekh (No. 6 in 'A ' above) As guardian and father of minor Darshan Surendra Parekh 1,000 7. do as guardian and father of minor Ben Babi Surendra Parekh 1,000 9,899 937 It appears that in the past the assessee company incurred heavy losses and it had to reconstruct its capital in 1930 because it had a debit balance of Rs. 12,75,OOO in the Profit and Loss Account which had to be paid out of capital. This was done by reducing the face value of the Ordinary Shares from Rs. 100 to Rs. 10 each and of the Preference Shares from Rs. 100 to Rs. 25 each, after obtaining the approval of the High 89 Court ' It is the reconstituted capital which has been shown by us in an earlier part of this judgment. It also appears that Income Tax Officer granted to the assessee company a rebate of one anna under proviso (a) to paragraph (B) of part (1) of the, Second Schedule of the Finance Act, 1948. This rebate was granted to those companies to which the provisions of section 23 A were not applicable. Subsequently, the Income Tax Officer, as stated already,, applied section 23 A to this company and it was contended that he was incompetent to do so as he must be; deemed to have impliedly held already that section 23 A was not applicable. Section 23 A before its amendment in 1955, in? so far as it is material read as follows: "23A. Power to assess individual members of certain companies. (1) Where the Income tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the sixth month after its accounts for that previous year are laid before the company in general meeting are less than sixty per cent of the assessable income of the company of that previous year, as reduced by the amount of income tax and super tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a dividend or a larger dividen d than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income tax pur poses and reduced by the amount of income tax and super tax payable, by the company in respect thereof shall be deemed to have been distributed as dividends, amongst the shareholders as at the date of the general meeting aforesaid, and 90 thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income: x x x x x x x x Provided further that this subsection shall not apply to any company in which the public are substantially interested or to a subsidiary company of such a company if the whole of ' the share capital of such subsidiary company is held by the parent company or by the nominees thereof Explanation. For the purpose of this sub section, a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty five per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public (not including a company to which the provisions of this sub section apply), and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange in the taxable territories or are in fact freely transferable by the holders to other members of the public. " We are really concerned with the application of the Explanation to the facts of this case. The Explanation, is so far as it is relevant to our purpose, says that a company shall be deemed to be a company in which the public are substantially interested if the 91 shares of the company carrying not less than 25% of the voting power have been allotted unconditionally, to or acquired unconditionally by the public and are: held beneficially by the public. The Income tax Officer held that this was not a company in which the public were substantially interested and that the grant of the rebate earlier by him did not estop him from applying section 23A to this company. His order was upheld by the Appellate Assistant Commissioner and the Tribunal on both the points. The assessee company then applied for a reference and the Tribunal referred the following questions for decision by the High Court: "(1) Whether, on the facts and in the circums tances of the case, the Income tax Officer was competent to pass an order under Section 23A(1) of the Act after having allowed a rebate of one anna per rupee in the assessment under the proviso (a) to paragraph (B) of Part I of the Second Schedule of the Finance Act, 1948? (2) If the answer to question No. 1 is in the affirmative whether on the facts and in the circumstances of the case, the assessee com pany is a company in which the public are substantially interested for the purposes of Section 23A of the Act? (3) Whether the loss of Rs. 12,75,000 incurred by the company prior to its reconstruction in 1930, could be taken into consideration for purposes of the applicability of Section 23A (1) of the Act?" The High Court, by the judgment under appeal answered the first two questions in the affirmative and in view of the answer to Question No. 2 it considered it unnecessary to answer the third. The Commissioner of Income Tax obtained a certificate of fitness and filed the present appeal. 92 The answer to the first question is in favour of the Commissioner of Income Tax. The other side has not appealed and Mr. Vishwanath Sastri for the assessee company conceded before us that the High Court was right. The third question depends on the answer to the first question but as it has not been answered by the High Court we do not consider it necessary to answer it here for the first time. We shall now address ourselves to the second question. The Tribunal in dealing with the question whether the public could be said to hold 25% or more of the voting power in the assessee company took into consideration a decision of the Privy Council in Commissioner of Income Tax vs H. Bjordal,(1) and held that though directors, qua directors, do not cease to be members of the public, the holding of the group of 14 individuals who collectively formed the Managing Agency firm of Mangaldas Mehta & Co. could not be counted as held by the members of the public in this case for purposes of the Explanation. The Tribunal was further of the opinion that this group of persons had a 'juristic personality ' and it should be taken into account as a group in determining where the Controlling power vested according to the test laid down by the Privy Council in the said case. The High Court reversed the decision of the Tribunal following its earlier decision reported in Raghuvan8hi Mills Ltd. vs Commissioner of Income Tax(2). In that case the High Court had held that directors, qua directors must be contrasted with the public and if the directors held more than 75% of the voting power then alone the company could be said to be one in which the public were not substantially interested. The High Court 's view was that the Managing Agents act under the direction of the directors and unless the directors were themselves controlling the voting power above the limit stated by the Explanation, the company must be regarded as one in which (1) (2) 93 the public were substantially interested. Applying the same test to the present case, the High Court found that the directors between them held only the shares which we have shown in tabular form: under category 'A '. 'Since the number of these shares was not up to the mark to, attract section 23A, the High Court answered the second question in favour of the assessee company. The request of the Department that a supplemental statement of the case be asked from the Tribunal as to whether any person belonging to categories 'B ' and 'C ' was so much within the control of the directors as not to hold the shares unconditionally or beneficially for himself was rejected by the High Court observing that this would give a second chance to the Department to lead further evidence. Following the decision of the House of Lords in Thomas Fattorini (Lancashire) Ltd. vs Inland Revenue Commissioner. (1) they refused to take action under section 66 (4). The High Court took notice of the fact that the Privy Council in Bjordal 's case (supra) had indicated a test to determine what is meant by "public" which was different from that indicated by them in Raghutanshi case (supra). They, however, held that after 1950 the decisions of the Privy Council had only a persuasive authority and the decision of the High Court was binding in the absence of ' a decision by this Court. They therefore, applied their own ' decision in Raghuvanshi Mill 's case and decided this case Accordingly. It may be pointed out that the High Court did 'appreciate the point of view expressed by tile Privy Council in the above mentioned case. They observed as follows: "It may be that our view is erroneous; and it may be and very probably it is that the view taken by the Privy Council is the right one. But, as we have said, so long as the judgment of the Bombay High Court stands,it was the duty both of he Department and of the Tribunal to give effect to that decision." (1) , 94 Section 23A is not applicable to a company in which the public are substantially interested. What is "substantial" interest of the public is stated in the Explanation. That interest represented in terms of the share holding must not be less than 25% of the total number of the shares, but no person can be said to belong to the "public" unless he holds the shares unconditionally and beneficially for himself. What is meant by (unconditionally" and "beneficially" was explained by this Court in an appeal against the decision of the High Court of Bombay in the Raghuvanshi Mills ' case. The decision of this Court is reported in This Court pointed out that by the words "unconditionally" and "beneficially" is indicated that the voting power arising from the holding of those shares should be free and not within the control of some other shareholder and the registered holder should not be a nominee of another. It was pointed out again by this Court in Shri Changdeo , Sugar Mills Ltd. vs commissioner of Income Tax Bombay, (1) that by "unconditional" and. "beneficial" holding is meant that the share,, are held by the holders for their own benefit only and without any control of another. This Court approved the decision of the Privy Council in Bjordal 's case that directors, qua directors, are not without the pale of the public. This Court pointed out that what one has to find out is whether there is an individual who, or a group acting in concert which, controls or control the affairs of the company to the exclusion of others by reason of his or their voting power. Such person or group of persons do not answer the description "public. " There is nothing inherent in the office of directors which would lead one to think that the directors must act in unison. They are persons in whom the shareholder,% have reposed confidence and on whom they have conferred powers which under the scheme ' of the Companies Act, have to be exercised for the benefit (1) [1961] 41 95 of the shareholders. The directors are, in a manner of speaking, trustees of these powers. It is the duty of the directors to exercise these powers to the best of their independent judgment. There is therefore, . nothing in the nature of things or at all that requires the directors to act in unison. This Court pointed out in the Raghuvanshi Mills 'case (1) that such a group may be composed of directors or their nominees or relations in different combinations or may be composed of persons none of whom is a director provided such a group forms a block which holds the controlling interest in its hands. It would, therefore, follow from what we have stated that we have first to see whether there is an individual or a group holding the controlling interest which group acting in concert can direct the affairs of (lie company at its will. The controlling interest, of course, is effective only if the group owns 51 of the total shares. But the company will still lie a company in which the public can be said to be substantially interested because lo cease to be so the holding of the group must be more than 75 %. In the group, any person be he a director or a nondirector, a relative of a director, a promoter of the company or a, stranger, may be included but only if belonging to a group or as holding the shares as a nominee of someone else belonging to the group. We have indicated again the true test which was not applied in the judgment of the Bombay High Court in the Raghuvansi Mills ' case( ) and applying which we reversed that decision. Applying the above test, we have to see whether there is such a group in this company. It is obvious from what we have said that category 'A ' which consisted of the directors could not be regarded as outside "public" merely by reason that they were directors. But there is, however, an intimate connection between category 'A ' and category 'B ' in as much as both are members of the Managing Agency (1) (2) 96 firm. In other words, there is evidence of yet another group, namely, the group of shareholders who constitute the Managing Agency firm. We agree with the High Court that Managing Agents act under the control and direction of the directors. The Managing Agents are also appointed by the company. The control of the affairs of a company is ordinarily in the hand of the directors of the company but there may be cases in which the Managing Agents, by reason of their superior holding of shares, may be able to appoint the directors and generally to control the views of the directors. Where the 'Managing Agents hold an interest which is small and is thus not capable of exercising an overriding power, other evidence may be required to show that they, in conjunction with others, are running the affairs of the company to the exclusion of the public. Where, however, the Managing Agents admittedly hold 51 % or more of the shares, it is obvious that the controlling interest belongs to the Managing Agents. ' When, therefore, the Managing Agents, either by themselves or with those who act in concert with them, hold shares above the 75% limit they can be regarded as constituting a group which cannot be counted as " public". In such a case the holding of the Managing Agents, if above 75%, may furnish proof that the company is one in which the public are not substantially interested. It was contended before us that even among the Managing Agents some may take an independent view. Normally Managing Agencies are not formed by parties except for the purpose of mutual gain and the commonness of the interest lends a cohesion. to the body which enables it to act in its own interest. When such a body holds shares carrying more than 75% of the voting power the company itself is run mainly as the Managing Agents desire it to be run. Such a Managing Agency could easily choose its own directors and the directors would not be independent persons but mere nominees of the 97 Managing Agents. In such a case the inference is irresistible that we have a group, which as a group, can run the company at its will and which not only controls the voting at the meeting of the shareholders but, by selecting its own directors, gets the directors to act according to its own desires. No member of such a Managing Agency firm can be regarded as belonging to "the public" and when this happens the company comes within the reach of section 23A. Applying the above test to the present case, it is clear that the Managing Agents, between them hold 77,128 out of 1,00,000 ordinary shares, well above the limit. They have in addition 1,250 First Preference Shares out of 5,000 which also carry voting power. To this must be added 75 shares held by Girdhardas & Co. Ltd. to which section 23A is admittedly applicable. This brings the total holding to 78,453. 75% of the total shares bearing votes is 78,750. This shows that the holding of the Managing Agents is short by 298 shares for the application of the Explanation to section 23A. But when we turn to category "C" we find that 6,000 shares were held by the members of the Managing Agency on behalf of minor children and the voting power arising from these shares was in their own hands as guardians. There is no doubt that in the present case shares carrying more than 75% of the voting power are held by persons who form a group in the sense indicated by this Court in Raghuvanshi Mills case and by us here. The reason is this: Shares carrying more than 75% of the voting power are held by the partners of the managing agency or persons under its control. Now it seems to us that it is to the interest of the partners of this firm to exercise their voting power in one way, namely the way that brings to them the largest profit out of the company. It is true that the managing agents are the servants of the company in a manner of speaking and not its masters and also that the object of a firm of managing agents is to carry out certain administrative 98 duties concerning the company under the control of the directors of the company. That however is irrelevant and in any case is far from the truth in the present case. Here the partners of the managing agency practically own the company. At the hearing a point was raised that it has to be proved as a fact that the persons constituting the oil which owns shares carrying more than seventyfive percent of the voting power, were acting in unison. The test is not whether they have actually acted in concert but whether the circumstances are such that human experience tells us that it can safely be taken that they must be acting together. It is not necessary to state the kind of evidence that will prove such concerted actings. Each case must necessarily be decided on its own facts. The exclusion of "public" in the manner indicated generally from more than 75% of the shares and the concentration of such a holding in a single person or a group acting in concert is what attracts section 23 (A). In our opinion the High Court was not right in answering the second question in the affirmative. The appeal is allowed. The answer of the High Court is sit aside and the question is answered in the negative. The respondent shall pay the costs here and in the High Court. Appeal allowed.

The first appellant holding only a learner 's licence was driving a jeep without a trainer by his side and injured a person. The first appellant and his companion in the journey the second appellant put the injured in the jeep for getting medical aid, but the injured died on the way. They cremated the dead body. The first appellant was convicted under section 304 A I.P.C. and sections 3, 89 and 112 of the Motor Vehicles Act and the second appellant under section 201 I.P.C., and sections 5 and 89 of the Motor Vehicles Act. HELD : There was no evidence to show that the first appellant was responsible for the incident so his conviction under section 304 A could not be sustained. [517 H] The requirements of section 304 A I.P.C. are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. There is no presumption in law that a person who possesses only a learner 's licence or possesses no licence at all does not know driving. For various reasons, not excluding sheer indifference, he might not have taken a regular licence. The prosecution evidence that first appellant had driven the jeep to various places on the day previous to the occurrence war. a proof of the fact that he knew driving. [519 B C; 520 B C] The question whether first appellant was proficient in driving a jeep or not does not conclude the issue. His proficiency in driving might furnish a defence. which a learner could not have, but the absence of proficiency did not make him guilty. [521 D E] As the conviction of the first appellant under section 304 A I.P.C. could not be sustained, the conviction of second appellant under section 201 I.P.C. had to be set aside. Because to, establish the charge under section 201, the prosecution must first prove that an offence had been committed not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear. The proof of the commission of an offence is an essential requisite for bringing home the offence under section 201 I.P.C. [517 D G; 521 F G] Palvinder Kaur vs State of Punjab, , and Kurban Hussein Mohammedan Rangwalla vs State of Maharashtra ; , followed. Emperor vs Omkar Rampratap 4 B.L.R. 679, approved. 516 Juggankhan vs State of Madhya Pradesh, ; distinguished. The 'second appellant could not be convicted either under section 5 or section 89 of the Motor Vehicles Act. In convicting him under those provisions, the fact that he was not the owner of the jeep had been overlooked. Nor was there any proof that he was in charge of the jeep.

Appeal No. 1028 of 1967. Appeal by special leave from the judgment and order dated May 24, 1967 of the Assam and Nagaland High Court in Civil Rule No. 425 of 1966. Sarjoo Prasad, Barthakur and R. Gopalakrishnan, for the appellant. Brief facts necessary for present purposes are these. It appears that the appellant was expelled from the Medical College, Gauhati on October 26, 1966. It is said that the appellant tendered unqualified apology on October 27, 1966 and attended, classes up to the end of October 1966. The Principal, however, does not seem to have accepted the apology and when the appellant went on, November 2, 1966, to deposit the fee for the examination which was to be held from November 4, 1966, he was told that as he had been expelled and as the order of expulsion stood no examination fee would be accepted from him It was thereafter that the 815 appellant filed the writ petition on November 3, 1966, out of which the present appeal has arisen. It may be mentioned that the High Court was in vacation from September 17, 1966 to November 19, 1966. Mr. Justice section K. Dutta was nominated as the Vacation Judge for the vacation and certain dates were fixed on which he was to sit and hear urgent civil and criminal appliciations. One of these dates was October 31, 1966 and another was November 10, 1966. It was also stated in the order that if there was any matter which was extremely urgent it would be heard on any other day by appointment through the Registrar. It appears that Mr. Justice Dutta was also working as a Commission of Enquiry during that time. For that purpose he had to go out of Gauhati, which is the seat of the High Court. It seems that Mr. Justice Dutta went Away to Sibsagar after the vacation sitting on October 31, 1966. Therefore on November 2, 1966 he was not available at Gauhati, even though he was the Vacation Judge and even though the order relating to vacation sittings said, that if any matter was extremely urgent it could be heard on any other day by appointment through the Registrar. As the examination was to be held from November 4, 1966, the filing of the writ petition against the order of expulsion was undoubtedly a very urgent matter, if any order was to be obtained before November 4, 1966. What the appellant is said to have done was this. He gave notice to the Gov ernment Advocate on November 2, 1966 at Gauhati as required by the Rules and thereafter went to Sibsagar where Mr. Justice Dutta was holding the Commission of Enquiry and pre sented the writ petition there. This petition was entertained by Mr. Justice Dutta and be passed interim orders thereon. A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it was to be sealed. The appellant took the order to Gauhati and after getting it sealed served it on the university. He was thereupon allowed to sit at the examination subject to the result of the writ petition. It also appears that thereafter the papers relating to the writ petition were sent to Gauhati and the High Court had occasion to deal with the writ petition and passed miscellaneous orders thereon at Gauhati after the vacation was over. Eventually, the writ petition came up for hearing in May 1967. A preliminary objection was raised to the maintainability of the petition on behalf of the respondent. It was urged that as Mr. Justice, Dutta was holding a Commission of Enquiry he could not act as a Judge of the High Court. It was also urged in the alternative that even if he had the jurisdiction to. act as a Judge of the High Court, he could not exercise that jurisdiction while at Sibsagar for the seat of the High Court was at Gauhati. 816 The petition. was heard by a Bench consisting of the learned Chief Justice and Mr. Justice Goswami. The learned Chief Justice seems to have held that Mr. Justice Dutta while performing the duties of a Commission of Enquiry could not also perform the duties of a Judge of the High Court. He further held that in any case as the seat of the High, Court, was at Gauhati, Mr. Justice Dutta could not pass any order as a Judge of the High Court at Sibsagar, which, was not the seat of the High Court. Finally, the learned Chief Justice made certain remarks as to the "unholy haste and hurry exhibited in dealing with this matter by Dutta J." at Sibsagar and set aside the order of stay granted by Dutta J. on November 3, 1966 and also set aside the order issuing rule nisi, and dismissed the petition. Goswami J. did not fully agree with the learned Chief Justice, though, he agreed with the order setting aside 'the stay granted ' by Dutta J. and also agreed with. the order dismissing the writ petition. He observed that "I shall content ' myself in assuming that Dutta J. had no anxiety other than what prompted him to do in the interest of what his Lordship thought to be justice". when he passed the order in. question on November 3, 1966. But he was of the view. that a Judge of the High Court could not hold a sitting anywhere in Assam except at the seat of the High Court, namely, Gauhati, and therefore the order passed on November 3, 1966 by Dutta J. was without jurisdiction. The present appeal has been brought before us by special leave and it is urged on behalf of the appellant that it was not correct to hold that Dutta J. could not act as a Judge of the High Court while he was working as a; Commission of Enquiry and further that Dutta J. had no jurisdiction while at Sibsagar to entertain the petition and to pass the stay order. We shall deal with the two contentions in that order. We are of opinion that the learned Chief Justice was not right when he held that Dutta J.; could not act as a Judge of the High Court While he was working as a Commission of Enquiry ' Learned Attorney General appearing for the State of Assam did not support that view It also appears that Goswami J. has said nothing on this aspect of the matter; presumably he did riot agree with the view of the learned Chief justice. Often times, Judges 6f High Courts are appointed under the Commission 'of Enquiry Act to head Commissions for various purposes. These Commissions are temporary affairs and many a time their sittings are not continuous. A Judge of the High Court when he is appointed to head a Commission, of this kind does not demit his office as a Judge and when the Commission is not actually sitting he is entitled to sit as a Judge of the High Court. It is only where a Judge of the High Court is appointed to another post, which is a whole time post that it may be said that on such appointment he can no longer work as a Judge of the High 817 Court for the time being, though even in such a case, when the work is over, he reverts as a Judge of the High Court without fresh appointment. Such, for example, was the case of Incometax Investigation Commission where the appointments were whole time and a, Judge. of the High Court appointed as a member of the Investigation Commission could not at the same time work as a Judge of the High Court. But Judges appointed to head Commissions under the Commission of Enquiry Act stand in a different position altogether. As we have said, these. Commissions are temporary and are not whole time posts and their sittings are not even continuous. In such a case we, are of opinion that a Judge appointed to ' head a Commission of Enquiry remains as part of the High Court and if the Commission of Enquiry is not working continuously he is entitled to sit and ,act as a Judge of the High Court in the intervals. It is not disputed that Dutta J. was heading a Commission of Enquiry of this temporary nature, and as such we are of opinion that he was entitled to sit and 'act as a Judge of the High Court when ever he had time to do so. It is remarkable that Dutta J. was appointed Vacation Judge while he was working as Commis sion of Enquiry and that appointment was in our opinion quite in order. for by heading the Commission of Enquiry, Dutta J. did not demit his office as a Judge of the High Court. We cannot therefore agree with the observation of the learned Chief Justice that Dutta J. could not have assumed to himself the ' role and duties of a Judge of the High Court exercising jurisdiction as a Bench 'of the High Court. We also disagree with the view expressed by the learned Chief Justice that it was highly objectionable on the part of Dutta J. to work as a Judge of the High Court while be was heading the Commission of Enquiry. We are of opinion that where a Judge heads temporary Commissions of Enquiry under the Commission of Enquiry Act. he remains a part of the High Court and is entitled to sit and, act as a Judge of the High Court whenever be thinks fit. The appointment of a Judge as Commission of Enquiry does not deprive him of the rights and privileges of a Judge of the High Court. Whenever he finds time to attend to his duties as a Judge of the High Court while acting as a. Commission of Enquiry, he can do so. The next question is whether Dutta J. could act as a Judge of the High Court at Sibsagar when Gauhati is the seat of the High Court under the notification issued under article 10 of. the Assam High Court Order, 1948. We do not think it necessary to decide this question in the present appeal. We shall assume that Dutta J. could not pass orders as a Judge of the High Court anywhere else except at Gauhati which is the seat of the High Court. Even assuming that, all that can be said is that the presentation of the writ petition before Dutta J. at Sibsagar was irregular. As we have said already. he was still a Judge of the High Court while holding a Commission of Enquiry at Sibsagar, 818 and if he received the petition at Sibsagar, all that can be said is that the petition was irregularly presented there when it should have been presented at Gauhati. But assuming that the presentation of the petition at Sibsagar was irregular, the fact remains that the petition was sent to Gauhati later and was dealt with there. We do not see why the petition should have been dismissed because the ' presentation was irregular. There is in out opinion no difficulty in holding that the petition was repre sented when it was sent to Gauhati and was dealt with there in the High Court. The presentation should have been taken in such circumstances to have been made at Gauhati when the petition reached Gauhati and the petition should have been dealt with as such. Of course, if the presentation of the petition at Sibsagar was irregular, the order passed by Dutta J. would also be irregular, But when the petition came to the High Court thereafter, the irregularity in presentation must be held to have been cured. It was open to the High Court to, consider whether the irregular order of stay should be regularised. Apart from that even if the irregular stay could not be regularised, there was no reason why the petition should have been dismissed merely on the ground that it was irregularly presented, when it finally did reach the High Court at Gauhati. Whatever therefore may be said a:.bout the order under appeal setting aside the irregular order of stay, we are of opinion that the High Court was not right in dismissing the petition as it did on May 24, 1967. The petition must be held to have been represented to the High Court when it reached the seat of the High Court at Gauhati and should have been dealt with as such and could not have been thrown out merely on the ground that the original presentation on November 3, 1966 was irregular. We are therefore of opinion that the order dismissing the petition must be set aside and the High, Court should now go into the question whether the petition should be admitted and whether it should be set down for hearing. Finally we consider it our duty to refer to certain observations made by the learned Chief Justice with respect to Dutte, J.is handling of the petition. In this connection reference was made by the learned Cheif Justice to a decision of this Court in Principal, Patna College V. K. section Raman(1). It is enough to say that the facts of that case are very different from the facts of the present case and the observations on which the learned Chief Justice relies do not apply to the facts of the present case. In the present case, the petition was presented during vacation when no Judge was actually sitting at Gauhati and in the circumstances the action taken by the appellant in presenting the petition at Sibsagar before Dutta J. who was the Vacation Judge and the only Judge available, after giving notice to the Government Advocate on November 2, 1966 at Gauhati, seen* to have been the only course open to him in the circumstances, for the examination (1) ; 819 was to be held from November 4, 1966 and the appellant came to know on November 2, 1966 when the examination fee was not accepted that he would not be able to sit at the examination. In the circumstances the observation of the learned Chief Justice that there was "unholy haste and hurry exhibited in dealing with this ' matter by Dutta J." is entirely uncalled for. Assuming that Dutta J. wrongly took the view that he could entertain the petition and pass the stay order at Sibsagar, he could only act in the way he did in the view that he took, and ' it cannot be said that this was a case of "unholy haste and hurry". We also cannot agree with learned Chief Justice that the notion of sending a) copy to Gauhati for getting it sealed so that it might be properly authenticated was in any way objectionable. The situation being what it was, that seems to us to be the only way open, once it is clear that Dutta J. took the view that he could entertain the petition and pass orders thereon even though that view may not be correct. Nor do we think that the learned Chief Justice was justified in observing that "the whole thing discloses an unnecessary zeal on the part of Dutta J. to assist the appellant". Once Dutta J. took the view that he had jurisdiction to entertain the petition and pass orders thereon, the order he passed and the steps he took so that the order was served before November 4, 1966 (which was the date of the examination) appear to us to be the only steps that could have been taken, and such steps cannot be said to be opposed to the great traditions that obtain in a High Court; nor can it be said that Dutta J. 's action reflected adversely on the judicial independence and aloofness of that august institution. There is no reason to hold that any unnecessary zeal was shown by Dutta J. in assisting the appellant when he passed the order which he did, once Dutta J. took the view that he had the jurisdiction to entertain the petition and pass order thereon at Sibsagar. All that happened thereafter appears to us to be quite proper and cannot in any way reflect on the conduct of Dutta J. in this case. It is a matter of regret that the learned Chief Justice thought fit to make these remarks in his judgment against a colleague and assumed without any justification or basis that his colleague had acted improperly. Such observations even about Judges of subordinate courts with the clearest evidence of impropriety are uncalled for in a judgment. When made against a colleague they are even more open to objections We are glad that Goswami J. did not associate himself with these remarks of the learned Chief Justice and, was fair when he asaumed that Dutta J. acted as he did in his anxiety to do what he thought was required in the interest of justice. We wish the learned Chief Justice had equally made the same assumption and had I not made these observations castigating Dutta J. for they appear to us to be without any basis. It is necessary to emphasis that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is L/P(N)78CI 13 820 also fallible. Remarks such as these made by the learned Chief Justice make a sorry reading and bring the High Court over which he presides into disrepute. Even when there is justification for criticism, the language should be dignified and restrained. But in this case we do not see any justification at an for such remarks. We therefore allow the appeal and) set aside the order of the High Court dismissing the writ petition and send it back to the High Court with the direction that the High Court should reconsider whether the petition should be admitted, taking it as represented on the day it reached Gauhati, and ' if so it should be set down for hearing in due course. In the circumstances we make no order as to costs. V.P.S. Appeal allowed.

One of the Judges of the High Court of Assam was nominated to be the Vacation Judge for hearing urgent civil and criminal applications when the High Court was closed for vacation from 17th September 1966 to 19th November 1966. Certain days were fixed as the vacation court days, and if there was an extremely urgent matter the Vacation Judge could hear it on any other day by appointment. At that time, the same Judge was heading a Commission of Enquiry under the Commission of Inquiry Act, and in connection with that work, on 2nd November 1966, the Vacation Judge went from Gauhati the seat of the High Court, to Sibsagar. The appellant was a student of a college at Gauhati. He was expelled from the college on 26th October 1966. He tendered an. unconditional apology the next day and attended classes till the end of the month; but, on 2nd November, when he wanted. to pay the fee for an examination to be held on 4th November, the fee was not received as the Principal of the College had not accepted the apology. As the Vacation Judge was not available at Gauhati, the appellant went to Sibsagar and presented a writ petition to the Vacation Judge. The Judge entertained the petition and passed an interim order. A copy of the interim order was prepared at Sibsagar and given to the appellant to be taken to Gauhati where it. was sealed and served on the University. The appellant was then allowed to sit for the examination subject to the result of the writ petition. Thereafter, the papers relating to the writ petition were sent to the High Court at Gauhati and after the vacation was over, certain miscellaneous orders were passed on the writ petition. Eventually, it came up for hearing and was dismissed by a Bench consisting of the Chief Justice of the High Court and another Judge. The Chief Justice held that: (1) the Vacation Judge, while performing the duties of a Commission of Enquiry, could not also Perform the duties of a Judge of the High Court (2) a Judge of the High Court could not hold a,sitting anywhere else except at the seat of the, High Court ' and (3) the Vacation Judge exhibited 'unholy haste and hurry ' and his I action disclosed 'an unnecessary zeal ' on his part to assist the appellant. The other Judge agreed with the order of dismissal only on the. second ground. In appeal to this Court, HELD: (1) Judges of the High Court are of appointed under the Commission of inquiry act to head commission for various head purposes. These Commissions are temporary affairs and usually their 814 sittings are not continuous. A Judge of the High Court when lie is appointed to head such a Commission does not demit his office as a Judge nor does the appointment deprive him of his rights and privileges as a Judge of the High Court. Therefore, there was nothing objectionable on the part of the Vacation Judge working as a Judge of the High Court while he was heading the Commission, for, when the Commission was not actually sitting; he was entitled to sit and act as a Judge of the High Court. [817 G H; 818 C]. (2) Assuming that a Judge of the High Court could not pass orders as a Judge anywhere else except at the seat of the High Court, the effect of such an assumption in the present case is,. that the presentation of the writ petition at Sibsagar was irregular and the interim order passed thereon was also irregular. But, as the petition was sent to Gauhati later and dealt with by the High Court there, the petition must be deemed to have been represented to the High Court, and the irregularity in presentation must be held to have been cured. It was open to the High Court to consider whether the irregular interim order should be regularised or to deal with the petition on merits. But it was not open to the High Court to throw out the petition merely on the ground that the original presentation was irregular. [818 H; 819 A E]. (3) Assuming that the Vacation Judge wrongly took the view that he could entertain the petition and pass the interim order at Sibsagar, he could only act in the way he did in the view that he took, and, in the circumstances, the observations of the Chief Justice were entirely uncalled for. There was no justification at all for such justification for criticism, the language should be dignified and rejustification for criticism, the language should be dignified and restrained. [820 B D, G; 821 A]. Principal, Patna College vs K. section Raman, [1966], 1 S.C.R. 974, distinguished.

Civil Appeal No. 626 of 1982. Appeal by Special leave from the Judgment and Order dated the 24th November, 1981 of the Delhi High Court in Civil Revision No. 854 of 1981. A. Subba Rao for the Appellant. R.K. Jain and P.K Jain for the Respondent. The Judgment of the Court was delivered by MADON, J. This Appeal by Special Leave granted by this Court is directed against the judgment and order of the High Court of Delhi dismissing the revision petition under section 25B (8) of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958) (hereinafter for the sake of brevity referred to as 'the Act '), filed by the Appellant against an order of eviction passed against him by the Rent Controller, Delhi, on an application filed by the Respondent on the ground specified in section 14A (1) of the Act. The Appellant was the tenant of the Respondent in respect of premises situate at 3474, Gali` Kartar Singh, Subzi Mandi, Delhi, consisting of one room and two tin shedsata rent of Rs. 10.50 per month excluding water, electricity and other charges Prior to January 1975, the Respondent was an employee in the Posts and Telegraphs. Audit and Accounts Department of the Government of India, and in January 1975 he was sent on deputation to the Union Public Service Commission. He retired on May 1, 1978 During the course of his service, in October, 1972, the Respondent was allotted Government residential accommodation at Timarpur, Delhi, by the Directorate of Estates, Government of India. The Respondent occupied the said accommodation from November 1, 1972. By a general order issued by the Ministry of Works and Housing in the form of an office memorandum, namely, O.M No, 12031 (1)/ 74 Pol. II dated September 9, 1975, and subsequently clarified by another order, namely, O.M. No. 12031 (1)/74 Pol. II dated December 12, 1975, the Government of India directed that all Government servants who had their own dwelling houses at the place of posting within the limits of any local or adjoining muni 1028 cipality should vacate the Government accommodation allotted to them within three months from October 1, 1975, or in default to pay market rent in respect thereof. Consequently the Respondent was required to vacate the Government accommodation allotted to him by December 31, 1975, or to pay the market rent in respect thereof with effect from January 1, 1976. The Respondent, therefore, vacated the Government accommodation in his occupation on December 27, 1975, and went to reside in other premises belonging to him adjoining the premises let to the Appellant. Thereafter, on May 17, 1976, the Respondent filed an application under section 25B of the Act on the ground specified in section 14A (1) thereof, being Suit No. E 798 of 1976. During the pendency of the said eviction application, by a special order dated December 24, 1975, but signed on September 25, 1976, the Respondent was given notice that if he failed to vacate the said Government accommodation in his occupation by December 31, 1975, he would be charged market rent with effect from January 1, 1976, at the rate fixed by the Government from time to time. After the summons had been duly served on him, the Appellant filed an affidavit stating the grounds on which he sought to contest the said eviction application and obtained leave from the Rent Controller, Delhi, to contest the said application. A number of defences were taken by the Appellant, all of which were negatived by the Rent Controller. The Rent Controller considered the accommodation in the respective occupation of the parties and held that the Respondent 's family consisted of himself, his wife, his, married sons and their wives, eight grand children and two married daughters with their children and that it could not be said that the premises occupied by the Respondent constituted reasonably suitable residential accommodation. The Rent Controller further held that section 14A (1) of the Act did not contain a condition that the Government servant who made an application under section 14A (1) should not be in possession of reasonably suitable alternative accommodation as was the case under clause (e) of the proviso to sub section (1) of section 14 of the Act and that even if such a factor were to be taken into consideration, it could not be said that the Respondent, was in occupation of reasonably suitable alternative accommodation. Accordingly, on August 1, 1981, the Rent Controller passed an order of eviction against the Appellant and directed it not to be executed for a period of two months. The Rent Controller directed the parties to bear their own costs of the said eviction application. The Appellant thereupon filed in the High Court of Delhi a 1029 revision petition under section 25B (8) of the Act The said revision petition was dismissed on November 24, 1981. It is against this judgment and order of the Delhi High Court that the present Appeal by Special Leave has been filed by the Appellant. The first contention raised on behalf of the Appellant at the hearing of this Appeal was that the Respondent was not entitled to rely upon the said special order dated December 25, 1975, inasmuch as it was signed on September 25, 1976, and the fact that it was signed nine months later than the date it bears clearly showed that the Respondent had manoeuvred to obtain this order. In our opinion, the said special order dated December 24, 1975, is irrelevant inasmuch as the foundation of the Respondent 's said eviction application was not the said special order but the said general order dated September 9, 1975, as clarified by the said order dated December 12, 1975. We may also mention here that the Government policy as embodied in the said general order and its clarification has been modified from time to time. We are, however, not concerned in this Appeal with any of the subsequent modifications of the said policy. The next point which was urged before us and which requires our serious consideration is that the Respondent 's said eviction application was not maintainable. The maintainability of the said eviction application was impugned on two grounds: (1) the Respondent was not in occupation of the Government accommodation allotted to him on the date when he filed his application, and (2) on the date when he filed his application, the Respondent was already residing in premises belonging to him. In order to test the correctness of these contentions, it is necessary to refer to the relevant provisions of the Act. As the long title of the Act shows that it is "An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union Territory of Delhi. ' Under section 14 (1) of the Act a landlord is disentitled from obtaining possession of any premises let out by him except on one of the grounds set out in the proviso to that sub section. The relevant provisions of the said section 14 (1) are as follows: " 14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contain 1030 ed in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: x x x x x (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the land lord or such person has no other reasonably suitable residential accommodation; x x x x x (6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub section (l) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition. x x x x x (7) Where an order for the recovery of possession of any premises is made on the ground specified in clause (e) of the proviso to sub section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order. The right of a landlord to recover possession on the ground specified in clause (e) of the proviso to section 14 (1) of tho Act is thus circumscribed by three restrictions: (1) the landlord of the person for whose benefit the premises are held should not have other reasonably suitable residential accommodation; (2) if the premises of which the landlord desires to recover possession have been acquired by him by transfer, no application for the recovery 1031 of such premises can be filed unless a period of five years has elapsed from the date of the acquisition of such premises; and (3) if the landlord obtains an order for the recovery of possession of the premises, he is not entitled to obtain possession of such premises before the expiration of a period of six months from the date of the order or, in other words, the tenant is statutorily given a period of six months to vacate the premises. Section 35 of the Act provides for appointment of Controllers and Additional Controllers. Section 37 of the Act prescribes the procedure to be followed by the Controller which expression, under clause (b) of section 2, includes an Additional Controller. Under section 37 no order which prejudicially affects any person is to be made by the Controller without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Controller. The Controller is to follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence, while holding an inquiry in any proceeding before him. Under section 38 an appeal lies to the Rent Control Tribunal from every order made by the Controller under the Act, and a second appeal from an order made by the Tribunal lies to the High Court if the appeal involves a substantial question of law. On December 1, 1975, the President of India promulgated the Delhi Rent Control (Amendment) Ordinance, 1975 (Ord. No. 24 of 1975). The said Ordinance was repealed and replaced by the Delhi Rent Control (Amendment) Act, 1976 (Act No. 18 of 1976). The said Amendment Act came into force with retrospective effect from December 1, 1975, being the date of the said Ordinance. By the said Ordinance and the said Amendment Act which replaced it, the definition of 'tenant ' in clause (1) of section 2 was substituted and a new section, namely, section 14A, and a new Chapter IIIA, were inserted in the Act. Section 14A(1) provides as follows: 14"A(1) Right to recover immediate possession of premises to accrue to certain persons. (1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential 1032 accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union Territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such land lord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover." Chapter IIIA is entitled 'Summary Trial of Certain Applications '. It consists of three sections, namely sections 25A, 25B and 25C. Section 25A provides that the provisions of Chapter IIlA or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force. Section 25B prescribes, as its marginal heading shows, a special procedure for the disposal of applications for eviction on the ground of bona fide requirement '. Under section 25B every application by a landlord for the recovery of possession of and premises on the ground specified in clause (e) of the proviso to section 14(1), or under section 14A, is to be dealt with in accordance with the special procedure prescribed by that section. The special procedure which has been prescribed for these cases is that on an application being filed on either of these two grounds, the Controller is to issue a summons in the form specified in the Third Schedule to the Act. This summons is to call upon the tenant to appear before the Controller within fifteen days of the service of the summons and to obtain leave of the Controller to contest the application for eviction, and it intimates to him that in default of his doing so the applicant would be entitled after expiry of the said period of fifteen days to obtain an order for his eviction. Leave to appear and to contest the application is to be obtained by the tenant on an application made to the Controller 1033 supported by an affidavit. This affidavit is to disclose such facts A as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to section 14(1) or under section 14A. When leave is granted, to the tenant to contest the application, the Controller is to commence the hearing of the application as early as practicable. In holding such an inquiry, the Controller is to follow the practice and procedure of a Court of Small Causes, including the recording of evidence. No appeal or second appeal is to lie against an order for the recovery of possession of any premises made by the Controller in accordance with this special procedure. The High Court is, however, given the right to call for the records of the case for the purpose of satisfying itself that an order made by the Controller under this section is according to law and to pass such order in respect thereto as it thinks fit. Section 25C provides as follows: "25C. Act to have effect in a modified form in relation to certain persons: (1) Nothing contained in sub section (6) of section 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, an order made by that Government or authority to vacate such residential accommodation, or, in default, to incur certain obligations, on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child in the Union Territory of Delhi. (2) In the case of a landlord who, being a person of the category specified in sub section (1), has obtained, on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, an order for the eviction of a tenant from any premises, the provisions of sub section (7) of section 14 shall have affect as if for the words "six months," occurring therein, the words "two months" were substituted. " It is now well settled that though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to determine the true meaning and effect of the substantive provisions of 1034 a statute, it is permissible to refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy. It will, therefore, be convenient to reproduce at this stage the Statement of Objects and reasons accompanying Bill No. XII of 1976 which when enacted became the Delhi Rent Control (Amendment) Act, 1976. The said Statement of Objects and Reasons is as follows: "There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to confer ring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bonafide for his personal occupation. Further, Government decided on the 9th September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December, 1975. Government considered that in the circumstances, the Act required to be amended urgently. As the Parliament was not in session, the Delhi Rent Control (Amendment) Ordinance, 1975 was promulgated on the 1st December, 1975. The Bill seeks to replace the said Ordinance. " The aforesaid general order of the Government was issued on September 9, 1975. The said Ordinance was promulgated on December 1, 1975. This proximity of dates and the provisions of section 14A(1) make it clear that a new ground of eviction was provided by section 14A(1) in order to enable a person who has to vacate the Government accommodation allotted to him by December 31, 1975, to recover possession of premises let by him. The fact that section 14A was inserted in view of the said Government order dated September 9, 1975, has also been expressly stated in the Statement of Objects and Reasons accompanying the said Bill No. XII of 1976. This object is further brought out by the provisions 1035 of section 25B which was inserted in the Act by the said Ordinance and re enacted by the said Amendment Act. As mentioned earlier, by section 25B a special procedure has been prescribed for applications made on the ground specified in clause (e) of the proviso to section 14(1) or under section 14A. By the special procedure provided in section 25B the delay normally involved in following the procedure under section 37 of the Act, is sought co be cut down and the tenant is made to apply and obtain leave to contest the eviction application. Further, the tenant 's right of appeal and second appeal have been taken away and the only remedy left to him against an order of eviction passed by the Controller under section 25B is to approach the High Court in revision. Thus, the object underlying section 14A is that a person who is compelled to vacate residential accommodation allotted to him on the ground that he owns other residential premises in the Union Territory of Delhi either in his own name or in the name of wife or dependent child should not be left without a roof over his or should not be made to incur heavy financial obligation by continuing to reside in the accommodation allotted to him by paying market rent in respect thereof to tho Central Government or the local authority, as the case may be. Turning now to the merits of tho present Appeal, it is not disputed that the premises let to the Appellant and the premises belonging to the Respondent which the Respondent occupied after giving up the Government 'accommodation allotted to him are separate premises and that each constitutes a dwelling house under the proviso to section 14A(1). It is also not disputed that the Central Government issued the said general order dated September 9, 1975, and subsequently clarified it by another order dated December 12, 1975. It is equally not in dispute that on the date when the respondent filed his said eviction application he was residing in premises belonging to him. It is in the light of these admitted facts and the statutory provisions referred to above that we must now consider the question of maintainability of tho eviction application filed by the Respondent. The first ground of challenge to the maintainability of the said eviction application is that a landlord who is not in occupation of the residential accommodation allotted to him either by the Central Government or a local authority on the date when he files an application under section 14A (1) is not entitled to maintain it. It was submitted on behalf of the Appellant that though such a 1036 condition was not expressly provided in section 14A, it should be read into that section as being implicit in it. We find no merit in this submission. Admittedly, the section does not contain any such condition. The object of section 14A (1) is to provide an additional ground of eviction to a landlord who had been allotted residential accommodation by the Central Government or a local authority and who is required by a general or special order of that Government or authority to vacate that accommodation or in default, to incur certain obligations, for example, payment of market rent, on the ground that he owns in the Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child. Being asked to vacate on the ground that he owns his own residential accommodation, he must be in a position to move into such accommodation It is for this reason that the section expressly states that ' There shall accrue, on and from the date of such order, to such landlord a right to recover immediately possession of any premises let out by him". To accept the contention of the Appellant would be to postpone the accrual of the right given by section 14A to the date of the filing of the application. In order to recover possession of residential accommodation let out by him, a landlord to whom residential accommodation had been allotted by the Central Government or any local authority cannot be obliged to continue to reside in such accommodation by paying market rent in respect thereof. On the passing of a general or special order of the nature specified in section 14A (1) the landlord may vacate the accommodation allotted to him and find accommodation for himself elsewhere, either by renting premises or in a hostel, hotel, lodging house, boarding house or with a relative. He is not thereby debarred from filing an application under section 14A(1). Does the same position, however, prevail when on the passing of such general or special order the landlord vacates the accommodation allotted to him and moves into other premises owned by him either in his own name or in the name of his wife or dependent child ? The consideration of this question brings us to the second ground of challenge to the maintainability of the Respondent 's said eviction application. This is a more formidable challenge and in our opinion, it must succeed. It was urged by Mr. R.K. Jain on behalf of the Respondent that there was no such restriction provided in section 14A (1). We are unable to accept this submission. The object underlying the Act and the subsequent enactment of section 14A would be defeated, if this contention were to be accepted. The Act, like other Rent Acts, has been passed to secure tenants 1037 in their accommodation at a reasonable rent. This is apparent from the long title and the provisions of the Act. Various States had enacted Rent Acts in order to prevent landlords from profiteering from the situation brought about as a result of increase in population and shortage of accommodation. By these Rent Acts, the right which a landlord has under the , to recover possession of the property let by him to a tenant on the expiry of the lease or on determination of the tenancy has been taken away and the landlord can recover possession of such premises only on one of the grounds provided by the particular Rent Act. To permit an allottee of residential accommodation belonging to the Central Government or a local authority who owns a residential accommodation either in his own name or in the name of his wife or dependent child to file an application to evict a tenant from other premises belonging to him which he has let out would be to permit him to move into one of the premises owned by him and to let out the other premises and thus to profiteer from the general or special order mentioned in section l4A(1). That he cannot do so is clear from the proviso to section 14A (1). Under the said proviso, if an allottee of such accommodation owns in the Union Territory of Delhi two or more dwelling houses, either in his own name or in the name of his wife or dependent child, which he has let out, he cannot recover possession of more than one of these dwelling houses but he has to select one of them and file an application under section 14A (1) in respect thereof only. If such a landlord cannot file an application under section 14A (1) when he owns two dwelling houses which have been let out by him, to recover possession of both these dwelling houses but can do so only in respect of one of them, he equally cannot file an application under section 14A(1) when he has let out one of such dwelling houses and the other dwelling house is available to him for his residence or when he has already moved into the other dwelling house. Can such a person, however, file an application under section 14A (1) on the ground that a dwelling house owned by him either in his own name or in the name of his wife or dependent child and available for his residence is not reasonably suitable for his residential accommodation? The answer to this question must also be in the negative. Section 14A does not contain a condition that a person who has or had to vacate the accommodation allotted to him by the Central Government or any local authority by reason of a general or special order mentioned in section 14A (1) has "no other reasonably suitable residential accommodation" as clause 1038 (e) of the proviso to section 14 (1) does. Under section 14A (1) such allottee should have no other dwelling house which he owns either in his own name or in the name of his wife or dependent child for him to move into. If such dwelling house is not adequate or suitable for his residence, he must proceed under clause (e) of the proviso to section 14 (1). That this is the only remedy open to him is clear from the provisions of section 25C. As we have seen, a landlord who desires to recover possession of premises on the ground specified in the said clause (e), which premises have been acquired by him by transfer, he cannot under clause (6) of section 14 file an application under the said clause (e) for a period of five years from the date of the acquisition of those premises by him. Further, such an applicant if he succeeds in getting an order of eviction is not entitled to obtain possession of the premises for a period of six months from the date of the eviction order. In the case of a landlord referred to in section 14A (1) these two conditions have been relaxed by section 25C. Under section 25C(1) even though the premises which have been let out by such landlord have been acquired by him by transfer, clause (6) of section 14 does not apply to him and he does not have to wait for a period of five years or for any length of time before filing an application for the recovery of possession of such premises Further, the period of six months during which the order of eviction cannot be executed under sub section (7) of section 14 is reduced by section 25C (2) in the case of such a landlord to two months. These provisions clearly show that if a landlord referred to in section 14A(1) has other residential accommodation of his own either in his own name or in the name of his wife or dependent child which accommodation is not reasonably suitable for his residence cannot proceed under section 14A (1) but must file an application on the ground specified in clause (e) of the proviso to section 14 (1). The Rent Controller was, therefore, in error in considering the respective needs of the parties and the suitability of accommodation occupied by the Respondent. To summarize our conclusions: (1) It is not necessary that a person in occupation of residential premises allotted to him by the Central Government or a local authority who is required by or in pursuance of a general or special order made by that by that Government or authority to vacate such accommodation or, in default, to incur certain obligations, such as payment of market rent, on the ground that he owns in the 1039 Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child should be in occupation of the accommodation allotted to him on the date when he files an eviction application under section 14A (1) of the Delhi Rent Control Act, 1958, to recover possession of the residential premises which he so own and which has been let by him. (2) If such person has, however, other premises which he owns either in his own name or in the name of his wife or dependent child which are available to him for his residential accommodation or into which he has already moved, he cannot maintain an application under section 14A (1) of the Act. (3) Even if the other premises owned by him either in his own name or in the name of his wife or dependent child are not reasonably suitable for his accommodation, he cannot maintain an application under section 14A (1) but must file an application on the ground specified in clause (e) of the proviso to sub section (1) of section 14 of the Act. In the result, this Appeal must succeed. We accordingly allow this Appeal and reverse the order of the Delhi High Court dismissing Civil Revision Petition No. 854 of 1981 filed by the Appellant and allow the said revision petition and dismiss the Eviction Suit No. 798 of 1976 filed by the Respondent in the Court of the Rent Controller, Delhi. The Respondent will pay to the Appellant the costs if this Appeal which we quantify at Rs. 800. N.V.K. Appeal allowed.

Standing Order 31 of the 1st Respondent/Public Sector Undertaking prescribed a detailed procedure for dealing with cases of misconduct; and for imposing major penalty, the employer had to draw up a chargesheet and give an opportunity to the delinquent workman to make his representation within 7 days. If the allegations were controverted, an enquiry had to be held by an officer to be nominated by the management and in such an enquiry reasonable opportunity of explaining and defending the alleged misconduct had to be given to the workman. Suspension of the delinquent workman pending enquiry was also permitted. At the end of the enquiry, if the charges were held proved, and it was provisionally decided to impose a major penalty, tho delinquent workman bad to be afforded a further reasonable opportunity to represent why the penalty should not be imposed on him. Standing Order 32 provided for a special procedure in case of a workman was convicted for a criminal offence in a court of law or where the General Manager was satisfied for reasons to be recorded in writing that it was inexpedient or against the interests of security to continue to employ the workmen ', viz., the workman could be removed or dismissed from service without following the procedure laid down in Standing Order No. 31. 429 The appellant an Assistant in the 1st Respondent undertaking was A removed from service on the ground that it was no longer expedient to employ him. The management dispensed with the departmental enquiry, after looking into the secret report of one of their officers that the appellant had misbehaved with the wife of an employee and that a complaint in respect thereof had been lodged with the police. In the reference to the Industrial Tribunal, the Tribunal held that as the employer dispensed with the disciplinary enquiry in exercise of the power conferred by Standing Order 32, it could not be said that the dismissal from service was not justified, and that if there were allegations of misconduct, the employer was quite competent to pass an order of removal from service without holding any enquiry any in view of the provisions contained in Standing Order 32, and rejected the reference. Allowing the appeal, by the employee to this Court, ^ HELD: 1. The reasons for dispensing with the enquiry do not spell out what was the nature of the misconduct alleged to have been committed by the appellant and what prompted the General Manager to dispense with the enquiry. [437D] 2. As there was no justification for dispensing with the enquiry, imposition of penaly of dismissal without the disciplinary enquiry as contemplated by Standing Order 31 is illegal and invalid. [437F] 3 The respondent shall recall and cancel the order dated August 24, 1970 removing the appellant from service and reinstate him and on the same day the appellant shall tender resignation of his post which shall be accepted by the respondent. The respondent shall pay as and by way of back wages and future wages, a sum of Rs. l.5 lakhs to the appellant within 2 months which shall be spread over from year to year commencing from the date of removal from service. The appellant shall be entitled to relief under Section 89 of the Income tax Act, 1961 for which he shall make the necessary application to the appropriate authority. who would consider granting of relief. [438C D;F] F 4. Where an order casts a stigma or affects livelihood, before making the order, principles of natural justice in a reasonable opportunity to present one s case and controvert the adverse evidence must have full play. Even he Constitution which permits dispensing with the inquiry under Article 311 (2) a safeguard is introduced that the concerned authority must specify reasons for its decision why it was not reasonably practicable to hold the inquiry. [435 A B] 5. (i) Standing Order 32, nowhere obligates the General Manager to record reasons for dispensing with the inquiry as prescribed by Standing Order 31. On the contrary, the language of Standing Order 32 enjoins a duty upon the General Manager to record reasons for his satisfaction why it was inexpedient ar against the interest of the security of the State to continue to employ the workman. Ressons for dispensing with the enquiry an reasons for not continuing to employ the workman stand, wholly apart from each other. [435C D] 430 (ii) A Standing Order which confers such arbitrary. uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest of security to continue to employ the workman is violative of the basis c requirement of natural justice, as tho General Manger can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the character of the workman without recording reasons why disciplinary enquiry is dispensed with and, what was the misconduct 13 alleged against the employee. [435D E] 6 When the decision of the employer to dispense with the enquiry is questioned, the employer must be in a position to satisfy the Court that holding of the enquiry will be either counter productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered This minimum requirement cannot and should not be dispensed with. [436B C] L. Michael and Anr. vs M/s. Johnston Pumps India Ltd ; , referred to. It is time for the 1st respondent public sector undertaking to recast Standing Order 32, and to bring it in tune with the philosophy of the Constitution failing which the vires of the said standing Order would have to be examined in an appropriate proceeding. [438D]

Appeal No. 672 of 1964. Appeal by special leave from the judgement and decree dated October 1962 of the Madhya Pradesh High Court in First Appeal No. 8 of 1960. C. B. Agarwala, W. section Barlingay and A. G. Ratnaparkhi, for the appellant. M. Adhikari, Advocate General for the State of Madhya Pradesh, B. sen, M. section K. Sastri, M. N. Shroff, R. P. Kapur for 1. N. Shroff, for the respondent No. 1. The judgment of the Court was delivered by Raghubar Dayal, J. This appeal, by special leave, arises out of a suit instituted by the appellant for a declaration that he was not liable to pay a certain amount originally due from defendant respondent No. 2 and for the issue of a permanent injunction restraining the State Government, Madhya Pradesh, defendant respondent No. 1 from continuing the proceedings for the recovery of the amount or for starting any fresh proceedings. The suit was decreed by the Trial Court but, on appeal, the High Court reversed the decree and dismissed the appellant 's suit. The admitted facts of the case are that on December 24, 1956, respondent No. 2 purchased at the public auction sale held by the Divisional Forest Officer, Harda, the cut timber and arkat trees of coupe No. 9 Eastern, East Kalibhit Range, in Harda Forest 383 Division, for Rs. 70,200. The appellant stood surety for the purchaser, viz., respondent No. 2. The purchase price was to be paid in four instalments, according to para 4 of the deed of contract. Rs. 17,600 were to be paid at once and were so paid. The other instalments were due on March 1, May 15 and December 15, 1957. These instalments were not paid by respondent No. 2 and hence respondent No. 1 took proceedings against the appellant for the recovery of the amount. According to the terms of the contract, the contractor, res pondent No. 2, was to commence his work of collecting and removing the cut timber within 1 month after furnishing a copy of the boundary certificate. This certificate, Exhibit D 1, was furnished on February 5, 1957 and stated that the respondent No. 2 had clearly understood the boundaries of the areas covered by the lease and that he had taken possession of the standing/felled/ collected material in the aforesaid coupe as announced at the auction and described in the said lease and that he was satisfied that the quantity delivered to him agreed substantially with that announced at the auction. The appellant Badri Prasad signed this certificate as a witness. The work could continue upto June 30, 1958. Interest was to be charged at 6 1/4 per cent per annum in respect of the instalments not paid on the due dates. The removal of the forest produce purchased from the contract areas was to be according to specified routes and, after they had been examined at the depots specified in clause 5 of the contract deal. Clauses 5A and 5B of the contract made it incumbent on the forest contractor respondent No. 2 to set apart certain timber for certain purposes to the agriculturists and the residents of the villages till three months before the expiry of the contract. The Forest Contract Rules were deemed to be part of the contract entered into between respondent No. 2 and the State, by clause 6 of the contract. The formal deed of contract was signed by the Chief Conser vator of Forests on May 3, 1957 and the preamble of the deed gives the date of the making of the contract to be May 3, 1957. The First Schedule to the Contract states: "The forest produce sold and purchased consists of: All standing trees bearing hammer mark of marginally shown device at base and breast height. All felled trees marked at the butt end and stumps with the device shown in the margin". This is signed by the contractor, respondent No. 2 and by the Divisional Forest Officer, Harda Division, dated December 24, 1956. The trace of the coupe sold was signed by respondent No. 2 and the Divisional Forest Officer on November 29, 1956, prior to the actual auction sale. The Third Schedule relating to the out. 384 turn register was also signed by respondent No. 2 and, by the appellant who stood surety and the Divisional Forest Officer, on December 24, 1956. The security bond was signed by the appellant on December 29, 1956 and by the Divisional Forest Officer on March 30, 1957 and was countersigned by the Chief Conservator on May 3, 1957. The entire coupe whose cut timber was sold to the respondent was divided into four sections A, B, C and D. This was done in accordance with r. 18 of the Forest Contract Rules. This rule provides that the operations carried out in the contract area under a forest contract for the sale of standing trees are divided into two stages (a) cutting and (b) carting. Cutting operations include felling and all processes of conversion etc. without removing it further from the place where it was felled than may be necessary to carry out such processes. Carting operations include all operations for the removal of a felled tree, or its converted products from the place where the tree was felled, whether such removal be to a depot or to a saw mill or other destination. Sub r. (2) of r. 18 authorizes the Divisional Forest Officer to divide the contract area, shortly termed a coupe, into such number of sections, not exceeding,, eight, as he may think fit. The Divisional Forest Officer can regulate and confine the operations of the forest contract in accordance with the provisions mentioned in clauses (a) to (c) of that sub rule. Clause (b) provides that a forest contractor can be allowed to carry out cutting operations first in sections 1 and 2 of the coupe only and as soon as he begins cutting operations in section 3 he shall be deemed to have surrendered all his rights to the standing trees in section 1 and similar would be the result on his beginning cutting operations in section 4 and so on, till all the sections of the coupe are completed. Clause (c) authorises the forest contractor to begin carting operations from the sections whose trees he has begun to cut and provides that his rights to the forest produce in section 1 cease when he starts cutting operations in section 4, and so on. The provisions of r. 20 apply to contracts where the trees have been felled by the Forest Department and the felled trees only were sold to the forest contractor. Sub r. (3) makes rules 18 and 19 applicable to such contracts in so far as they be applicable. Sub r. (2) of r. 20 provides that a forest contractor who has purchased felled trees shall remove all the trees purchased by him under his contract. Respondent No. 2, the contractor, began his operations in section A of the coupe in the last week of February, 1957. He defaulted in the payment of the second instalment which was due on March 1, 1957 and did not pay that amount till April 25, 1957, 385 though it was demanded several times from him. On March 23, 1957 a notice. Exhibit P4, was issued to him. It stated: "You are being informed through this notice that the removal of goods from the coupe by you is already in excess of the amount deposited by you in the treasury. So please send the challan of the second instalment as soon as possible by the return load carrier, otherwise your removal of goods would be stopped and a report would be made to the higher authority within two days". This was duly served on respondent No. 2. On April 25, 1957 the appellant was told by the forest authorities that no further removal of the forest produce would be allowed in view of the default of payment of the second instalment. The licence book and the transit pass were taken back by the Government Forester, Madanlal Pagare. Fire broke out in the forest and the cut timber sold to res pondent No. 2 was burnt. The report about the loss from fire is Exhibit D2 dated April 29, 1957 and is signed by the contractor and Sheoprasad Parashar. the Forest Guard. As a result of the fire the goods purchased by respondent No. 2 and not removed by then, ceased to exist. He did not pay the amounts due for the 2nd, 3rd and 4th instalments. The appellant sought to avoid his liability as surety for the non payment of the amount inter alia on the round that the contractor respondent No. 2 had not been put in possession 'of the cut timber sold to him except of such timber which had been in section A of coupe No. 9, that therefore there had been no transfer of property in the timber sold to him and that he was therefore not liable for paying the amounts due on the 2nd, 3rd and 4th instalments. It was averred by the appellant in paragraph 5(A) of the plaint: "Thus it was clearly understood on both sides and also explained by the Forest Department officials of defendant No. 1 and which has been all along implicit in the contract as per usual practices of the forest department that the possession of the goods of each respective section will be delivered to the Contractor on payment of each instalment as stated above. It was only on due payment of each instalment that the contractor was to become entitled to remove the goods in pursuance of the licence book supplied to him by the forest department of defendant No. 1. In paragraph 5(B) it was stated: "That the contractor or his licensee had no right to remove the goods until the same was duly hammer marked by the representative of the said forest department 386 and until the licence and the transit pass were duly checked and signed by the Coupe Guard or such other representative as may be present on the spot". Para 5(C) mentioned: "That the contractor or his men were further liable to carry the forest produce for check and examination of forest Depot officers of Ziri, Rahetgaon and Timarni established for that purpose and after the cut wood was checked by the Depot Officers, the same used to be marked with a special hammer mark, and unless that was done it was not lawful for any person to remove timber brought to the depot". Respondent No. 1 admitted what was stated in paras 5(B) & (C) of the plaint. It denied the understanding as averred in para 5(A) and what was alleged in para 5(D) to the effect that it was after the processes mentioned earlier that delivery of the goods was deemed to be given to the forest contractor and was to be at his disposal. The main question urged before us is that the property in the cut timber sold and existing in sections B, C and D 'of the coupe had not passed to the contractor before the fire broke out in the last week of April 1957 and this contention is based on the facts that the goods sold were not specific goods as they had not been hammer marked, that the goods in sections B, C and D could not be delivered till the 2nd, 3rd and 4th instalments had been paid and that the deed of contract was signed after the fire had taken place. We may now consider the points urged in support of the contention that the property in the timber of sections B, C and D had not passed to respondent No. 2. The first schedule to the contract describes the property, forest produce sold and purchased, thus: " All standing trees bearing hammer mark of marginally shown device at base and breast height. All felled trees marked at the butt end and stumps with the device shown in the margin". It is the case of the plaintiff appellant that cut trees timber or cut trees were sold. Para 2(A) of the plaint describes the property purchased as 'the cut timber and arkat trees of coupe No. 9 '. Clause (1) of para 2 'of the statement of the case filed on behalf of the appellant makes this further clear as it is stated therein that the contract was for the purchase of 'the cut timber and cutarkat trees '. It appears therefore that the expression about 'all standing trees bearing hammer mark ' in the description of forest produce sold was inadvertently omitted to be struck out from the deed of contract though there was no sale of standing trees to respondent No. 2. 387 Chapter XX of Part IV of Vol. 1 of the Central Provinces & Berar Forest Manual (hereinafter shortly termed Forest Manual) gives the rules for the disposal of forest produce. Rule 5 states that before forest produce is disposed of it shall be properly marked. The standing trees are marked with hammer at two places, at the butt end and at the lower part, a little above the stem. 'the trees are to be felled so as to leave the lower hammer mark in the un cut portion. The felled tree sold is subject to further processes of cutting etc. The portions so cut have to be hammer marked, as only one such portion will have the hammer mark which was first put at the butt end of the tree. A second special hammer mark is placed on these cut portions at the time of checking at the depot. The two hammer marks necessary to be put on the cut portions of the felled tree before they could be actually taken away from the forest area were not made on the cut timber existing in sections B, C and D and sold to respondent No. 2, as the felled trees in those areas had not been cut further by the contractor. The omission to put such marks does not make the goods sold unascertained. The felled trees sold to the respondent No. 2 had a butt mark at the butt end. A similar hammer mark existed on the stem near which the felled tree must have lain, it being presumed that the rules for the felling of trees were properly complied with by the forest authorities, mentioned above. The goods sold therefore were specified goods. There is nothing in the contract that possession would not be delivered over the cut timber in sections B, C and D till the 2nd, 3rd and 4th instalments have been paid. The relevant provisions of r. 18 of the Forest Contract Rules, extracted earlier, do not contain any such restriction. It only provides that the operations necessary to be conducted by the contractor had to start with section A or the first section and that the rights of the contractor to the material purchased would be deemed to be surrendered in certain circumstances. This has nothing to do with the payment of the instalments by the contractor. He can proceed to operate on the entire property purchased, according to his inclination in accordance with the procedure, as regulated by the rules. There is therefore no force in the submission that there could have been no delivery of possession over the produce sold and existing in section B, C and D till the various instalments had been paid. The fact that the contract was signed by the Chief Conser vator of Forests on May 3, 1957, after fire had broken out has no effect on the question of delivery of possession of the produce sold and consequently on the passing of property in the goods to the contractor respondent No. 2. The Chief Conservator who was the proper authority for entering into the contract of sale of property worth over Rs. 70,000/ had necessarily to sign the deed of contract subsequent to the actual auction sale and in view of the L/B(N)3SCI 12 388 exigencies of the procedure to be followed may have to sign after a substantial period of time. The bid of respondent No. 2 at the auction sale had been provisionally accepted by the Divisional Forest Officer who is authorized under the rules to conduct the auction sale. The Divisional Forest Officer and respondent No. 2 thereafter signed the deed of contract on December 24, 1956 the date on which the auction sale took place. The appellant, as surety, also signed the third schedule on December 24, and the security bond on December 24. Practically all the formalities necessary for the execution of the deed except for the signatures of the Chief Conservator, authorised to enter into a contract of this magnitude, had been completed. His formal signature on the deed of contract relates back the contract to the date of auction when the bid of respondent No. 2 was provisionally accepted and he and the Divisional Forest Officer signed the contract. In this connection, reference may be made to certain rules and the instructions issued by Government to the various officers for complying with those rules. Executive instructions on the preparation of forest contract agreements are printed at p. 125 of Vol. 11 of the Forest Manual. Instruction No. 9 provides that if the parties have signed the deed on the same date, that date should be entered in the preamble, but if they had signed on two different dates, then the later of those two dates should be entered in the preamble. It was in accordance with this instruction that May 3, 1957, the date on which the Chief Conservator signed the contract was mentioned in the preamble of the contract deed. That date therefore had not any real effect on the actual date on which the sale of the forest produce took place in favour of respondent No. 2. Instruction 10 directs that the dates in clause 2 of the prescribed deed of contract should be very carefully entered as they have an important bearing on the deed and show the period during which the contract will remain in force. Such a period in the deed of contract Exhibit D is the period 'from the date the forest contractor furnishes the necessary coupe boundary certificate after inspection of the contract area to the 30th day of June 1958, both days inclusive '. The coupe boundary certificate was furnished on February 5, 1957. It follows that the period for the operation of the contract was from February 5, 1957 to June 30, 1958. This is a clear indication that the date in the preamble has no real effect and that the contract, after its being duly signed by the competent authority, relates back to the date of sale. Instruction 16 deals with the execution of the deed of contract. Clause (i) provides for the drawing up of the contract in triplicate. Clause (iii) requires the Divisional Forest Officer to initial the 389 contract after checking it before the lessee is asked to sign it. Clause (iv) provides that where the Divisional Forest Officer himself is empowered to execute the agreement he and the lessee should execute it together and clause (v) provides that where the Divisional Forest Officer is not empowered to execute the agreement, it should be executed by the lessee and his signature should be attested and that the agreement should then be sent as soon as possible to the Forest Officer empowered to execute it, for his signature and attestation. These instructions about the execution of the deed of contract plainly take into consideration the lapse of time between the execution by the lessee and by the competent forest authority. Instructions Nos. 38 to 48 are with regard to the auction of forest contracts. It is the Divisional Forest Officer who is directed to take certain steps. Instruction No. 45 provides that Divisional Forest Officers should ordinarily allow themselves more than one day for the conduct of the auction sales. Instruction No. 47 provides that where the agreements are to be signed by the Conservator or higher authority, the first instalments must still be paid and the duplicate agreements signed by the contractor and his surety, if any, and sent to the Conservator immediately. The Conservators should sign the duplicate agreements in token of acceptance and return them to the Divisional Forest Officers as soon as possible. The reason for this is that it is obviously only fair to a forest contractor that he should be in possession of his signed agreement before he starts work on his contract, i.e., before July 1. In case the Conservators are not competent to sign the contract deeds such deeds will have to be sent by them to the Chief Conservator who is competent in view of r. 102A of Vol. 1 of the Forest Manual (under Chapter XIX) and the relevant orders of the Government to execute contracts for the sale of forest produce upto an amount of Rs. 1,00,000 when payment is received in full at the time of delivery and upto Rs. 10,000 or upto Rs. 50,000 with the previous sanction of the Provincial Government when payment is not received in full at the time of delivery. The exercise of this power by the Chief Conservator and other officers is subject to the rules given in the Government Notification and rule 1(a) of these rules relating to contracts for forest produce reads: "No timber or other forest produce may be ordinarily sold except on cash payment in full at the time of delivery. Payment in instalments may, however, be considered as payment in full at the time of delivery provided that there is a clause in the agreement to the effect that when Divisional Forest Officer considers that the value of any forest produce removed by the purchaser equals or exceeds the amount of purchase money paid by him upto 390 that time, the Divisional Forest Officer may stop further removal until the purchaser has paid such further sum, as in the opinion of the Forest Officer, may be sufficient to cover the excess value of the forest produce removed or to be removed". In view of this rule it would be deemed that the payment of the purchase price had been made in full at the time of delivery, though the actual payment was to be made in four instalments. We are therefore of opinion that the sale of the forest pro duce to respondent No. 2 was finalised on the date of sale subject of course to the acceptance of his bid by the competent authority, the Chief Conservator of Forests and that the fact that the Chief Conservator signed the deed on May 3, 1957, does not make the sale effective from the date of his signature. His signatures do not ratify any action of the Divisional Forest Officer which he took beyond his competence, but simply completes the execution of the deed of contract and relate back its execution to the date on which the sale took place and the contractor and the Forest Officer had signed the document. We may now refer to the approach of the High Court to this question of the deed of contract operating from the date of its execution by respondent No. 2. It was of opinion that respondent No. 2, and the Divisional Forest Officer, had made the contract in December 1956 long before April 28, 1957 and even if the Divisional Forest Officer was not competent to enter into the contract, his act had been subsequently ratified by the competent authority and that therefore the ratification related back to the date of the contract and had the same effect as if the Divisional Forest Officer had performed the act by the authority of the Chief Conservator of Forests. With respect, we do not consider this approach to be correct. The Divisional Forest Officer had authority under the statutory rules for holding the auction and for provisionally accepting the bid. All that he did was within his authority. He did not actually enter into the contract with respondent No. 2. He simply signed the standard form of the contract for the satisfaction of the competent authority to the effect that its accepting the bid and entering into the contract would be correct as is the usual official procedure where subordinates have to put up or forward papers to the superior officers for approval, sanction or orders. The right view of the entire procedure adopted in the case has been already stated by us above. The other point urged by Mr. Agarwala, for the appellant, is that in view of r. 8 of the Forest Contract Rules which empowered the Divisional Forest Officer to stop the removal of forest produce sold on his finding that the value of the forest produce already removed by the contractor exceeded the amount of the instalments already paid by him, the seller in this case had reserved the right 391 of disposal of the forest produce until certain conditions were fulfilled and that therefore section 25(1) of the Indian (Act III of 1930 applies to the facts of the case and that therefore, notwithstanding, delivery of the forest produce to respondent No. 2 in February 1957, the property in it did not pass to respondent No. 2 until the conditions imposed by the seller were fulfilled. There is nothing in the deed of contract 'or in the Forest Contract Rules which reserved such a right of disposal in the State. Right given to the Government under r. 8 is the right to stop the removal of forest produce when the value of the forest produce already removed exceeded the amount of the instalments paid. This is to regulate the compliance with the conditions of the auction one of which was that ordinary forest produce was to be sold on payment in full at the time of delivery. The contractor had therefore to pay full price he had bid at the date of the sale or any day prior to the delivery of the goods to him in February 1957. The provision for allowing payment by instalments is a concession for the convenience of the contractor and it is provided in the rule that payment in instalments may however be considered as payment in full at the time of delivery provided there be a clause in the agreement in accordance with the provisions of r. 8 of the Forest Contract Rules. Reference may here be made to the provisions of section 83 of the (Act XVI of 1927). Subsection (1) provides that when any money is payable for or in respect of any forest produce, the amount thereof shall be deemed to be a first charge on such produce, and such produce may be taken possession of by a Forest Officer until such amount has been paid. Rule 8 of the Forest Contract Rules is therefore in pursuance of the statutory provisions of section 83 of the Forest Act which creates a lien on forest produce for the money payable to Government. Action which the Divisional Forest Officer can take for stopping the removal of the forest produce sold is in pursuance of the statutory authority conferred on him and not in pursuance of any terms of the contract between respondent No. 2 and the Government. When a contractor is deemed to have paid in full the price there could be no occasion for the Government to reserve a right of disposal of the property even when its delivery had been made to the purchaser. As already stated, it is section 20 of the Sale 'of Goods Act which will apply to this case. This section provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment 'of price or the time of delivery of the goods or both is postponed. The contract was unconditional, the goods sold were specific. They were in a deliverable state and therefore the property in the goods did pass at the time when the contract was made. This section would have applied even if the time of payment 392 of price hand been postponed. In the present case, as already stated, the payment allowed by instalments is to be deemed payment in full at the time of the delivery of the goods sold. The last contention raised for the appellant is that as the contract was signed by the Chief Conservator about a week after the goods lying in sections B, C and D had been burnt by fire, the contract must be deemed to have been not made at all by the Chief Conservator who could not have contracted to sell goods which did not exist. The contention really is that there could be no ratification of the act of the Divisional Forest Officer, who had no authority to enter into the contract, after the goods had ceased to exist and reliance is placed in support of this contention on what is stated at para 415 at p. 177 'of Halsbury 's Laws of England, Vol. 1, III Edn. It is stated there: "As to the time within which ratification may take place, the rule is that it must be either within a period fixed by the nature of the particular case, or within a reasonable time, after which an act cannot be ratified to the prejudice of a third person". This is the general proposition and will not be applicable to this case as no third person is being prejudiced on account of the signing of the contract by the Chief Conservator on May 3, 1957, a week after the fire had destroyed certain goods purchased. Further, it is stated in the same paragraph: "But by an anomalous rule limited to marine insurance a contract of marine insurance made by an agent on the principal 's property may be ratified by the principal after notice of loss". This proposition is well settled in England. In Williams vs North China Insurance Co.(1) this proposition was sought to be reviewed. Cockburn C.J. said at p. 764: "The existing authorities certainly show that when an insurance is effected without authority by one person on another 's behalf, the principal may ratify the insurance even after the loss is known. Mr. Benjamin asked us, as a Court of Appeal, to review those authorities. Where an agent effected an insurance subject to ratification, the loss insured against is very likely to happen before ratification, and it must be taken that the insurance so effected involves that possibility as the basis of the contract. It seems to me that, both according to authority and the principles of justice, a ratification may be made in such a case". These observations would fully apply to the facts of the present case, even if we were of the view that the Chief Conservator ratified the unauthorised act of the Divisional Forest Officer on May (1) 393 3, 1957, after the fire had taken place. The provisional acceptance of the bid and the signing of the deed by the Divisional Forest Officer must. in the circumstances, be held to be subject to ratification. It was within the realm of possibility that the forest produce might be lost on account of fire or any other risk mentioned in r. 32 of the Forest Contract Rules before the deed of contract was formally signed by the Chief Conservator. The contract entered into therefore involved the possibility of the loss of goods by fire as the basis of the Contracts Lastly, reference may be made to r. 32 of the Forest Contract Rules which provides that a forest contractor shall not be entitled to any compensation whatever for any loss that may be sustained by reason of fire etc. This is not a suit for compensation by the contractor respondent No. 2, but in essence the basis 'of the suit is that the forest contractor did not get possession of the forest produce in sections B, C and D, that such produce was lost by fire and that therefore he was not to pay the second, third and fourth instalments and cannot be said to be in default in payment of those instalments. The loss of such goods by reason of fire therefore does not in any way give support to the claim of the appellant. We are therefore of opinion that the appellant 's suit has been rightly dismissed by the High Court. We accordingly dismiss the appeal. There will be no order as to costs. Appeal dismissed.

The appellants were the respective mutawallis of two wakfs, in which either the ultimate benefit to the charity was postponed till after the exhaustion of the wakif 's family and descendents, or the income from the wakf estate was applied for the maintenance of the family side by side with expenditure for charitable or religious purposes. Notices were issued by the Collector under the West Bengal Estates Acquisition Act, 1953, to the appellants, calling upon them to hand over possession of the wakf estates, on the ground that under section 4 of the Act, there was an extinction and cesser of the estate and the rights of the appellants, and that their divested estates and rights vested in the State. The appellants claimed that they were protected by section 6(1)(i)of the Act, because, they were holding the properties exclusively for purposes which were charitable or religious or both. The claim was rejected by the Collector, by the Commissioner on appeal, and by the High Court under article 226 of the Constitution. In the appeal to the Supreme Court, HELD: The purposes described in the deeds were not covered by the expression "religious purpose", and they were not exclusively for charitable purposes. Mingled with those purposes were some which were secular and some, which were family endowments, of a very substantial character. As the provisions about the family had not become inoperative by the exhaustion of the beneficiaries, the deeds. as they stood, could not be said to come within exemption claimed. [317 F H]. The provisions of the Act apply notwithstanding anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary. The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there. No doubt, the definition of "Charitable purpose" is not exhaustive like that of "religious purpose" but the expression "public utility" in the definition of "charitable purpose" gives a guidance to the meaning and purpose of the exemption. It leaves scope for addition but it does not make for enlargement in directions which cannot be described as "charitable". A provision for the family of the wakif or for himself cannot be regarded as "relief of poor", "medical relief" or "the advancement of education" under the definition. It cannot also be regarded as an expenditure on an object of general public utility. It is true that after the passing of the Mussalman waqf validating Act, 1937, wakfs, in which the object was the aggrandisement of the families of wakifs without any pretence of charity in the ordinary sense, became valid and operative. But, the intention was not to give a new meaning to the word "Charity" which in common parlance is a word denoting a giving to someone in necessitous circumstances and in law, a giving for public good. A private gift to one 's own self or kith and kin may be meritorious and pious, but is not a charity in the legal sense and Courts in India have never regarded such gifts as for religious or charitable purposes, even under the Mahomedan Law. A; 316 F H; 317 D].

Civil Appeal No. 1584 of 1969. Appeal from the Judgment and. Decree dated 20 2 1969 of the Madras High Court in Appeal No. 104 of 1963. G. L. Sanghi and Vineet Kumar for the Appellants. Vepa P. Sarathy and Mrs. section Gopalakrishnan for Respondent No. 1. 1179 K. Jayaram for Respondents 2 5. The Judgment of the Court was delivered by SHINGHAL, J. This appeal by a certificate of the Madras High Court is directed against its judgment and decree dated February 20, 1969. One Manikka Sankaranarayana Iyer, father of defendants 1 and 3 and grandfather of plaintiffs 1 to 5 and defendants 2, 4 and 5 and father in law of plaintiff No. 6 constituted an Annadanam Trust and he and his sons executed a registered deed of settlement for that purpose on June 3, 1908. By that document Sankaranarayana Iyer became the first trustee for life, and it was provided that after him the senior most member would be the trustee, by turns. Sankaranarayana died and defendant No. 1 became the managing trustee of the trust. There was a suit for partition of the family properties including house No. 48A, and it was settled by a compromise under which a preliminary decree dated September 12, 1956 was drawn up for the sale of the properties amongst the members of the family. Defendant No. 1 purchased the suit property for Rs. 21,500/ for the aforesaid trust on April 19, 1959. A final decree was drawn up on November 29, 1959 in which house No. 48A was shown as the property of the trust. Defendant No. 1 however sold that property soon after, to his son defendant No. 2 on July 14, 1960, for Rs. 25,000/ under sale deed exhibit B. 13. Chithambaram Chettiar (P.W. 2), who was a tenant of that property from 1949 onwards, came to know of the intended sale and sent a registered notice to defendant No. 1 on July 21, 1960, offering to purchase it for Rs. 35,000/ . Defendant No. 1 however went ahead with the sale of the property to his son and registered the sale deed on July 22, 1960. The plaintiffs thereupon filed the present suit on September 15, 1960, challenging that sale and asking for its restoration to the trust. The defendants resisted the claim in the suit on the ground that the sale price was fair and adequate and that the sale had to be made because of the disputes which had arisen between the second defendant as the owner of the adjacent house and the trust in regard to the easementary rights of drainage, light and air etc. The suit was decreed by the Subordinate Judge of Madurai on September 10, 1962. The High Court of Madras however allowed the appeal against that judgment and decree and dismissed the suit with costs of both the courts holding that Rs. 25,000/ was "quite adequate and fair" price for the suit property and that defendant No. 1 acted with "perfect bona fides and no ulterior motive can be attributed to him. " That is why the plaintiffs have come up in appeal to this Court. 1180 It is not indispute before us that the , hereinafter referred to as the Act, applied to the trust in question and that it was necessary for the plaintiffs to prove that defendant No. 1 did not exercise his discretionary power of selling the suit property "reasonably and in good faith" and that he indirectly purchased it for himself, in the name of his son (defendant No. 2), within the meaning of section 49 and 52 of the Act. There is some controversy on the question whether defendant No. 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500/ on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500/ , which was less than its market value, as it was meant for use by the trust and that defendant No. 1 was not acting honestly when he palmed of the property to his son soon after by the aforesaid sale deed exhibit B. 13 dated July 14, 1960. The fact however remains that defendant No. 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs. He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage. It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee 's discretionary power prescribed by section 49 of the Act and the prohibition contained in section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee 's partner or son, for that would. in fact and substance, indirectly benefit the trustee. Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether 1181 the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it. The High Court in fact proceeded to examine the case on the assumption that the plaintiffs had instituted the suit not so much out of a genuine desire to redress any wrong done to the trust, as out of "ulterior motives and ill will against the first and second defendants. " This shows that instead of examining the case according to the criterian mentioned above, the High Court based its decision on an extraneous consideration and blamed the plaintiffs for raising the suit on account of "personal grouse" and "personal spite". We have not been referred to any evidence which could justify the High Court 's view that there was any such grouse or spite. But even if it were assumed for the sake of argument that the plaintiffs had any such motive for raising the suit, the fact remains that their action was eminently one for the advantage of the trust which had been created by their ancestor and in which they had a substantial and a direct interest. Some important facts stand out from the evidence on the record which are directly in point. The suit property belonged to the family which had created the trust. It was purchased by defendant No. 1, in his capacity as the trustee of the Annandanam Trust for Rs. 21,500/ on April 19, 1959, at a family sale. It appears from the statement of defendant No. 2 that the property was capable of, or could fetch a rent of about Rs. 190/ per mensem, amounting to Rs. 2,280/ per annum. It has also been admitted that the sum of Rs. 25,000/ was not utilised by the trustee (defendant No. 1) for purchasing any other better property, but was invested in fixed deposit with a bank at 3 1/2 per cent interest per annum. That could yield an income of only Rs. 875/ per annum. The trust therefore lost heavily in the bargain. What is worse, defendant No. 1 has not been able to explain how the sale could be said to be beneficial to the trust and how he could possibly contend that he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale. The further fact that stands out from the evidence on the record is that when Chithambaram Chettiar (P.W. 2), who was a tenant in the suit property from 1949 onwards, learnt about the intended sale, 1182 he sent a notice to defendants Nos. 1 and 3 offering to purchase it for Rs. 35,000/ . That notice was issued on July 21, 1960. The receipt of the notice has been admitted by defendant No. 1 in his statement in the trial court, and he has further admitted that Chithambaram Chettiar offered to purchase the property for Rs. 35,000/ and that he sold it to his son for Rs. 25,000/ without even informing him that he had received the offer of Rs. 35,000/ . Defendant No. 1 in fact proceeded to register the sale deed of the property in favour of his son, the second defendant, on July 22, 1960. It is therefore quite clear that he did not care to act in accordance with the law in the discharge of his fiduciary relationship with the trust and executed the sale deed in his son 's favour in disregard of his statutory duty, for no man of ordinary prudence would possibly have sold his property for Rs. 25,000/ when he had an offer of Rs. 35,000/ . That offer could not be said to be from a man of no substance because Chithambaram Chettiar (P.W. 2) who made it, was known to the defendants and he has stated that he was a man of means and was worth rupees four lakhs. It may be that the son in law of plaintiff No. 2 was employed in his shop, but that could not detract from the basic fact that a much higher offer had been made by a man of substance. Instead of examining the appeal with due regard to the above mentioned evidence, the High Court was obsessed by a consideration of the evidence which had been led for the purpose of showing that while defendant No. 1 had purchased the property for himself on April 19, 1959, for Rs. 21,500/ , he gave up that advantage in favour of the trust. The evidence on the point is not unequivocal, for it may well be that defendant No. 1 did not want to obtain a sale deed in his own name for other reasons, but even if it were assumed that he made a gesture of goodwill in favour of the trust on April 19, 1959, he could not possibly absolve himself from what he did in selling it off, after it had become the property of the trust, to his own son a few months thereafter for Rs. 25,000/ when he had a genuine offer of Rs. 35,000/ . Another consideration which prevailed with the High Court in setting aside the finding of fact of the trial court was that, according to it, the evidence on the record showed that some difficulties had cropped up after the property had been purchased as his son, defendant No. 2, began to "give trouble" and that he resolved that trouble on the advice of his family lawyer Shri V. Rajagopala Iyengar (D. W. 3) by selling the property to his son. This view was obviously incorrect, for even it were assumed that there was some 1183 difficulty in respect of some common rights of easement, that could well have been a lever in the hands of the trustee to make a bargain for Rs. 35,000/ or more with his son who was equally interested in those easementary rights. A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co sharer in the easementary right was causing trouble and was offering a far lesser price. We have gone through the statement of V. Rajagopala Iyengar (D.W. 3) on whose advice defendant No. 1 claims to have sold the property for Rs. 25,000/ . He has admitted in his statement that he had not even seen the suit property, and he knew nothing about the so called trouble in regard to the easementary rights between defendant No. 1 and his son. On the other hand, we find that he was indebted to the family of defendants Nos. 1 and 2 and he did not even care to ascertain what rent the suit property was fetching when he advised its sale for Rs. 25,000/ to the son of defendant No. 1. The High Court therefore did not even read the evidence correctly while placing reliance on his testimony. For the reasons mentioned above, we have no doubt that the High Court did not examine the controversy in its proper legal perspective and with due regard to the salient facts which had been established by the evidence on the record and it was not therefore justified in setting aside the finding of the trial court. The appeal is allowed. The impugned judgment and decree of the High Court are set aside and the decree of the trial court is restored with costs throughout. P.B.R. Appeal allowed.

Plaintiffs and defendants were descendants of a common ancestor who was the founder of a trust. Defendant No. 1, at the relevant time, was the managing trustee of the trust. On partition and sale of family properties a house, which was the suit property, was purchased for the trust. Soon thereafter defendant No. 1 sold it to his son. Before the sale, however, the tenant of the house who was a man of substance, offered a much higher price than what was paid by the son but the defendant sold it to his son. In the plaintiffs ' suit challenging sale of the trust property to the managing trustee 's son for a lesser consideration the defendant claimed that the property had to be sold because his son who was the owner of adjacent property raised a dispute claiming easementary rights over the property. The suit was decreed by the trial court but on appeal the High Court held that the consideration was adequate and fair, that the sale was bona fide and that no ulterior motive could be attributed to the defendant no 1 in the sale. The High Court, therefore, dismissed the suit. Allowing appeal, ^ HELD: (a) The sale had to be viewed with suspicion The High Court committed an error of law in ignoring important aspects of law which had direct bearing on the controversy before it. [1181A] (b) It is well recognised that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. He is not allowed to put himself in a position in which a conflict may arise between his duty as a trustee and his personal interest. [1180E] (c) The control of the trustee 's discretionary power prescribed by section 49 of the Trusts Act and the prohibition contained in section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust and the equally important prohibition in section 52 that the trustee may not directly or indirectly buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as trustee. The rule prescribed by these sections cannot be evaded by making a sale in the name of the trustee 's partner or son, for that would, in fact and substance, indirectly benefit the trustee. [1180F G] (d) Where a trustee makes the sale of a property belonging to the trust, without any compelling reason in favour of his son, without obtaining the 1178 permission of the court concerned, it is the duty of the court to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefiting himself from the transaction in an indirect manner. [1180H] (i) In the instant case defendant No. 1 was the trustee of the property. It was his duty to be faithful to the trust and execute it with reasonable diligence in the manner in which an ordinary prudent man of business would conduct his own affairs. He could not occasion any loss to the trust and it was his duty to sell the property, if that was so necessary to sell, to the best advantage of the trust. [1181D] (ii) The High Court was wrong in blaming the plaintiffs that they had brought the suit on account of personal grouse and spite. Assuming that they were so actuated, their action was eminently for the advantage of the trust created by their ancestor in which they had a substantial and direct interest. [1181D] (iii) Defendant No. 1 was not able to explain how the sale was beneficial to the trust. Income by way of rent which the property was fetching was far more than interest which the sale proceeds fetched when they were invested in fixed deposits in a Bank. He was therefore unable to explain how he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale. [1181G] (iv) When defendant No. 1 sold the trust property to his son at a lesser price than was otherwise available, he did not act in accordance with law in the discharge of his fiduciary relationship with the trust. He sold the property to his son in disregard of his statutory duty which no man of ordinary prudence would have done. [1182C] (v) Assuming that defendant No. 1 made a gesture of goodwill in favour of the trust when he allowed the sale of the family property to the trust, he could not possibly absolve himself from what he did in selling it off to his son at a lesser price than was offered by another reason. [1182F] (vi) Assuming that there was some difficulty in respect of rights of easement between the trust and the defendant 's son who was the immediate neighbour of the property, that could have been a lever in the hands of the trustee to make a bargain for higher consideration from his son who was equally interested in the property. A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co sharer was causing trouble and offering a few lesser price. [1183A B]

Appeal No. 121 of 1959. Appeal by special leave from the Award dated June 3, 1957, of the Second Industrial Tribunal, West Bengal. N. C. Chatterjee, D. L. Sen Gupta and Dipak Datta Choudhri, for the appellants. C. K. Daphtary, Solicitor General of India, H. N. Sanyal, Additional Solicitor General of India and section N. Mukherjee, for the respondents. March 24. The Judgment of the Court was delivered by WANCHOO, J. This appeal by special leave raises the question of bonus. There was a dispute between the workmen of B. N. Elias & Co. Ltd. (hereinafter called the appellants) and their employers, B. N. Elias and Co. Ltd. and others (hereinafter called the respondents) with respect to bonus for the years 1954, 1955 and 1956. The case of the appellants was that they were entitled to bonus as a condition of service irrespective of profit or loss on the following scale: I Clerical staff. 1 month 's basic pay as bonus in April, 1 month 's basic pay as bonus in August, 1 month 's basic pay as bonus in December. II Subordinate staff. 1 month 's basic wages as bonus in April, 1 month 's basic wages as bonus in August, 1 month 's basic wages as bonus at Puja time, 1 month 's basic wages as bonus in December. According to the appellants this bonus was always paid from 1942 to 1952. Later as there were some disputes between the appellants and the respondents, the respondents wanted to stop the payment of bonus from 1953, though something less was paid that year in 1954 the amount of bonus was further reduced. Consequently, a dispute was raised which was referred by the Government of West Bengal in May 1956. Subsequently another dispute was raised with respect to the bonus for the years 1955 and 1956 and this time it was claimed as a customary bonus or as a condition of service payable at regular intervals of four 384 months and at a uniform rate. Thereupon a consolidated reference was made by the Government of West Bengal in September 1956 with respect to all the three years, i. e., 1954, 1955 and 1956, to the same tribunal. When the matter came up before the tribunal, the respondents contended that they were not in a prosperous condition and were unable to pay any further bonus besides what had already been paid for the years in dispute. It was admitted that since about 1942 the respondents had been making ex gratia payments to their employees in addition to wages and salaries. These payments were made at the rate of one month 's basic wage each time but their number in the course of one year used to vary. At one time four ex gratia payments were made to clerical and subordinate staff but later the number of ex gratia payments was reduced for the clerical staff to three per year but it remained at four for the subordinate staff until the year 1952. As, however, the trading result in 1952 deteriorated as compared with the previous years, the respondents made only two ex gratia pay ments to clerical staff and three to subordinate staff for the year 1953. A dispute was then raised by the workmen with regard to that year but the Government refused to make a reference to the tribunal. In 1954 and 1955 two ex gratia payments were made to clerical staff and two to the subordinate staff. In 1956, no ex gratia payments were made at all. The respondents denied that these payments were made as a condition of service or as an implied term of agreement irrespective of profit or loss. They also denied that these were customary payments irrespective of profit and loss. It was alleged that they were truly and strictly ex gratia payments made by the respondents voluntarily out of goodwill in circumstances in which no tribunal would award a bonus. The respondents therefore resisted the claim for any further payment as bonus for these three years. Before the tribunal, the appellants abandoned their claim for bonus on the basis of the Full Bench formula. They however pressed their claim on the 385 ground that bonus was payable as An implied condition of service and had also acquired the status of customary bonus. The tribunal, however, negatived the contention that the payment of bonus as claimed had become an implied condition of service. It also held that the case of the employees based on custom was not tenable. In consequence it refused to grant any further bonus for the years 1954 and 1955 beyond what the appellants had been already paid and reject ed the claim for 1956 altogether. Shri N. C. Chatterjee for the appellants has mainly pressed the claim for bonus on the ground that it is a customary bonus and relies on The Graham Trading Co. (India) Ltd. vs Its Workmen (1). Before we deal with this aspect of the matter we may shortly dispose of the claim based on an implied agreement or condition of service. The evidence shows that though payment was made uninterruptedly from 1942 to 1952 three times a year to the clerical staff and four times a year to the subordinate staff, it was made clear every time the payment was made that it was an ex gratia payment. Further the receipts given by the employees, a sample of which was produced, show that the bonus was accepted as ex gratia bonus. As is pointed in The Graham Trading Co. (1) it would not be possible to imply a term of service on the basis of an implied agreement when the payment was clearly made ex gratia and had even been accepted as such, as in this case. Therefore, the contention of the appellants that the bonus claimed by them has become an implied term of agreement or a condition of service must fail. Our attention in this connection was drawn to a letter of appointment issued to one C. V. Thomas in which under the head " other allowance ", the following appears " Equivalent to a month 's salary every 4th month will be allowed after your confirmation in employment. " That is, however, an express term in the contract between the National Tobacco Company of India Limited (which is one of the respondents before us) (1) ; 386 and Thomas and cannot be a basis for a finding of an implied term of agreement to give bonus three times a year. Thomas may have a claim on the basis of this term of agreement between him and the company, about which we say nothing. Another letter of appointment also of National Tobacco Co. of India Limited with respect to one Ram Shankar Misra was referred to. In that letter, however, among the terms we find a term relating to bonus at the rate of Rs. 15 per month after confirmation. That is again an e press term between that employee and the National Tobacco Co. of India Limited and cannot support the case of an in lied term of agreement by which a month 's bonus is paid thrice a year in April, August and December. The tribunal was therefore right in rejecting the contention based on the implied term of agreement or condition of service. Turning now to the case of customary bonus which has been pressed before us on the authority of The Graham Heading Co. (1) we may point out that that was a case of a customary and traditional bonus payable at Puja which was a special festival of particular importance in Bengal. That case cannot be held to have laid down that there can be customary bonus as such unconnected with some festival. It is difficult to introduce a customary payment of bonus between employer and employee where terms of service are governed by contract, express or implied, except where the bonus may be connected with a festival whether Puja in Bengal or some other equally important festival in any other part of the country. The principles laid down in that case for governing customary and traditional bonus connected with a festival cannot in our opinion be extended to what may be called a customary bonus unconnected with any festival. We are therefore of opinion that the appellants having failed to prove (except in one matter with which we shall deal presently) that there was an implied agreement or condition of service for payment of bonus, they cannot ask for payment of any bonus on the basis of any customary payment unconnected with any festival. (1) ; 387 This brings us to one of the payments to subordinate staff which was " one month 's basic wages as bonus at Puja time ". It will be noticed that this payment to the subordinate staff at Puja time is in addition to the other payments which are common between the clerical and the subordinate staff. This payment of one month 's basic wage as bonus at Puja appears to have continued uninterrupted from the time it started in 1942 or thereabout upto the time the dispute arose in 1954. The payment was invariably of one month 's basic wage and it appears that it was paid even in a year of loss, vide exhibit E. We are therefore of opinion that the principles laid down in The Graham Trading Co. (1) apply to one month 's Puja bonus payable to the subordinate staff and it should be held that this payment has become customary and traditional in the respondents ' concerns when the dispute was raised for the first time in 1954. We have no doubt that if the judgment in The Graham Trading Co. (1) was available to the tribunal it would have held that one month 's basic wage as bonus at Puja time to subordinate staff had become customary and traditional in the respondents ' concerns. We therefore partly allow the appeal and hold that one month 's basic wage as Puja bonus to the subordinate staff has become customary and traditional in the respondents ' concerns and we order the respondents to pay that for the year 1956 for which no bonus whatsoever has been paid. The rest of the appeal fails and is hereby dismissed. In the circumstances we order the parties to bear their own costs. Appeal allowed in part.

Thirteen candidates filed their nomination papers for election to the Legislative Assembly of Madhya Pradesh. The nomination of U was rejected on the ground that he failed to give a declaration as to his age as required in the nomination paper. After the poll the appellants were declared duly elected. Thereupon one of the unsuccessful candidates J filed an election petition challenging the election of the appellants, inter alia, on the ground that the nomination of U had been improperly rejected. The Election Tribunal dismissed the petition holding that U made no attempt before the returning officer to remedy the defect in the nomination paper, that the defect could not in law have been remedied at the stage of the scrutiny that the defect was of a substantial character and that the rejection of the nomination was proper. On appeal the High Court held that at the time of the scrutiny U had offered to supply the omission but the returning officer had refused to allow him to do so, that the returning officer was bound to make a summary enquiry before rejecting the nomination, that the non mention of age in the nomination paper was not a defect of a substantial character and that the rejection of the nomination was improper and consequently allowed the appeal and set aside the election of the appellants: 651 Held, that the omission to give the declaration as to age in the nomination paper was a defect of substantial character within the meaning of section 36(4), Representation of the People Act, 1951, and the rejection of the nomination for such an omission was proper. Rattan Anmol Singh vs Atma Ram, ; , Pranlal Thakorlal Munshi vs lndubhai Bhailabhai Amin, , Rup Lal vs jugaraj Singh, , Brij Sundar Sharma vs Election Tribunal, Jaipur, , Balasubyahmanyan vs Election Tribunal, Vellore, and Ramayan Shukla vs Rajendra Prasad Singh , referred to. Durga Shankar Mehta vs Thakur Raghuraj Singh, [1955] S.C. 140 and Karnail Singh vs Election Tribunal Hissar, , distinguished. Charanjit Lal Ram Sarup vs Lohri Singh Ram Narain, A.I.R. 1958 Punj. 433, disapproved. The word " defect" in section 36(4) included an omission to specify the details prescribed in the nomination. The distinction drawn in English cases between an " omission " and " inaccurate description" depended upon the specific provisions of the English statutes and did not obtain under the Indian Law. The Queen vs Tugwell, and Baldwin vs Ellis, , distinguished. Cases failing under section 36(2) (b) must be distinguished from those falling under section 36(2) (a). Where the nomination paper did not comply with the provisions of section 33 of the Act the case fell under section 36(2) (b) and the defective nomination had to be accepted or rejected according as the defect was of an unsubstantial or of a substantial character. In such a case it was not necessary for the returning officer to hold any enquiry.

Appeal No. 2416 of 1981 From the Judgment and Order dated 21.1.1981 of the Punjab and Haryana High Court in R.S.A. No. 2985 of 1980. Rajinder Sachar and R.S. Sodhi for the Appellants. M.K. Ramamurthy, N.K. Agarwala and S.K. Puri for the Respondents. The Judgment of the Court was delivered by RAY, J. This appeal by special leave is against the judgment and decree passed in Regular S.A. No. 2868 of 1980 by the High Court of Punjab & Haryana whereby the appeal was dismissed. The respondent, Manohar Lal who was at the relevant time working as Sub Inspector in the Police Line, Gurdaspur was compulsorily retired by Order NO. 9754 B dated 24.9.1975 issued by Shri M.M. Batra, Senior Superintendent of Police, Gurdaspur, in public interest. The said order of 505 compulsory retirement has been challenged by the respondent by filing a suit being case No. 86 of 1977 praying for a declaration that the aforesaid order of compulsory retire ment is illegal. mala fide. unconstitutional, against the rules of natural justice and the plaintiff respondent shall be deemed to be in service of the Punjab State to the post of Sub Inspector till his retirement at the age of 58 years i.e. on 13.2.1986. There is also a prayer for a direction to the defendent appellant for payment of the balance of the salary for the period from 5.9.1974 to 23.9.1975 i.e the suspension period after deducting therefrom the subsistence allowance paid by the defendent and also the increment that had accrued to him under the rules from time to time during that period. This amount was stated to be Rs. 3,446 for the said period. The said suit was heard by the Subordinate Judge, Gurdaspur who by his order dated 27th January, 1979 held that the impugned order was not passed at the instance of Sardar Harjit Singh Ahluwalia, Deputy Inspector General of Police nor the same was vitiated by malice or any mala fides. It was further held that the order was made innocu ously by the Senior Superintendent of Police in public interest in accordance with the provisions of Punjab Civil Services (Premature Retirement) Rules, 1975. The Subordinate Judge also held that so for as the pay for the period of suspension is concerned the plaintiff was entitled to have recovery of Rs. 3,446 as arrears of pay during the suspen sion period. The suit was accordingly decreed in part. Against the said judgment and decree two appeals were filed, one by the plaintiff respondent Manohar Lal being C.A. No. 169/308 of 1979 and another by the State of Punjab regis tered as C.A. No. 170 of 1979 and 12 of 1980. Both these appeals were heard together and were disposed of by a common judgment by the Additional Sessions Judge, Gurdaspur. De creeing the Civil Appeal No. 169/308 of 1979 it was held that the order of compulsory retirement was made by an officer namely Senior Superintendent of Police, Gurdaspur who was below the rank of Inspector General of Police who is the appointing authority of the petitioner. It was also held that the judgment and decree as regards the payment of the balance of emoluments during the period of suspension after the reinstatement of the petitioner, was legal and valid and the said decree was affirmed and the appeal was allowed decreeing the suit. In that view of the matter the appeal filed by the State was dismissed. Against the said judgment and decree the State of Punjab preferred the instant appeal being R.S.A. No. 2868 of 1980 before the High Court of Punjab and Haryana. The High Court dismissed the said appeal and affirmed the judgment and decree of the lower appellate court. Against this judgment and decree the present appeal was filed before this Court with an application for special leave under Article 136 of the Constitution. The only question that arises for consideration in this appeal is whether the order of compulsory retirement made by the Senior Superintendent of 506 Police, Gurdaspur is illegal and invalid being passed by an authority lower in rank than the appointing authority which according to the respondent is the Deputy Inspector General of Police. It appears that the Government of Punjab framed rules under proviso to Article 309 of the Constitution and these rules are termed as the Punjab Civil Services (Prema ture Retirement) Rules, 1975. In Rule 2(1) the 'Appropriate Authority ' has been defined as meaning the authority which has power to make substantive appointments to the post or service from which the Government employee is required or wants to retire or any other authority to which it is subor dinate. Rule 3 reads as follows: "3(1)(a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. (b) The period of such notice shall not be less than three months: provided that where at least three months ' notice is not given or notice for a period less than three months is given, the employee shall be entitled to claim a sum equivalent to amount of his pay and allow ances, at the same rates at which he was drawing them immediately before the date of retirement for a period of three months or, as the case may be, for the period by which such notice falls short of three months. " The relevant excerpt of Rule 12.1 is quoted herein below: "The following table summarises the directions given by the provincial Government under Clause (b) of Sub Section (1) of Section 241 of the Government of India Act, 1935, in regard to the authorities competent to make appointments to the nongazetted ranks. 507 Class of Authority to whom the power The extend of Government of appointment is delegated the delegation Servants Inspectors Deputy Inspector General of Full powers police, Assistant Inspector subject to rules General, Government Governing the Railway Police,Assistant conditions of Inspector General, Provincil service as defi Additional Police,(designated ned in Police as Commandant,Provincil Rules. Additional Police), and the Assistant Inspector General Police (Traffic) Sergeants Superintendents of Police Sub Inspect Commandants of P.A.P vide No. ors and Ass 155 dated 2nd June,1964 and istant Sub Deputy Superintendent (admi Inspectors. nistrative), Government Railway Police and Assistant Superintentend, Government Railway Police Rule 13.3(2) also provides that substantive promotions to the rank of Sub Inspector and Assistant Sub Inspector shall be made by the Superintendent of Police and the Assistant Superintendent, Government Railway Force. On considering the provisions of the aforesaid rules it is quite clear and apparent that the Senior Superintendent of Police, Gurdaspur being the competent authority to make the appointment to the non gazetted ranks of Sub Inspectors, is also legally competent to pass the order of compulsory retirement of the plaintiff respondent in public interest in accordance with the provisions of Rule 3(1)(a) and (b) of the said rules. It has been tried to be contended by referring to the provisions of Rule 13.9, Sub Rule (2) by the respondent wherein it has been provided that substantive promotion to the rank of Assistant Sub Inspector is to be made by the Deputy Inspector General of Police in accordance with the principles prescribed in Rule 13.1 that the Superintendent of Police is not the compe tent authority to make the impugned order. It is only the Deputy Inspector General of Police who is competent to make the order of compul sory retirement in question. This argument cannot be sustained in view of the specific provisions made in Rule 12.1 wherein it has been provided that the Superintendent of Police is competent to make the appointment to the non gazetted ranks of Sub Inspectors of Police and Assistant Sub Inspectors of Police. On a reading of both these provisions of the Rules 12.1 and 13.9(2) it is clear and appar ent that the Senior Superintendent of Police, Gurdaspur is legally competent to make the impugned order of compulsory retirement of the plaintiff respondent from service in public interest after his attaining 50 years of age in accordance with 508 the provisions of Rules 3(1)(a) of the Punjab Civil Services (Premature Retirement) Rules, 1975. In view of the reasons stated hereinbefore we do not find any merit in the contention made on behalf of the respondent and therefore we allow the appeal and set aside the judgment and order of the High Court in part in so far as it affirms the judgment and decree of the lower appellate court, setting aside the order of compulsory retirement. The judgment and decree of the trial court is hereby affirmed and the decree of the lower appellate court as regards the payment of Rs. 3,446 being the balance of pay after deducting the subsistence allowance during the period of suspension of the respondent from 5.9. 1974 and 23.9.1975 is hereby affirmed. There will, however, be no order as to costs. P.S.S. Appeal allowed.

The respondents filed an eviction petition against the appellanttenant in respect of a shop room under s.10(3)(a)(iii) of the Andhra Pradesh Buildings (Lease, rent and eviction) Control Act 1960 on the ground of bona fide requirement for starting a business in readymade garments. The Rent Controller, passed the eviction order against the appellant holding that the respondents required the suit shop for their personal occupation. The Appellate Authority as well as the High Court affirmed the findings of the Rent Controller in the appeal and revision respectively. In appeal to this Court by the appellant tenant, it was contended for the first time that since there was no aver ment of the facts constituting the grounds or conditions of eviction as contained in sub section (3)(a)(iii) of section I0 of the Act, the courts below were not justified in passing the order of eviction against the appellant. Dismissing the appeal, HELD: 1. Under the law of pleadings facts mentioned in sub cl.(iii) of section 10(3)(a) of the Act are to be pleaded in the petition and thereafter proved at the trial for the purpose of an order of eviction against the tenant. Further, any amount of proof offered without appropriate pleading is generally of no relevance. Therefore, the landlord has to plead and establish (i) that he bona fide requires the accommodation let to the tenant for non residential purposes for the purpose of continuing or starting the business; and (ii) that he has no other reasonably suitable non residen tial accommodation of his own in his occupation in the city or the town concerned. [677H; 678A B] Hasmat Rai vs Raghunath Prasad, , relied upon, 675 2. The point regarding absence of any averment of the facts constituting the grounds or conditions of eviction as contained in subs.(3)(a)(iii) of section 10 of the Act was not taken in any of the courts below nor has it been taken in the Special Leave Petition. For the first time, it has been raised in the argument. Therefore, there is no justification to interfere with the order of eviction. [679D] In the instant case, the respondents did not suppress any fact at the trial and disclosed the non residential buildings owned by the respondent No. I but not in their occupation. Indeed it is the case of the respondents that the disputed shop room is centrally located in the heart of Guntur city in a business locality, that there are a number of readymade garment shops in that locality, and that the disputed shoproom is the best place for commencing such a business. It has also been observed by the High Court that the respondents have come forward with a clean and clear case and with reasons as to why they chose the disputed shop room for the proposed business to be commenced by the respondent No. 2. Moreover, it is not the case of the appel lant that if he is given an opportunity to adduce further evidence after amendment of pleadings, he would be able to furnish any new material showing that the respondents are occupying any non residential building suitable for commenc ing the proposed business therein and, as such, they are not entitled to an order for eviction. In view of the aforesaid facts also, the appeal is liable to be dismissed. [678E H]

Civil Appeal No. 1185 of 1979, Appeal by Special Leave from the Judgment and order dated 15.12.1978 of the Gujarat High Court in Sales Tax Reference No. 24 of 1978. AND Civil Appeal No. 1187 of 1979. Appeal by Special Leave from the Judgment and order dated 27.11.1978 of the Gujarat High Court in Sales Tax Reference No. 11 of 1977. K H. Kaji, T. Sridharan, R.D. Pathak, Miss C. K. Sucharita and Mrs. section Bhandare for the Appellant in both the Appeals. S.T. Desai and M.N. Shroff for the Respondent in both the Appeals. 437 The Judgment of the Court was delivered by VENKATARAMIAH, J. Since a common question of law is involved in these two appeals by special leave, they are disposed of by this common judgment. The appellant in Civil Appeal No. 1185 of 1979 is M/s. Hindustan Brown Boveri Ltd., a company engaged in the business of manufacturing certain goods which are used in electrical undertakings for the purpose of generating and distributing electrical energy. It is registered as dealer under the provisions of the Gujarat Sales Tax Act, 1969 (Gujarat Act No. I of 1970) (hereinafter referred to as 'the Act '). For the purpose of manufacturing the goods, the appellant which was also a recognised dealer under the Act purchased raw materials during the period between May 6, 1970 and March 31, 1971 after furnishing a certificate in Form No. 19 as provided under section 13(1)(B) of the Act read with Rule 24(4) of the Gujarat Sales Tax Rules, 1970 (hereinafter referred to as 'the Rules ') framed under the Act stating that the raw materials purchased by it would be used in manufacturing taxable goods which would be sold by it in the State of Gujarat. Some part of the goods manufactured by the appellant were sold to a certain electrical undertaking in the State of Gujarat against 'C ' forms in order to claim exemption from payment of tax on the said sales under the Act by virtue of a notification issued under section 49(2) of the Act exempting the goods sold to electrical undertakings for being used in generation and distribution of electrical energy. On coming to know of the said sales, the Sales Tax officer. , who was the assessing authority under the Act levied purchase tax under section 16 of the Act on the raw materials purchased be the appellant on the ground that the undertaking given in Form No. 19 had been violated. The appeals filed by the appellant before the Assistant Commissioner of Sales Tax and the Gujarat Sales Tax Tribunal against the said levy were unsuccessful. Thereafter at the instance of the appellant the Tribunal referred the following question of law to the High Court of Gujarat under section 69 of the Act: "Whether on the facts and in the circumstances of the case, and on a correct interpretation of sub section (33) of section 2 of the Gujarat Sales Tax Act, 1969 the Tribunal was right in deciding that the applicant was liable to pay purchase tax under section 16 of the Gujarat Sales Tax Act, 1969 on the ground that certain electric goods manufactured 438 out of raw materials etc. purchased against declaration in Form 19 were sold to Gujarat State Electricity Board against declarations in Form prescribed in Entry 5 of the Government Notification issued under section 49 of the Gujarat Sales Tax Act, 1969 ?" The appellant in Civil Appeal No. 1187 of 1979 is M/s. Hindustan Engineering Co. Ltd. which is engaged in manufacturing heavy machinery and gear conveyers. It is also a recognised dealer under the Act. Like the appellant in Civil Appeal 1185 of ]979, this appellant also purchased raw materials by furnishing certificates in Form No. 19 and later on sold a part of the goods manufactured by it to a certain electrical undertaking against Form No. 'C ' and claimed exemption under the notification issued under section 49(2) of the Act. In this case also the Sales Tax officer levied purchase tax under section 16 of the Act for violation of the undertaking given in Form No. 19. The appeals to the Assistant Commissioner of Sales Tax and the Gujarat Sales Tax Tribunal failed. Thereafter at the instance of the appellant, the Gujarat Sales Tax Tribunal referred the following question for the opinion of the High Court of Gujarat: Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that the sales of machineries and conveyers manufactured by the applicant to an electrical undertaking against Form 'C ' under Entry 5 of the Government Notification issued under section 49 of the Gujarat Sales Tax Act, 1969 resulted in the breach of the declarations in Form 19 as the goods so manufactured and sold did not amount to manufacture of taxable goods ?" It is seen from the two questions referred to above that they are substantially the same. The High Court answered the said questions in favour of the Revenue and against the assessees by two separate orders following its earlier decision in M/s. Nawroji N. Vakil & Co. vs State of Gujarat. The appellants have filed these appeals against the decision of the High Court by special leave under Article 136 of the Constitution. We shall now briefly refer to the relevant provisions of the Act. Section 2(10) of the Act defines a 'dealer ' as any person who 439 buys or sells goods in connection with his business and when he obtains a certificate of registration he becomes a registered dealer. Section 32 of the Act provides for the recognition of a registered dealer. It says that where during the previous or current year, the value of all taxable goods manufactured for sale by a dealer registered under section 29 or by a dealer registered under section 30, whose turnover of sales or purchases has subsequently, exceeded the limits specified in sub section (4) of section 3, exceeds Rs. 3,000/ such dealer on application by him may be granted recognition by the Commissioner and on such recognition being granted, he becomes a recognised dealer. Section S of the Act says that subject to the conditions or exceptions (if any) set out against each of the goods specified in column 3 of the Schedule I to the Act, no tax shall be payable on the sales or purchases of any goods specified in that Schedule. Section 6 of the Act provides that subject to the provisions of the Act and to any rules made thereunder there shall be paid by every dealer who is liable to pay tax under the Act, the tax or taxes leviable in accordance with the provisions of Chapter II of the Act. Tn order to ensure that as far as possible the incidence of tax under the Act is not felt at more than one point in the series of transactions of sales and purchases of goods other than declared good in the State of Gujarat, sections 7, 8 and 10 of the Act are enacted as follows: "7. Levy of sales tax on goods in Schedule II, Part A. There shall be levied a sales tax on the turnover of sales of goods specified in Part A of Schedule II at the rate set out against each of them in column 3 thereof, but after deducting from such turnover, (i) resale of goods on the purchase of which the dealer is liable to pay purchase tax under sec. (ii) resales of goods purchased by him from a Registered dealer (iii) sales of goods, of resales of goods to which clauses (i) and (ii) do not apply, to a Recognised dealer or to a Commission agent holding a permit who purchases on behalf of a principal who is a Recognised dealer, upon such dealer or Commission agent, as the case may be, furnishing in the circumstances and subject to the conditions specified in sub clause (B) and item (ii) of sub clause (C) of 440 sub see. (1) of sec. 13, a certificate as provided therein, and (iv) sales of goods or resales of goods to which clauses (i) and (ii) do not apply, to a Licensed dealer or to a Commission agent holding a permit who purchases on behalf of a principal who is a Licensed dealer, upon such dealer or Commission agent, as the ease may be; furnishing in the circumstances and subject to the conditions specified in item (i) of sub clause (A) and item (i) (a) of sub clause (C) of sub sec. (I) of sec. 13, a certificate as provided therein. Levy of general sales tax on goods in Schedule II Part B There shall be levied a general sales tax on the turnover of sales of goods specified in Part of Schedule II at the rate set out against each of them in column 3 thereof, but after deducting from such turnover, (i) resales of goods on the purchase of which the dealer is liable to pay purchase tax under see. 16; (ii) resales of goods purchased from a Registered dealer by a dealer who is not a Licensed dealer at the time of such purchase, and (iii) sales of goods, or resales of goods to which clauses (i) and (ii) do not apply, to a Licensed dealer, Recognised dealer or to a Commission agent holding a permit, who purchases on behalf of a principal who is a Licensed dealer or a Recognised dealer, upon such dealer or Commission agent as the ease may be furnishing, in the circumstances and subject to the conditions specified in see. 13, a certificate as provided therein. " " 10. Levy of sales tax and general sales tax on goods specified in Schedule III. (I) There shall be levied a sales tax on the turnover of sales of goods specified in Schedule III at the rate set out against each of such goods in column 3 thereof, but after deducting from such turnover, (i) resales of goods on the purchase of which the dealer is liable to pay purchase tax under see. 16, 441 (ii) resales of goods purchased by him from a Registered dealer, (iii)sales of goods. Or resales of goods to which clauses (i) and (ii) do not apply, to a Recognised dealer or to a Commission agent holding a permit who purchases on behalf of a principal who is a Recognised dealer, upon such dealer or Commission agent, as the case may be, furnishing in the circumstances and subject to the conditions specified in sub clause (B) and item (ii) of sub clause (C) of sub sec. (1) of sec 13, a certificate as provided therein, and C (iv) sales of goods or resales of goods to which clauses (i) and (ii) do not apply, to a Licensed dealer or to a Commission agent holdings permit who purchases on behalf of a principal who is a Licensed dealer, upon such dealer or Commission agent as the case may be, furnishing in the circumstances and subject to the conditions specified in item (i) of sub clause (A) and item (i) (a) of sub clause (C) of sub sec. (1) of sec. 13, a certificate as provided therein. (2) There shall be levied a general sales tax on the turnover of sales of goods specified in Schedule III at the rate set out against each of such goods in column 4 thereof, but after deducting from such turnover (i) resales of goods purchased from a Registered dealer, by a dealer who is not a Licensed dealer at the time of such purchase; and (ii) sales of goods, or resales of goods which clause (i) does not apply to a Licensed dealer, or Recognised dealer or a Commission agent holding a Permit who purchases on behalf of a principal who is a Licensed dealer or a Recognised dealer upon such dealer or Commission agent, as the case may be, furnishing in the circumstances and subject to the conditions specified in sec. 13 a certificate as provided therein. " 442 It may be noted that in the above provisions that from the turnover of sales of goods of a dealer which are otherwise taxable, the turnover of goods sold to a Recognised dealer, upon such Recognised dealer furnishing in the circumstances and subject to the conditions specified in sub clause (B) of sub section (1) of section 13 of the Act a certificate as provided therein becomes deductible and no tax is payable on such sales in favour of the Recognised dealer. The relevant part of section 13 of the Act reads thus: "13. No deduction from turnover except on a certificate. (1) There shall not be deducted from the turnover of sales, sales of goods to a Licensed dealer, Recognised dealer or to a Commission agent holding a permit purchasing on behalf of his principal, as provided in sections 7, 8 and 10 unless (A). (B) The Recognised dealer certifies in the prescribed form, that the goods other than prohibited goods sold to him are goods purchased by him for use by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him; or Rule 24(4) of the Rules prescribes that the certificate issued by a Recognised dealer shall be in Form No. 19. The relevant part of Form No. 19 reads: ". and that the goods purchased by me/the said . . and specified in bill/cash memo/invoice No . dated. . of M/s. . address. . will be used by me/the said. as raw/or processing materials or consumable stores in the manufacture of taxable goods viz. . for sale by me/the said. . and that such sale shall not take place outside the State of Gujarat. (Emphasis supplied)" The expression 'taxable goods ' is defined by section 3(33) of the Act thus: "2(33). "taxable goods" means goods other than those on the sale or purchase of which no tax is payable under sec. 5 or sec. 49 or a notification issued thereunder. " 443 Sub section (1) of section 49 provides that subject to the conditions or exemptions. if any, specified in relation to them, the classes of sales or purchases referred in clauses (i) to (vii) of section 49(1) shall be exempt from the payment of the whole of tax payable under the provisions of the Act. Sub section 2 of section 49 of the Act authorises the State Government to exempt any other specified class of sales by a notification published in the Official Gazette. Section 49(2) reads: "49. Exemptions (1) (2) Subject to such conditions as it may impose, the State Government may, if it considers it necessary so to do in the public interest, by notification in the Official Gazette, exempt any specified class of sales or purchases from payment of the whole or any tax payable under the provisions of this Act. ' By a notification dated April 29, 1970 issued under section 49(2) of the Act the State Government exempted the entire tax payable on sales of goods (other than prohibited goods) by a registered dealer to an electrical undertaking, certified for the purpose by the Commissioner, if the electrical undertaking furnished to the selling dealer a certificate in Form appended to the notification stating inter alia that the goods purchased were required for the use of the generation or distribution of electrical energy by the undertaking. In view of the above notification the sales made to the electrical undertaking become exempt from payment of sales tax under the Act on the undertaking furnishing the required certificate and no tax was paid by the appellants in these two appeals on sales of goods effected by them in favour of the electrical undertaking. It is now necessary to refer to section 16 of the Act, the relevant part of which reads : "16. Liability to purchase tax for contravention of terms of certificate etc. (1) Where any dealer or Commission agent has purchased any taxable goods under a certificate given by him under section 12 or 13, and (a) contrary to such certificate, the goods are used for another purpose, or are not resold or despatched in the manner and within the period certified, or 444 (b) on the resales in the course of inter State trade or commerce, of the goods so purchased, no tax under the (LXXIV of 1956), is actually payable by him on account of any deduction admissible under any of the Provisions of the said Act. then such dealer or Commission agent shall be liable to pay tax on the purchase price of the goods purchased under such certificate; and accordingly, he shall include the purchase price thereof in his turnover of purchases in his declaration or return under section 40 which he is to furnish next thereafter. (2) . . (3) the purchase tax leviable under this section in respect of any goods specified in Schedule II or III shall be the aggregate of all taxes which would have been leviable thereon but for the certificate given under section 12 or 13. (4) If any question arises whether the purchase price of goods purchased under a certificate given under section 12 or 13 is not liable to be included in the turnover of purchases of a dealer or Commission agent under this section, the burden of so proving shall be upon such dealer, or as the case may be, the Commission agent. " Section 16 of the Act provides that where a dealer has purchased any taxable goods under a certificate given by him under section 13 and has used the goods for a different purpose contrary to such certificate, then such dealer shall be liable to pay tax on the purchase price of the goods purchased under such certificate and his liability has to be computed in the manner stated in that section. It is this liability of the appellants that is in dispute in these appeals. It is not disputed that the appellants are recognised dealers; that they had purchased raw materials which were taxable goods (other than prohibited goods) from registered dealers against certificates issued by them in Form No. 19; that no sales tax had been paid on sales in their favour; that they had manufactured goods by using the said raw materials that they had sold a part of the goods to an electrical undertaking notified under section 49(2) of the Act and that no tax had been paid on sales effected by them in 445 favour of the electrical undertaking. It is also not disputed that in Form No. 19 the appellants had stated that the raw materials purchased by them would be used to manufacture taxable goods which would be sold inside the State of Gujarat. The question for consideration is whether the appellants had used the raw materials for another purpose contrary to the terms of Form No. 19. The contention of the Department is that the appellants had contravened Form No. 19 by manufacturing goods which were not 'taxable goods ' and hence were liable to pay purchase tax on the purchase of raw materials under section 16 of the Act and the contention of the appellants is that the goods manufactured and sold by them to the electrical undertakings were 'taxable goods ' and merely because they were sold to an electrical undertaking under transactions exempted by section 49(2) of the Act, the goods did not cease to be taxable goods. The solution to the question, therefore, lies on the true meaning of the expression 'taxable goods '. Relying upon the decision of this Court in the Stale of Tamil Nadu vs M.K. Kandaswami and Ors. it is urged on behalf of the appellants that the expressions 'taxable persons ', 'taxable goods ' and 'taxable events ' are entirely different concepts in sales tax law; that the goods in question were taxable goods as any sale of those goods not covered by section 49(1) and (2) would make such sale taxable and that section 49(1) and (2) of the Act referred to only events which resulted in the exemption from payment of sales tax. It is further argued that all goods the sale or purchase of which is liable to tax under the Act are taxable goods and that goods would not be taxable goods only when their sales are exempted generally from payment of tax as provided in section 5 of the Act. It is, therefore, contended that the goods manufactured by the appellants not having been goods, the sale or purchase of which had been exempted from tax by inclusion in Schedule I to the Act, the appellants could not be treated as having infringed the terms of Form No. 19, notwithstanding the existence of the circumstance that the particular sales made by them to the electrical undertakings were exempt from payment of tax. The second ground urged on behalf of the appellants is that the condition under Form No. 19 became satisfied immediately on the goods being manufactured by the appellants as at that stage the goods were really taxable and that a subsequent event of sale to the electrical undertaking cannot be considered as having violated the said condition. The third ground urged by the appel 446 lants is that a transaction of sale involved two facets a sale and a purchase and if a sale is exempted from tax, it cannot be said the purchase is also exempted. On the above footing it is contended that since under section 49(2) only the tax on sale is exempted and nothing is said about the liability of the purchaser to tax, it cannot be said that the goods which were otherwise taxable had become non taxable on being sold under a transaction which attracted section 49(2) of the Act. We find no substance in any of the three grounds urged on behalf of the appellants for the reason that the present case is governed by the definition of the expression 'taxable goods ' in section 2(33) of the Act. It is interesting to note that the Bombay Sales Tax Act, 1959 (Bombay Act No. 1 of 1959) which was in force in the State of Gujarat before the Act came into force and which was repealed by section 88 of the Act contained the definition of the expression 'taxable goods ' in section 2(33) thereof. The expression 'taxable goods ' was defined in the Bombay Act as 'goods other than those on the sale or purchase of which no tax is payable under section 5 '. In the Bombay Act there was also a provision corresponding to section 49 of the Act in section 41 thereof which empowered the State Government subject to such conditions as it may impose to exempt by a notification published in the Official Gazette any specified class of sales or purchases from payment of the whole or any part of any tax payable thereunder if the State Government was satisfied that it was necessary so to do in the public interest. Still the definition of 'taxable goods ' in that Act did not refer to sales exempted under section 41 thereof. But in the Act which repealed and replaced the Bombay Act the meaning of the expression 'taxable goods ' has been narrowed down as section 2(33) of the Act reads 'taxable goods ' means goods other than those on the sale or purchase of which no tax is payable under section 5 (which corresponds to section 5 of the Bombay Act) and section 49 of the Act (which corresponds to section 41 of the Bombay Act) or a notification issued thereunder. By this definition, the dichotomy that is stated to exist between 'taxable goods ' and 'taxable events ' has been given a go by. It may be that section 5 and Schedule I refer to goods only but section 49 deals with only taxable events which result in the exemption from payment of tax on the conditions mentioned therein or in the notification issued thereunder being satisfied even though the goods in question do not come under Schedule I. Secondly one has to wait till the disposal of the goods by the dealer to find out whether the goods are taxable goods or not in view of the 447 definition of the said expression which takes away goods sold under circumstances attracting section 49 from the scope of the meaning of that expression. Nor does the third ground survive for the very same reason. If the sale is exempt from tax under section 49 of the Act, the goods sold would not be taxable goods. We need not go into the question whether the purchaser in a sale under section 49 of the Act has to pay tax in these cases. This reason also disposes of an allied argument of the appellants that the possibility of any liability arising under section 50 of the Act on the breach of any condition imposed by section 49 or the notification issued thereunder would absolve the appellants of their liability to pay the tax under section 16 of the Act. Any such levy made under section 50 has not been shown to have any effect in law on the liability of the appellants under section 16. The scheme of the Act appears to be that sales tax should be levied on goods which are not included in Schedule I at least once inside the State in the series of sales and purchases even though they may have been converted into manufactured goods and that is why Form No. 19 requires the purchaser to state that the goods will be used by him as raw or processing materials or as consumable stores in the manufacture of taxable goods for sale by him inside the State and section 16 of the Act provides that where any dealer has purchased any taxable goods under a certificate given by him under section 12 or section 13 of the Act and contrary to such certificate the goods are used for another purpose or are not resold or despatched in the manner and within the period certified or on the resales in the course of inter State trade or commerce, of the goods so purchased no tax under the is actually payable by him on account of any deductions admissible under any of the provisions of that Act, then such dealer shall be liable to pay tax on the purchase price of the goods purchased under such certificate. The deliberate alteration of the definition of 'taxable goods ' in the Act also is attributable to the said intention of the State legislature. The appellants also cannot derive any assistance from the decision of this Court in Polestar Electronic (Pvt.) Ltd. vs Additional Commissioner, Sales Tax and Anr. as these cases are governed by 448 the provisions of the Act and as there appears to be no similarity between the facts of these appeals and the facts involved in that case. For the foregoing reasons, we do not find any merit in these appeals. The appeals are dismissed with costs. Hearing fee one set.

The appellants are partners of a firm of Solicitors at Calcutta and they had been engaged by a German Corporation to act on its behalf in three suits pending before the High Court at Calcutta. A firm of Solicitors in London, namely M/s. Ashurst, Morris, Crisp & Co., which was also acting on behalf of the German Corporation instructed the appellants to retain Mr. Blanco White Q.C., a resident of the United Kingdom, who was a barrister having considerable practice in the branch of patent law, to argue the case in the aforesaid three suits. The appellants did not deliver any briefs to him and also did not pay or undertake any obligation to pay any fees for his services The briefs had been earlier delivered by the London Solicitors. Mr. Blanco White left India on February 17, 1970 after arguing the cases for 13 days commencing from January 27, 1970 to February 16, 1970, without making any arrangement regarding the payment of the Income Tax on the fees earned by him. The Income Tax Officer informed the appellants that he proposed to proceed against them under section 163(1) of the Act treating them as the agents of Mr. Blanco White on the ground that the income arising out of professional charges had arisen on account of the business connection that existed between the appellants and Mr. Blanco White. Thereafter the appellants challenged the said order of the Income Tax Officer by filing a petition under Article 226 of the Constitution before the High Court of Calcutta. The learned Single Judge dismissed the petition on the ground that it was a premature one taking the view that the question whether the case came within the purview of section 163(1) of the Act had to be determined after ascertainment of facts by the Income tax officer. The appeal preferred by the appellants was dismissed by a Division Bench holding (a) there was business connection (directly or indirectly through correspondence) between the appellants ' firm and their non resident British Counsel Mr. Blanco White and that an agency could very well be said to have been established between them; (b) there was business connection between them and (c) income did either accrue or arise to Mr. Blanco White in India. However, the Division Bench granted certificate to the appellants under Article 133 of the Constitution and hence the appeal. 388 Dismissing the appeal, the Court ^ HELD: 1. From the facts and other material on record there was connection between the appellants and Mr. Blanco White. The said connection cannot also be termed as a casual one having regard to the period over which it had existed. It was real and intimate and Mr. Blanco White earned the fees for arguing the case in India only through the said connection. From the year 1965 there was correspondence between the appellants and the London Solicitors who in their turn had engaged Mr. Blanco White in connection with the suits in question Mr. Blanco White appeared before the High Court along with Indian counsel engaged by the appellants, though with the leave of the Court granted presumably under section 37 of the Advocates Act, 1951. Mr. Blanco White could appear only with the consent of the appellants who were the Solicitors on record. [398 A F] Commissioner of Income tax, Punjab vs R.D. Aggarwal and Co. and Anr., , applied . 2 It is incorrect to suggest that it was the intention of the Parliament to exclude non residents engaged in learned professions from the operation of section 9(1). The words in section 9(1) and section 163 are comprehensive enough to include all heads of income mentioned in section 14 of the Act. [393 D]. The expression "business" does not necessarily mean trade or manufacture only it is being used as including within its scope professions, vocations, and callings from a fairly long time. From section 2(b) of the , it is clear that the "business is one of wide import and it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. In the context in which the expression "business connection" is used in section 9(1) of the Income Tax Act, 1961 there is no warrant for giving a restricted meaning to it excluding "professional connection" from its scope. [400 B D, 401 A B] Commissioner of income Tax, Bombay vs Currimbhoy Ebrahim and Sons Ltd., ; Christopher Barker and Sons vs Commissioner of Inland Revenue, at page 228 and Commissioner of Inland Revenue vs Marine Steam Turbine Company Limited, , quoted with approval . In the instant case, (a) it cannot be said that since Mr. Blanco White could not appear as counsel as of right either under the Advocates Act or under the Calcutta High Court Original Side Rules, he could not be treated as having any business connection with the appellants; (b) since Mr. Blanco White appeared along with the Indian counsel engaged by the appellants and the appellants continued to represent the German Corporation when Mr. Blanco White argued the case before the High Court, it cannot be said that Mr. White was a stranger to the appellants; (c) the appellants may not have engaged him to argue the case but, they allowed him at the request of the London Solicitors to argue the case and willingly co operated with him in doing so; (d) the appellants may not have undertaken to pay Mr. White 's fees but he could not have argued and earned the fees without associating himself with the appellants. The fact that Mr. Blanco White being a barrister could not file a 389 suit to recover the fees would not make any difference; and (e) that it is seen from the correspondence that Mr. Blanco White has earned the fees amounting to Pounds 2200 with refreshers at the rate of Pounds 220 per day, for the work done in India. Therefore. the appellants are liable to tax agents of Mr. Blanco White under section 153(1) of the Income Tax Act, 1961. [401 B E]

Appeal No. 1456 of1966. Appeal from the judgment ,and order dated April 6, 1964 of the Gujarat High Court in Letters Patent Appeal No. 8 of 1960. D.U. Shah, P.C. Bhartari and J.B. Dadachanji, for the ' appellants. S.K. Dholakis and Vineet Kumar, for respondents Nos. 1 (a) to 1(e)and (g). The Judgment of the Court was delivered by Shah, J. The facts which give rise to these appeal are few and simple. The appellant commenced on May 3, 1951 an action in the Court of the Assistant Judge, Morvi, in the former Part 'B ' State of Saurashtra for a decree for Rs. 9,387/5/ against one L. Angha Nathu Jamal and respondents 2 & 3 in this appeal. The Trial Court decreed the suit on October 17, 1955. An appeal was filed against the decree in the High Court of Saurashtra at Rajkot. On November 1, 1956, the High Court of Saurashtra was abolished and the proceedings pending in that Court stood ' transferred to the High Court of Bombay. On February 21,. 436 1958, Vyas, J., of the High Court of Bombay allowed the appeal. Against that order an appeal under C1. 15 of the Letters Patent of the High Court of Bombay was filed by the plaintiff but without an order of Vyas, J. certifying that the case was fit for appeal to a Division Bench of the High Court. On May 1, 1960 under the Bombay Reorganisation Act 1960, the appeal stood transferred to the High Court of Gujarat. The High Court of Gujarat held that the appeal was incompetent in the absence of an order under section 22A of the Saurashtra Ordinance 2 of 1948 certifying that the case was fit for appeal to a Division Bench. With certificate granted by the High Court of Gujarat this appeal has been preferred. The Rulers of Indian States in Kathiawar agreed "to unite and integrate" their territories in one State to be styled the United State of Saurashtra with a common executive, legislature and judiciary. By Ordinance 1 of 1948 the administration of the covenanting States was taken over by the Rajpramukh. The Rajpramukh issued, in exercise of power reserved to him by article 9 el. (3) of the Covenant, Ordinance 2 of 1948 setting up with effect from February 29, 1948, a High Court of Judicature for the State of Saurashtra. The expression "High Court" was defined in section 3(c) as meaning "the High Court established and constituted by this Ordinance and functioning as the High Court of the Saurashtra State. By section 21 the High Court was to be the highest Court of appeal and revision in the State and to have jurisdiction to maintain and dispose of such appeals, revision and other cases, civil or criminal, as it may be empowered to do under the Ordinance or any enactment in force in the State. By section 22 the High Court was also to be a Court of reference with power to hear, revise and determine all eases referred to it. By Ordinance 5 of 1950 section 22A was added: it vas provided thereby: "( 1 ) Except as otherwise provided by any enactment for the time being in force, an appeal from any original decree, or from any. order against which an appeal is permitted by any law for the time being in force, or from any order under Article 226 of the Constitution of India, made by a single Judge of the High Court, shall lie to a Bench consisting of two other Judges of the High Court. (2) An appeal shall lie from a judgment of one Judge of the High Court in respect of a decree or order made in exercise of Appellate; Jurisdiction to a Bench consisting of two other Judges of the High Court if the Judge who made the decree or order certifies that the case is a fit one for appeal:" 437 Under the Constitution of India, the territory of the United State of Saurashtra was formed into a Part 'B ' State of Saurashtra. By the the territory of the State of Saurashtra merged into the State of Bombay. By section 49 of the States Reorganization Act, 1956, it was enacted that the High Court exercising immediately before the appointed day, jurisdiction in relation to the existing State of Bombay shall, as from the appointed day, be deemed to be the High Court for the new State of Bombay. By section 50(1) as from the appointed day, the High Courts of all the existing Part B States (with certain exceptions not material) were to cease to function and were abolished. By section 52 was provided: "The High Court for a new State shall have, in respect of any part of the territories included in that new State, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of that part of the said territories by any High Court or Judicial Commissioner 's Court for an existing State". By section 54 it was provided: "Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, with the necessary modifications, apply in relation to the High Court for a new State, and accordingly, the High Court for the new State shall have all such powers to make rules 'and orders with respect to practice and procedure as are, immediately, before the appointed day, exercisable by the High Court, for the corresponding State: Provided that any rules or orders which are in force immediately before the appointed day with respect to practice and procedure in the High Court for the corresponding State shall, until varied or revoked by rules or orders made by the High Court for a new State, apply with the necessary modifications in relation to practice and procedure in the High Court for the new State as if made by that Court". Section 59(3) provided that all proceedings pending in the High Court of Saurashtra or in the Court of the Judicial Commissioner for Kutch immediately before the appointed day shall stand transferred to the High Court of Bombay. By section 119 it was provided: "The provisions of Part II shall not be deemed to have effected any change in the territories to which any L2Sup .CI/70 6 438 law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day." Section 127 provided: "The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. " In exercise of the power conferred upon the Central Government by section 120 of the , the Saurashtra (Adaptation of Laws on Union Subjects) Order, 1957, was promulgated by the Central Govt. By cl. 3 of the order it was provided that Saurashtra Ordinance 2 of 1948 shall stand repealed with effect from November 1, 1956. The High Court of Bombay for the new State added rr. 252 A and 252 B to the Rules of the High Court of Judicature at Bombay, Appellate Side, 1950. By r. 252 A it was provided: "Rules and orders relating to. practice and procedure in the High Court in force immediately prior to the appointed day in the High Court of Bombay shall, subject to. modifications made from time to time thereto, apply to the practice and procedure in the High Court. " Rule 252 B provided: "Rules and orders relating to practice and procedure in the High Court framed by the High Courts of Nagpur, Hyderabad and Saurashtra and Judicial Commissioner 's Court, Kutch, shall stand abrogated as from the 1st November 1956 in the areas of the new State of Bombay which before the 1st November 1956 were parts of the States of Madhya Pradesh, Hyderabad, Saurashtra and Kutch." The High Court of Gujarat held that the appeal filed by the respondents in the High Court of Saurashtra against the judgment of the Assistant Judge, was and continued to remain subject to the provisions of section 22A of Saurashtra Ordinance 2 of 1948 and an appeal could lie against the decision of Vyas J., only if he certified that the case was fit for appeal to a Division Bench. Clause 15 of the Letters Patent of the Bombay High Court provided: "And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a 439 decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of section 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India ACt, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act made on or after the; first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the same is a fit one for appeal; but . .right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Succes SOTS. " By cl. 15 of the Letters Patent a judgment in an appeal from a civil suit by a single Judge of the High Court of Bombay is subject to appeal to a Division Bench except when the order is made in exercise of the revisional jurisdiction of the Court or in second appeal, or in exercise of criminal jurisdiction, or in exercise of power of superintendence under section 107 of the Government of India Act, 1935 (article 227 of the Constitution). Vyas, J, decided the appeal sitting as a Judge of the High Court of Bombay. Prima facie, his judgment delivered in a first appeal from a judgment of the subordinate court was subject to appeal 0 a Division Bench of the High Court of Bombay. There was clearly an inconsistency between section 22A of the Saurashtra Ordinance 2 of 1948, and cl. 15 of the Letters Patent of the High Court of Bombay. By virtue of section 22A(2) an appeal lay to a Division Bench of the Saurashtra High Court from a judgment of one Judge "in respect of a decree or order made in exercise of Appellate Jurisdiction when the Judge who made the decree or order certified that the case is a fit one. for appeal". The Legislature made no distinction between a first appeal, a second appeal, an appeal from order land an application in exercise of revisional jurisdiction. But an appeal under cl. 15 of the 440 Letters Patent of the High Court of Bombay in be appeal from filed without the judgment of the Court of First Instance could a certificate of the Judge hearing the appeal. The right to appeal from a decree or order is a substantive right. As a corollary thereto, the right to maintain a decree of a Court without interference by a superior Court and subject only to the limitation therein is also a vested right and may be taken away by express enactment or clear implication of the amending statute. In Colonial Sugar Refining Company vs Irving(x) the Judicial Committee held that a provision which deprives a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right does not regulate procedure. The Australian Commonwealth Judiciary Act, 1903, came into force on August 25, 1903. Against the judgment of the Supreme Court of Queens land in an action commenced on Act. 25, 1902, an application was made for leave to appeal to the Judicial Committee and leave was granted on September 4, 1903. At the hearing of the appeal by the Judicial Committee the respondents applied that the appeal from the judgment of the Supreme Court of Queensland be dismissed on the ground that the power of the Court below to give leave to ,appeal stood abrogated by section 39 of the Australian Commonwealth Judiciary Act, 1903. The application was rejected by the Judicial Committee. Lord Macnaghten observed: As regards the general principles applicable to the case there was no controversy. On the one hand it was not disputed that if the matter in question be a matter of procedure only, the petition (to dismiss) is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Judiciary Act, it was conceded that in accordance with a long line of authorities from the time of Lord Coke to the present day the appellants (the Sugar Co.) would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore, the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure ? .It seems to their Lordships that the question does not admit of doubt. To deprive. a sui tor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure". (1) 441 In Garikapatti Veeraya vs N. Subbiah ChoudhurY(1), this Court accepted the principle in Colonial Sugar Refining Company 's case(2). In the absence of any provision to the contrary, there fore, a right attached to the action when it was commenced in 1951, that an appeal against the decision of a single Judge of the High Court of Saurashtra shall lie only if the Judge deciding the case certified the case to be a fit one for appeal. But the Saurashtra High Court was abolished from November 1, 1956 and the jurisdiction of the Saurashtra High Court was conferred upon the Bombay High Court. The case was tried by Vyas, J., not as a Judge of the Saurashtra High Court but as a Judge of the High Court of Bombay. In terms the restriction placed by section 22A applies to a judgment of one of the Judges of the High Court of Saurashtra: it does not apply to a judgment of a Judge of the High Court of Bombay. Once the Saurashtra Ordinance 2 of 1948 was repealed and the jurisdiction to try the appeal was conferred upon the High ' Court of Bombay, the right of appeal exercisable by the parties to the litigation decided by the High Court of Bombay was governed by the Letters Patent of that court had not by section 22A of the Saurashtra Ordinance 2 of 1948. Granting that the incident prescribed by section 22A continued to attach to the action, in terms section 22A of the Saurashtra Ordinance could not operate to restrict a right of appeal exercisable by cl. 15 of the Letters Patent governing the judgments of the Judges of the High Court of Bombay. The expression "Judge of the High Court" in section 22A of the ordinance for the ' purpose of giving effect to the rule in Colonial Sugar Refining Company 's case(2) cannot be read as meaning a Judge of the High Court of Bombay. By the clearest implication of the repeal by the Saurashtra (Adaptation of Laws on Union subjects) Order, 1957, promulgated by the Central Government and by the application of cl. 15 of the Letters Patent of the Bombay High Court, the judgment of Vyas, J., was subject to appeal to a Division Bench without an order of the Learned judge certifying the case to be fit for appeal. In support of his submission counsel for the respondents relied upon the terms of section 52 of the . But that section only confers upon the High Court of Bombay after November 1, 1956 the original, appellate and other jurisdiction, which was exercisable by the High Court of Saurashtra immediately prior to November 1, 1956, in respect of the territories within the State of Saurashtra. The section does not incorporate either expressly or by implication the limitations prescribed by section 22A(2) of Saurashtra Ordinance 2 of 1948 into the Letters Patent of the High Court of Bombay. The jurisdiction original, appellate and other which the High Court of Saurashtra could exercise prior to November 1, 1956, survived to the High Court (1) ; (2)[1905] A.C.360. 442 of Bombay in respect of the territories of the State of Saurashtra, and the appeal filed by the respondent before the High Court of Saurashtra was triable in the exercise of the appellate jurisdiction of the High Court of Bombay, after the case stood transferred to that Court by virtue of sub section (3) of section 59 of the States Reorganization Act, 1956. Vyas, J., functioned as a Judge of the High Court of Bombay and his judgments in first appeals were, in the absence of an express provision to the contrary, subject to appeal under cl. 15 of the Letters Patent to a Division Bench without a certificate. The High Court of Gujarat was right in holding that in respect of the areas of the former Saurashtra State, the High Court Bombay acquired the same jurisdiction which the High Court of Saurashtra possessed. That however, does not mean that the jurisdiction was to be regulated "with reference to the law which was in force on the appointed day i.e. November 1, 1956". Section 52 of the preserved the original, appellate and other jurisdiction as under the law in force immediately before the appointed day exercisable in respect of the territories within the State of Saurashtra. Unless in the exercise that jurisdiction any restriction under the law then in force was by express provision or by clear implication preserved, the provisions of cl. 15 of the Letters Patent must apply. It is necessary to recall the provisions of section 57 of the , which provide that the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and division courts of the High Court for the corresponding State and with respect to matters ancillary to the exercise of the powers shall, with the necessary modification, apply in relation to the High Court for a new State. Immediately before November 1, 1956, against the judgment of a single Judge of the High Court of Bombay exercising power in a first appeal, an appeal lay to a Division Bench without a certificate. The power of a Division Bench to entertain an appeal continued to remain exercisable by the Judges of the Bombay High Court when dealing with cases transferred under section 59(3) to the Bombay High Court from the Saurashtra High Court. In terms section 57 provides that powers of the Division Bench of the High Court for the corresponding State i.e. the new State of Bombay shall be the same as the powers of the Division Bench under the law in force immediately before the appointed day in the State of Bombay. A Division Bench of the High Court of BOmbay was competent to entertain an appeal against the judgment of a single Judge deciding a first appeal from the decision of a subordinate court without a certificate of the Judge deciding the appeal. 443 The High Court of Gujarat have made a distinction between 'power" and "jurisdiction", and they have held that when section 52 of the , enacts that the appellate jurisdiction of the High Court of Bombay for the new State of Bombay shall in relation to the Saurashtra area be the same as the jurisdiction which the Saurashtra High Court possessed, it is meant that the High Court of Bombay has the same jurisdiction which the High Court of Saurashtra originally had, and in exercise of that jurisdiction is subject to the same limitations which the High Court of Saurashtra was subject. We are unable to agree with that view. Section 52 of the States Reorganization Act, 1956, does not say so, and section 57 of that Act provides to the contrary. The High Court of Gujarat was also of the view that section 52 of the "crystalizes the law" only with respect to the territorial jurisdiction of each of the areas comprised in the High Court of Bombay, and if the Legislature extended the jurisdiction of the High Court of Bombay and also retained the jurisdiction which the abolished High Court possessed, the result would be "odd and conflicting" there being conflict of jurisdiction. But that, in our judgment, is a ground for holding that the jurisdiction of the Bombay High Court superseded in case of conflict, the restrictions on the exercise of jurisdiction by the original High Court qua the Saurashtra territory, and not that the jurisdiction of the High Court of Bombay was because of some unexpressed limitation restricted. The High Court of Gujarat recognised that the conclusion to which they had reached revealed a defect in the administration of justice. They observed: "The Legislature may have had a good reason for preserving in tact the old jurisdiction of the Saurashtra High Court in regard to pending cases. However, our conclusion affects cases instituted after the Reorganisation Act came into force. In our judgment, there is no reason why the litigants from the Saurashtra and Kutch areas should now be treated on a different footing from the litigants in the old Bombay area. In our judgment, the rights of appeal of litigants in all the areas should now be placed on the same footing. live would recommend to the authorities concerned to examine this question and, if so advised, to undertake the necessary legislation so as to confer the same rights of appeal to the litigants from the Saurashtra & Kutch areas as are given to the litigants from the rest of the State of Gujarat. " 444 In our view the conclusion that the restriction on the "old jurisdiction of the Saurashtra High Court" in regard to. pending cases was preserved by section 52 is erroneous. _ The does not purport to. preserve the restrictions upon the exercise of jurisdiction, and no implication arises from the use of the expression "original, appellate and other jurisdiction as under the law in force immediately before the appointed day", that the limitations upon the exercise of the jurisdiction which were existing prior to November 1, 1956, notwithstanding the provisions of section 57 of the were preserved. The order passed by the High Court of Gujarat is set aside, and the case is remanded to the High Court to be re entered under the original number and to be heard and disposed of according to law. Costs wilt be costs in the High Court. V.P.S. Appeal allowed and case remanded.

S, the owner of some land in a village in Punjab, died leaving a widow and the respondent, his daughter by another wife. The widow sold a part of the land in February 1958 to the appellants, whereupon the respondent filed a suit for possession by pre emption of the land sold. The trial court decreed the suit and a first appeal was dismissed. A single bench of the High Court allowed the second appeal on the view that the respondent not being the widow 's daughter, had no right of pre emption under section 15(2) of the Punjab Pre emption Act, 1913, as amended by the Punjab Pre emption Amendment Act, 1960. However, a division bench in a Letters Patent appeal, relying on an amendment made by the PUnjab Preemption Amendment Act, 1964 in section 15(2)(b), reversed the judgment of the single bench and decreed the suit. It was contended in appeal to this Court that there is no indication in the Amendment Act of 1964 that it is to have retrospective operation and the amendment made by it should be deemed to be only prospective. HELD: The Amendment Act of 1964 was merely of a clarificatory or declaratory nature. Even in the absence of words which were inserted by the Amendment Act of 1964 under section 15(2)(b) the only possible interpretation and meaning of the words "in the son or daughter of such female" could have reference to and cover the son or daughter of the husband of the 'female. The entire scheme of section 15(2) is that the right of pre emption has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance. [805 H] Under section 15(2)(b) the right of pre emption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off springs from the husband whom she had succeeded or the son or daughter of that husband even from another wife. [806 G] In the present case the respondent was entitled to exercise her right of pre emption under paragraph First of clause (b) of section 15(2) even before the Amendment of 1964. Whatever doubts existed they were removed by that Act which must be given retrospective operation. [807 E F] Ram Sarup vs Munshi & Ors, ; and Mota Singh vs Prem Parkash Kaur & Ors., I.L.R. [1961] Punj. 614, 627; referred to.

Criminal Appeals Nos. 15659 of 1973. (Appeals by special leave from the Judgment and Order dated 3 3 1971 of the Bombay High Court in Criminal Appeals Nos.1475/ 69 and 370 372 of 70). M.N. Phadke, and M.N. Shroff, for the appellant in all appeals. Y.S. Chitale, M. Mudgal and Rameshwar Nath, for respond ent in Crl. A. No. 158/73. Rameshwar Nath, for respondent in Crl. A. No. 159/73). The Judgment of the. Court was delivered by CHANDRACHUD, J. These four appeals arise out of four prosecutions which were disposed of by a common judgment by the learned Presidence Magistrate, 25th Court, Mazgaon, Bombay. The facts leading to the prosecution are not in all respects identical in the four 80 cases but it is obvious from the judgments under considera tion that the cases were heard and disposed of on the basis that the variation in the facts would not make difference to the result. The four respondents in these appeals are shopkeepers in Bombay some run grocery shops while some deal only in oils of different varieties. The charge against the respondents .is that they failed to display prices of 'vanaspati ' which they were selling in their shops in tinned and loose form. Section 3 of the , 10 of 1955, empoWers the Central Government, by order, to provide for regulating or prohibiting the production, supply and distri bution or trade and commerce in any essential commodity for the purposes mentioned in sub section (1) thereof. Sub section (2) of s.3 specifies various matters in regard to which the Central Government may pass orders contemplated by sub s.(1). The power conferred by s.3 was delegated by the Central Government to the State Governments in pursuance of the provision contained in section 5. Section 7 provides for punishment for contravention of an order made under section 3. In exercise of the powers conferred by section 3 read with section 5 of the the Government of Maharashtra issued the Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966". Clause 3(a) of that order provides that every dealer shall, in respect of the articles specified in Schedule I display a list of prices in the form prescribed in that schedule. We are concerned with items 15 and 16 of the Schedule which read: "15. Vanaspati, Tinned" and "16. Vanaspati, Loose. " Stated broadly, the defence of the respondents to the charge is that they were selling hydrogenated oils or vege table ghee or vegetable oils and not vanaspati '. The learned Magistrate acquitted the respondents in all the four cases holding that even if the word 'vanaspati ' may have acquired a local meaning, it could not be said that the order used the word 'vanaspati ' to include hydrogenated oils. Since the respondents, according to the learned Magis trate, could not be expected to know that they were bound to disclose the prices of hydrogenated oils also and since hydrogenated oils were not included in Schedule I the charge was unsustainable. The appeals filed by the State of Maharashtra against the orders of acquittal were heard and disposed of by a common judgment dated March 3, 1971 by a learned Single Judge of the High Court. Observing that there was considera ble force in the contention of the State Government that 'vanaspati ' would include hydrogenated oils also, the learned Judge felt that it was unnecessary to go into that question since the prosecution was not maintainable for another reason. That reason, according to the learned Judge, was that legislative draftsmen always made a distinc tion between 'contravention ' of law and 'failure to comply or non compliance ' with it. If the Court is called upon to decide, says the learned Judge, whether a particular contra vention is 81 an offence, it was bound to enquire whether mere non com pliance was also intended to be punished. Guided by that principle, the learned Judge came to the conclusion that the duty to display prices was "a subsidiary matter to the prohibition which is contained in clause 4 which prohibits a dealer from selling an article at a price higher than the price displayed or from refusing to sell or from withholding from sale such articles at the price displayed or marked. " The substance of the order was thus thought to be contained in. clause. 4 and accordingly, the judgment proceeds; "Mere non compliance of clause 3 cannot be an offence punishable as contravention unless there is a contravention of clause 4." Since the intention was said to be to punish contraven tion of clause 4 and not of clause 3 simpIiciter, the learned Judge held that the prosecution was not maintainable and the accused were entitled to an acquittal. These appeals by special leave are directed against the correct ness of the High Court 's judgment. It is necessary in the larger public interest to dispel the misunderstanding regarding the true meaning and intend ment of clauses 3 and 4 of the 1966 Order. We will there fore deal first with the reasoning of the High Court that a mere contravention of clause 3 without the contravention of clause 4 is not contravention within the meaning of section 7 of the and cannot therefore be punished. As stated earlier, clause 3(a) of the Order of 1966 imposes an obligation on every dealer to display a list of prices of the article specified in Schedule I. Clause 4 of the Order provides that no dealer shah (a) sell or agree or offer for sale any article at a price higher than the price displayed or (b) refuse to sell or withhold from sale such articles to any person at the price displayed or marked. We find ourselves totally unable to appreciate that there can be no contravention of clause 3(a) unless there is a contravention of clause 4 also. The two clauses deal with different matters because whereas clause 3 imposes an obli gation on a dealer to display the prices of articles speci fied in Schedule I, clause 4 prohibits him from selling an article at a price higher than the one displayed or from refusing to sell it at the price displayed. A contravention of clause 3(a) is full and complete by mere reason of the fact that the dealer has failed to display the prices of articles specified in Schedule I. That contravention does not depend on the consideration whether he has charged a higher price than the price marked or whether he has refused to sell an article at the price displayed. In other words, the first step which a dealer has to take is to display the prices of articles specified in Schedule I; if he fails to do that, he is guilty of contravention of clause 3(a) which is punishable under section 7(1) of the . The additional obligation which the dealer has to discharge is to be ready and willing to sell the articles at ,the prices disp1ayed; failure to do so is a different and distinct contravention which also attracts the applica tion of section 7(1). We find it impossible to subscribe to the view that clauses 3 and 4 of the Order of 1966 are so interlinked that the legislature did not intend to punish the contravention of the former unless such contravention was accompanied by a contravention of the latter provision. The wedding of 82 the two clauses in this _fashion is entirely unwarranted. The ground. on which the High Court has acquitted the re spondents iS therefore untenable and we reject the reasoning in that behalf as unsustainable. Were we satisfied that the respondents were selling `vanaspati ', tinned or loose, we would have had no hesitation in setting aside the order of acquittal and in convicting the respondents, since the non display of prices is admitted. That raises the question whether there is evidence to hold that the respondents were dealing in 'vanaspati '. The evidence on this question is woefully inadequate and we regret to notice that no serious attempt was made by the prosecution to establish the charge. The articles of which the prices were not displayed were not properly inventoried, which makes it difficult to predicate that the articles bore any particular description. Panchanamas were made of the articles but except in one case, where the panchanama was exhibited by consent, the panchas were not examined with the result that the panchanama 's remained unproved and therefore unexhibited. In none of the cases was even a sample taken of the articles displayed for sale. If that were done, the nature, quality and components of the goods could easily have been proved by analysing the sample chemically. One could then have ' said with easy facility that what was being sold was 'vanaspati '. Instead of doing what .was easy and necessary to do, the prosecution offered, as a substitute for its plain duty, the vague recollections of a Rationing Inspector and a Sub Inspector of Police as .to what was being sold by the respondents in their shops. For illustrating how cavalierly the prosecution ap proached its task, we will take the facts of appeal No. 156 of 1973 in which the respondent is one Hansraj Depar. The charge framed by the learned Magistrate alleges that the respondent had failed to display the price list of 'vanas pati ghee '. The charge should have been not in respect of any type of ghee but in respect of 'vanaspati ' which is the item mentioned in Schedule I. The Rationing Inspector, K.N. Joshi (P.W. 1), stated in his evidence that the respondent had not exhibited the price of 'vanaspati ghee ' which again is beside the point. Nothing at all, not even a sample of the articles alleged as vanaspati, was taken charge of from the shop and the witness admitted that he did not remember what variety of articles were sold in the shop and as to how many tins of what is said to be vanaspati ghee were found therein. The other witness, Sub Inspector Kurdur (P.W. 2) does say that the respondent was selling vanaspati as also oil and that there were in his shop "3 K.O. tins of Ravi Vanaspati, 2 K.O. tins of prabhat Vanaspati and one loose tin of Malali Vanaspati". In view of the challenge that what was being sold was not vanaspati and that the tins did not contain vanaspati within the meaning of items 15 and 16 of Schedule I, the prosecution should have led evidence to show that the tins in fact contained vanaspati in the sense in which that expression is used in the Scheduled. The ipsc dixit of the Sub Inspector who had merely assisted the Rationing Inspector in effecting. the raid cannot establish the charge which involves a punishment of as long 83 a term as seven years and normally of not less than three months, as provided in section 7(1)(a)(ii) of the . The prosecution did not make any attempt to establish as to what is the true ,meaning and connotation of the expres sion 'vanaspati ' and what kind 'of articles or goods are comprehended within the scope of that expression. The witnesses did not even say in their evidence, perfunctory as it is, that the ' word had acquired a popular meaning and was understood locally in a certain sense. Neither the Act of 1955 nor the Order of 1966 defines the expression 'vanas pati ' and it was beside the point to say that 'vanaspati ' is defined in the Bombay Sales Tax Act and the Prevention of Food Adulteration Rules, 1965 to include hydrogenated oil. The purpose of the Sales Tax Act is to bring within the tax not as large a number of articles as possible, that. of the Prevention of Food Adulteration Act and the Rules thereunder is to ensure that the health of the community is not endan gered by adulterated or spurious articles of food while that of the Essential Commodities 'Act with which we are concerned in the instant case is to ensure the. availability of essential goods to the community at a proper price. This last Act was passed in order "to provide, in the inter ests of the general public, for the control of the: produc tion, supply and distribution of, and trade and commerce in, certain commodities". Sub Inspector Kurdur is no expert for the purposes, of this Act and we cannot, without more, accept the dogmatic assertion made by him in one of these cases that vanaspati and hydrogenated oil "mean the same thing. " Hydrogenation is a specialised process and is described in Encyclopaedia Britannica (1951 ed., Vol 11, p. 978) as "the treatment of a substance with hydrogen so that this combines directly with the substance treated. The term has, however, developed a more technical and restricted sense. It is. now generally used to mean the treatment of an "unsaturated" organic compound with hydrogen, so as to convert it by direct addition to a "saturated" compound. " The witness, excusably, seems unaware of this scientific sidelight and greater the ignorance, greater the dogma. If the witness were right, it is difficult to understand why "groundnut oil, Safflower oil, Sesamen oil and Mustard seed oil" and "coconut oil" find a separate and distinct place in Schedule 1 at items 5 and 6. , Perhaps what the witness guessed, science may show to be true but that has ' to be shown, not guessed. In State of Bihar vs Bhagirath Sharma(1) a question arose whether motor car tyres were included within the meaning of the expression component parts and accessories of automobiles ' used in a similar order issued in 1967 by the Bihar Government under the . It was held by this Court that it was not enough that from a broad point of view the tyres and tubes of motor cars may be considered to be covered.by the particular expression. After considering and comparing the various items in the particular schedule it was held ' by this Court that motor car tyres were not comprehended within the expression. It is apposite for our purpose to call at (1) [|973] 3 S.C.R. 937. 84 tention to what the Court said in that case, namely, that according to the fundamental principle of criminal jurispru dence which reflects fair play, a dealer must know with reasonable certainty and must have a fair warning as .to what his obligation is, and what act of commission or omis sion on. his part would constitute a criminal offence. Bearing in mind this principle the State Government ought to have expressed its intention c]early and unambiguously by including hydrogenated oils within items 15 and 16 which refer to `vanaspati '. If that were done, a type of predica ment which arises in this case could easily have been avoid ed, and with profit to the community. We hope this lacuna in the schedule will be rectified expeditiously. It is to be regretted but we are left with no option save to confirm the acquittal, though for entirely different reasons. Therefore, while setting aside the reasoning of the High Court that there can be no contravention of clause 3 unless there is also a contravention of clause 4 of the order of 1966, we dismiss. the appeals and confirm the orders of acquittal on the ground of total lack of evidence showing that the respondents are dealers in 'vanaspati ' and that they had kept 'vanaspati ' for sale in their shops. S.R. Appeals dis missed.

The respondent plaintiffs filed a suit for partition and allotment of one half share of the suit house and the move able properties. One Faqir Chand had 3 sons, Nathubhai, Lallubhai and Nanabhai. Nanabhai was the defendant in the suit whose legal representatives are appellants. Lallub hai 's heirs are the plaintiffs. According to the plain tiffs the three brothers were members of a Joint Undivided Hindu Family. According to the respondents the properties were never partitioned though the three brothers were stay ing and messing separately and each branch carried on its business separately. The respondents also challenged the validity of the sale deed executed by Bai Kashi the widow of Nathubhai in favour of the appellants on the ground that the sale was not for legal necessity. The appellants contended that the three brothers were separate and each branch used to do its business separately. That as far as the suit house was concerned it was divided though not by metes and bounds and that the brothers lived in separate portions of the house. The appellants claimed that they were entitled to 2/3 share on the house. The Trial Court found that the 3 brothers had separated before the deaths of Nathubhai and Lallubhai. It also found that the defendant and his broth ers had separated and the suit house was also divided as alleged by the defendant. It came to the conclusion that the defendant had failed to prove that there was any legal necessity for Bai Kashi to sell the share in the suit house and that after Bai Kashi 's death the respondent was entitled to one half share in the suit house. The Trial Court found that Bai Kashi became entitled to one ' half share of her husband in the suit house under the Hindu Women 's Rights to Property Act, 1937. As her interest was only a limited interest known as Hindu Women 's Estate when Bai Kashi died in January 1956, she had not become the full owner of the share under the . The court was of the view that on the death of Bai Kashi her share would go to the reversioners. The court held that the parties were governed by Mayukh school which over rules the Mitakshara school and, therefore, after the death of Bai Kashi the defendant and plaintiff No. 1 would inherit together to the share of Nathubhai. The court held that the claim of the plaintiff for one half share should be decreed though there was no specific claim on the plea of separation and heir ship. The High Court dismissed the appeal and confirmed the findings of the Trial Court. In an appeal by Special Leave the appellants contended that the respondents ' plea that the 3 brothers were joint and the share of Bai Kashi was inherited by the remaining two branches by survivorship having been negatived by the courts below the suit ought to have been dismissed and that the court erred in making out a new case of succession to the property of Bai Kashi without necessary pleadings. Allowing the appeal partly, HELD: 1. On the question whether the respondents are entitled to one half share on her death has not been dealt with by the High Court. This Court agreed with the concur rent findings of the Trial Court and the High Court that the family was separate and that the sale deed by Bai Kashi in favour of the appellants was not for legal necessity. However, the claim of the respondent for partition and allotment of 1/3 share by metes and bounds 921 cannot be resisted. Though the brothers became separate admittedly there was no division by metes and bounds. There is also no dispute that the respondents are entitled to 1/3 share in the house. [924 A C] 2. The High Court did not deal satisfactorily with the contention of the defendant that the Trial Judge erred in saying that Bai Kashi had only a widow 's estate when she died in the absence of any issue as to who were heirs of the deceased Bai Kashi. On the question whether respondents are entitled to succeed to Bai Kashis 1/2 share, the Court remitted the matter to the High Court for consideration. [924 C D]

Civil Appeal No. 389 of 1959. Appeal from the judgment and order dated October 25, 1957, of the Bombay High Court at Nagpur in Misc. Petition No. 476 of 1956. A. section Bobde and Ganpat Rai, for the appellant. H. J. Umrigar K. L. Hathi and R. H. Dhebar, for respondent No. 2. 1960. April 7. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal arises from a writ petition filed by the appellant, Madhya Pradesh Mineral Industry Association, in which the appellant challenged the validity of the notification issued by the Madhya Pradesh State Government on March 30, 1952, under section 5(2) of the (11 of 1948) (hereinafter called the Act). The High Court of Bombay at Nagpur dismissed the appellant 's petition but has granted the appellant 61 478 a certificate of fitness under article 133(1)(c) of the Constitution. It is with the said certificate that the present appeal has been brought to this Court. The appellant is a non profit making company limited by guarantee and registered under section 26 of the Indian Companies Act, 1913. It has been formed with the object of protecting and promoting the interest of its members shareholders who are engaged in the mining industry by all legitimate and constitutional means. It appears that under article 258 of the Constitution the President of India by Notification No. S.R.O. 2052 published on December 11, 1951, entrusted Governments of . certain States including Madhya Pradesh with their consent the functions of the Central Government under the Act in so far as such functions relate to the fixation of minimum rates of wages in respect of employees employed in stone breaking or in stone crushing operations carried on in mines situated within their respective States. Pursuant to the said delegation the Madhya Pradesh Government issued the impugned notification purporting to act under section 5(2) of the Act. This notification has prescribed the minimum rates of wages for employment in stone breaking or in stone crushing operations carried on in mines. The rates thus prescribed were inclusive of dearness allowance or compensatory cost of living allowance. The Regional Labour Commissioner (Central), Nagpur, Respondent 1, wrote to the appellant for the first time on June 20, 1956, stating that the State of Madhya Pradesh, Respondent 2, had considered the question whether the Act was applicable to the manganese mining industry and had come to the conclusion that it was so applicable; that is why the appellant 's members were asked by respondent 1 to implement the Act within a fortnight from the receipt of his letter. The appellant made several representations to respondent 1 urging that the Act was inapplicable to the manganese mining industry; nevertheless respondent 1 threatened large scale prosecution of the appellant 's members on the basis that the Act applied to them, and its provisions bad been contravened by them. The appellant was thus driven to file the 479 present petition because it alleged that it had no alter native remedy, at any rate equally speedy and efficacious, and so it was urged on its behalf that the High Court should issue a writ quashing the impugned notification as ultra vires. In its petition the appellant had also alleged that the notification issued by the President of India under article 258 cannot fasten upon the manganese mining industry the character of employment in stone breaking or stone crushing and if that was the object of the said notification it was invalid. The respondents disputed the correctness of the appellant 's contention that the impugned notification is invalid. It was urged on their behalf that any industry wherein the workers are employed in operations involving stone breaking or stone crushing is governed by the Act. In their written statement they described the details about the mining operations and contended that the mining of manganese ore mainly consists of development work or the removal of over burden, breaking of big mineral stones like boulder ore or bed ore to manageable sizes, dressing of ores to remove impurities, etc. According to the respondents, having regard to the nature of the manganese mining industry the Act applied to the stone breaking or stone crushing operations connected with it. The High Court has accepted the respondent 's plea and has rejected the appellant 's prayer that a writ should be issued in its favour prohibiting the respondents from enforcing the provisions of the Act against its members. Unfortunately, on two important points the High Court has misdirected itself. It appears to have assumed that the impugned notification has added an entry in the Schedule to the Act, and has observed that as a result of the said addition the provisions of the Act came to be applied to the employment in stone breaking or in stone crushing operations carried on in the mines. The High Court has made this observation in setting out the appellant 's case and it is on the basis of this observation that the High Court has proceeded to examine the validity of the appellant 's contention. It is, however, clear that the impugned notification does not purport to add any 480 item in Schedule I and that was also not the case of the appellant. Thus the assumption made by the High Court on, both the points is, with respect, erroneous. In its judgment the High Court has also observed that the vires of the impugned notification, though challenged in the petition, was not challenged before the High Court and so the only question that remained for its decision was one of interpretation of the relevant provisions of the entry introduced by the notification. This statement again does not appear to be entirely correct. The principal, if not the sole, ground on which the appellant sought for a writ from the High Court was that the impugned notification was ultra vires section 5(2) of the Act. If the validity of the said notification had been conceded by the appellant its writ petition would have immediately become ineffective because if the notification is valid then the question of construction of the material entry can present no difficulty whatever. In terms the stonebreaking and stone crushing operations carried on in mines are specified and the appellant could not possibly urge that the relevant activities carried on by its members did not attract the said description. In view of the fact that the High Court has made a clear statement to the effect that the vires of the impugned notification had not been challenged before it we were at first not inclined to allow Mr. Bobde, for the appellant, to argue that point before us; however, after hearing him and after considering the rest of the record we are satisfied that the statement made in the judgment is not accurate. In the petition filed by the appellant the validity of two notifications was challenged; the first was the notification issued by the President of India under article 258 of the Constitution, and the second is the impugned notification under which proceedings are threatened against the appellant 's members. It is clear from the record that the appellant did not and could not have pressed its case against the validity of the first notification, but it did press its objection against the validity of the second notification ; and that would be clear from the certificate of fitness granted by the High Court itself. The 481 certificate says that the questions raised by the appellant relate to the applicability of the provisions of the Act to persons employed in stone breaking or stone crushing operations carried on at various manganese mines. Now it is clear that this question can arise only if the appellant seeks to challenge the validity of the notification, not otherwise. It is because the employees in question are, according to the appellant, not employed under any of the items prescribed in the Schedule to the Act that the impugned notification is invalid; in that context the questions posed in the certificate would arise. If the notification itself is valid then the solution to the question posed can hardly be regarded as fit for a certificate under article 133(1)(c) of the Constitution. Besides, the appellant 's contention against the validity of the impugned notification has been set out in its application for certificate before the High Court and the same has been expressly repeated in the statement of case filed by the appellant before us. We must, therefore, hold that the High Court was in error in assuming that the vires of the impugned notification had been conceded by the appellant before it. This is another serious infirmity in the judgment of the High Court. As a consequence of the two infirmities in the judgment the approach which the High Court adopted in dealing with the matter has been considerably influenced. It has no doubt considered the meaning of the word " employment and " stone " in connection with the expression stone breaking " and " stone crushing". Even this part of the discussion ' in the judgment seems to assume that the impugned notification has really added one item to the list in the Schedule. It has apparently not been realised that if the present notification purported to make an addition to the items in the Schedule there would have been no controversy between the parties. According to the High Court employment should be given its wider sense and should be held to mean " the action of employing or the state of being employed ". The High Court has also held that the word " stone " should be taken to mean " a piece of rock or hard mineral sub. stance (other than metal) of a small and moderate 482 size". The interpretation of the two words adopted by the High Court has been taken by it from the Shorter Oxford Dictionary, and having assigned to the two words the two respective meanings just stated the High Court has held that stone breaking and stone crushing operations carried on in mines would attract the provisions of the Act. Before dealing with the vires of the impugned notification it would be material to examine the relevant provisions of the Act. The Act has been passed to provide for minimum rates of wages in certain employments. Section 2(b) defines the appropriate government as meaning, inter alia, (1) in relation to any scheduled employment carried on by or under the authority of the Central Government or in relation to a mine the Central Government, and (2) in relation to any other scheduled employment the State Government. It would thus appear that the Legislature intended that the provisions of the Act may in due course be extended to mines and so it has prescribed that in respect thereof the Central Government would be the appropriate Government. Section 2(e) defines an employer as meaning, inter alia, any person who employs whether directly or through another person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act. Section 2(g) defines scheduled employment as meaning an employment specified in the Schedule or any process or branch of work forming part of such employment. Section 3 authorises the appropriate government to fix minimum rates of wages in regard to the employments specified in Parts I and II of the Schedule respectively and prescribes the procedure in that behalf. Section 5 lays down the procedure for the fixing and revising of minimum wages. Section 5(2) provides that after following the procedure prescribed by the said section the appropriate government shall by notification in the official gazette fix, or as the case may be, revise the minimum rates of wages in respect of each scheduled employment, and unless such notification otherwise provides, it shall come into force on the expiry 483 of three months from the date of its issue. There is only one more section which needs to be mentioned; that is section 27 which empowers the appropriate government to add to either part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under this Act after following the procedure prescribed by it, and the section adds that after the notification is thus issued the Schedule shall, in its application to the State, be deemed to be amended accordingly. It is thus clear that the whole scheme of the Act is intended to work in regard to the employments specified in Part I and Part II of the Schedule and the Legislature has wisely left it to the appropriate government to decide to what employments the Act should be extended and in what areas. Section 5(2) empowers the appropriate government to fix or revise minimum wages in regard to any of the employments in the Schedule to which the Act applies. This power can be exercised only if the employment in question is specified in the Schedule and the Act is therefore applicable to it. Section 27 confers a wider power on the appropriate government, and in exercise of the said power the appropriate government may add an employment to the Schedule. The nature and extent of the said two powers are thus quite separate and distinct and there can be no doubt that what can be done by the appropriate government in exercise of its power under section 27 cannot be done by it in exercise of its power under section 5(2). It is significant that the impugned notification has been issued by the Madhya Pradesh Government by virtue of the powers under section 5(2) of the Act which have been delegated to it by the President in exercise of his authority under article 258 of the Con stitution. The main argument urged by Mr. Bobde is that the impugned notification is ultra vires section 5(2) because stone breaking and stone crushing operations in manganese mines do not full under any of the items in Part I of the Schedule. The dispute thus raised really lies within a very narrow compass: Does employment in stone breaking or in stone crushing operations carried on in mines specified in the impugned notification amount to employment in stone breaking 484 Schedule to the Act? It is common ground that the employment in question does not fall under any other item in Part I. It is true that the provisions of the are intended to achieve the object of doing social justice to workmen employed in the scheduled employments by prescribing minimum rates of wages for them, and so in construing the said provisions the court should adopt what is sometimes described as a beneficent rule of construction. If the relevant words are capable of two constructions preference may be given to that construction which helps to sustain the validity of the impugned notification; but it is obvious that an occasion for showing preference for one construction rather than the other can legitimately arise only when two constructions are reasonably possible, not otherwise. Now, does employment in stone breaking or stone crushing as specified in of the Schedule on a reasonable construction include stone breaking or stone crushing operations in a mining industry ? In answering this question it would be necessary to bear in mind that the scheduled em ployment under section 2(g) covers the employment specified in the Schedule or any process or branch of work forming part of such employment. It is conceded before us by both the parties that the provisions of the Act apply to the scheduled employments in all branches of their work which may be incidental to the main scheduled employments. The impugned notification, on the other hand, applies only to the stone breaking or stone crushing operations carried on in mines and it does not cover other operations connected with the manganese mining works. This position is inconsistent with the scheme of the Schedule and that is a point which prima facie is in favour of the appellant 's contention. It is, however, urged by Mr. Umrigar, for the respondents, that the word " employment " as well as the word " stone " used in item 8 should receive their widest denotation, and that, according to him, would include stone breaking or stone crushing operations 485 carried on in mines. It is conceded that stone breaking or stone crushing operations have to be carried on in regard to the work in manganese mines. Stones are beaten to small pieces by means of a hammer and they are washed and passed through sieves of different meshes before manganese is obtained. When the Schedule refers to the employment of stone breaking or stone crushing does it refer to the incidental stone breaking or stone crushing in connection with manganese mine operations ? In a chemical or a geological sense stones may include manganese and that is one of the meanings given to the word in the Shorter Oxford Dictionary. On the other hand, the word " stone " as popularly understood in ordinary parlance particularly when it is coupled with the word " breaking " or " crushing " would exclude manganese. When we speak of stone breaking or stone crushing normally we refer to stone in the sense of "piece of rock" and that would exclude manganese. Employment in stone breaking or stone crushing in this sense would refer to quarry operations. Thus whether or not the word " stone " should be understood in the wider sense or in a limited sense must depend upon the context in which the word is used. The intention which is reasonably deducible from the context would decide whether it is the expanded meaning or the limited meaning of the word that can be accepted. The same consideration could apply to the denotation of the word " employment We have carefully considered all the items in the Schedule and have taken into account the general beneficent policy of the Act but we are unable to hold that when item 8 refers to stone breaking or stone crushing it is intended to cover the breaking or the crushing of stones incidental to the manganese mining operations. The context seems to exclude the application of the wider meaning of the word " stone " used in item 8. Therefore, our conclusion is that the stone breaking or stone crushing operations which are carried on in mines are not included in item 8 in the Schedule; and if that be the true position the impugned notification issued by the State Government under section 5(2) is ultra vires, 62 486 The High Court has referred to the fact that in describing some items in Part I the word " any " has been used whereas the said word has not been used in item 8. For instance, item I refers to employment in any woollen carpet making or shawl weaving establishment, whereas item 8 merely refers to employment in stone breaking and stone crushing. The absence of the word " any " according to the High Court indicates that the word "stone" as well as the word " employment" had been used in their wide denotation. We are not satisfied that this conclusion is right,. In fact it appears to us that if the word " any" had been used in item 8 it might have helped to make its scope wider; that is to say, if item 8 bad read as " employment in any ,stone breaking or any stone crushing operations " it might have tended to make its scope wider. As it stands the entry is, in our opinion, confined to Stone breaking and stone crushing employment in quarries and not in mines. As we have already pointed out a notification under section 5(2) can be issued only in respect of employments which fall under the Schedule. We would, however, like to add that this conclusion merely helps to emphasise the fact that the appropriate government may, and can, act under section 27 of the Act if it is desired that the employment in mines or in connection with any operations incidental to mining should be governed by the provisions of the Act. Section 27 empowers the appropriate government to add items to the Schedule and it would be open to the appropriate government to adopt such a course if it is intended to achieve the object with which the impugned notification has been issued. One more point still remains to be considered. Mr. Umrigar attempted to argue that the appellant cannot challenge the vires of the impugned notification without challenging the vires of the delegation of authority effected by the notification issued by the President of India under article 258 of the Constitution. The argument is that if the notification of the President is valid then the State Government has merely exercised its authority as a delegate and its validity cannot be challenged in isolation from the principal 487 or parent notification which conferred the authority on the State Government. This contention has obviously not been raised before the High Court. Besides, if the State Government purports to take action on the strength of the impugned notification which is invalid it would be open to the appellant to resist the threatened action on the ground that the notification is invalid and no action can be validly taken against the appellant for the contravention of the provisions of the Act. As this Court has observed in A. Thangal Kunju Musaliar vs M. Venkitachalam Potti (1), " there can be no agency in the matter of a commission of a wrong. The wrong doer would certainly be liable to be dealt with as a party directly responsible for his wrongful action", and it was added that " on the analogy of a civil wrong the tortfeasor could certainly not protect himself against the liability on the ground of having committed the tort under the directions of his principal, and so the agent could in no event exculpate himself from the liability for the wrongful act done by him and if he is amenable to the jurisdiction of the High Court the High Court could certainly issue an appropriate writ against him under article 226". By parity of reasoning it would follow that if the impugned notification issued by the State Government is ultra vires it cannot fall back upon the President 's notification in support of the plea that the action which it proposes to take against the appellant would nevertheless be justified. We must accordingly hold that it is open to the appellant to claim a writ against the respondents oven without challenging the vires of the Presidential notification. In the result we hold that the impugned notification issued by respondent 2 is invalid and cannot be enforced. The appeal is accordingly allowed, the order passed by the High Court set aside and the application for a writ made by the appellant allowed with costs throughout. Appeal allowed. (1) ; ,1211.

There can be no doubt from the point of view of Economics that the clerical and subordinate staff of an industry like its manual workers contribute to its production and there can, therefore, be no reason for excluding them wholly from the benefits of a scheme of incentive bonus. The fact that the clerical staff are paid dearness allowance at a higher scale can be no reason for their exclusion. (1)[1956] 424 Where, as in the instant case, the company had already Introduced a scheme of incentive bonus for the majority of its workmen, there could be no reason why the Industrial Tribunal should not be able to extend that scheme to the clerical and subordinate staff. M/s. Titaghur Paper Mills Co. Ltd. vs Their Workmen, [1959] Supp. 2 S.C.R. 1012, considered.

N: Criminal Appeal Nos. 66 67 of 1980. Appeals by Special Leave from the Judgment and order dated 30/8/1979 of the Delhi High Court in Criminal Revision Nos. 65 66 of 1979. N. section Das Bahl for the Appellant. M. N. Shroff for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER, J. The common appellant in both these appeals is a teen aged student turned criminal adventurer in the elitist area of car lifting and scooter poaching current in our fashionable cities, including Delhi. While he was a college student and but 19 years old, the appellant tried his hand at stealing a scooter way back in 1971. He was arrested but bailed out and while on bail was accused of committing a car theft. Both these cases were tried and he was found guilty. The 864 scooter offence resulted in a sentence of two years ' imprisonment and a fine of Rs. 2,000. The car theft case got converted into an offence under Section 411 I.P.C. and, consequently, a reduced sentence of imprisonment for six months and a fine of Rs. 500. The convictions being concurrent and no substantial infirmity being present, we have confined leave to appeal to the question of sentence only. But sentencing the cutting edge of the judicial process is the crucial strategy of the criminal law in achieving social defence and delinquent rehabilitation. So we have to consider the totality of factors bearing on the offence and the offender and fix a punishment which will promote effectively the punitive objective of the law deterrence and habilitation. We do not deem it necessary to set out elaborately all the socio legal facts which have been discussed at the bar. All that we need say is that the offence took place in 1971 and we are now in 1980. A long protracted litigation is some deterrent for a young man in his twenties. The accused was nineteen when the offences were committed and his youthful age is a factor which deserves consideration. A long period of incarceration in the present condition of prisons may brutalise the boy and blunt his finer sensibilities so that the end product may perhaps be more criminal than the one at the point of entry. Not that all prison terms are not deterrent but some cases prove to be counter productive especially when the delinquent is young. It may be interesting to recall Lord Soper 's observations in the House of Lords in a debate on British Prisons, where he said: "Now as to reform. I was a prison chaplain for 30 years. I cannot remember a single man who was reformed by being in prison not one. I can remember those who, serving very short sentences, were for a time, perhaps, brought to recognise something of the gravity of what they had been doing; but I am completely convinced that the longer a man stays in prison, the longer he stays in that kind of incarceration, the less is the prospect of reform and the more certain is the process of decay. That is why I have consistently tried to say that any man who is imprisoned in one particular set of circumstances for more than five years is probably dead for life. It is highly unlikely that those who have endured that kind of monotonous deadening will be able to recover in the real world what they have lost in the artificial element and environment of prison life. There has been, I think, in my time, a considerable increase 865 in the amelioration of conditions in prison; but, to refer again for a moment to the artificiality of it, the longer a man stays in prison the less capable he will be of recovering his place and establishing his position back in the real world to which he is increasingly made alien by the very processes which he undergoes." Moreover, the appellant has already suffered nearly six months ' imprisonment and it is a well known fact for criminologists that the initial few months of jail life are the most painful and, therefore, the most deterrent. In the present case the offender having served a term of nearly six months must well have realised that the game of crime does not pay. The fines of Rs. 2,000 and Rs. 500 imposed on the appellant should remain without interference. Payment of fine brings home the sense for responsibility in a surer fashion than even short terms of imprisonment in some cases. We, therefore, decline to reduce the fine and reject counsel 's plea in this behalf. More important than these circumstances is the social urgency of making this student offender a non offender. There are two circumstances which weigh in our mind. The young man has married and has three children. This is a measure of assurance that he will not play recklessly with his freedom. Family life is ordinarily an insurance against a career of crime. We have also insisted on the uncle of the appellant undertaking to assure the good behaviour of the nephew who is the delinquent in question. The uncle Shri Kohli has filed an affidavit dated 10 12 1979 in this Court making the necessary undertaking to guarantee the good behaviour of his nephew. Thoughtless parents and guardians leaving a free hand for their wards account for flippant criminality of the type we come across in middle class society. The undertaking given by the uncle has, therefore, considerable relevance. We make a breach of the conditions in the affidavit actionable on the motion of the State. It is a tragic reflection that affluent criminality should become so pervasive among the student community. It is uncomplimentary to the character building component of the system of education in the prestigious institutions of our cities. We hope the State will take better care to instil a sense of values in the college campuses than it does now. We allow the appeals to the extent of reducing the sentence of the appellant to the period undergone, but maintain the sentences of fine and the alternative period of imprisonment in case of default. P.B.R. Appeals allowed.

The original owners of the land in dispute granted a permanent lease of the land to a company. The lessee could use the land for any purpose and could also transfer the leasehold interest. Though a permanent lease the lessor could forfeit the lease if the lessee failed to pay rent for three consecutive years. The lessors interest changed hands twice and by virtue of a decree in a suit for pre emption filed by the respondents they became entitled to such interest. In the meanwhile the company went into voluntary liquidation and the liquidator executed an agreement of sale of all its assets including the leasehold interest in favour of a Bank which was the biggest creditor of the Company. Immediately thereafter the Bank itself went into liquidation. Sometime later the official liquidator of the Bank found that no deed of transfer was executed by the voluntary liquidator in favour of the Bank, the erstwhile voluntary liquidator therefore executed a deed of sale in favour of the Bank. Thereafter the official liquidator of the Bank transferred the lease hold interest in the land to the defendant appellant. Before the company went into liquidation the first transferee of the land accepted rent from the voluntary liquidator. After the transfer of the leasehold interest to the Bank the second transferee demanded from the official liquidator arrears of rent for four years and claimed that the lease was forfeited by reason of the Bank 's failure to pay rent for a continuous period of three years in terms of the lease. The official liquidator denied the right to forfeit the lease. He, however, paid rent which was accepted by the lessors. Even subsequently rent was accepted by the lessors. The respondent sued to recover possession of the suit land on the ground that the lease hold interest was not validly transferred by the voluntary liquidator and that therefore neither the Bank nor the defendant acquired any right in the land. The defendants contended that the voluntary liquidator had the authority in law to execute the deed of sale and formally complete a transaction which had already taken place, that the predecessors in interest of the plaintiff having accepted rent from the official liquidator were estopped 822 from contending that the transfer in favour of the Bank was not valid and that the lease hold interest in the land had escheated to the Government on the dissolution of the company. The suit was dismissed by the Trial Court and the Appellate Court. On second appeal, the High Court decreed the suit holding that the voluntary liquidator had no authority to execute the deed of sale after the dissolution of the company and that there was neither estopped nor escheat. Allowing the appeal, ^ HELD: 1. The High Court was right in holding that the liquidator had no jurisdiction to execute the deed of sale after the company had been dissolved. Once the company was dissolved in accordance with the procedure laid down in the Indian Companies Act, 1913 it ceased to exist and therefore the voluntary liquidator could not represent a non existent company. If the liquidator was to discharge any duty or perform any function on behalf of the dissolved company he should have express statutory authority to do so, which he did not have under the Act. [826 D, 825 G] 2. If the company had a subsisting interest in the lease on the date of dissolution, such interest must necessarily vest in the Government by escheat or bona vacantia. It is well settled that the property of an intestate dying without leaving lawful heirs and the property of a dissolved corporation passes to the Government by escheat or bona vacantia. If the lease hold interest of company became vested in the Government on its dissolution, a suit at the instance of the plaintiffs was not maintainable. [826 E, 827 G] 3. The successors in interest of the original lessors accepted rent from the official liquidator indicating that they accepted the position that the Bank had succeeded to the rights of the company in the lease hold interest. The official liquidator sold the land to the defendant with the permission of the Company Judge only when he failed to get the highest bid in public auction. At no point of time did the predecessors in interest of the plaintiffs raise an objection to the sale of the lease hold interest. When the defendant obtained permission of the Municipal Board and raised constructions on the land, the plaintiffs who resided near about the land did not raise any objection to the constructions. In the circumstances the plaintiffs were estopped from contending that the defendant had no right in the land. Their only right is to receive rent. [827 F 828 B]

ivil Appeal No. 3573 of 1991. From the Judgment and Order dated 25.6.1991 of the Bombay High Court in W.P. No. 1926 of 1991. G. Ramaswamy, Attorney General, K.K. Jain, G. Banerjee, Pramod Dayal and Ajay K. Jain for the Appellants. S.V. Mehta, A.K. Sanghi, Manjul Bajpai and section Grover for the Respondent. Gopal Subramanium, Manjul Bajpai and section Grover for the Intervenor. The Judgment of the Court was delivered by KANIA, J. Leave granted. Counsel heard. This appeal is being disposed of, by consent, at the stage of granting of special leave in view of the urgency. Appellant No. 1 is the Institute of Chartered Accountants of India, a body incorporated under the , (hereinafter referred to as "the Act"). Appellant No. 2 is the Secretary of Appellant No.1, Institute. Appel lant No. 1 was formed with the object of regulating the profession of the Chartered Accountants. Section 9 of the Act provides for the constitution of the Council of Appel lant No.1, Institute, and prescribes that the affairs of the said Institute shall be managed by the said Council which comprises not more than 24 persons elected by the fellows of the Institute and 6 persons nominated by the Central Govern ment. Sub section (1) of Section 10 of the Act provides that the election of the said Council shall be conducted in the prescribed manner. Section 30 of the Act confers powers upon the Council to make regulations for the purpose of carrying out the objects of the Act. In exercise of the said powers, the Council framed regulations known as "the Chartered Accountants Regulations" (hereinafter referred to as "the Regulations"). Chapter VI of the said Regulations 924 deals with the topic of "Elections". Regulation 82 provides that the Council shall notify in the Gazette of India, at least three months before the 'date of an election, the dates fixed for various stages of election of the members of the Council, like receipt of nominations. scrutiny of nomi nations, withdrawal of nominations, polling dates and so on. Regulation 87(1) provides that the Council shall publish in the Gazette of India a notice, setting out the number of members to be elected and calling for nominations of candi dates for election by a specified date, at least three months prior to the date of election. Sub regulation (2) of Regulation 87 which is the regulation coming up for con struction before us reads as follows: (2) The nomination of a candidate shall be (i) In the appropriate form duly signed by the candidate and by the proposer and the seconder both of whom shall be persons entitled to vote in the election in the relevant regional constituency; and (ii) forwarded by registered post to the Secretary by name so as to reach him not later than 5 p.m. on the specified date. Provided that a nomination delivered against an acknowledgement before the afore said time and date shall be deemed to have been so forwarded and so having reached if the Secretary is satisfied that the nomination has been duly fowarded by registered post at least 48 hours before the aforesaid time and date. " Sub regulation (3)of Regulation 87 provides inter alia for the contents of the nominations. We are not concerned with the rest of the regulations for the purpose of this appeal. The final time for the receipt of the nominations ,was fixed as 5.00 p.m. on 20th May, 1991, and it was extended to 5.00 p.m. on 21st May, 1991. The respondent forwarded his nominations by registered post to the Secretary on May 17, 1991, and May 18, 1991, respectively. The nominations, however, did not reach the Secretary by 5.00 p.m. on May 21, 1991, being the final time and date prescribed for the receipt of the nominations. Actually, they were received by the Secretary of 925 the Council by registered post on May 23, 1991, and May 27, 1991, respectively. These nominations were rejected on the ground that they were received after the time fixed for the receipt of the nominations and the name of the respondent was not included in the list of the candidates who had filed their nominations for election to the Council. Being ag grieved, the respondent filed a writ petition in the Bombay High Court seeking a writ of certiorari to quash the order rejecting his nominations. The Division Bench of the Bombay High Court, which decided the writ petition, took the view that a plato reading of subregulation (2) of Regulation ' 87 made it clear that the Only mode prescribed by the Regula tions is to tender the nomination by registered post and the rigour of the rule that the nominations must reach before the specified date and specified time, Was relieved by the insertion of the proviso. It was held by the Division Bench that once the Secretary was satisfied that a nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time, it must be deemed to have been received within the time provided. On the basis of this conclusion the High Court made the rule absolute. It is the correctness of this decision which is sought to be challenged before us. It was submitted by learned 'Attorney General who ap peared on behalf of the appellants that under sub regulation (2) of Regulation 87, the general rule is that the nomina tions must be forwarded by registered post and must reach the Secretary of the Council not later than 5.00 p.m. on the specified date, the specified date in this case being May 21, 1991. It was further urged by him that the proviso which, to a certain extent, relaxed this rule came into play only where a nomination was delivered to the Secretary against an acknowledgement before the specified time and specified date and the Secretary was satisfied that a valid nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time. It was contended by learned Attorney General that the learned Judges of the Bombay High Court had erred in disregarding the opening part of the proviso which read "provided that a nomination delivered against an acknowledgement before the aforesaid time and date. . " In our view, there is a considerable force in the sub mission of learned Attorney General. It is trite to say that in construing any regulation or rule it would not be proper to ignore any part of it except in special circumstances. Moreover, accepting the construction placed by the Bombay High Court on the said proviso would lead to a startling result; for examle, a nomination might have to be treated as 926 received within the specified the and.date even though it might never have reached the Secretary at all or might reach the Secretary after the date of the election, merely because the Secretary is satisfied that the nomination had been duly forwarded to him by registered post at least 48 hours before the specified time and date. 1 is not unknown that the letters sent by registered post are occasionally received after a long delay of several weeks and on some occasions they do not reach at all. If the construction placed on the said proviso in the impugned judgment were accepted, in such a case as aforestated the entire election would have to be set aside leading to great confusion and hardship. This consequence must necessarily follow if the view taken by the Bombay High Court were to be accepted in our opinion,the entire scheme of sub regulation (2) and the proviso shows that one of the main pre conditions required before a nomi nation can be said to have been duly received, is that a valid nomination must be received by the Secretary before the specified time and date. It is true that the rule, in terms, requires that the nominations should be sent by registered post, but taking into account the fact that such a nomination might not be received by the Secretary even though posted more than 48 hours before the specified time and date, it was provided that if the nomination was delivered, let us say, by hand to the Secretary before the specified time and date against acknowledgement, that nomination would be treated as having been validly received provided the Secretary was satisfied that the nomination was forwarded by registered post to him by the candidate 48 hours prior to the specified time and date. It was contended on behalf of the respondent that in the light of the proviso to sub regulation (2) of Regulation 87 what was intended to be prescribed by the use of the expression so as to reach him not later than 5.00 p.m. on the specified date in clause (ii) of sub regulation (2) of Regulation 87, was that the nominations which had been forwarded by registered post to the Secretary 48 hours before the specified time and date of the election must be deemed to have reached the Secretary in time. In our view, this contention is fallacious. What is meant by the use of the aforesaid expression in sub regulation (2) of Regulation 87 is that the nomination must be forwarded by registered post to the. Secretary so as to reach him in fact or actually reach him not later than 5.00 p.m. on the specified date. The rigour of the rule is relaxed by the proviso under which if the nomination was delivered against an acknowledgement before the specified time and date, it would be deemed to have been forwarded and to have reached as provided in clause (ii) of sub regulation (2) referred to earlier pro vided the Secretary was satisfied that the nomi 927 nation had been duly forwarded by registered post at least 48 hours before the aforesaid time and date. In view of the reasoning set out earlier, we set aside the judgment and order passed by the Bombay High Court and we hold that the nomination of the respondent was liable to be rejected on the ground that it was not received in time, as the respondent had failed to deliver to the Secretary against an acknowledgment a nomination before the specified time and date. However, we find that, in the present case, the elections have already been postponed and the proposed dates for elections will now to be probably fixed in October or November, 1991. In these circumstances, we direct that all the nominations received upto the end of August 1991 must be treated as received in time provided that the Secre tary is satisfied that they were forwarded by registered post 48 hours before the time and date specified earlier. The Council may fix the elections on any date they consider proper. The appeal is allowed to the extent aforesaid. Looking to the facts and circumstances of the case, there will be no order as to costs. We may suggest that if the Council so thinks, the regu lations may be suitably amended so as to leave no room for ambiguity, a difficult task indeed. V.P.R. Appeal allowed.

Appellant Company filed criminal complaints under Section 630(l)(b), Companies Act and Section 406, IPC against its employees (the first respondent of each appeal) as they did not vacate the company quarters after about six months even after retirement. The Judicial Magistrate, First Class dismissed the complaints as the same were not filed within the period of limitation of six months from the date of retirement of the Respondents employees. The High Court,holding that the offence under Section 630(1) was not a continuing offence, dismissed the Company 's revision petitions. In the appeal to this Court on the question, whether the offence under Section 630(l)(b) of the Companies Act is a continuing offence for the purpose of limitation, allowing the Appeals of the Appellant Company, this Court, HELD: 1. The beneficent provision contained in section 630, no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company: (a) where an officer or employee of a company wrongfully obtains 397 possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment. It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy. [406B E] 2."Officer" or "employee" in s.630 of the Companies Act includes both present and past officers and employees.[405B C] 3. The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day. The courts when confronted with provisions which lay down a rule of limitation governing prosecutions should give due weight and consideration to the provisions of s.473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation, if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. [409D G] 4. The expression `continuing offence ' has not been defined in the Code. The question whether a particular offence is a 'continuing offence ' or not must,therefore,necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence. [409F H] 5.The offence under section 630 is not such as can be said to have consummated once for all. Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company 's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, can not be said to be terminated by a single act or fact but would subsist for the Period until the property in the offender 's possession is delivered up or refunded. It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged. The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which May be deemed a single impulse. Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property. It is 398 not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e., with the delivering up or refund of the property. It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to. The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company. For failure to do so sub section (2) prescribes the punishment. [409H 410E] 6. The offence under section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the complaints could not be said to have been barred by limitation. [410D F] W.M.I. Cranes Ltd. vs G.G. Advani & Anr., [1984] 1 Kar. Law Cronicle 462 overruled; Bhagirath Kanoria and Ors. vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector and Ors., A.I.R. 1984 S.C. 1688 referred; Baldev Krishna Sahi vs Shipping Corporation of India Ltd. and Anr., [1987] 4 S.C.C. 361; Amrit Lal Chum vs Devoprasad Dutta Roy and Anr. ; , ; State of Bihar vs Deokaran Nenshi, [19731 1 S.C.R. 1004; Bhagirath Kanoria & Ors. vs State of Madhya Pradesh & Ors. , ; followed. Black 's Law Dictionary, Eighth Edition, (Special Deluxe); Salmond and Heuston on the Law of Torts, 19th Edn. Page 50; Halsbury 's Laws of England. 4th Edn. Vol 45, Para 1389 referred to.

N: Criminal Appeal No . 54 of 1988 . From the Judgment and order dated 9.10.1987 of the Delhi High Court in Crl. W.P. No. 262 of 1987. Soli J. Sorabjee Hukam Chand, Mrs. Nisha Bachi and Vijay K. Verma for the Appellant. B. Datta, Additional Solicitor General, P. Parmeswaran Ashok K. Srivastava, A. Subha Rao and C.V. Subba Rao for the Respondents. 803 The Judgment of the Court was delivered by RAY, J. Special leave granted. Arguments heard. This appeal by special leave is directed against the judgment and order dated 9th October, 1987 passed by the High Court of Delhi in Criminal Writ Petition No. 262 of 1987 discharging the rule and rejecting the writ petition. The appellant was arrested and detained on 21st March, 1987 from his residence at Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur by an order of detention made under Section 3(1) of with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign currency and also with a view to prevent him from engaging and keeping smuggled gold. The appellant was served with the grounds of detention by the Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India. It had been stated therein that the appellant may make any representation to the Advisory Board against his detention. In the grounds of detention it was inter alia stated that on the basis of the secret information received in the office of the Assistant Director, Enforcement Directorate, Agra, the appellant had been indulging in illegal sale and purchase of foreign currency and also in the sale and purchase of gold of foreign origin on a large scale and that search of the following premises connected with the appellant was carried out on 10th December, 1986 under Section 37 of the Foreign Exchange Regulation Act, 1973: (i) Premises situated in Purana Laxman Mandir, opposite Dr. Ram Kumar, Bharatpur. (ii) Premises situated in Daniwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur, and (iii)Business premises of M/s Madanlal, Mohanlal and Baldev Singh, Karola, Laxman Mandir Crossing, Near Bata Shop, Bharatpur. On 6th April, 1987, the appellant made two representations; one to the Detaining Authority, 2nd respondent and another to the Central Government, the Ist respondent. In the representation to the Detain 804 ing Authority, the appellant stated that he had no concern whatsoever as regards the residential premises situated at Purana Laxman Mandir, opp. Dr. Ram Kumar, Bharatpur where the search was conducted and on such search US $ and primary gold were recovered, as the said premises does not belong to him but belongs to his sister in law. The appellant 's residential premises is situated in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur. It had also been stated therein that the relevant documents on the basis of which the detaining authority came to the subjective satisfaction were not supplied to him and unless the said documents are given to him it will not be possible for him to make any effective representation against the grounds of detention. In the second representation to the Secretary, Government of India dated 6th April, 1987 also the appellant while reiterating the same facts stated that even the house from where the alleged recovery of foreign currency and gold was made is not his residential premises but is the residence of his sister in law. The appellant also stated that he was innocent and he should be released forthwith by revoking the order of detention. The appellant also stated that the Detaining Authority supplied him the relevant documents and also the information asked for in his letter dated 6th April, 1987 only on 24th April, 1987. The appellant also made a representation before the Advisory Board on 27th April, 1987. The appellant was produced before the Advisory Board on 29th April, 1987 and the Advisory Board heard the appellant in respect of his representation. The appellant received a communication dated 7th May, 1987 from the respondent No. 1 stating therein that his detention had been confirmed with effect from 21st March, 1987 for a period of one year. The appellant thereafter challenged the order of detention by a writ petition and also prayed for quashing of the said order of detention on the ground inter alia that the documents relied upon by the Detaining Authority in coming to his subjective satisfaction for making the order of detention in question which were required to be supplied to him along with the grounds of detention, were not supplied to him. The grounds of detention were supplied to him on 21st March, 1987 whereas the vital documents were supplied to him as late as on 24th April, 1987 in infringement of the provisions of Section 3(3) of the to be hereinafter called as the said Act. This vitiated the entire detention order in as much as the appellant could not make an effective representation against his order of detention in accordance 805 with the mandatory provisions of Article 22(S) of the Constitution of India. The order of detention was also challenged on the ground that the order of confirmation of detention did not give any indication as to why the Government had specified or determined the maximum period of detention of one year. The detention order is, therefore, illegal. It had also been stated in the writ petition that there had been inordinate delay in considering the representation sent on 6th April, 1987 through the Superintendent of Jail to the Detaining Authority and the Central Government. The said representation was disposed of by the Central Government on 29th April, 1987 and as such there was delay of 23 days which had not been explained. This unusual delay in the disposal of the detenu 's representation renders the order of detention bad. A counter affidavit was filed on behalf of respondent Nos. 1 and 2 affirmed by one Shri S.K. Chaudhary, Under Secretary, Ministry of Finance, Department of Revenue. In para 4 of the said affidavit it was stated that "it is also pertinent to submit that at the time of search several personal documents of the petitioner like copy of driving licence, his and his wife 's bank passbooks including a HUF passbook, account books were seized from the said premises. " It was also stated in para 7 of the said affidavit that the information sought in the representation of 6th April, 1987 received in the office of the Detaining Authority on 15th April, 1987 was totally irrelevant for the purpose of making any representation. In para 10 of the said affidavit it had been stated that the detenu was supplied with more documents numbering 150 pages on 24th April, 1987 in pursuance of his representation dated 6th April, 1987, although the same were not relied upon in forming the subjective satisfaction of the Detaining Authority. The Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, New Delhi in paras 3 and 4 of his affidavit stated as under: "3 . That I was aware that no separate statement had been recorded by the Custom authorities and as such there was no question of suppressing the same. The result of the seizure was also placed before me as given in the panchanama which were placed before me. That although all the documents seized from the premises of the petitioner were before me but, I had not relied on all of those documents in forming my subjective satisfaction. I have relied only on those documents which 806 are mentioned to be relied in the list of documents annexed with the grounds of detention. " The learned Judge of the Delhi High Court while dismissing the writ petition observed that in view of the affidavit filed by the Detaining Authority, the respondent No. 2, that all the documents seized though placed before him, he did not rely on all of them in forming his subjective satisfaction in making the order of detention and as such the non supply of those documents to the petitioner along with the grounds of detention, cannot be said to amount to infringement of the provisions of Article 22(5) of the Constitution rendering the order of detention illegal and bad. Mr. Soli J. Sorabji, learned counsel appearing on behalf of the detenu has submitted with much vehemence that non supply of the vital documents which were considered by the Detaining Authority in forming his subjective satisfaction violates the provisions of Article 22(5) of the Constitution as the appellant was prevented from making effective representation to the grounds of detention. It has been submitted by the learned counsel that those documents which comprised of the 3 bank passbooks of the appellant and his wife and one driving licence of the appellant which had been seized and taken possession of by the Customs Department will clearly show that the residential address of the appellant mentioned therein is the house in Dahiwali Gali, Karola Market, Naya Laxman Mandir, Bharatpur and not in Purana Laxman Mandir, opp. Dr. Ram Kumar, Bharatpur which house does not belong to the appellant but to his sister in law. The foreign currency i.e. US $ as well as the primary gold which were found out on search from the house in Purana Laxman Mandir cannot be connected with the appellant as he had specifically stated in his representation that he is not the owner of the said house. It has also been submitted in this connection that in spite of the specific objection taken by the appellant in his representation, no attempt was made on behalf of the Detaining Authority to ascertain who is the owner of the said house. The non supply of the said documents had greatly handicapped the appellant in making an effective representation against the rounds of detention served on him. This submission of the learned counsel was tried to be repelled by the Additional Solicitor General by contending that in view of the affidavit filed by the Detaining Authority, Shri Tarun Roy, Joint Secretary to the Government of India, Department of Revenue, Ministry of Finance, that he did not consider those documents though the same 807 were placed before him in forming his subjective satisfaction in making the order of detention and so non supply of those documents along with the grounds of detention to the appellant did not vitiate the order of detention. It was also submitted that the appellant and his relation, Manoj Kumar were present at the time of the search and the appelLant subsequently fled away go to show that the house in Purana Laxman Mandir from where the foreign currency and primary gold were recovered belonged to the appellant. After considering the submission, it is crystal clear that the aforesaid documents though placed before the detaining Authority for his consideration were not supplied to the appellant within 15 days from the date of the order of detention as provided under Section 3(3) of the said Act. It is also evident from the affidavit of Shri S.K. Chaudhary, Under Secretary, Ministry of Finance, Department of Revenue, New Delhi that on the request of the appellant by his representation dated 6th April, 1987, the documents were supplied to him on 24th April, 1987. The representation of the appellant was disposed of by the Advisory Board on 29th April, 1987. In these circumstances, it cannot be denied that the failure on the part of the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the grounds of detention and as such the mandatory provisions of Article 22(5) have not been complied with. The order of detention in our considered opinion, is therefore, illegal and bad and the same is liable to be quashed. As the appeal succeeds on this ground alone we do not deem it necessary to consider the other objections raised against the order of detention. It is pertinent to refer here to the decision of this Court in Smt. Icchu Devi Choraria vs Union of India and ors. ; , wherein it has been held that the right to be supplied the copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. It has been further held that it is necessary for the valid continuance of detention that subject to Article 22(6) copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to he recorded in writing, 808 not later than fifteen days from the date of detention. There are no exceptions or qualifications provided to this rule and if this requirement of Article 22(S) read with Section 3(3) of COFEPOSA Act is not satisfied, the continued detention of the detenu would be illegal and void. Similar observations have been made in the case of Kamla Kanahiyalal Khushalani vs State of Maharashtra and Another, ; For the reasons aforesaid, we allow the appeal and set aside the judgment and order of the High Court and quash the order of detention. We direct the Government to release the appellant from jail forthwith. There will be no order as to costs. N.V.K. Appeal allowed.

% The appellant was arrested and detained on 21st March, 1987 pursuant to an order of detention made under section 3(1) of the . He was served with the grounds of detention by the Detaining Authority. In the grounds it was stated that the appellant had been indulging in illegal sale and purchase of foreign currency, and also in the sale and purchase of gold of foreign origin on a large scale, and that in three premises connected with the appellant search was carried out on 10th December, 1986 under section 33 of the Foreign Exchange Regulation Act, 1973. On 6th April, 1987 the appellant made two representations; one to the Detaining Authority the second respondent, and another to the Central Government the first respondent. In these representations the appellant stated that he had no concern whatsoever as regards the premises where search was carried out, and US $ and primary gold were recovered as the said premises did not belong to him but belonged to his sister in law, and that if the relevant documents on the basis of which the detaining authority came to its subjective satisfaction are not given it would not be possible to make any effective representation. On 2nd April, 1987 the appellant also made a representation before the Advisory Board. The appellant was produced before the Advisory Board on 29th April, 1987 and the Board heard the appellant in respect of his representation. Me received a communication dated 7th May, 1987 from 801 respondent No. l stating that his detention had been confirmed with effect from 21st March, 1987 for a period of one year. The appellant challenged the order of detention in a writ petition and also prayed for quashing of the said order. It was contended on his behalf: (1) that the grounds of detention were supplied on 21st March, 1987 whereas the vital documents were supplied as late as on 24th April, 1987 and that this was a clear infringement of the provisions of section 3(3) of the COFEPOSA Act. (2) That the appellant could not make an effective representation against the order of detention in accordance with the mandatory provisions of Article 22(5) of the Constitution of India. The order of detention was also challenged on the ground: that the order of confirmation of detention did not give any indication as to why the Government had specified or determined the maximum period of detention of one year, that there had been an inordinate delay in considering the representation dated 6th April, 1987, that it was disposed of by the Central Government on 29th April, 1987, and that this delay of 23 days had not been satisfactorily explained. This unusual delay in the disposal of the representation also rendered the order of detention bad. The writ was contested by the first and second respondents by submitting in their counter affidavits that at the time of the search of the premises several personal documents of the detenu like driving licence, his and his wife 's bank passbooks, HUF passbooks, account books were seized from the searched premises, and that in pursuance of his representation dated 6th April, 1987 the detenu was supplied with more documents numbering 150 pages on 24th April, 1987 although the same had not been relied upon in forming the subjective satisfaction of the Detaining Authority. The High Court dismissed the writ petition in view of the affidavit filed by the Detaining Authority Respondent No. 2 that all the documents seized though placed before the detaining authority he did not rely on them in forming his subjective satisfaction in making the order of detention, and as such the non supply of certain documents seized from the premises after search to the detenu along with the grounds of detention cannot be said to amount to an infringement of the provisions of article 22(5) of the Constitution rendering the order of detention illegal and bad. Allowing the Appeal, the Court, 802 ^ HELD: l. It is crystal clear that certain documents though placed before the Detaining Authority for consideration were not sup plied to the appellant within 15 days from the date of the order of detention as provided under section 3(3) of the COFEPOSA Act. It is also evident that on the request of the appellant by his representation made on 6th April, 1987 the documents were supplied to him on 24th April, 1987. The representation of the appellant was disposed of by the Advisory Board on 29th April, 1987. In these circumstances, it cannot be denied that the failure on the part of the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the grounds of his detention, and as such the mandatory provision of article 22(5) had not been complied with. The order of detention is, therefore, illegal and bad and the same is liable to be quashed. [807C E] 2. It is necessary for the valid continuance of the detention that subject to article 22(6) copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention. There are no exceptions or qualifications provided to this rule and if this requirement of article 22(5) read with section 3(3) COFEPOSA Act is not satisfied the continued detention order of detenu would be illegal and void. Appellant directed to be released forthwith. [807G H; 808A B, C] Smt. Icchu Devi Choraria vs Union of India and Ors., ; and Kamla Kanahiyalal Khushalani vs State of Maharashtra and Another, ; referred to.

Special Leave Petition (Civil) No. 11015 of 1986. From the Judgment and Order dated 2.5.86 of the High Court of Punjab & Haryana at Chandigarh in Regular Second Appeal No. 1504 of 1977. R.K. Jain, D.S. Mehra and Ms. Abha Jain for the Petitioners. Ram and Hari Chand are sons of one Kesaria. The suit land be longed jointly to Respondents 5 to 7. They sold it to Re spondents 1 to 4Nathi Mal Kejriwal, Radhey Shayam Kejriwal, Smt. Daropdi Devi and Nagar Mal Kejriwal, who were strangers to their family for a consideration of Rs.33,000 under a sale deed registered on 25.10.1971. The petitioners, who claimed themselves to be the sons and nephews of the ven dors, instituted a suit in Civil Suit No. 466 of 1972 on the file of the Sub Judge, 1st Class, Palwal for possession of the suit land on payment of Rs.33,000 claiming that they were entitled to the right of pre emption in respect of the suit land either under clause 'First ' or 'Secondly ' of Section 15(1)(a) of the Punjab Pre emption Act, 1913 (here inafter referred to as 'the Act ') as in force in the State of Haryana or under clause 'First ' or 'Secondly ' of Section 15(1)(b) of the Act. The learned Sub Judge upheld the plea of the petitioners and decreed the suit for possession of the suit land against Respondents 1 to 4 who had purchased the suit land as well as against Respondents 5 to 7 who had sold it subject to the petitioners paying a sum of Rs.36,642 ' which included the consideration of Rs.33,000 and interest thereon at 8 per cent per annum. The learned Sub Judge further directed the petitioners to deposit the sum of Rs.36,642 minus the zare punjam amount on or before 3rd May, 1976 and that on their failure to deposit the said amount, he directed that the suit should be deemed to have been 70 dismissed with costs. Aggrieved by the judgment of the learned SubJudge, Respondents 1 to 4 filed an appeal before the District Judge, Gurgaon in Civil Appeal No. 69 of 1976. The appeal was dismissed. Against the judgment of the learned District Judge, Respondents 1 to 4 filed a second appeal before the High Court of Punjab and Haryana in Regu lar Second Appeal No. 1504 of 1977. That second appeal was taken up for hearing on 2nd May, 1986. By that time this Court had delivered its judgment in Atam Prakash vs State of Haryana and Others, ; declaring clauses 'First ', 'Secondly ' and 'Thirdly ' of Section 15(1)(a), clauses 'First ', 'Secondly ' and 'Thirdly ' of Section 15(1)(b), clauses 'First, 'Secondly ' and 'Thirdly ' of Sec tion 15(1)(c) and the whole of Section 15(2) of the Act as ultra vires the Constitution. Following the said decision the High Court allowed the second appeal and dismissed the suit since the provisions under which the petitioners claimed the right of pre emption had been declared void by this Court. This petition is filed praying for special leave to prefer an appeal against the judgment of the High Court in the second appeal. At the hearing of this Special Leave Petition the learned counsel for the petitioners contended that even though the petitioners were not able to claim the right of pre emption under clauses 'First ', and 'Secondly ' of Section 15(1)(a) or clauses 'First ' and 'Secondly ' of Section 15(1)(b) by reason of the decision in the Atam Prakash 's case (supra) they were entitled to claim the right of pre emption under clause 'Fourthly ' in Section 15(1)(b) of the Act. Section 15(1)(b) reads thus: "15. Persons in whom right of pre emption vests in respect of sales of agricultural land and village immovable property (1)The right of pre emption in respect of agricultural land and village immovable property shah vest ( a ) . . . . . . . . (b) where the sale is of a share out of joint land or property and is not made by all the co sharers jointly First, in the sons or daughters or sons or daughters ' sons of the vendor or vendors; Secondly, in the brothers or brother 's sons of the vendor or vendors; 71 Thirdly, in the father 's brother or father 's brother 's sons of the vendor or vendors; Fourthly, in the other co sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof; . . . . . . . . . . " It is argued by the learned counsel for the petitioners that since the suit land belonged to the joint family and it had not been sold by all the co sharers they were entitled to claim the right of pre emption under clause 'Fourthly ' of Section 15(1)(b) of the Act because they happened to be the non alienating co sharers Although there is no specific finding that the property is the joint property in this case, we shall assume for purposes of this judgment that the suit land was joint property. In order to understand the meaning of the ' words 'other co sharers ' in Section 15(1)(b) we have to read of the Act as it stood before the decision in Atam Prakash 's case (supra). It is seen that the expres sion 'other co sharers ' in clause 'Fourthly ' of Section 15(1)(b) of the Act refers to only those co sharers who do not fall under clause 'First ' or 'Secondly ' or 'Thirdly ' of Section 15(1)(b) of the Act. Since the petitioners admitted ly fall either under clause 'First ' or under clause 'Second ly ' of Section 15(1)(b) of the Act they are clearly outside the scope of clause 'Fourthly '. Therefore, the petitioners cannot claim the right of pre emption under clause 'Fourth ly '. We do not, therefore, find any substance in this con tention which was urged for the first time before the High Court The suit was, therefore, rightly dismissed by the High Court holding that the petitioners were no longer entitled to any relief under the Act. This petition, there fore, fails and it is dismissed. M.L.A. Petition dis missed.

A State Roadways bus met with an accident resulting in the death of three persons. On an application being filed on behalf of one of the persons, the Motor Accident Claims Tribunal awarded a compensation of Rs.93,600 to the widow and the minor children of the deceased, with interest at 6 per cent per annum. The claimants as well as the State appealed to the High Court, which dismissed the claimants ' appeal, and partly allowed the appeal by the State. While holding that the accident was caused by the rash and negligent act of the driver of the bus, the High Court reduced the compensation to Rs.79,200 but confirmed the award of interest made by the Tribunal. In the special leave petition it was contended for the petitioners claimants that they were entitled to an even greater amount of compensation on account of the different sources of income arising to the deceased. Disposing of the special leave pention, the Court, ^ HELD: The High Court erred in reducing the quantum of compensation awarded by the Tribunal. There was sufficient material on the record to justify the quantification determined by the Tribunal and there was no reason why the amount should have been reduced. The amount of compensation assessed by the Tribunal should, therefore, be maintained. [1097B D] The petitioners are entitled to interest at 12 per cent per annum 1096 from the date of the application for compensation to the date of payment. [1097] Narchinva V Kamat & Anr. vs Alfredo Antonio Doe Martins & Ors., ; and Smt. Chameli Wati & Anr. vs Municipal Corporation of Delhi & Ors., , referred to.

Civil Appeal No. 504 of 1961. Appeal by special leave from the judgment and order dated October 17, 1959, of the Bombay High Court at Nagpur in Special Civil Application No, 59 of 1959. M. C. Setalvad, Attorney General for India, F. J. Mohrir, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant, B. A. Masodkar Bishambar Lal and Ganpat Rai, for the respondent No. 3. 652 1962. August 21. The Judgment of the Court was delivered by DAS GUPTA, J. This appeal by special leave is.against an order of the High Court of Bombay at Nagpur rejecting an application made by this appellant under articles 226 and 227 of the Constitution for quashing an order made by the State Industrial Court, Nagpur, in the matter of dismissal by the appellant of its employee, Kundlik Tulsiram Bhosle. Kundik Tulairam Bhosle, who is the third respondent before us, was engaged as a temporary Motor driver in the service of the appellant. He was appointed on December 22, 1954, and it was expressly mentioned in the letter of appointment that until such time as he was confirmed by an order in writing his services were liable to be terminated at any time without notice or compensation and without assigning any reason. It was also stated that his case would be considered for confirmation one year after the date of appointment, 'provided a suitable permanent post fell vacant and his work was found satisfactory. By an order dated December 19, 1955, he was dismissed from service from December 20, 1955. It appears that before this step was taken by the management, Kundlik had been served with a charge sheet that on November 14, when he was in charge of a Bus as a driver he allowed Conductor Vyankati to carry five passengers without ticket and also allowed an unauthorized driver Sheikh Akbar to drive the Bus. The charge sheet was served on Kundlik on November 9,and on November 19, he submitted an explantion. 'According to the management an enquiry was thereafter held by the Depot Manager and the charges were found established. Accordingly he was dismissed. Kundlik, the employee made an application under s,16 of the C. P. & Berar Industrial Disputes Settlement Act, 1947, before the Labour Commissioner, Madhya Pradesh, Nagpur, alleging that his dismissal had not 653 been preceded by an enquiry, that he had been illegally dismissed and praying for reinstatement The appellant pleaded in its written statement that an enquiry had been properly held and that ,the order of dismissal was legally made. The Assistant Labour Commissioner, who has the powers of the Labour Commissioner, under s.16, dealt with the application. He was of opinion that there were "sufficient grounds to doubt whether an enquiry was really made by the Non.;applicant Management and if at all one was held, whether the applicant as an accused person, had the chance to put questions to the witnesses who deposed against him. " On the basis of the evidence adduced before him the Assistant Labour Commissioner came to the conclusion that the employee could, not be held guilty of the charge of allowing an unauthorised person to drive the vehicle as Sheikh Akbar was a fully licensed driver of the Company but that his guilt on the other charge that he carried five passengers without tickets was fully established. Accordingly he dismissed the applications. Against this order the employee moved the State Industrial Court, Nagpur. That Court felt that it would not be justified in interfering with the findings of the Labour Commissioner that no enquiry had been held by the Management and that the Assistant Labour Commissioner had no juris diction to hold an enquiry. In this view. the Court set aside the order of the Labour Commissioner and made an order directing reinstatement of the employee with back wages. It was against this order that the employer moved the High Court of Bombay on the ground that the Assistant Labour Commissioner and the State Industrial Court had erred in thinking that no enquiry had been held by the management and 654 that the said Industrial Court was also wrong in thinking that the Assistant Labour Commissioner had no jurisdiction to hold an enquiry himself. The High Court was of opinion that it could not exercise its powers under articles 226. and 227 of the Constitution to interfere with the finding of the Assistant Labour Commissioner and the Revisional Court that no enquiry had been held. Proceeding on that basis the High Court also agreed with the Industrial Court that the Assistant Labour Commissioner had no jurisdiction to hold the enquiry him self. The High Court concluded that there was no error in the decision of the Industrial Court and so refused the application. Three points have been urged on behalf of the appellant. The first is that it was not necessary in law to hold an enquiry before dismissing the employee in view of the terms of his employment and so in exercising jurisdiction under s 16 of the C. P. & Berar Industrial Disputes Settlement Act, the Industrial Court was not justified in interfering with the order of dismissal. Secondly, it was urged that in any case, if it be held that an enquiry by the management was necessary in law it should be proper to hold that the Assistant Labour Commissioner had jurisdiction to hold enquiry himself. Thirdly, it was urged that the view taken by the Assistant Labour Commissioner that no enquiry had been held was perverse and the High Court ought to have set aside that finding and given relief on the basis that an enquiry had been properly held. For a proper understanding of the first contention raised it is necessary to remember briefly the scheme of, the jurisdiction conferred by s.16. Section 16(1) authorises the State Government to make a reference to the ' Labour Commissioner in 655 disputes touching, inter alia, the dismissal of an employee. Section 16 (2) provides that if the Labour Commissioner finds "after such enquiry as may be prescribed" that the dismissal was "in contravention of any of the provisions of this Act or in contravention of the Standing orders made or sanctioned under the Act," he may give certain reliefs to the employee. According to the employee the order of dismissal was in contravention of the provisions of s.31 of the Act. That section provides inter alia that if any employer intends to effect a change in respect of any indus trial matter mentioned in Schedule 2 he shall, give 14 days ' notice of such intention in the prescribed form to the representative of the employees. Among the industrial matters mentioned in Schedule 2 is included 'dismissal of any employee except in accordance with law or ad provided for in the Standing Orders settled under s.30 of this Act. " Admittedly, the appellant concern had no standing order on the matter of dismissal. The question is whether the dismissal of the employee without an enquiry was "in accordance with law". If it is not, the Labour Commissioner would have jurisdiction. If the dismissal without such an enquiry be in accordance with law the Labour Commissioner would have no jurisdiction to interfere with the order of dismissal made by the management. The learned Attorney General argues that a dismissal made in accordance with the ordinary law of contract as between Master and Servant must be held to be "in accordance with law" within the meaning of this Schedule, and the fact that any industrial law as evolved by the courts in industrial adjudication under the Industrial Disputes Act should not colour our consideration of the matter. As at present advised, we are unable to see why the word ,law" in this phrase "in accordance with law" as used in Schedule 2 should be given a 656 restricted connotation so as to leave out industrial law as evolved by the courts. In dealing with industrial disputes under the Industrial Disputes Act and other similar legislation, Industrial Tribunals, Labour Courts, Appellate Tribunals and finally this Court have by a series of decisions laid down the law that even though under contract law, pure and simple, an employee may by liable to dismissal, without anything more, industrial adjudication would set aside the order of dismissal and direct reinstatement of the workman where dismissal was made without proper and fair enquiry by the management or where even if such enquiry had been held the decision on of the Enquring Officer Was perverse or the action of the management was mala fide or amounted to unfair labour practice or victimisation, subject to this that even where no enquiry had been held or the enquiry had not been properly held the employer would have an opportunity of establishing its case for the dismissal of the workman by adducing evidence before an Industrial Tribunal. It seems to us reasonable to think that all this body of law was well known to those who were responsible for enacting the C. P. & Berar Industrial Disputes Settlement Act, 1947, and that when they used the word "in accordance with law" in cl.3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workman ordered. If the word "law" in Sch.2 include not only enacted or statutory law but also common law it is difficult to see why it would not include industrial law as it has been evolved by industrial decisions. We are therefore primafacie indeed to think that the first contention raised by the learned Attorney General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted. At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself. This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour Commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court. We are aware of the view taken by the Bombay High Court in Prov. Transp. Services vs Assist. Commr. (1) and Maroti vs Member, State Industrial Court (2) that the ', 'Law" in the phrase "in accordance. with law" in Schedule 2 does not include Industrial law. For the reasons mentioned above, we are inclined to think, with respect, that this view is not correct. We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed. As has already been stated the employee 's case was that no enquiry had been held by the management. This was denied by the management and it was alleged that an enquiry had been held. The management produced before the Assistant Labour Commissioner papers showing the evidence that was claimed to have ' been recorded during such enquiry. According to this record, three persons were examined during the enquiry the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati. At the bottom of (1) IX Bombay Law Reporter. (2) IX Bombay Law Reporter, 1422. 658 this, paper there is Kundalik 's signature and also Vyankati 's signature. The employee 's case was that his signature had been obtained on a blank paper and the document was then written up. In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik. The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper. He was however impressed by the fact that signature of Kandalik and Vyankati only were obtained and the Enquiring Officer 's signature doei not appear on the paper While it would certainly have been better if the Enquiring Officer had also, put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry. The conclusion of the Assistant Labour Commissioner that "there are sufficient ground to doubt whether an enquiry was really made" must therefore be held to be perverse. It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in law and acting judicially could have reached the particular decision the Court may proceed on the assumption that mis conception of law has been responsible for the wrong decision. The decision of the Assistant Labour Commissioner that no enquiry had been, held by the management amounts therefore, in our opinion, to a clear error in law. The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that was proper and reasonable for the High Court to correct that error. 659 On behalf of the respondent it was sought to be argued,that even if an enquiry had been held it has not been shown that the employee bad an opportunity of cross examining. witnesses or adducing evidence of his own. It is not open however for the learned Counsel to raise the question in view of the fact that the employee did not ever make any such case himself. His case, as already statated, was that no enquiry had been held at all. No alternative case that the enquiry held was improper because he had not been allowed to crossexamine witnesses or to adduce evidence was made by him. It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to crosts examine witnesses and was denied an opportunity to do so. It is not open to him therefore to raise this question for the first time before us. We have accordingly come to the conclusion that the High Court ought to have held that there was a proper enquiry held against this employee and the management dismissed him on finding on that enquiry that the two charges against him had been fully proved, and that there was no reason to think that the management acted mala fide. The appellant was therefore entitled to an order for setting aside the order of the Industrial Court. Accordingly, we allow the appeal, set aside the order of the High Court and order that the appellant 's application under articles 226 and 227 of the Constitution be allowed and the order of the State Industrial Court be set aside and the order of the Assistant Labour Commissioner dismission the employee 's application be restored. There will be no order as to costs. Appeal allowed.

The appellant employed as a temporary motor driver On the express condition that until such time as he was confirmed his services were liable to be terminated without notice or compensation and without assigning any reason. Sometime afterwards, the appellant served a charge sheet upon K and after holding an enquiry dismissed him. K made an application before the Labour Commissioner under section 16 C. P. for reinstatement alleging that the dismissal was illegal as it was not preceded by an enquiry. The Labour Commissioner was doubtful whether any enquiry was held by the appellant but on the basis of evidence adduced before him he held the charges proved and accordingly dismissed the application. On appeal, the Industrial Court held that the Labour Commissioner had no jurisdiction to hold the enquiry and made an order directing reinstatement of K with 651 back wages. Thereupon, the appellant filed a writ petition before the High Court for quashing the order of the Indus trial Court but the High Court dismissed the application. The appellant contended (i) that in view of the terms of em ployment the appellant could dismiss K without holding an enquiry, (ii) that the Labour Commissioner had jurisdiction to ' hold the equiry and (iii) that the finding of the Labour Commissioner that no enquiry had been held by the appellant was perverse and the High Court should have intervened, Held, that the finding that no enquiry had been held by the appellant before dismissing K was perverse and the appellant was entitled to a writ quashing the order of the Industrial Court and restoring that of the Labour Commissioner. The appellant had produced before the Labour Commissioner the evidence recorded at the enquiry which consisted of the statement of K himself signed by him and the statements of two conductors. The explanation of K that he had been made to sign on a blank paper was unacceptable. The finding of the Labour Commissioner amounted to a clear error of law, the industrial Court erred in thinking that it was bound by this finding and this error on its part was so apparent on the face of the record that it was proper and reasonable for the High Court to correct the error. Semble, Inspite of the terms of employment the appellant could not dismiss k without holding an enquiry and that even if the appellant had failed to hold the enquiry it was open to the Labour Commissioner to hold one.

No. 42 of 1960. Under Article 32 of the Constitution of India for the enforcement of fundamental rights. G.S. Pathak, A.P. Chatterji, E. Udayarathnam, Durgabhai Deshmukh, B. Dutta and S.S. Shukla, for the petitioners and the intervener. 47 Ranadeb Chaudhuri, S.P. Varma and P.K. Bose, for respondents Nos. 1 and 2. C.K. Daphtary, Solicitor General, S.N. Ghorai, S.N. Andley and Rameshwar Nath, For respondent No. 3. N.C. Chattejee, S.N. Ghorai, S.N. Andley and Rameshwar Nath, for respondent No. 4. October 7, 1963. The Judgment of the Court was delivered by SINHA C.J. This petition under article 32 of the Constitution arises out of the unfortunate difference which has a long history behind it, between two sections of the Calcutta High Court Bar. The four petitioners in the petition, as originally presented, are advocates duly enrolled in the Calcutta High Court (to be hereinafter referred to as the Court) between the years 1948 and 1952, and claim to be entitled to appear and plead in the said High Court in the exercise of its Original as well as Appellate jurisdictions. The respondents are; (1) the State of West Bengal, represented by the Chief Secretary, and (2) the Chief Justice of the Court. It appears that the petitioners generally practice the Court in the exercise of its Original jurisdiction. In the year 1956 they were called to the English Bar by the Hon 'ble Society of the Middle Temple in the Michaelmas Term. The petitioners duly notified to the Registrar, Original Side of the Court, to correct the register of advocates practising on the Original side, by adding "Barrister at Law" after their names. Thus, the petitioners who started as advocates of the Court claim to have become entitled to the additional qualification of a "Barrister" though they had not read for a period of 12 months in the chambers of a practising Barrister in England or a practising Barrister in Calcutta, as required by the rules of the Original side of the Court. In other words, according to the rules of the Court, there were three classes of advocates practising in the Court; namely, (1) a Barrister who had read for not less than 48 12 months in the chambers of a practising Barrister in England or in Calcutta; (2) a Barrister who had not so read in the chambers of a Barrister; and (3) any person who had obtained a Bachelor 's degree in Law of a recognised university and had obtained the qualification to practise on the Original side of the Court after passing the necessary tests. The High Court is said to maintain two lists of advocates entitled to appear and plead in the said Court on the Original side, namely, list 1 containing the names of persons enrolled as advocates on the basis of their being Barristers at Law, and list 11 containing the names of other advocates than Barristers at Law. The petitioners claim that inasmuch as they were persons duly qualified to appear and plead in the said Court in the exercise of its Original jurisdiction and were so enrolled as advocates, it was not necessary for them to further read in the chambers to become advocates of list 1, of the Court, according to the classification set out above. A portion of the building of the said Court has been allotted for the use of advocates of the Court. That portion has again been sub divided into two portions; (1) one occupied by the Bar Library Club consisting of advocates. of list 1 aforesaid, and (2) the other in the occupation of the Bar Association which consists of advocates other than advocates of list 1. The petitioners, though they have been able to add the word "Barrister" to their names, have not been admitted to the Bar Library Club, which is rather of an exclusive character. The petitioners thus suffer from a disability, because it is said that litigants and/or solicitors generally prefer to engage an advocate who is a barrister and is a member of the Club. The petitioners ' application for becoming members of the Club was not entertained by it, and, thus, they are being excluded from that portion of the Court building which is in the exclusive occupation of advocates of list 1 aforesaid. The petitioners and another advocate made representations to the Hon 'ble the Chief Justice of the Court for having equal advantage and facilities of accommodation meant for the advocates of the Court, that 49 is to say, for that portion of the building which is in the occupation of the Bar Library Club. In reply to the aforesaid representation, the petitioners were informed by tILe Secretary to the Hon 'ble the Chief Justice that free accommodation had been provided by the Court, in different parts of the Court building, to the different sections of the legal profession, namely, for Barristers, advocates other than Barristers, and attorneys who are entitled to practise in the Court as such, and not for the use of any Club. But it was further pointed out in that communication from the Secretary to the Chief Justice that as the petitioners had not read in the chambers of a Barrister for one year, they were not entitled to the use of the rooms allotted to Barristers of that class. The petitioners made further representations to the Hon 'ble the Chief Justice but without any tangible results. It further appears that a suit had been instituted in the City Civil Court, which was pending in 1960, but was withdrawn Later, with reference to the rights of accommodation similar to that claimed by the petitioners, though they were not parties to that st;it. The petitioners were informed in February, 1960, by the Secretary to Hon 'ble the Chief Justice that the Chief Justice could not do anything in the matter in view of the pending suit. The petitioners ' grievance seems to be contained in paragraphs 36 and 37 of their petition, which is to the following effect: "The exclusive use of a large portion of the said space and the reference to or of the Advocates who are members of the said Club as members of the English Bar and/or reference to them as counsel and to the other Advocates as Advocates has generally given an impression that Advocates who are members of the said Club are superior class of Advocates than the Advocates who are members of the Indian Bar. Since your petitioners are not members of the said Club you, ' petitioners are generally included in the latter category. 1 SCI/64 4 50 Your petitioners state that due to the discrimination exercised and the non availability of equal opportunities to your petitioners as hereinbefore stated your petitioners have been and are being greatly prejudiced in their profession. The provisions made in the rules for original side of the said Court and for Barristers are ultra vires the Indian Bar Council 's Act and/Or amounts to discrimination. " Thus, the gist of the petitioners ' complaint is that they have been denied by the State equality before the law. The petitioners further state that they made demands for justice from the respondents, which they have not yet granted to them; hence the petitioners pray for a writ in the nature of mandamus directing them to allow the petitioners to have the use and benefit of the space in the Court, now occupied by the Bar Library Club, and not to discriminate and/ or differentiate between different sections of the Advocates enrolled in the Court and entitled to practise on the Original side of that Court. This Court, in due course, directed the rule to issue and also granted liberty to the petitioners to apply for impleading the Bar Library Club as a party respondent. In response to the notice, the Registrar of the Court put in an affidavit on behalf and under the direction of the second respondent the Chief Justice of the Court. The affidavit states the relevant facts as follows. Separate accommodation is provided in the High Court building for (1) Barristers who practise as advocates of the Court on being enrolled under the Original side rules of the Court; (2) for Advocates enrolled as such by the High Court and (3) for the Attorneys of the Court for their legal work in the Court. Setting out the history of the privilege of occupation of certain rooms in the Court by the different branches of the legal profession, it is stated that free accommodation in the then Supreme Court building was first provided in the year 1825 51 to the Barristers then practising before the Supreme Court, and that privilege has been continued in the High Court building as well. The Barristers have their association known as the Bar Library Club. The association of the other advocates is known as the Bar Association, and the association of the attorneys is called the Incorporated Law Society. Each of the three branches of the profession looks after the accommodation provided by the Court. The accommodation thus provided by the Court is only for bona fide professional business. The Barristers, Advocates and Attorneys are all licensees in respect of the accommodation provided for them, which is rent free; the cost structural additions or alterations are borne by the Government; only electrical installations are to be set up and maintained by the licensees at their own cost. It was further stated that the legal position in regard to the High Court building is and has always been that it has been placed at the disposal of the Hon 'ble the Chief Justice and the Hon 'ble Judges of the Court for the administration of justice, and that the allocation of accommodation inside the Court building is a matter entirely for the Court, subject of course to the condition that no part of the premises should be allowed to be utilised except for bona fide purposes of the Court 's work. As regards the representation made by the petitioner to the Chief Justice, it is stated that the matter was examined by His Lordship and a minute was recorded, the relevant portion of which is as follows: "But the persons recently called to the English Bar under consolidated regulation No. 43, arc not entitled to practise in this Court as Barristers. Under the Rules of the Court, a Barrister of England or Northern Ireland becomes qualified to practise in this Court as a Barrister Advocate only after reading for twelve months in the Chambers of a Barrister in London or in Calcutta and upon his enrollment as an Advocate thereafter. The Advocates who have recently been called to the English Bar under regulation 43 but who have not read in Chambers for a year 52 and have not been enrolled as Advocates on the completion of such reading, are only entitled to practise in the Court, including the Original Side, on the strength of their being Advocates of the Appellate Side, but they are not entitled to practise in Court as Barristers. Consequently, at the present moment, they are not entitled to use the rooms allotted to Barristers, entitled to practise as such. " It was also stated in the affidavit that further representations were made to the Hon 'ble the Chief Justice, but it was not considered proper by him that any administrative order should be passed on those representations in view of the pendency of a suit, which in the meantime bad been filed in the City Civil Court at Calcutta, being Title Suit No. 339 of 1958 with leave under Order 1 rule 8 of the Code of. Civil Procedure for a declaration that all Advocates are entitled to the use of the rooms in the High Court building now used by the Barristers. It appears that in pursuance of the leave granted by this Court, Shri Dipak Kumar Sen and Shri Mathura Nath Banerjee, joint secretaries of the Bar Library Club of the Court, who were added as respondents 3 and 4, put in an affidavit in answer to the petitioners ' claim, by way of an objection to the maintainability of the Writ Petition. They state that they were not public servants, and, therefore, no writ lay against them or against any other member of the Bar Library Club, or the Bar Library Club itself, for anything done by them. They denied the petitioners ' right to be members of the Club or to use the rooms in the possession. of the Club. It is further stated that the Bar Library Club is "a private proprietary Association of members governed by its own Rules", and that the action of the said members or of the said Club is not amenable to any writ. They add that the Hon 'ble the Chief Justice of the Court was also not amenable to any writ for actions complained of; the Hon 'ble the Chief justice had discharged his administrative duties and his actions were not justici 53 able. Likewise, it was further contended that the 'first respondent, the State of West Bengal, also was similarly not amenable to any writ inasmuch as the said respondent had discharged executive and not judicial functions in allowing certain accommodation in the High Court building to be used by the members of the Bar Library Club. The history of the establishment of the Club is then set out. Dealing with the claim of the petitioners, it is stated that by a resolution of the Bar Library Club, passed on June 14, 1957, and confirmed on February 14, 1958, it was decided by the members of the said Club that Advocates of the Calcutta High Court, called to the, Bar under regulation 43, should not be admitted as members of the Bar Library Club. The statement in the affidavit filed under the directions of the Hon 'ble the Chief Justice, as aforesaid, to the effect that the accommodation was given to Barristers practising in the Calcutta High Court as such was not correct and that the true position was that it was "given to the members of the Bar Library Club". It was claimed that the accommodation given respectively to the three Associations, namely, the Bar Library Club, the Bar Association and the Incorporated Law Society was used and controlled by the said Associations for the benefit of their respective members and persons who were not members of the respective associations could not claim any legal right to use the accommodation provided for that particular association. In answer to the contention that the petitioners had been denied equality before the law, it was asserted that the High Court orders regulating the manner in which the different associations shall be provided accommodation was based on reasonable classification of legal practitioners, and that there was no discrimination. It was also claimed that the Club had complete discretion in he matter of admission of members to it; that no ne had a legal right to claim membership of th Club and that as the petitioners were not members of the Club, they had no legal right to use the accommodation allotted to it And, lastly, it was contended that the petition 54 was bad for non joinder, first, of the Hon 'ble Judges of the High Court, and secondly, of the members of the Bar Library Club, other than those already impleaded, namely, the respondents 3 and 4 aforesaid. On these pleadings and further affidavits filed on behalf of some of the petitioners and some of the respondents, the matter was placed before a Constitution Bench of this Court, presided over by Gajendragadkar J., on April 16, 1962, and the Court made the following order: "Mr. A V. Viswanatha Sastri for the Petitioners wants to raise the larger question about the constitutionality of the allotment of rooms to different sections of the Bar in the Calcutta High Court. We think that it is desirable that the petitioners should move the learned Chief Justice of the Calcutta High Court and place before him their case that the allotment of the rooms offends against article 14 of the Constitution and that the Barristers, who constitute the Bar Library Club, cannot be treated as constituting a branch of the profession by themselves. Since this aspect of the matter was not placed before the learned Chief Justice it is necessary that the petitioners should pray for redress before the learned Chief Justice of the Calcutta High Court in the first instance before moving this Court. The petition, is, therefore, adjourned for three months to enable the petitioners to move the Chief Justice in that behalf. " In pursuance of the order of this Court, set out above, the petitioners made a further representation to the Hon 'ble the Chief Justice of the Court on May 11, 1962, stating that all advocates enrolled in the Court and entitled to appear and plead on the Original side stand on the same footing, without any distinction and/or discrimination, and as such are entitled to the use of the accommodation allotted to and occupied by the Bar Library Club in a portion of the Court building. They also recited the previous 55 history of their representations to the successive Chief Justices of the Court and pointed out that the allotment of separate accommodation for Barristers as such, who cannot practise as such, offended against article 14 of the Constitution. They, therefore, represented to the Hon 'ble the Chief Justice that as advocates of the Court they may be allowed to use the said space occupied by the Bar Library Club and/or its members, and equal rights and privileges for the purpose of carrying on their ' profession may be accorded to them. The Bar Association of the Court separately wrote a letter dated May 22, 1962, representing to the Hon 'ble Chief Justice their grievances in similar terms. To that representation, the Secretary to the Hon 'ble the Chief Justice sent an answer dated June 21, 1962. In that letter it is stated "that his Lordship thinks that it is eminently desirable that the Bar Library Club and the Bar Association should amalgamate, and that the rooms in the High Court buildings allotted to the Bar Library Club and the Bar Association should no longer remain in their exclusive occupation but should be thrown open to all who are members of the two Associations, on terms and conditions to be mutually agreed upon between the two Associations. . and that nothing will give His Lordship greater pleasure than to see the two Associations merge into one and occupying the rooms allotted to them jointly from July 1, when the Centenary celebration of the Calcutta High Court will begin. " A copy of the said letter was also forwarded to the petitioners in answer to their representation to the Chief Justice. Apparently the two wings of the profession, represented by the two organisations aforesaid, could not agree to such terms as were contemplated in the letter aforesaid. The attempt at amalgamation of the two organisations or to come to any agreed terms between them having failed, the Bar Association moved this Court by making an application for intervention by the members of the Bar Association. That application for inter 56 vention, filed in July 1962, was allowed by the Court on September 27, 1962. With the application for intervention the correspondence between the previous Chief Justices and the Association was enclosed. It is noteworthy that the scope of the representation made by the Association is much wider than the grievance sought to be ventilated by the petitioners in their petition to this Court, as will appear from the Following extract from their representation to the Chief Justice: "Accordingly we on behalf oF the Bar Association humbly represent 'that no separate space may be allotted to the said group of Advocates who call themselves Barristers but who practise in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution. We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all Advocates practising in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association. " In answer to the petitioners ' further affidavits and the application for intervention filed and allowed, as aforesaid, an affidavit was filed in this Court on behalf of respondents 3 and 4 to the effect that accommodation in the Court building had been provided for the use of the three groups of lawyers, namely. (1) Banister Advocates who are not entitled to act and do not act either on the Original side or the Appellate side, and plead only; (2) Attorneys who only act on the Original side, and (3) Non Barrister Advocates who both act and plead and who belong to the Bar Association. It is also stated that the space occupied by the Bar Library Club is used exclusively as library and reading room to enable the members of the Club to prepare for the hearing of the cases in which they are engaged; the inner study room of the Club, where silence has to be maintained, is exclusively reserved 57 for members oF the Club for the purposes of study only: in other rooms of the Bar Library Club every member of the legal profession is allowed free access. A very important statement was also made in the affidavit to the effect that in view of the controversy raised recently about admission of non Barrister Advocates as members of the Bar Library Club, the Club by its resolution adopted on 'March 2, 1962, has altered its rules so as to admit non Barrister Advocates also as members. We shall have to say something more later with respect to this. It is further stated that as a result of the amendment aforesaid, of the rules of the Club, there is now no restriction whatever against any member of the legal profession, not being an Attorney, becoming a member of the Club, irrespective of whether or not he is a Barrister, provided that he confines his practice to pleading only. In pursuance of this amendment, it was further stated that three Advocates who were not Barristers had been recently admitted as members of the Club and that more such applications have been received for admission as members. And, finally, it is said that the Attorneys who only act on the Original side have been given two rooms in the Court building for their occupation, the Bar Library Club whose membership is confined only to those advocates who only plead but do not act has been allotted four rooms, and the Bar Association whose members are entitled both to act and to plead have been allotted six rooms in the premises of the Court. Besides those statements in their affidavit, in answer, the respondents 3 and 4 have also raised several points in answer to the petition, as originally made, as also in the intervention petition. It is contended that the original petitioners or the members of the Bar Association have no fundamental rights which they can enforce by a writ under article 32 of the Constitution, and that, therefore, they have no cause of action. It is also pointed out that the case tried to be made out by the original petitioners and that 58 made out in the petition for intervention are inconsistent inasmuch as the former claim to be admitted to the use and occupation of the accommodation allotted to the Bar Library Club in preference to the space occupied by the Bar Association whereas the interveners represented to Hon 'ble the Chief Justice that there should be no preferential accommodation given to the Club and that both the wings should become one. It is also contended that all the wings of the profession being mere licensees of the Court in respect of the accommodation allotted respectively to them, none of the Associations can claim any legal or fundamental rights. It is also suggested that the allotment of three separate portions of the Court premises, as aforesaid, can be justified on the ground of reasonable classification, having regard to the nature of business transacted by them in the discharge of their respective duties. It would thus appear that the condition now prevailing at the Bar of the Calcutta High Court vis a vis the different sections is the result of a historical process which began about two hundred years ago, soon after the grant of the Diwani to the East India Company in 1765. When the Supreme Court was established in Calcutta, most of the work was in the hands of English Barristers so far as pleading was concerned, and so far as acting was concerned it was in the hands of attorneys or firms of Attorneys, again mostly British. Even before the establishment of the Calcutta High Court in 1862, the Bar Library Club had come into existence in 1825 and the Court had granted the members of the English Bar accommodation within the Court precincts. After the establishment of the High Court, this arrangement continued and the three sections of the Bar which came to function in the High Court were allotted separate accommodation. The Bar Library Club continued to have its separate accommodation from that allotted to the Vakils, as they were called until the passing of the Indian Bar Councils Act (XXXVIII of 1926). It was again the result of British rule in India, which 59 introduced their own legal system in this country, that the member of the English Bar who practised in the High Court on the original side, or even on the appellate side, continued to enjoy higher status in the matter of seniority, so much so that a Vakil on the appellate side of the High Court of even 50 years ' standing would be junior to a Barrister with even one year 's standing. This naturally led to the agitation for a unified bar with equal rights of audience, according to seniority in standing, irrespective of whether he was a Barrister from England or was a Vakil with a law degree from one of the recognised universities in India. The result was the Indian Bar Councils Act, (XXXVIII of 1926). So far as practice on the original side of the Court was concerned, much depended on the goodwill of the Attorneys or firms of Attorneys, who in course of time ceased to be entirely British in character. Thus, we have now most of the members of the English Bar who are Indians, and so are the Attorneys. Much of the differences, between an Advocate who was not a Barrister and an Advocate who was a Barrister, and much of the disabilities of the former class in the way of appearance on the original side, have disappeared as a result of the Indian Bar Council Act, 1926, and the Advocates Act (XXV of 1961) which have the benefit of unifying the Bar of India. In spite of that, vested interests die hard, and this litigation is a result of the conflict between vested interests viz. those who wish to join that group of vested interests, and those who wish to abolish those interests. The petition, as filed in this Court originally, was based on the grievance that in spite of the fact that those advocates had been called to the English Bar they were not being admitted to the Bar Library Club, and represented an attempt to be admitted to those exclusive rights which were enjoyed by the members of the Club. On the other hand, the members of the Bar Association, who have intervened later in this controversy in this Court, have attempted to abolish the exclusiveness and to claim those rights for every one who is entitled to be called an Advocate. 60 Successive Chief Justices of the Court, beginning from late Sir Trevor Harris have sympathized with the attempt of the Advocates of all classes to get unified into one organisation on an equal footing, but they rightly pointed out that the desired result could be achieved only by mutual agreement amongst the two sections of Advocates. The present Chief Justice reiterated in his letter of June 21, 1962, that the Court would be very pleased to see that the two Associations merge into one and occupy the rooms allotted to them jointly with effect from July 1, 1962, which was the date originally fixed for ' the Centenary celebrations of the Court. The occassion was quite an appropriate one for the consummation of the desired unification of the entire Bar of the Court. But circumstances did not prove propitious to such a desirable result. It only shows that we cannot completely wipe out the past and that much of ' the legal system introduced during the British regime must continue for the better or for the worse. The situation has not been rendered less complex by the continued existence of the third wing of the profession, the Attorneys. Though opinion has been sharply divided as to the desirability of the continuance of this old institution imported from England, the fact remains that a large section of litigants on the Original side of the Court continues to employ the services of that class, and those who have been cultivating the good will of that class naturally have the advantage on their side. We have, therefore, to take full notice of the fact that there are two sections of Advocates practising at the Bar of the Court, besides the Attorneys, namely, the members of the Bar Library Club who only plead but do not act, and, secondly the members of the Bar Association who not only plead but act also, though there may be many who only plead but do not act. And then there are the Attorneys who only act. It is entirely the lookout of the litigants, through their attorneys, to engage as their advocates, only for pleading, such members of the Bar as they 61 choose. It is not entirely correct to assert that membership of the Club is a determining factor in being chosen to plead a case. Litigants are naturally interested in the best results in their litigation and must be presumed to act in the best interests of their cause. And, therefore, what has happened in the Bombay High Court during the last 50 years and more, may also happen in the Court, if the Bar Association is able to throw up advocates of the right caliber. Viewing the whole case from the point of view of the litigant public and the practising lawyers themselves, we think that the best interests of the Court will be served, and we are only interested in the best interest of the Court itself, by recognising the necessity for the three categories of legal practitioners in the Court, namely, (1) those who only plead, (2) those who both plead and act, and (3) those who only act. With that end in view, and at the instance of the Court, the members of the Bar Library Club recognised the need for amending their rules so as to admit such advocates as would only plead irrespective of the question whether or not they were Barristers. Accordingly, they intimated to the Court that they had made necessary amendments in their rules. 'the principal amendment is in rule 1, which is to this effect: "1. Rule (1) shall be deleted and the following shall be substituted in its place: 1. The Bar Library Club shall consist of: (a) Barristers of England or Ireland, or members of the Faculty of Advocates in Scotland after passing the examination or examinations prescribed by the authorities in England or Ireland or Scotland, as the case may be, who arc enrolled Advocates of the Calcutta High Court: (b) Other Advocates of the Calcutta High Court, who are entitled to practise on the Original side of the Calcutta High 62 Court under the rules lot the time being as the Committee of the Club may from time to time determine as hereinafter referred to." In Rule 25, the following consequential changes had been made: "In rule 25 after the words 'purposes of the Club ' add the words: " 'and determine from time to time having regard the accommodation in the club the number of the Advocates mentioned in Rule 1 (b) herein to be admitted as members of the Club '. " It was pointed out on behalf of the petitioners and the interveners that the Club has, even by amending rule 1 read with additions to rule 25, quoted above, reserved to itself the right to limit the membership. The learned Solicitor General, on behalf of the Bar Library Club, very appropriately intimated to us that the additions to rule 25, objected to on behalf of the petitioners, shall be withdrawn so that the petitioners may be assured that there will be no discrimination exercised in the matter of admission and that any application for admission shall be dealt with on its merits. Of course, only those Advocates who undertake not to act shall be eligible for admission as members of the Club. This arrangement, agreed to by the respondents 3 and 4 representing their Club, is a great improvement upon the position as it was when this Court was moved, and we are satisfied that nothing better could have been achieved as a result of these proceedings. It will be noticed that we have not dealt with this case in the legalistic way in which it was sought to be presented on either side. We have been chiefly guided by considerations of 'public good ', that is to say, that the Court should be assured of efficient and willing assistance from the Bar. It is only to be hoped that this forward step is a precursor of further improvements in the relations between the 63 different sections of the Bar so that they may grow into a unified bar with all the best traditions which it has inherited from the past and which it is its duty to uphold in the years to come to the lasting credit of the legal profession and to the lasting benefit of all concerned with law and litigation. In view of what we have said, the final position which emerges is this. There are three sections of the Bar in the Court, viz., (1) those who only plead, (2) those who both plead and act and (3) those who only act. This classification in our opinion is reasonable taking into account the past history to which we have already referred. Grant of separate accommodation therefore to these three sections of the Bar cannot amount to denial of equality before the law. The Bar Library Club has already agreed before us to change its rules so that the Club conforms exactly to the first section;and admission to it will be governed by rules which are common to all lawyers who want only to plead;there is therefore no reason to interfere with accommodation provided by the Court to the three sections of the Bar. We have also no doubt that the Chief Justice will see that the undertaking given by the Bar Library Club will be carried out. We may add that in case the undertaking is not carried out, the Chief Justice will see that necessary and appropriate rules are framed which will carry out the purpose for which the accommodation is placed at the disposal of the three sections of the Bar and the same are implemented so that there is no denial of equality before the law and accommodation is used for the three sections we have indicated above. In this view of the matter, the petition fails and is hereby dismissed. We leave the parties to bear their own costs. Petition dismissed.

Proceedings under section 491 of the Code of Criminal Procedure and article 226 of the Constitution of India were started by one Mahesh for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant, her father and for delivery of the said Kaniz Fatima to him. On August 26, 1960, the High Court passed an order by which the objections of the appellant were overruled and he was directed to bring before the Court Kaniz Fatima alleged to be held in unlawful confinement. The appellant was given ten days time to obey the direction. As the direction was not complied with and Kaniz Fatima was not produced in Court 87 the High Court passed another order on September 16, 1960 by which the appellant was committed for contempt and sentenced to simple imprisonment for three months and to pay the costs. The appellant came to this Court by special leave against the orders of the High Court. Held: The order of the High Court committing the appellant for contempt was justified because the High Court rightly reached the conclusion that the appellant having knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court. In so far as the offence of contempt was concerned, there was manifest disobedience of the order and the High Court could punish by ordering the appellant to be detained in prison. (ii) A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent. Hence the order of the High Court was not without jurisdiction. However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law. In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used. There is also the remedy of a civil suit for restitution of conjugal rights. In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a a clear case. That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ. A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course. Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman. Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place. (iii) The writ nisi for the production of Kaniz Fatima should have been preceded by some more inquiry. It is wrong to think that in habeas corpus proceedings the Court is prohibited from ordering an inquiry into a fact. All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received if the court requires it. The Queen vs Barnardo, ; The Queen vs Barnardo, and Thomas, John Barnardo v, Mary Ford, , referred to. 88

Civil Appeals Nos. 56 & 57 of 1954. Appeal from the judgment and order dated the 25th day v of March 1951 of the Madras High Court in Case Referred Nos. 32 of 1948 and 31 of 1950. K.S. Krishnaswami Iyengar, (K. R. Choudhry, with him) for the appellants. G.N. Joshi and P. G. Gokhale, for, the respondent. May 9. The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The appellant is a firm which was constituted under a deed of partnership dated 10 2 1941, and consists of two partners, Subba Rao and Hariprasada Rao. On 21 3 1942 it was registered under section 26 A of the Indian IncomeTax Act No. XI of 1922, hereinafter referred to as the Act, for the assessment year 1942. Sometime thereafter, one of the partners, Subba Rao, is stated to have left on a long pilgrimage, and the affairs of the partnership were then managed by Hariprasada Rao as his agent under a general power of attorney dated 1 7 1940. Hariprasada Rao then applied under rules 2 and 6 of the rules framed under section 59 of the Act, for renewal of the registration certificate for the year 1942 43, and the application was signed by him for himself and again as the attorney of Subba Rao. Those rules provide that an application for registration of a firm under section '26 A and for renewal of registration certificate "shall be signed personally by all the partners" '. The Income tax Officer rejected the application for renewal on the ground that it was not personally signed by one of the partners, Subba Rao, and that the signature of Hariprasada Rao as his agent was not valid The order was taken in appeal, and was ultimately the subject of a reference under section 66(1) of the Act to the High Court of Madras, which held that the word "personally" in rule 6 required that the partner 579 should himself sign the application, and that the principles of agency under the general law were exclude. (Vide Commissioner of Income tax vs Subba Rao(1)). While these proceedings were pending, Hariprasada Rao filed the two applications, out of which the present appeals arise, for renewal of the registration certificate for the assessment years 1943 44 and 1944 45. Both of them were signed by him for himself and as attorney for Subba Rao. At the hearing of these petitions the appellant, apart from maintaining that rules 2 and 6 did not, on their true construction, exclude signature by an agent on behalf of a partner, raised a further contention that the rules themselves were ultra vires the powers of the rulemaking authority. The Income tax Officer overruled both these contentions, and rejected the applications, and his orders were confirmed on appeal by the Appellate Assistant commissioner and then by the Appellate Tribunal. Thereafter, on the application of the appellant, the Tribunal referred the following questions for the decision of the High Court: "(1) Whether the word 'personally ' in the Income tax Rules, as framed under section 59 of the Income tax Act would exclude a duly authorised agent of a partner from signing an application on behalf of the partner under section 26 A of the Income tax Act? (2)If the answer to the above question is in the affirmative, whether rules 2 and 6 are ultra vires the rule making authority?" The reference was heard by Satyanarayana Rao and Viswanatha Sastry, JJ. Following the decision in Commissioner of Income tax vs Subba Rao(1), they answered the first question in the affirmative. On the second question, however, they differed. Satyanarayana Rao, J. held that the rules were ultra vires, and that the applications were in order, and ought to have been granted. Viswanatha Sastry, J. was of the contrary opinion, and held that the rules were intra vires, and that the applications were properly (1) I.L R. ; 580 rejected as not being in accordance with them. The learned Judges, however, granted a certificate under section 66 A of the Act, and that is how the appeals come before us. The first question whether the word "personally" would exclude signature by an authorised agent on behalf of the partner was answered in the affirmative by the Madras High Court in Commissioner of Incometax vs Subba Rao(1). This was one of the decisions quoted with approval by this Court in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2), where the question was whether a rule framed under the Bengal Agricultural Income tax Act that the declaration in the return should be signed by the individual himself required that he should sign it personally, and it was held that it did so require. Sri K. section Krishnaswami Ayyangar, learned counsel for the appellant, did not urge any grounds for differing from the above conclusion, and we must therefore hold, in agreement with the views expressed in the above decisions, that the signature which is pres cribed by the rules is that of the partner himself, and that they are not complied with by the agent signing on his behalf. Then we come to the second question and that is the substantial question that arises for our determination in this appeal whether rules 2 and 6 are ultra Vires the rule making authority. The argument of the appellant in support of its contention that the rules are ultra Vires may thus be stated: Under the common law of England, a person has the right to do through an agent whatever he can do himself, and that right has also been conferred on him in this country by section 2 of the Powers of Attorney Act VII of 1882, which runs as follows: "The donee of a power of attorney may, if he thinks fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, (1) I.L.R. I.T.R. 232. (2) ; 581 instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof "This section applies to powers of attorney created by instruments executed either before or after this Act comes into force". Section 26 A of the Act confers on a partner the right to apply for registration of the firm, and that right could be 'exercised both under the common law and under section 2 of the Powers of Attorney Act through an authorised agent. The sovereign legislature might, if it so chooses, abrogate the rule of common law, and repeal section 2 of the Powers of Attorney Act,. and enact that the application to be presented under section 26 A should be signed by the partner himself and not by any other person; but it has not done so either expressly or by necessary implication, and, therefore, the application which was signed by Hariprasada Rao is as good as if it had been signed by Subba Rao. The Rules no doubt require that the signature should be that of the partner and not that of ' his agent. But in prohibiting what would be lawful under the section, the Rules go beyond the ambit of the authority conferred by section 26 A on the rule making authority, which is limited to framing Rules for giving effect to the principles laid down in the statute. They are therefore ultra vires. In the alternative, assuming that the mandate given to the rule Making authority under section 26 A is of sufficient amplitude to authorise the making of the Rules in question, even then, they must be held to be ultra vires, as they have the effect of abrogating the common law and of repealing section 2 of the Powers of Attorney Act, which confer on a person the right to act through an agent, and that being a legislative function cannot be delegated to a rule making authority. and section 26 A, if it is to be construed as conferring such power on an outside authority, must be struck down as constituting an unconstitutional delegation by the legislature of its legislative function. 582 It is the correctness of these contentions, that now falls to be considered. According to the law of England and that is also the law under the Indian Contract Act, 1872 "every person who is sui juris has a right to appoint an agent for any purpose whatever and that be can do so when he is exercising a statutory right no less than when he is exercising any other right". Per Stirling, J. in Jackson and Co. vs Napper: In re Schmidts ' Trade Mark(1). This rule is subject to certain well known exceptions as when the act to be performed is personal in character, or is annexed to a public office, or to an office involving fiduciary obligations. But apart from such exceptions, the law is well settled that whatever a person can do himself, he can do through an agent. It has accordingly been held that "at common law. , when a person authorizes another to sign for him, the signature of the person so signing is the signature of the person authorizing it". Per Blackburn, J. in The Queen V. Justices Of Kent("). The appellant is therefore right in his contention that unless the statute itself enacts otherwise, an application which a partner has to sign would be in order and. valid, if it is signed by his authorised agent. The question then is whether there is anything in the Act, which requires that an application under section 26 A should be signed by the party personally. Section 26 A is as follows: "(I) Application may be made to the Incometax Officer on behalf of any firm, constituted under an instrument of partnership specifying the individual shares of the partners, for registration for the purposes of this Act and of any other enactment for the time being in force relating to income tax or super tax. (2) The application shall be made by such person or persons, and at such times and shall contain such particulars and shall be in such form, and be verified in such manner, as may be prescribed; and it shall (1) , 172. (2) , 307. 583 be dealt with by the Income tax Officer in such manner as may be prescribed". The section does not, it should be noted, provide that the application for registration should be signed by the partner personally, and it is this that forms the foundation of the contention of the appellant that the right which a person has under the general law and under section 2 of the Powers of Attorney Act to act through an agent has not been taken away or abridged by the section. He relies in support of his contention on the following rules of construction: (1) Statutes which encroach on the rights of a subject should be interpreted if possible so as to respect such rights. [Vide Maxwell on Interpretation of Statutes, 10th Edition, page 285; Craies on Statute Law,, 5th Edition, pages Ill to 114). The law is thus stated by Lord Justice Bowen in In re Cuno: Mansfield vs Mansfield(1): "In the construction of statutes, you must not construe the words so as to take away rights which already existed before the statute was passed, unless you have plain words which indicate that such was the intention of the legislature". (2)In the absence of clear and unambiguous language, an intention to alter the existing law should not be imputed to the legislature. (Vide Craies on Statute Law, 5th Edition, pages 114 and 115). (3)The law does not favour repeal of a statute by implication, and therefore a later statute should not be construed as repealing an earlier one without express words or by necessary implication. (Vide Maxwell on Interpretation of Statutes, 10th Edition, page 170;. Craies on Statute Law, 5th Edition, page. "If it is possible", observed Farwell, J., "it is my duty so to read the section as not to effect an implied repeal of the earlier Act": Be Chance(2). "Unless two Acts are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied". Per A. L. Smith, J. in Kutner vs Phillips(3). (1) , 17. (2) , 270. (8) , 272. 584 In the light of these principles, it is contended that the true scope of section 26 A is that it confers a right on a partner to register the firm, and leaves the modus of the exercise thereof to be regulated by the existing law, and that, therefore, far from showing an intention either to alter the general law as to the right of a person to act through his agent or to repeal section 2 of the Powers of Attorney Act, the section depends on their continued operation for its implementation. Now, the rules of construction on which the appellant relies are well established. But then, it should not be overlooked that they are only aids to ascertain the true intention of the legislature as expressed in the statute., and the question ultimately is, what in the context do the words of the enactment mean? The following passage from Crawford on "The Construction of Statutes", 1940 Edition, page 454 cited by the appellant may be usefully referred to in this connection: "Why should a statute be subjected to a strict or a liberal construction, as the case may be? The only answer that can possibly be correct is because the type of construction utilized gives effect to the legislative intent. Sometimes a liberal construction must be used in order to make the legislative intent effective. , and sometimes such a construction will defeat the intent of the legislature. If this is the proper conception concerning the rule of construction to be adhered to, then a strict or a liberal construction is simply a means by which the scope of a sta tute is extended or restricted in order to convey the legislative meaning. If this is the proper position to be accorded strict and liberal constructions, it would make no difference whether the statute involved was penal, criminal, remedial or in derogation of common right, as a distinction based upon this classification would then mean nothing". That being the correct position, the question is whether on its true interpretation, the statute intended that an application under section 26 A should be ' signed by the partner personally, or whether it could 585 be signed by his agent on his behalf To decide that, we must have regard not only to the language of section 26 A but also to the character of the legislation, the scheme of the Act and the nature of the right conferred by the section. The Act is, as stated in the preamble, one to consolidate and amend the law relating to income tax. The rule of construction to be applied to such a statute is thus stated by Lord Herschell in Bank of England v: Vagliano(1): "I think the proper course is in the first instance to examine the language of the statute, and to ask what is its , natural meaning, uninfluenced by any considerations derived from the previous state of the law and not to start with inquiring how the law previously stood, ' and then, assuming that it was probably "intended to leave it unaltered. . . . . " We must therefore construe the provisions of the Indian Income tax Act as forming a code complete in itself and exhaustive of the matters dealt with therein, and ascerta in what their true scope is. Turning then to the provisions of the Act, considerable light is thrown on their true import by the decision of this Court in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2). There, the question was as to the meaning of Rule I 1 framed under the Bengal Agricultural Income tax Act, 1944 read with Form No. 5, which required that the declaration in the return should be signed "in the case of an individual, by the individual himself". It was held by this Court on a review of the provisions of the statute that the intention of the legislature as expressed therein was to exclude the common law rule, qui facit per alium facit per se, and the declaration to be valid must be signed by the assessee personally. It is argued for the appellant that Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(2) was a decision only on the interpretation of Rule No. 11 and not on its validity, and that the question whether the rule was ultra vires or not was not in issue. That is so, but the materiality of the (1) , 141. (2) ; , 76 586 decision to the present controversy lies in this that the interpretation which was put on Rule 11 as requiring personal signature was based on the conclusion which this Court reached on a consideration of the relevant provisions of the Bengal Agricultural Income tax Act that the intention of the legislature was to exclude the rule of the common law on the subject. Now, the provisions of the Bengal Act which were construed in Commissioner of Agricultural Income tax vs Keshab Chandra Mandal(1) as indicative of the above intention, are identical in terms with the corresponding provisions in the Indian Income tax Act, and are, in fact, based on them and it would therefore be logical to construe the latter as expressing an intention to discard the rule of common law on the subject. The relevant provisions of the Bengal Agricultural Income tax Act may now be noticed. Section 25(1) of the Bengal Act provides that if. the Income tax Officer is not satisfied that the return made is correct and complete, he may require the assessee by notice either to attend at the Income tax office or to produce or cause to be produced any evidence on which he might rely. This corresponds to section 23(2) of the 'Indian Income tax Act. The point to be noted with reference to this section is that it contains an express provision for production of evidence by the assessee through his agent, a provision which would have been wholly unnecessary if the common law was intended to apply. Sections 35 and 36 of the Bengal Act contain provisions as to who can represent the assessee and in what proceedings, and they follow section 61 of the Indian Income tax Act and form a code complete in themselves. Then again, both the Bengal Act and the Indian Income tax Act provide that certain provisions of the Civil Procedure Code are applicable to the proceedings under the Act. The provisions of Order 3 of the Civil Procedure Code enacting that parties may appear and act through recognised agents are not among them. To cut the discussion short, the effect of the provisions of the (1) ; 587 Bengal Act is thus summarized in Commissioner of Agricultural Income tax vs Keshab Chandra Manda`(1): "The omission of a definition of the word 'sign ' as including a signature by an agent, the permission under section 25 for production of evidence by an agent and under sections 35 and 58 for attendance by an agent and the omission of any provision in the Act applying the provisions of the Code of Civil Procedure relating to the signing and verification of pleadings to the signing and verification of the return while expressly adopting the provisions of that Code relating to the attendance and examination of witnesses, production of documents and issuing of commission for examination and for service of notices under sections 41 and 60 respectively, cannot be regarded as wholly without significance". This reasoning applies with equal force to the provisions of the Indian Income tax Act, and goes far to support the contention of the respondent that the common law is not intended to apply to proceedings under the Act. Another factor material for the determination of this question is the nature of the right conferred by section 26 A. Under the common law of England, a firm is not a juristic person, the firm name being only a compendious expression to designate the various partners constituting it. But, as pointed out by this Court in Dulichand Laxminarayan vs Commissioner of Income tax, Nagpur(2), inroads have been made by statute s into this conception, and firms have been regarded as distinct entities for the purpose of those statutes. One of those statutes is the Indian IncomeTax Act, which treats the firm as a unit for purposes of taxation. Thus, under section 3 of the Act the charge is imposed on the total income of a firm, the partners as such being out of the picture, and accordingly under section 23 of the Act, the assessment will be on the firm on its total profits. Section 23(5) enacts an exception to this in the case of firms registered under the Act, and provides that, "(a). . the sum payable by the firm itseIf shall (1) ; (2) A.I.R. 1956 S.C. 354. 588 not be determined but the total income of each partner of the firm, including therein his share of its income, profits and gains of the previous year, shall be assessed and the sum payable by him on the basis of such assessment shall be determined". Thus, if a firm is registered, it ceases to be a unit for purposes of taxation and the profits earned by it are taken, in accordance with the general law of partnership, to have been earned by the individual partners according to their shares, and they are taxed on their individual income including their share of profits. The advantages of this provision are obvious. The rate of tax chargeable will not be on the higher scale provided for incomes on the higher levels but on the lower one at which the income of the individual partner is chargeable. Thus, registration confers on the partners a benefit to which they would not have been entitled but for section 26 A, and such a right being a creature of the statute, can 'be claimed only in accordance with the statute which confers it, and a person who seeks relief under section 26 A must bring himself strictly within its terms before he can claim the benefit of it. In other words, the right is regulated solely by the terms of the statute, and it would be repugnant to the character of such a right to add to those terms by reference to other laws. The statute must be construed as exhaustive in regard to the conditions under which it can be claimed. Thus, considering the question with reference to the character of the legislation, the scheme of the statute and the nature of the right conferred by section 26 A, the conclusion is irresistible that rules of common law were not intended to be saved, and that the right to apply for registration. under that section is to be determined exclusively by reference to the prescriptions laid down therein. If that is the true construction, in authorising the rule making authority to frame rules as to who can apply for registration under section 26 A, and when and how, the statute has. merely directed that authority to fill in details in the field of legislation occupied by it, and it is not denied that Rules a and 6 are within the mandate conferred 580 by the section. In this view, section 59 (5) of the Act which enacts that "Rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enacted in this Act" directly applies, and the vires of the Rules is beyond question. Vide the observations of Lord Herschell in Institute of Patent Agents vs Lockwood(1). Then, there is the contention of the appellant that the Rules in question are repugnant to section 2 of the Powers of Attorney Act VII of 1882, and are therefore ultra wires. In addition to the reasons given above in support of the conclusion that the rule of the common law was not intended to operate in the field occupied by section 26 A, there is a further and a more compelling reason why this contention should not be accepted. It is that there is, in fact, no conflict between the two statutory provisions. To un derstand the scope of section 2 of the Powers of Attorney. Act, it is necessary to refer to the history of this legislation. Under the common law of England, an agent having authority to execute an instrument must sign in the name of the principal if he is to be bound. If the agent signs the deed in his name albeit as agent, he is the person who is regarded as party to the document and not the principal. , It is the agent alone that can enforce the deed, and it is be that will be liable on it. Vide In re International Contract Company(2); Schack vs Antony(3), Halsbury 's Laws of England, 3rd Edition, Volume 1, page 217, and Bowstead on Agency, 10th Edition, page 93. To remove the hardships resulting from this state of the law, the Conveyancing and Law of Property Act, 1881 (44 and 45, Vict, Chapter 41) enacted section 46, which is as follows: "(1) The donee of a power,of attorney may, if he thinks fit execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be (1) , 351. (2) (3) I M. & section 573; ; 590 as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof (2) This section applies to powers of attorney created by instruments executed either before or after the commencement of this Act". The Indian Legislature immediately followed suit, and enacted the Powers of Attorney Act VII of 1882 incorporating in section 2 therein word for word, section 46 of the English Act. The object of this section is to effectuate instruments executed by an agent but not in accordance with the rule of the common law and the enactment is more procedural than substantive. It does not confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name. But where the question is as to the existence or the validity of authority, the section has no operation. Thus., the fields occupied by the two enactments are wholly distinct. Section 26 A says that a partner cannot delegate the exercise of his rights under that section to an agent. Section 2 of the Powers of Attorney Act says that if there can be and, in fact there is, delegation, it can be exercised in the manner provided therein. There is accordingly no conflict between the two sections, and no question of repeal arises. To sum up, the Indian Income tax Act is a self contained code exhaustive of the matters dealt with therein, and its provisions show an intention to depart from the common rule, qui facit per alium facit per se. Its intention again is that a firm should be given benefit of section 23(5) (a), only if it is registered under section 26 A in accordance with the conditions laid down in that section and the rules framed thereunder. And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid. In the view which we have taken, the further queson raised by the appellant that the power to repeal 591 a law being a legislative function, can be exercised only by the legislature duly constituted and not by any outside authority, and that the delegation of such a power to an outside authority is unconstitutional. , does not arise for decision. In the result., we agree with Viswanatha Sastry, J. that rules 2 and 6 are intravires the powers of the rule making authority, and dismiss the appeals with costs.

The Central Government constituted an Industrial Tribu nal under the , consisting of A, B, and C 381 for deciding certain disputes and the Tribunal commenced its sittings in September, 1949. On the 23rd November, 1949, the services of C were placed at the disposal of the Minis try of External Affairs as a member of the Indo Pakistan Boundary Disputes Tribunal, and the two remaining members, after an objection raised by one side, continued to sit and hear the disputes. On the 20th February, 1950, C returned from the Boundary Disputes Tribunal and began to sit again with the other two members and hear the further proceedings in the case of disputes which were part heard and not finally decided on that date. On the 20th May, 1950, the Government issued a notification that C had" resumed charge of his duties as a member of the All India Industrial Tribu nal". Some awards were made by A and B before the 20th February, 1950, and some awards were made after that date by A, B and C together. Held, per KANIA, C.J., MEHR CHAND MAHAJAN, DAS and Bose JJ. (FAZL ALI and PATANJALI SASTRI JJ. dissenting) : (i) when C was appointed as a member of the Boundary Disputes Tribunal, his services "ceased to be available" and there arose "a vacancy" within the meaning of Sec. 8 of the ; (ii) under the said section read with Rule 5 of the Industrial Disputes Rules, when a vacancy occurred it was obligatory on the Government to notify its decision as to whether it intended to fill up the vacancy or not, and if the Government decided not to fill up the vacancy, a notifi cation under Sec. 7 of the Act was essential to constitute the remaining members a Tribunal inasmuch as a Tribunal of three members is a different Tribunal altogether from a Tribunal consisting of two of them only; (iii) neither the fact that C began to sit again along with the two other members from the 20th. February, 1950, nor the notification of the 20th May, 1950, stating that C had "resumed charge of his duties as a member" of that Tribunal could be treated as an appointment to the vacancy created on C 's appointment as a member of the Boundary Disputes Tribunal; (iv) awards made by A and B after the services of C ceased to be available, and awards made after the 20th February, 1950, by A, B and C were not made by a Tribunal duly constituted under the Act and were void; (v) since the two remaining members were not a duly constituted Tribunal and the duty to work and decide was the joint responsibility of all the three members who originally constituted the Tribunal, the matter was one 01 absence of jurisdiction and not a mere irregularity in the conduct of proceedings, and the defect could not be cured by acquies cence or estoppel. 382 Per FAZL ALI and PATANJALI SASTRI JJ. (contra) There was a 'vacancy ' within the meaning of Sec. 8 of the Act when the services of C were placed at the disposal of the Bound ary Disputes Tribunal, which provided an occasion for the Government to exercise the discretion vested in it under Sec. 8 of the Act to fill up the vacancy or not. The fact that the Government decided not to fill up the vacancy, could not render the Tribunal an imperfectly constituted Tribunal, and the proceedings could validly be continued before the Tribunal in spite of the vacancy. Further, since the vacancy was a temporary one and was not filled up, C did not cease to be a member of the Tribunal and could therefore rejoin it as soon as he was free from the duties of his new office. Even if it be assumed that it was necessary for the Government to make an appointment under Sec. 8 (1), the requirements of that section were complied with, when C joined under the orders of the Government and that fact was also notified by the Government on the 20th May, 1950. Rule 5 of the Industrial Disputes Rules applies only when a Tribunal is initially constituted. It does not apply to appointments to fill vacancies. Per MUKHERJEA J. An Industrial Tribunal can be consti tuted only in accordance with the provisions of Sec. 7 of the and unless a Tribunal is proper ly constituted, it cannot be invested with jurisdiction to adjudicate on industrial disputes. Under sub sec. (2) of Sec. 7, the number of members constituting the Tribunal has to be determined by the appropriate Government and a change in the number of members could be made therefore only in pursuance of the provision contained in that sub section. As Sec. 8 does not lay down that, in case the services of a. member of the Tribunal cease to be available and the Govern ment does not choose to make a new appointment in his place, the remaining members should continue to form the 'tribunal, the constitution or reconstitution of the remaining members as a Tribunal could be made only under Sec. 7 of the Act and as there was n9 notification by the appropriate Government under Sec. 7 constituting the two remaining members a Tribu nal under the Act during the absence of C, the proceedings before these two members and the awards made and signed by them only during C 's absence were void. But, there was no necessity for a fresh notification and a fresh constitution of the Tribunal when the absent member returned as the original notification was still there unaltered and unamend ed, and by virtue of this notification alone, the three members would be competent to sit as a Tribunal and dis charge its duties. The Tribunal was thefore, properly constituted from the 20th February, 1950, and the awards made by all the three members after that date were not void for want of jurisdiction in the Tribunal.

minal Appeal No. 132 of 1954. Appeal by Special Leave granted by the Supreme Court by its Order dated the 3rd September, 1954 from the Judgment and Order dated the 15th June ' 1954 of the High Court of Judicature for the State of Punjab at Simla in Criminal in Appeal No. 287 of 1954 arising out of the Judgment and Order dated the 14th April 1954 of the Court of Additional Sessions Judge in Session Case No. 4 of 1954. J.G. Sethi, (Naunit Lal, with him), for the appellant. 1204 Gopal Singh and P. G. Gokhale, for the respondent. January 25. The Judgment of the Court was delivered by IMAM J. This appeal by Nanak Chand comes by special leave against the judgment of the Punjab (1) High Court. The appellant was convicted by the High Court under section 302 of the Indian Penal Code and the sentence of death passed on him by the Additional Sessions Judge of Jullundur was con firmed. On the facts alleged by the prosecution there can be no doubt that Sadhu Ram was killed on the 5th of November, 1953, at about 6 45 P.m. at the shop of Vas Dev P. W. 2. It is alleged that the appellant along with others assaulted Sadhu Ram. The appellant was armed with a takwa. Numerous injuries were found on the person of Sadhu Ram. According to the doctor, who held the postmortem examination, injuries 1, 3 and 4 were due to a heavy sharp edged weapon and could be caused by a takwa. It was denied by the prosecution that the deceased was assaulted by any other person with a takwa. According to the Medical evidence, injuries 1, 3 and 4 individually, as well as collectively, were enough to cause: death in the ordinary course of nature. In the Court of Sessions the appellant along with others was charged under section 148 and section 302, read with section 149 of the Indian Penal Code. The Additional Sessions Judge, however, held, that the charge of rioting was not proved. He, accordingly found the appellant and three others guilty under section 302 read with section 34 of the Indian Penal Code. He acquitted the other three accussed There was an appeal by three convicted persons to the High Court and the high court convicted the appellant alone under section 302 of the Indian Penal Code, confirming the sentence of death but altered the conviction of the other accused 'from section 302/34 to section 323, Indian Penal Code. it held that the provisions of section 34 of the Indian Penal Code did not apply. 1205 On behalf of the appellant questions of law and questions of fact were urged. It will be unnecessary to deal with the questions of fact if the argument on points of law is accepted. The principal question of law to be considered is as to whether the appellant could legally be convicted for murder and sentenced under section 302, Indian Penal Code when he was not charged with that offence. It was urged that as the appellant had been acquitted of the charge of rioting and the offence under section 302/149 of the Indian Penal Code, he could not be convicted for the substantive offence of murder under section 302, Indian Penal Code, without a charge having been framed against him under that section. Reliance has been placed on the provisions of the Code of Criminal Procedure relating to the framing of charges, the observations of the Privy Council in Barendra Kumar Ghosh vs Emperor(1) and certain decisions of the Calcutta High Court to which reference will be made later on. It was urged that for every distinct offence of which a person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned under sections 234, 235, 236) 237 and 239 of the Code of Criminal Procedure. Section 149 of the Indian Penal Code creates a specific offence and it is a separate offence from the offence of murder punishable under section 302 of the Indian Penal Code. The provisions of sections 236, 237 and 238 of the Code of Criminal Procedure did not apply to the facts and circumstances of the present case. Off behalf of the Prosecution, however, it was urged that section 149 did not create any offence at all and therefore no separate charge was obligatory under section 233 of the Code of Criminal Procedure and that in any event the provisions of sections 236 and 237 of the Code of Criminal Procedure did apply and the appellant could have been convicted and sentenced, under section 302 of the Indian Penal Code, although no charge for the substantive offence of murder had been framed against him. (1) Cal, 197, 1206 It is necessary, therefore, to examine the provisions of section 149 of the Indian Penal Code and consider as to whether this section creates a specific offence. Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which deals with offences against the public tranquillity. Section 149 of the Indian Penal Code reads: "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence". This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed. Similarly under section 150 of the Indian Penal Code, a specific offence is created. Under this section a person need not be a member of an unlawful assembly and yet he would be guilty of being a member of an unlawful assembly and guilty of an offence which may be committed by 1207 a member of the unlawful assembly in the circumstances mentioned in the section. Sections 149 and 150 of the Indian Penal Code are not the only sections in that Code which create a specific offence. Section 471 of the Indian Penal Code makes it an offence to fraudulently or dishonestly use as genuine any document which a person knows or has reason to believe to be a forged document and it provides that such a person shall be punished in the same manner as if he had forged such document. Abetment is an offence under the Indian Penal Code and is a separate crime to the principal offence. The sentence to be inflicted may be the same as for the principal offence. In Chapter XI of the Indian Penal Code offences of false evidence and against public justice are mentioned. Section 193 prescribes the punishment for giving false evidence in any stage of a judicial proceeding or fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. Section 195 creates an offence and the person convicted of this offence is liable in certain circumstances to be punished in the same manner as a person convicted of the principal offence. Sections 196 and 197 to 200 of the Indian Penal Code also create offences and a person convicted under any one of them would be liable to be punished in the same manner as if he had given false evidence. It was, however, urged on behalf of the Prosecution that section 149 merely provides for constructive guilt similar to section 34 of the Indian Penal Code. Section 34 reads: "When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone". This section is merely explanatory. Several persons must be actuated by a common intention and when in furtherance of that common intention a criminal act is done by them, each of them is liable for that act as if the act bad been done by him alone. This section does not create any specific offence. As was pointed out by Lord Sumner in Barendra Kumar Ghosh vs Emperor(1) " 'a criminal act ' means that (1) Cal. 197, 1208 unity of criminal behaviour which results in something, for which an individual would be punishable, if it were all done by himself alone, that is, in a criminal offence". There is a clear distinction between the provisions of sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. ' There is no question of common intention in section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence. In Barendra Kumar Ghosh vs Emperor(1) Lord Sumner dealt with the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, section 149 is certainly not otiose,, for in any case it created a specific offence. It postulated an assembly of five or more persons having a common object, as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object and he referred to Queen vs Sabid Ali and (1) Cal, 197, 1209 Others(1). He pointed out that there was a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of section 34, was replaced in section 149 by membership of the assembly at the time of the committing of the offence. It was argued, however, that these observations of Lord Sumner were obiter dicta. Assuming though not conceding that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code. It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, the Privy Council reviewing as a whole the provisions of sections 34, 114 and 149 of the Indian Penal Code. On behalf of the appellant certain decisions of the Calcutta High Court were relied upon in support of the submission made, viz. Panchu Das vs Emperor(2), Reazuddi and Others vs King Emperor(3) and Emperor vs Madan Mandal and Others( ' ). These decisions support the contention that it will be illegal to convict an accused of the substantive offence under a section without a charge being framed if he was acquitted of the offence under that section read with section 149 of the Indian Penal Code. , On the other hand, the prosecution relied upon a decision of the. Full Bench of the Madras High Court in Theetkumalai Gounder and Others vs King Emperor(5) and the case Queen Empress vs Bisheshar and Others(6). The decision of the Madras High Court was given in April, 1924, and reliance was placed upon the decision of the Allahabad High Court. The decision of the Privy Council in Barendra Kumar Ghosh 's case was in October, 1924. The Madras High Court, therefore, did not have before it the decision of the Privy Council. It is impossible to, say what view might have been expressed (1) [1873] 20 W.R. (Cr.) 5.(2) Cal. (3) [1961] 6 O.W.N 98.(4) ,Cal. (5) Mad. 746.(6) All. 1210 by that court if the Privy Council 's judgment in the aforesaid case had been available to the court. The view of the Calcutta High Court had been noticed and it appears that a decision of the Madras High Court in Taikkottathil Kunheen(1) was to the effect that section 149 of the Indian Penal Code is a distinct offence from section 325 of the Indian Penal Code. Because of this it was thought advisable to refer the matter. to a Full Bench. Two questions were referred to the Full Bench: (1) When a charge omits section 149, Indian Penal Code, and the conviction is based on the provisions of that section, is that conviction necessarily bad, or does it depend on whether the accused has or has not been materially rejudiced by the omission? (2) When a charge has been framed under sections 326 and 149, Indian Penal Code, is a conviction under section 326, Indian Penal Code, necessarily bad, or does this also depend on whether the accused has or has not been materially prejudiced by the form of the charge? The Full Bench agreed with the view expressed by Sir John Edge in the Allahabad case that section 149 created no offence, but was, like section 34, merely declaratory of a principle of the common law, and its object was to make it clear that an accused who comes within that section cannot put forward as a defence that it was not his hand which inflicted the grievous hurt. It was observed by Spencer, J. that a person could not be tried and sentenced under section 149 alone, as no punishment is provided by the section. Therefore the omission of section 149 from a charge does not create an illegality by reason of section 233 of the Code of Criminal Procedure which provides that for every distinct offence of which any person is accused there shall be a separate charge. They did not agree, with the general statement in Reazuddi 's case(2) that it is, settled law that when a person is charged by implication under section 149, he cannot be convicted of the substantive offence. A charge for a substantive offence under section 302, or section 325 of the Indian Penal Code, etc. is for a distinct and separate offence from that under section (1) [1928] 18 L.W. 946. (2) (1901] 1211 302, read with section 149 or section 325, read with section 149, etc. and to that extent the Madras view is incorrect. It was urged by reference to section 40 of the Indian Penal Code that section 149 cannot be regarded as creating an 'offence ' because it does not itself provide for a punishment. Section 149 creates an offence but the punishment must depend on the offence of which the offender is by that section made guilty. Therefore the appropriate punishment section must be read with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it. The finding that all the members of an unlawful assembly are guilty of the offence committed by one of them in the prosecution of the common object at once subjects all the members to the punishment prescribed for that offence and the relative sentence. Reliance was also placed upon the decision of the Patna High Court in Ramasray Ahir vs King Emperor(1) as well as the decision of the Allahabad High Court in Sheo Ram and Others vs Emperor(1). In the former case the decision of the Privy Council in Barendra Kumar Ghosh 's case was not considered and the decision followed the Full Bench of the Madras High Court and the opinion of Sir John Edge. In the latter case the Allahabad High Court definitely declined to answer the question as to whether the accused charged with an offence read with section 149, Indian Penal Code, or with an offence read with section 34, Indian Penal Code, could be convicted of the substantive offence only. After an examination of the cases referred to on behalf of the appellant and the prosecution we are of the opinion that the view taken by the Calcutta High Court is the correct view namely, that a person charged with an offence read with section 149 cannot be convicted of the substantive offence without a specific charge being framed 'as required by section 233 of the Code of Criminal Procedure. It was urged that in view of the decision of this Court in Karnail Singh and another vs State of Punjab(1) a conviction under section 302, read with see (1) Patna 484. (2) A.I.R. 1948 All. 162, (3) , 155 1212 tion 149, could be converted into a conviction under section 302/34 which the trial Court did. There could be no valid objection, therefore, to converting a conviction under section 302/34 into one under section 302 which the High Court did. ' This argument is unacceptable. The High Court clearly found that section 34 was not applicable to the facts of the case and acquitted the other accused under section 302/34, that is to say the other accused were wrongly convicted by the trial court in that way but the appellant should have been convicted under section 302. The High Court could not do what the trial court itself could not do, namely, convict under section 302, as no separate charge had been framed under that section. It was urged by the Prosecution that under the provisions of section 236 and section 237 of the Code of Criminal Procedure a person could be convicted of an offence which he is shown to have committed although he was not charged with it. Section 237 of the Code of Criminal Procedure is entirely dependent on the provisions of section 236 of that Code. The provisions of section 236 can apply only in cases where there is no doubt about the facts which can be proved but a doubt arises as to which of several offences have been committed on the proved facts in which case any number of charges can be framed and tried or alternative charges can be framed. In these circumstances if there had been an omission to frame a charge, then under section 237, a conviction could be arrived at on the evidence although no charge had been framed. In the present case there is no doubt about the facts and if the allegations against the ap pellant that he bad caused the injuries to the deceased with takwa was established by evidence, then there could be no doubt that the offence of murder bad been committed. There was no room for the application of section 236 of the Code of Criminal Procedure. It had been argued on behalf of the prosecution that no finding or sentence pronounced shall be deemed invalid merely on the ground that no charge was framed. Reliance was placed on the provisions of section 535 of the code of criminal procedure 1213 Reference was also made to the provisions of section 537 of that Code. Section 535 does permit. a court of appeal or revision to set aside the finding or sentence if in its opinion the non framing of a charge has resulted in a failure of justice. Section 537 also permits a court of appeal or revision to set aside a finding or sentence if any error, omission or irregularity in the charge has, in fact, occasioned a failure of justice. The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier stage in the proceedings. In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under section 302 of the Indian Penal Code was in fact framed. Section 232 of the Code of Criminal Proce. dure permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of sections 535 and 537 of the Code of Criminal Procedure. Assuming, however, for a moment that there was merely an irregularity which was curable we are satisfied that, in the circum stances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under section 302 of the Indian Penal Code. By framing a charge under section 302, read with section 149 of the Indian Penal Code against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution ease, Attention has been 1214 drawn to the Medical evidence. With reference to injury No. I the doctor stated that the wounds were not very clean cut. It is further pointed out that the other incised injuries on the head were bone deep. The bone, however, had not been out. Injuries on the head although inflicted by a blunt weapon may sometimes assume the characteristics of an incised wound. Reference was made to Glasgow on Medical Jurisprudence, 9th Ed., at page 241, where it is stated that under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may stimulate the appearance of an incised wound. These wounds are usually found over the bone which is thinly covered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. It is also pointed that Vas Dev P.W. 2 bad admitted that Mitu took away the takwa from the appellant after Sadhu Ram had been dragged out of the shop but no takwa blow was given outside the shop. Prakash Chand P.W. 4, another eye witness, also admitted that Mitu had taken the takwa from the appellant when they had come out of the shop. It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non framing of a charge under section 302, Indian Penal Code. Having regard to the view expressed on the question of law, it is unnecessary to refer to the arguments on the facts. The appeal is accordingly allowed and the conviction and the sentence of the appellant is set aside and the case of the appellant is remanded to the court of Sessions at Jullundur for retrial after framing a charge under section 302 of the Indian Penal Code and in accordance with law. Appeal allowed.

The appellants entrusted with the duties of carrying out improvement schemes under the Bombay Land Improvement Scheme Act, 1942, were charged with the offence of preparing false documents and committing criminal breach of trust in respect of certain amount. It was alleged that even though no work had been done and no amount had been disbursed they prepared documents 'showing the doing of the work and payment of the amount, They were convicted under section 218 read with section 34, section 477A read with section 34 and section 409 read. with section 34 of the Indian Penal Code as well as section 5(2). read with section 5(1)(d) of the Prevention, of Corruption Act. The High Court affirmed the conviction. in the appeal to this Court it was contended that after the matter had been reported to the, higher authorities the rectification work was done and the money was disbursed for the purpose for which it had been entrusted; that the conviction was bad because of non compliance with section 5A of the Prevention of Corruption Act; and that the prosecution was barred by time under section 23 of the Bombay Land Improvement Schemes Act, 1942. Dismissing the appeal, HELD : (i) There is no cogent ground to disagree with the trial court and the High Court that the accused had prepared false documents, bad also committed criminal breach of trust and were in the discharge, of their duties guilty of criminal misconduct as defined in section 5 of the Prevention of Corruption Act. (ii)It is no answer to a charge of criminal misappropriation that after the matter bad been reported to the higher authorities the accused got the rectification work done or the money was subsequently disbursed for the purpose for which it had been entrusted. According to explanation 1 to section 403 Indian Penal Code a dishonest misappropriation for a time only is "misappropriation" within the meaning of that section. [515 D] (iii)It is well established that cognizance of a case, has, in fact, been taken by the court on a police report following investigation conducted in breach of provisions of section 5A of the Prevention of Corruption Act, the result of the trial cannot be set aside unless the illegality in the 511 investigation can be shown to have brought about a miscarriage of justice. The reason for the above dictum is that an illegality committed during the course of investigation does not effect the competence and jurisdiction of the Court to, try the accused. Where, therefore, the trial of the case has proceeded to termination, the invalidity of the preceding investigation would not vitiate the conviction of the accused as a result of the trial unless the illegality in the investigation has caused prejudice to the accused. Since there has been no miscarriage of justice in the present case because of the alleged non compliance with section 5A the conviction of the appellants cannot be set aside on that score. [515 H] H.N. Rishbud and Inder Singh vs The State of Delhi, ; , referred to. (iv)Sub section (i) of the Bombay Land Improvement Schemes Act 1942 has plainly no application as it relates to anyth ing done in the good faith. It cannot also be said that the acts of the appellants in preparing false documents and committing criminal breach of trust as also the act of criminal misconduct were done "under" the Bombay Land Improvement Schemes ' Act within the meaning of sub section (2). The subsection has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with the duties of carrying improvement schemes under this Act. The impugned acts of the appellants was not in discharge of their duties under the Act but in obvious breach and flagrant disregard of their duties. [516 G 517 D]

Civil Appeal No. 2150 of 1970. Appeal by Special Leave from the Judgment and Order dated 27 7 1980 of the Punjab and Haryana High Court in R.S. No. 737/70 Harbans Singh for the Appellant. Hardayal Hardy and B. Datta, for the Respondent. The Judgment of the Court was delivered by KOSHAL, J. This appeal by special leave is directed against the judgment dated July 27, 1970 of the High Court of Punjab and Haryana affirming the decrees passed by the trial court and the first appellate court in a suit for possession by way of pre emption of the land in dispute in favour of plaintiff respondent No. 1 on the ground that he was a tenant of the disputed land when it was sold to the appellants by respondents Nos. 2 to 4 through a registered sale deed dated September 29, 1967. 406 2. The suit was resisted by the appellants with the counter claim that they, and not respondent No. 1, were in possession of the land on the relevant date as tenants inasmuch as it had been leased out to them by their vendor Kanti Prasad two years prior to the sale, i.e., in the year 1965. The decrees passed by the courts below proceed on the basis of evidence to the effect that the name of respondent No. 1 was recorded as a tenant in the Jamabandi for the year 1959 60 (exhibit P. 1) and consistently thereafter till the year 1968 (Khasragirdawaris Exs. P. 2 to P. 7). Apart from the oral evidence there is no material on the record which may indicate the falsity of any of the entries in the revenue records and we are of the opinion that the lower courts were fully justified in relying on them. Learned counsel for the appellants relies upon three documents in support of his contention that the Khasra girdawaris should not be believed. First in point of time is an application (exhibit A31) which was sent to the concerned Deputy Commissioner through the military authorities by one of the appellants who was an army hand. That application is dated December 11, 1967 and states that the land in dispute was taken by him on lease from Kanti Prasad in the year 1965 and prays that the Khasra girdawari should be corrected accordingly. The second is the sale deed itself in which appears a recital to the effect that on the date of the sale the vendors had been in possession of the land covered by it for the preceding two years. The third is the plaint itself which seeks "possession by way of pre emption". None of these documents is of any help to the case of the appellants. The recital in the plaint is easily explained. It is no more than the usual prayer made in suits for preemption and may well be interpreted to mean that possession be granted to the plaintiff by the decree in his capacity of a pre emptor (and not that of a mere tenant). It cannot be implied therefrom that the plaintiff was out of actual possession. In fact the case made out in the plaint was specifically founded on the plea that the plaintiff had been in possession of the land in dispute as a tenant right upto the date of the institution of the suit. Paragraph 4 of the plaint reads: "4. The plaintiff has been continuously cultivating the aforesaid land mentioned in para No. 1 of the plaint, for a long time as non occupancy tenant and I, the plaintiff, have been cultivating the same even uptil now. The Vendees are outsiders, therefore, I, the plaintiff have the preferential right of pre emption. " This plea clearly negatives the contention based on the recital contained in the prayer clause of the plaint. 407 The averments appearing in the sale deed and application exhibit A. 31 (which was made about 2/1/2 months later) to the effect that the appellants had been in possession of the land as tenants since 1965 appears to have been falsely made in an attempt to defeat prospective preemptors. Had it been a correct statement of fact, there is no reason why it should not have found a place in the agreement of sale which is dated the 24th April, 1967 but in which no mention of delivery of possession of the land to the appellants is made. Nor is any cogent explanation forthcoming for the fact that no attempt was made by any of the appellants to have their possession over the land as tenants made the subject matter of an entry in the relevant records at any time before the sale deed was registered. No suspicion can attach to the entries in the jamabandi for the year 1959 60, nor have the contents of that document been assailed before us. A presumption of truth attaches to those entries in view of the provisions of section 44 of the Punjab Land Revenue Act. That presumption is no doubt rebuttable but no attempt has been made to displace it. Further, once that presumption is raised, still another comes to the aid of respondent No. 1 by reason of the rule contained in section 109 of the Indian Evidence Act, namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit. Even though the question of possession of the plaintiff as a tenant is a question of fact which is concluded by concurrent findings arrived at by the courts below, we confirm these findings after consideration of the relevant material. The decree passed in favour of respondent No. 1 is not challenged on any other ground. The appeal is accordingly dismissed with costs. All mesne profits deposited by respondent No. 1 in the courts below shall be paid back to him forthwith. V.D.K Appeal dismissed.

Expressing displeasure over disregard of the decision of the Supreme Court by the State of Bihar, the Court ^ HELD: (1) The right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it is implicit in the guarantee of Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer. The State should provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. It cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative liability. [412C D, F G] Hussainara Khatoon v State of Bihar [1979] 3 S.C.R. 532, reiterated. Rhem vs Malcolm, ; Jackson vs Bishop , quoted with approval. (2) The State is under a constitutional obligation to provide free legal services not only at the stage of trial but also at the stage when the accused is first produced before the magistrate as also when he is remanded from time to time. [413C D] (3) But even this right to free legal services would be illusory for an indigent accused unless the magistrate or the Sessions Judge before whom he is produced informs him of such right. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. The magistrate or the sessions judge before whom the accused appears must be held to be under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. Unless he is not willing to take advantage, every other State in the country should make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons such as poverty, indigence or incommunicado situation. The only qualification would be that the offence charged against the accused is such that on conviction it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State. [413D, E F, H, 414A B] 409 (4) The State and its police authorities should see to it that the constitutional, and legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest is scrupulously observed. [414C D] (5) The provision inhibiting detention without remand is a very healthy provision which enables the magistrates to keep check over the police investigation and it is necessary that the magistrates should try to enforce this requirement and where it is found to be disobeyed come down heavily upon the police.[414F G]

Appeal No. 58 of 1958. Appeal from the Judgment and decree dated April 5, 1955, of the Calcutta High Court in Appeal from Original Order No. 206 of 1953, arising out of the judgment and order dated May 20, 1953, of the Fourth Additional Sub Judge, 24 Paris at Alipore in Misc. Case No. 15 of 1951. C. K. Daphtary, Solicitor General of India, C. B. Aggarwala and Sukumar Ghose, for the appellants. H. N. Sanyal, Additional Solicitor General of India and R. C. Datta, for the respondents Nos. 3 and 4. 1960. September 15. The Judgment of the Court was delivered by SARKAR J. This appeal arises out of an execution proceeding. It is filed by the decree holders and is directed against the judgment of the High Court at Calcutta setting aside the order of a learned Subordinate Judge at Alipore dismissing the objection of a judgment debtor to the execution. The High Court held that the decree having earlier been executed in full, the present proceedings for its execution were incompetent and thereupon dismissed the decree holders ' petition for execution. The question that arises is whether the decree had earlier been executed in full. The facts appear to have been as follows: One Sukeshwari Alied sometime prior to 1944 possessed of three plots of land which at all material times, bore premises Nos. 26, 27 and 28, Dum Dum Cossipore Road, in the outskirts of Calcutta. She left a will of which defendants Nos. 1, 2 and 6 were the executors. 682 The executors granted leases of these different plots of land to defendants Nos. 3, 4 and 5 respectively and put them in possession. Certain persons called Mohatas whose interests are represented by the appellants in the present appeal, claimed that Sukeshwari had only a life interest in the lands which on her death had vested in them and the executors had therefore no right to grant the leases. They filed a suit against the executors and the tenants on September 15, 1954, in the Court of a Subordinate Judge at Alipore for a decree declaring that the defendants had no right to possess the lands and for khas possession by evicting the defendants from the lands by removing the structures, if any, put up by them there. On March 30, 1948, the learned Subordinate Judge passed a decree for khas possession in favour of the Mohatas and gave the defendants six months time to remove the structures put up on the land. It is the execution of this decree with which the appeal is concerned. Defendant No. 3 appealed from this decree and that appeal succeeded for reasons which do Dot appear on the record. It is not necessary to refer to defendant No. 3 further as we are not concerned in this appeal with him. It may however be stated that he was in possession of premises No. 26 and no application for execution appears to have been made against him. The executor defendants also appealed from the decree. The other two tenants, defendants Nos. 4 and 5, did not appeal. Of these tenants we are Concerned only with defendant No. 4, the Bengal Breweries Ltd., a company carrying on business as distillers. It was in possession of premises No. 27, on which it had built a factory for distilling liquor and yeast. Defendant No. 5 was in possession of premises No. 28 on which stood some temples. On September 22, 1948, the Mohatas the decree. holders, filed an application in the Court of the learned Subordinate Judge for execution of the decree against defendants Nos. 1, 2, 4, 5 & 6. On September 25, the learned Subordinate Judge passed an order in execution 683 issuing a writ for delivery of possession of premises Nos. 27 and 28 to the decree holders by removing, any person bound by the decree who refused to vacate the same and fixed November 22 for making the return to the writ. On September 28, the decree holders applied to the learned Subordinate Judge for obtaining help from the police for executing the decree. On September 29, the executor defendants applied for a short stay of execution to enable them to obtain a stay order from the High Court. Defendant No. 4 also itself made an application for staying the execution for two months to enable it to come to an arrangement with the decree holders in the meantime. On the decree holders assuring the Court that they would not execute the decree till 2 p. m. of the next day these two petitions by the judgment debtors were adjourned till September 30. On September 30, 1948, the two petitions for stay were taken up for hearing by the learned Subordinate Judge. With regard to the petition by the executor defendants, he observed that he had no power to stay execution in view of 0. 41, r. 5, of the Code of Civil Procedure and thereupon dismissed that petition. The petition for time by defendant No. 4 was also dismissed but in respect of it the following observation appears in the order: " The decree holders undertake that they will allow the company to carry on normal business for six weeks from now by which time the company will settle matter with the decree holders ". Thereafter on the same day the decree holders deposited in Court, the necessary costs for police help for executing the decree and the learned Subordinate Judge requested the police to render the necessary help on October 1, 1948. It also appears that subsequently on the same day defendant No. 4 filed another petition for stay of execution and also a petition under section 47 of the Code objecting to the execution, alleging that there was a tentative arrangement between it and the decree holders that it would pay Rs. 150 as monthly rent and it need not file any appeal to challenge the validity of the decree. The decree holders opposed these petitions by defendant 684 No. 4. The learned Subordinate Judge made no order on them but adjourned them to November 11, 1948, as he felt that the matter required investigation. On October 1, 1948, the Nazir of the Court proceeded to premises Nos. 27 and 28 with certain police officers to execute the decree in terms of the writ. He found the gate of premises No. 27 closed but later the manager of defendant No. 4 opened it at his request. What happened thereafter appears from the return of the Nazir which is in the following words: " We then entered into the factory house and delivered possession in each of the buildings at about 10 30 a. m. Before removal of the furniture and other movables from those buildings there was an amicable settlement between the decree holders and the manager of the factory that the factory will run its normal business as before for 6 weeks and in the meantime the executive body of the factory will make settlement with the decree holders and some of the decree holders ' men will remain there as guards ". It is admitted that the decree holders ' guards were thereafter posted on the premises. The Nazir then proceeded to premises No. 28 and the return also shows that he delivered possession of these premises to ' the decree holders, The relevant portion of the return is in these words: "Then we proceeded towards the premises No. 28 (Old No. 8) Consisting of 2 temples and found that the priest of the temple was present. He amicably came out of the compound and possession was delivered of the temples, lands, tanks and other plots mentioned in the writ. " After possession had been delivered, the decree holders executed on the same day a receipt in acknowledgment of possession having been received by them. That receipt is in these terms: " Received from Sri Bhabataran Banerjee, Naib Nazir, District Judge 's Court, Alipore, 24 Parganas, delivery of possession of premises Nos. 7 and 8 (formerly Nos. 27 and 28) Dum Dum Cossipore Road in the above execution case, this day at 10 30 a.m. including all buildings, tanks, gardens and temples, etc., all these mentioned in the writ in its schedule. " 685 The receipt by mistake describes the premises as " formerly " Nos. 27 and 28 for the premises then bore these numbers. It appears that at 11 15 a. m. on October 1, 1948, the executor defendants moved the High Court) for a stay of execution in the appeal filed by them from the decree. The High Court directed an ad interim stay. After this order had been made the executor defendants moved the learned Subordinate Judge on the same day for consequential orders on the strength of the stay of execution granted by the High Court. The learned Subordinate Judge thereupon made the following order : " In the special circumstances recall the writ provisionally. To 5th November, 1948, for, fresh consideration if formal stay order is not received in the meantime ". This order was passed on the verbal representation of the lawyers for the executor defendants that the High Court had directed the stay of execution for there had not been time for the High Court 's order to be formally drawn up and produced before the learned Subordinate Judge. On November 22, 1948, which was the day fixed for making the return to the execution of the writ, the following order appears to have been passed by the learned Subordinate Judge in the execution case: " Possession delivered. One third party has filed an application under Or. 21, r. 100, C.P.C. Let the execution case be put up after the disposal of Misc. Case No. 13 of 1948. " The Miscellaneous Case No. 13 of 1948 was the one started on the petition of the third party under Or. 21, r. 100 of the Code, objecting to his removal by the execution. This third party was one Bhairab Tewari and he presumably was claiming some right in premises No. 28 for there was no question of his making any claim to premises No. 27 which were exclusively in the possession of defendant No. 4. The ad interim stay issued by the High Court on October 1, 1948, in the appeal filed by the executor defendants, came up for final hearing and resulted in the following order on January 21, 1949. "If anything is due on account, of costs which 686 has not been paid, that amount will be deposited in the Court below by defendant No. 4 (i.e., Mr, Sen 's client) within a month from to day, and then three month 's time from to day will be given to him to remove the machineries and vacate that portion of the land in suit which he is occupying as a lessee and which he is using now as a brewery. In default of the deposit being made and also in default of vacating the premises as directed above, this Rule will stand discharged. We do not stay delivery of possession in respect of any other item in which defendant No. 4 or No. 1, or any other defendant save and except defendant No. 3 is interested. " The appearances of the parties recorded in this order do not show any appearance having been made in connection with it by defendant No. 4. It does not appear from the records what other proceedings, if any, were taken in the appeal by the executor defendants but it is agreed that appeal was dismissed on September 8, 1954. Defendant No. 4 did not vacate at the end of the three months mentioned in the order of January 21, 1949. The parties then took proceedings in Criminal Courts under section 144 of the Code of Criminal Procedure and other connected provisions. It is not necessary to refer to these proceedings and it is enough to state that they did not affect the possession of premises No. 27 by defendant No. 4, who continued in possession till the United Bank of India Ltd. took over possession as hereinafter stated. On September 8, 1949, the following order was made by the learned Subordinate Judge in the execution case: " Decree holder takes no other steps. Possession so far as regards the Bengal Breweries are concerned, delivered. Ordered that the execution case be dismissed on part satisfaction. " On September 27, 1951, the decree holders made a 687 fresh application for execution against defendant No. 4 alone by evicting it from premises No. 27. Defend ant No. 4 put in an objection against the execution under section 47 of the Code alleging that so far as it was concerned, the decree had been fully executed as a result of the earlier execution proceedings which terminated by the order of September 8, 1949, and that further execution was not permissible in law. It is out of this objection that the present appeal has arisen and the question for decision is whether the objection to the execution so raised, is sound. As earlier stated, the learned Subordinate Judge dismissed the objection to the execution but on appeal the High Court set aside his order and dismissed the petition for execution. The High Court granted a certificate for an appeal to this Court on June 15, 1956 and on August 3, 1956, the High Court passed an order directing that the appeal be admitted. On August 11, 1960, an order was made by this Court adding three persons named Mool Chand Sethia, Tola Ram Sethia and Hulas Chand Bothra as parties respondents to this appeal. The order however provided that the appellants decree holders would have a right to object to the locus standi of these persons in the appeal. At the hearing before us only these added parties appeared to contest the appeal The appellants have raised a preliminary objection that the added parties have no locus standi and cannot be heard in the appeal. It appears that defendant No. 4 had executed three successive mortgages of premises No. 27 with all structures and appurtenances, to a bank called the Coming Banking Corporation Ltd. The first of these mortgages had been executed on May 25, 1944, and the other two mortgages had been executed after the suit in ejectment had been filed but before that suit had been decreed. The assets of the Coming Banking Corporation Ltd. became subsequently vested in the United Bank Limited. Some time in 1953, the United Bank filed a suit for enforcement of the mortgages. On May 30, 1955, a final mortgage decree was passed 88 688 in favour of the United Bank. On July 20, 1956, the mortgaged properties were put up to auction and purchased by the United Bank. On March 1, 1958, the mortgage sale was confirmed and subsequently the United Bank was put in possession of premises No. 27. On July 13,1960, the United Bank Conveyed premises No. 27 along with all structures and appurtenances and all its right, title and interest therein to these added respondents. It is by virtue of this conveyance that the added respondents obtained the order from this Court dated August 11, 1960, making them parties to the appeal. Defendant No. 4, the Bengal Breweries Ltd., is now in liquidation and it has not entered appearance to this appeal nor taken any steps to defend it. It appears to us that the added respondents were properly brought on ' record. The decision of this Court in Saila Bala Dassi vs Nirmala Sundari Dassi (1), supports that view. There it was held that an appeal is a proceeding within the meaning of section 146 of the Code and the right to file an appeal carried with it the right to continue an appeal which had been filed by the person under whom the appellant claimed and on this basis a purchaser from the appellant under a purchase made prior to the appeal was ' brought on the record of the appeal. We think that on the same principle the added respondents in the case before us were properly brought on the record. It is not in dispute that if the decree was once executed against defendant No. 4 in full, then it cannot be executed over again regarding premises No. 27. In other words, if possession had been fully delivered to the decree holders in. execution of the decree on October 1, 1948, the decree must have been wholly satisfied and nothing remains of it for enforcement by further execution. The decree was for khas possession and under Or. 21, r. 35, of this Code in execution of it possession of the property concerned had to be delivered to the decree holders, if necessary, by remov ing any person bound by the decree who refused to vacate the property. The records of the proceedings (1) ; 689 show that such possession was delivered. Defendant No. 4 was the party in possession and bound by the decree. With regard to defendant No. 4, the order made on September 8, 1949, states, " Possession so far as regards the Bengal Breweries are concerned, delivered. " This is an order binding on the decree holders. It has not been said that this order was wrong nor any attempt made at any time to have it set aside or to challenge its correctness in any manner. The same is the position with regard to the order of November 22, 1948, recording on the Nazir 's return that possession had been delivered in terms of the writ. The order of September 9, 1949, no doubt further ' states, " Ordered that the execution case be dismissed on part satisfaction ". The words " part satisfaction " in this order, however clearly do not refer to part satisfaction as against defendant No. 4, the Bengal Breweries, for the order expressly states, " possession so far as regards the Bengal Breweries are concerned, delivered. " The decree had therefore been satisfied in full as against the Bengal Breweries Ltd. and consequently as regards premises No. 27 in its possession. Even the learned Subordinate Judge who held the execution maintainable found that " the decree holders had no doubt previously got possession ". Notwith standing this, the learned Subordinate Judge decided that the decree could still be executed as he took the view that at the hearing before the High Court on January 21, 1949, defendant No. 4 " must have ignored the delivery of possession by the Naib Nazir and he cannot now be heard to say that the delivery of possession by the Naib Nazir was legal and valid ". For reasons to be stated later, we are unable to agree with this view. It is true that the Nazir 's return showed that defendant No. 4 had not been bodily removed. But the same return also shows that it had not been so removed because of certain arrangement arrived at between it and the decree holders and as the decree holders had not required the removal of defendant No. 4 from the premises. Now under Or. 21, r. 35 a person in possession and bound by the decree has to be removed 690 only if necessary, that is to say, if necessary to give the decree holder the possession he is entitled to and asks for. It would not be necessary to remove the person in possession if the decree holder does not want such removal. It is open to the ' decree holder to accept delivery of possession under that rule without actual removal of the person in possession. If he does that, then lie cannot later say that he has not been given that possession to which he was entitled under the law. This is what happened in this case. The decree holders in the present case, of their own accept ed delivery of possession with defendant No. 4 remaining on the premises with their permission. They granted a receipt acknowledging full delivery of possession. They permitted the execution case to be dismissed on September 8, 1949, on the basis that full possession had been delivered to them by defendant No. 4. The fact that they put their guards on the premises as mentioned in the Nazir 's return would also show that they had obtained full possession. It was open to the decree holders to accept such possession. Having once done so, they are bound to the position that the decree has been fully executed, from which it follows that it cannot be executed any more. In the case of Maharaja Jagadish Nath Roy vs Nafar Chandra Parmanik (1) an exactly similar thing bad happened and it was held that the decree was not capable of further execution. It was there said at p. 15, " The case, therefore, seems to me to be one of those cases in which a decree holder having armed himself with a decree for khas possession executes that decree in the first instance by obtaining symbolical possession only with some ulterior object of his own, and thereafter subsequently and as a second instalment asks for khas possession. The question is whether such a course is permissible under the law. I am of opinion that it is not ". We entirely agree with the view that was there expressed. The learned Solicitor General appearing for the appellants contended that the order of September 30, (1) 691 1948, shows that the decree holders bad undertaken to allow defendant No. 4 to carry on normal business for six weeks and therefore, on October 1, 1948, when they proceeded to execute the decree, they were not seeking to execute it in full by removing defendant No. 4 from possession. He said that the execution on October 1, 1948, was therefore not complete as defendant No. 4 had not been removed pursuant to the undertaking given on September 29, 1948. We are unable to read the order made on September 8, 1949, or the Nazir 's return and the receipt granted by the decree holders in a manner contrary to the plain meaning of the words used in them, because of the undertaking. Further, it is not the case of the decree holders that order, the Nazir 's return or the receipt is incorrect or had come into existence through any misapprehension. The legality or correctness of none of these was ever nor is now challenged. The order of September 8, 1949, is binding on the decree holders and they cannot now go behind its terms. For the same reason, neither can they go behind the order of November 22, 1948, recording in terms of the Nazir 's return that possession had been delivered. It further seems to us that if the undertaking meant that defendant No. 4, was not to be removed from possession, then the execution would have been stayed, which it was not, for the only way in which it was possible to execute the decree was by removal of defendant No. 4 from possession as it was alone in actual possession, the executor defendants claiming only rent from it as landlord. Then again the order in which the undertaking appears, also states that the stay of execution against defendant No. 4 as asked by it, was refused. Besides this, the order sheet shows that immediately after the order stating the undertaking had been made another order was made on the same day acknowledging receipt from the decree holders of the costs of the police for helping the execution and directing that the police might be approached to render any help necessary on October 1, 1948, at the time of the execution of the decree. The only possible way to reconcile all the various orders, the return 692 and the receipt, is to proceed on the basis that by the undertaking the decree holders agreed that after they had taken possession, they would allow defendant No. 4 to continue its business on the premises for six weeks with their permission. Such undertaking does not show that it was not intended to remove defendant No. 4 from possession. The learned Solicitor General also contended that the fact that the undertaking was confined only to a period of six wee s would show that the decree holders were not permitting defendant No. 4 to continue in possession after they had obtained possession from it, for then no period would have been mentioned. We are unable to accept this argument for there is nothing to prevent the decree holders after they had obtained possession under the decree, to grant permission to defendant No. 4 to continue in possession for any period they. liked; such permission could be for six weeks or for any longer or shorter period as the decree holders thought fit. The learned Solicitor General then contended that the case was one where the decree had been partly executed on one day and execution had been stopped on that day for want of time or other reason, with the object of continuing it on a subsequent day. In such a case, he said, there would be nothing to prevent subsequent execution of the same decree. It does not seem to us that the present case is of this nature. The orders and documents on the record are against this view. The further execution is not in the course of the earlier execution but is a fresh execution. The interruption in the execution was for over two years. Apart from other things, the placing of their own guards on the premises by the decree holders could only be on the basis that they had taken possession. The learned Solicitor General said that the guards had been put there with the permission of defendant No. 4. The Nazir 's return is entirely against such a view. Indeed, it is difficult to see why defendant No. 4 would permit the decree holders ' guards on the premises unless it was on the basis that possession had been taken by the decree holders and the guards 693 were there to protect their possession. The guards were subsequently removed but it does not appear, from the records. in what circumstances they were ' removed. Nor do we think that the order of October 1, 1948, assists the decree holders. That order directed the writ to be recalled provisionally. The order was wholly infructuous for the writ had earlier been duly executed. The learned Subordinate Judge himself came to that finding. as we have said, is also clear from the records of the execution case. The writ could not be recalled after it had been 'executed fully. Nor does the order establish that the decree had been executed in part only. The writ was not in fact recalled before the decree had been executed in full. The order of September 8, 1949, makes it impossible to hold that the writ was recalled after it had been executed in part only. The other argument advanced by the learned Solicitor General was based on the order of the High Court dated January 21, 1949. It was said that order indicated that the decree had not been executed by removing defendant No. 4 from possession because it, in substance, was an order for a stay of execution of the decree. It was also said that the order must have been on the basis of a representation by defendant No. 4 and a finding that the decree had not been executed by removing defendant No. 4 from possession. The contention was that finding and representation was binding on defendant No. 4 and therefore on the added respondents and further that having obtained the order on the basis that it had not been ousted from possession in execution, defendant No. 4 and hence the added respondents, could not be permitted to approbate and reprobate that position and now be heard to say that the decree had been executed in full. We think that both these contentions are ill founded. The order is far from clear. We have already pointed out that there is nothing in it to show that defendant No. 4 had asked for any stay. Defendant No. 4 had not appealed from the decree. It was not 694 entitled to a stay of the execution of the decree. It was in possession of the premises with the permission of the decree holders. The permission had initially been for six weeks which period had expire was executor defendants who had obtained an ad interim stay from the High Court on October 1, 1948. This order was infructuous because forty five minutes prior to the time that it was made, the decree had been executed in full. In those circumstances the Court on January 21, 1949, may be at the request of defendant No. 4, gave it three months ' time to vacate the premises. The request, if any, by defendant No. 4 does not involve a representation that the decree had not been executed in full. It may, at most, mean that the six weeks ' permission initially granted by the decreeholders might be further extended. With regard. to the other contention, namely, that the order of January 21, 1949, amounted to a finding that the decree had not been executed in full, we have to point out that no such finding appears on the face of it. The order was made on an interlocutory proceeding and was only in aid of the final decision in the appeal. The proceeding in which the order was made did not involve a decision of the issue whether the decree had earlier been executed in full. No finding on such an issue can therefore be implied in the order. This order does not in our view in any way prevent the added respondents from contending that the decree had been executed in full. In the result this appeal fails and it is dismissed. We do not think it fit to make any order as to costs. Appeal dismissed.

On November 15, 1954, the Registrar wrote to the company of which the appellant was the Managing Agent under section 137, Indian Companies Act, 1913, that it had been represented to him that the business of the company was carried on in fraud and called upon it to furnish certain information. On April 15, 1955, the Registrar made a report to the Central Government under section 137(5) to the effect that in his opinion the affairs of the company were carried on in fraud of contributories and they disclosed an unsatisfactory state of affairs and that a case had been made out for an investigation under section 138. Thereupon, the Central Government, on November 1, 1955, appointed an Inspector to investigate the affairs of the company and to report thereon. The Inspector was authorised under section 140 to examine any person on oath, and he wrote to the appellant that he would examine him on oath in relation to the business of the company. On April 1, 1956, the Indian Companies Act, 1913, was repealed by the Indian , which conferred wider and more drastic powers of investigation. On July 26, 1956, the Central Government accorded approval under section 239(2) of the new Act to the Inspector exercising his powers of investigating into and reporting on the affairs of the company. In May 1957 the Inspector served notices upon the appellant calling upon him to attend his office on the date and the time specified for the purpose of being examined on oath and to produce certain account books and papers relating to the company. The appellant challenged the investigation and contended : (i) that since the Inspector was appointed under the old Act he had no jurisdiction to exercise the powers referable to the provisions of the new Act, (ii) that section 240 of the new Act which provided for the production of documents and, evidence at such investigations offended article 20(3) of the Constitution, and (iii) that section 239 of the new Act which conferred powers on inspectors for investigation and section 240 offended article 14 of the Constitution. 418 Held, that the Inspector appointed under section 138(4) of the old Act must be deemed to have been appointed under section 235 of the new Act and had authority and power to issue notices under section 240 of the new Act. Section 645 of the new Act provided that the appointment of an Inspector under the old Act shall, on repeal of the old Act and on coming into force of the new Act, have effect as if it was made under the new Act. Section 646 which provided that nothing in the new Act shall affect the operation of section T38 of the old Act as respects inspectors was not an exception or proviso to section 645 and the two sections being saving sections had to be read as independent of and in addition to, and not as exceptions to, each other. Held, further that section 240 of Indian , did not offend article 20(3) of the Constitution. For invoking the constitutional right against testimonial compulsion guaranteed under article 20(3) there must be at the relevant stage a formal accusation against the party pleading the guarantee relating to the commission of an offence which may result in a prosecution. The enquiry undertaken under section 240 by the Inspector was in substance an enquiry into the affairs of the company; at this stage there was no accusation, formal or otherwise, against any specified individual. The mere fact that a prosecution may ultimately be launched against the alleged offenders would not retrospectively change the complexion or character of the proceedings held by the Inspector when he makes the investigation. Maqbool Hussain vs The State of Bombay, ; , section A. Venkataraman vs The Union of India, [1954] S.C.R. 1150, M. P. Sharma vs Satish Chandra, District Magistrate, Delhi, ; , Thomas Dana vs State of Punjab, [1959] Supp. 1 S.C.R. 274 and Mohammed Dastagir vs The State of Madras, ; , relied on. Held, further that SS. 239 and 240 of the Indian , did not violate article 14 of the Constitution. These sections denied the company and persons in charge of the management of such companies the ordinary protection afforded to witnesses under section 132 of the Evidence Act and under section 161(1) and (2) of the Criminal Procedure Code. As they were entrusted with the financial interests of a large number of citizens it was legitimate to treat such companies and their managers as a class by themselves and to provide for necessary safeguards and checks against abuse of power by the managers. The basis of the classification is founded on an intelligible differentia which has a rational relation to the object sought to be achieved. Shri Ram Krishna Dalmia vs justice Tendolkar, [1959] S.C.R. 297, applied.

ivil Appeal Nos.1685 and 1686(NT) of 1974 From the Judgment and Order dated 21st February, 1974 of the Karnataka High Court in Tax Reference Nos. 67 and 68 of 1972. M.K. Banerjee, Additional Solicitor General, Ms A. Subhashini and B.B.Ahuja for the Appellant G. Sarangan and Mukul Mudgal for the Respondent. The Judgment of the Court was delivered by PATHAK, J. These appeals are directed against the judgment of the Karnataka High Court disposing of two Income tax References. The question in each Reference, which was answered by the High Court in favour of the assessee and against the Revenue, is whether in computing the profits for the purpose of deduction under section 80E of the Income Tax Act, 1961, the loss incurred by the assessee in the manufacture of alloy steels could not be set off against the profits of the manufacture of automobile ancillaries. The assessee is a public limited company engaged in the 169 manufacture of automobile spares. The products manufactured by it are covered by the list in the Fifth Schedule to the Income Tax Act. During the previous year relevant to the assessment year 1966 67, the assessee commenced another activity, the manufacture of alloy steels, which was also an industry included in the Fifth Schedule. The assessee sustained a loss in the alloy steel industry during the previous years relevant to the assessment years 1966 67 and 1967 68. It claimed a loss in the sum of Rs. 15,30,688 for the assessment year 1966 67. For the assessment year 1966 67, the assessee disclosed profits from the industry of automobile ancillaries in the following detail: 1. Manufacture of Springs at Mangalore Rs. 7,54,107 2. Manufacture of Springs at Nagpur Rs. 9,61,808 3. Manufacture of Hubs and Brake Drums Rs. 41,214 Rs 17,57,129 The assessee claimed relief under section 80E at 8 per cent of this amount in the sum of Rs.1,40,574. In the same manner, the assessee claimed relief under section 80E in the sum of Rs.1,52,483 for the assessment year 1967 68. The Income Tax Officer declined to grant the relief claimed by the assessee in the two assessment years. He noticed that the assessee had not taken into account the losses incurred in the alloy steel industry, and he held that the assessee would be entitled to deduction under section 80E on the profits from the manufacture of automobile parts only after setting off the loss in alloy steel manufacture. After making certain adjustments in the computation of the total income, the Income Tax Officer gave relief under section 80E in the sum of Rs.24,896 for the assessment year 1966 67 and Rs.1,20,986 for the assessment year 1967 68, computing the deduction at 8 per cent on the amount of profits from the manufacture of automobile parts as reduced by the losses from the alloy steel manufacture. An appeal by the assessee 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 a deduction was permissible at 8 per cent on the entire profits of the automobile parts industry included in the total income without deducting therefrom the losses in the alloy steel manufacture. It directed the Income Tax Officer to recompute the relief under section 80E. At the instance of the Revenue, the Appellate Tribunal referred 170 the case for each of the two assessment years 1966 67 and 1967 68 to the Karnataka High Court for its opinion on the following question of law: "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that in computing the profits for the purpose of deduction under section 80E of the Income Tax Act, 1961 the loss incurred in the manufacture of alloy steels should not be set off against the profits of the manufacture of automobile ancillaries?" The High Court answered the question in the affirmative. To appreciate the merits of the controversy in these appeals it would be as well to set forth at this point the relevant provisions of section 80E of the Income Tax Act as they stood at the time: 80E. "Deduction in respect of profits and gains from specified industries in the case of certain companies (1) In the case of a company to which this section applies, where the total income (as computed in accordance with the other provisions of this Act) includes any profits and gains attributable to the business of generation or distribution of electricity or any other form of power or of construction, manufacture or production of any one or more of the articles and things specified in the list in the Fifth Schedule, there shall be allowed a deduction from such profits and gains of an amount equal to eight per cent thereof, in computing the total income of the company. " It is not disputed that the assessee is a company to which section 80E applies. The question is whether for the purpose of granting relief under s.80E the loss suffered by the assessee in the manufacture of alloy steels can be set off against the profits arising from the manufacture of automobile ancillaries. It is apparent that section 80E provides for the grant of a rebate when computing the total income of a company carrying on the business of generating or distributing elect 171 ricity or other form of power or of constructing, manufacturing or producing any one or more of the articles and things specified in the list in the Fifth Schedule. Popularly, the list is known as the list of Priority Industries. A perusal of the entries in the list makes it clear that they are concerned with articles and things which are regarded of primary importance in the industrial and economic development of the country. Some of them form part of the industrial and economic base of the country while others enter into the industrial and economic infrastructure considered necessary or desirable for its development. A certain priority has been assigned to the construction, manufacture or production of those articles and things. They find place in section 80E along with the business of generation or distribution of electricity or other form of power. Nobody can dispute that electrical energy or other form of energy is crucial to industrial and economic development. The nature of articles and things included in the list in the Fifth Schedule possesses the same character. Alloy steels are undoubtedly covered by Entry (1) "Iron and steel (metal), ferro alloys and special steels", while automobile ancillaries appear clearly by that description in Entry 20 of the list. Both represent separate priority industries. It is obvious from the object underlying the enactment of section 80E and the terms in which it provides relief that the intention of Parliament in enacting the provision was to encourage the setting up of industries concerned with the generation or distribution of electrical and other energy and the construction, manufacture or production of articles or things specified in the list in the Fifth Schedule. The intention goes further. By making a provision for a rebate year after year on the industry making profits and gains during the year, the intention also was to provide an incentive for promoting efficiency in the industry. It is clear that the benefit was directed to the setting up and also the efficient working of the priority industries. How is the benefit to be worked out? First, it must be a company to which section 80E applies, that is to say a company which satisfies the requirements of sub section (2) of section 80E. Second, the total income, as computed in accordance with the Income tax Act 1961 without taking into regard the provisions of section 80E, should include profits and gains attributable to the business or the industry mentioned in the section. Third, from the profits and gains attributable to such business or industry a deduction has to be allowed of an amount equal to eight per cent of such profits and gains and effect must be given to this deduction when computing the total income of the company. 172 The assessee in this case carries on two industries, both of which find place in the list in the Fifth Schedule and can, therefore, be described as priority industries. It is urged by the learned Additional Soliciter General, appearing for the Revenue, that on a true application of section 80E the profit in the industry of automobile ancillaries must be reduced by the loss suffered in the manufacture of alloy steel, and reference has been made to a number of cases to which we shall presently refer. After giving the matter careful consideration we do not find it possible to accept the contention. It seems to us that the object in enacting section 80E is properly served only by confining the application of the provisions of that section to the profits and gains of a single industry. The deduction of eight per cent is intended to be an index of recognition, that a priority industry has been set up and is functioning efficiently. It was never intended that the merit earned by such industry should be lost or ' diminished because of a loss suffered by some other industry. It makes no difference that the other industry is also a priority industry. The coexistence of two industries in common ownership was not intended by Parliament to result in the misfortune of one being visited on the other. The legislative intention was to give to the meritorious its full reward. To construe section 80E to mean that you must determine the net result of all the priority industries and then apply the benefit of the deduction to the figure so obtained will be, in our opinion, to undermine the object of the section. An example will illustrate this. An industry entitled to the benefit of section 80E could have its profits wholly wiped out on adjustment against a heavy loss suffered by another industry, and thus be totally denied the relief which should have been its due by virtue of its profits. In our opinion, each industry must be considered on its own working only when adjudging its title to the deduction under section 80E. It cannot be allowed to suffer because it keeps company with some other industry in the hands of the assessee. To determine the benefit under section 80E on the basis of the net result of all the industries owned by the assessee would be, moreover, to shift the focus from the industry to the assessee. We hold that in the application of section 80E the profits and gains earned by an industry mentioned in that section cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. We shall now turn to the cases cited before us. In the view which has found favour with us it is apparent that the Madras High Court erred in holding in Commissioner of Income tax, Tamil Nadu III vs English Electric Company Ltd., , that in granting relief under section 80E the adjustment of certain losses in other trading 173 transactions was permissible in determining the quantum of profits and gains attributable to the priority industry claiming relief under that provision. The High Court did not correctly appreciate the law laid down by this Court in Cambay Electric Supply Industrial Co. Ltd., vs Commissioner of Income tax, Gujarat II. , That was a case where this Court held that, for the purpose of granting relief under section 80E to an industry, account must be taken when computing the profits and gains attributable to that industry of the balancing charge worked out under sub section (2) of section 41 as well as items of unabsorbed depreciation and any depreciation development rebate carried forward from earlier years. It appears from the facts of that case that the balancing charge as well as the unabsorbed depreciation and unabsorbed development rebate related to the particular industry itself. The only business carried on by the assessee there was generation and distribution of electricity at Cambay. The balancing charge arose because during the relevant accounting period the assessee had sold some of its machinery and buildings. The unabsorbed depreciation and development rebate also appear to relate to the same business. There is no indication that any of them related to a business or industry distinct from that whose profits and gains formed the subject of computation under section 80E. Our attention has been invited by the Revenue to Distributors (Baroda) P. Ltd.v. Union of India and Others, ; That is a case in which the Constitution Bench of this Court was called upon to consider the scope of section 80M of the Income tax Act. We do not see how that case is in any way relevant to the case before us. The point before the Court appears to have been whether the income by way of dividends from a domestic company, which fell to be included in the gross total income of the assessee, should be the amount computed in accordance with the provisions of the Act or the full amount received from the paying company. We may refer at this point to Commissioner of Income tax, West Bengal II vs Belliss and Morcon (I.) Ltd., a decision of the Calcutta High Court to which one of us (Sabyasachi Mukharji J.) was a party. That decision supports the view taken by us in so far as it lays down that in applying section 80 I of the Income tax Act (which replaced section 80E) it is not permissible to compute the profits of the priority industry, respecting which the relief is claimed, by taking into account the depreciation loss from other industries. No doubt the depreciation loss arose in that case from non priority industries, but in view of what we have said earlier that should make no difference whatever. We think it unnecessary to refer to other cases on the point. We think it sufficient to indicate that a distinction must be drawn between a case where the loss or un 174 absorbed depreciation pertain to the same industry whose profits and gains are the subject of relief under section 80E and a case where the loss or unabsorbed depreciation relate to industries other than the one whose profits and gains constitute the subject of relief. While concluding we may point out that the Mysore High Court seems, in our opinion, to be perfectly right in holding in Commissioner of Income tax, Mysore vs Balanoor Tea and Rubber Co. Ltd., that the loss from the plastic business carried on by the assessee could not be deducted from the profits and gains attributable to the tea industry for the purpose of computing the quantum of the profits and gains attributable to the tea industry under section 80E. In the result, we affirm the answer returned by the High Court to the question raised in the Income tax References. The appeals are dismissed with costs. A.P.J. Appeals dismissed.

The assessee company is engaged in the manufacture of autombile spares. During the previous year relevant to the assessment year 1966 67, the assessee also commenced the manufacturing of alloy steels. Both the industries are included in the Fifth Schedule to the Income Tax Act, 1961. The assessee sustained a loss in the alloys steel industry during the previous years relevant to the assessment years 1966 67 and 1967 68. It claimed a loss in the sum of Rs.15,30,688 for the assessment year 1966 67. For the assessment year 1966 67, the assessee disclosed profits to the tune of Rs.17,57,129 from the industry of automobile ancillaries. The assessee claimed relief under section 80E at 8% of this amount in the sum of Rs.1,40,574. Similarly the assessee claimed relief in the sum of Rs.1,52,483 for the assessment year 1967 68. The Income Tax Officer declined to grant the relief claimed and held that the assessee would be entitled to deduction under section 80E on the profits from the manufacture of automobile parts only after setting off the loss in alloy steel manufacture. The Appellate Assistant Commissioner dismissed the appeal of the assessee. But on second appeal, the Tribunal accepted the contention of the assessee that a deduction was permissible at 8% on the entire profits of the automobile parts industry included in the total income without deducting therefrom the losses in the alloy steel manufacture and directed the Income tax Officer to recompute the relief under s.80E. In the Reference, on the question whether in computing the profits for the purpose of deduction under section 80E of the Income tax Act, 1961, the loss incurred in the manufacture of alloy steels should not be set off against the profits of the manufacture of automobile ancillaries, the High Court answered in favour of the assessee and against the revenue. 167 In the Appeal to this Court, on behalf of the Revenue it was contended that on a true application of section 80E the profit in the industry of automobile ancillaries must be reduced by the loss suffered in the manufacture of alloy steels. Dismissing the appeal, ^ HELD: 1. In the application of section 80E of the Income tax Act, 1961 the profits and gains earned by an industry mentioned in that section cannot be reduced by the loss suffered by any other industry or industries owned by the assessee. [172G] 2. Each industry must be considered on its own working only when adjudging its title to the deduction under section 80E. It cannot be allowed to suffer because it keeps company with some other industry in the hands of the assessee. To determine the benefit under section 80E on the basis of the net result of all the industries owned by the assessee would be, to shift the focus from the industry to the assessee. [172E F] Commissioner of Income tax, Tamil Nadu III vs English Electric Company Ltd., [1981]131 ITR 277 overruled. Cambay Electric Supply Industrial Co.Ltd. vs Commisioner of Income tax, Gujrat II, followed. Distributors (Baroda) P. Ltd. vs Union of India & Ors., ; inapplicable. Commissioner of Income tax, West Bengal II vs Belliss and Morcon (1) Ltd., ; and Commissioner of Income tax, Mysore vs Balanoor Tea and Rubber Co. Ltd., approved. The object underlying the enactment of section 80E was to encourage the setting up of industries concerned with the generation or distribution of electrical and other energy and the construction, manufacture or production of articles or things specified in the list in the Fifth Schedule. By making a provision for a rebate year after year on the industry making profits and gains during the year, the intention also was to provide an incentive for promoting efficiency in the industry. The benefit was directed to the setting up and also the efficient working of the priority industries. [171E F] 168 4. The object in enacting section 80E is properly served only by confining the application of the provisions of that section to the profits and gains of a single industry. The deduction of 8% is intended to be an index of recognition that a priority industry has been set up and is functioning efficiently. It was never intended that the merit earned by such industry should be lost or diminished because of a loss suffered by some other industry. It makes no difference that the other industry is also a priority industry. The co existence of two industries in common ownership was not intended by Parliament to result in the misfortune of one being visited on the other. The legislative intention was to give to the meritorious its full reward. To construe section 80E to mean that one must determine the net result of all the priority industries and then apply the benefit of the deduction to the figure so obtained will be, to undermine the object of the section. [172B E] In the instant case, both the industries carried on by the assessee find place in the list in the Fifth Schedule and represent separate priority industries. [172A]

vil Appeal Nos. 379 1988 and 3660 82/1987. From the Judgment and Order dated 26.10.87 of the Customs Excise and Gold (Control) Appellate Tribunal in Appeal Nos. ED/943/83 D Order No. 838/87 D ED(SB) A. No. 411 and 412/81 D ' and 787/80 D in Order No. 786 to 788/6 D. Kuldip Singh, Additional Solicitor General, A.K. Srivastava and P.Parmeswaran and Mrs. Sushma Suri for the Appellants. Soil J. Sorabjee, section Ganesh, J.R. Gagrat, P.G. Gokhale, B.R. Agarwala and C.M. Mehta for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI,J. These appeals are under Section 35L(b) of the Central Excises and Salt Act, 1944(hereinafter to as 'the Act ') against the decision of the Customs Excise and Gold (Control) Appellant Tribunal, New Delhi ( 'Tribunal ' for short) dated 26the October,1987. The respondent company has its factory at Chakala Andheri and is engaged in the manufacture of non alcoholic beverage bases falling under Tariff Item 68 of Central Excise Tariff. During the course of enquiry, it was found that the company had during the period from Ist March, 1975 to 18th April,1979 manufactured non alcoholic beverage bases without holding proper Central Excise licence and had cleared the said goods without payment of the duty due thereon and had thereby evaded the duty amounting to PG NO 937 Rs.3,50,963.22. According to the revenue, prima facie it appeared that the respondent had contravened the provisions of Rules 9(1), 53, 173 pp(I), 173 pp(3), ]73 pp(6) and 174 of the Central Excise Rules, 1944 (`Rules ' for short) inasmuch as during the period from 1st March, 1975 to 18th April, 1979 the respondent company had manufactured without valid licences required under Section 6 of the Act read with Rule 174 of the Rules, goods not elsewhere specified and falling under Tariff Item 68 of the First Schedule of the Act, viz., non alcoholic beverage bases. The respondent company had further cleared the said goods without filing list of goods manufactured as required by Rule 173 pp(3) of the Rules. The respondent had cleared the said goods without preparing gate passes as required under Rule 173 pp (6) of the Rules. and had further cleared the said goods without maintaining accounts as required under Rule 53 of the Rules. In the circumstances. notices were issued by the relevant officer asking the respondent company to show cause for recovery of the dues and also for imposition of penalty. When the matter came up for consideration before the Collector, Central Excise, he found that non alcoholic beverage bases were not themselves food or food products and accordingly did not quality for exemption under Notification No. 55/75 as amended. He accordingly confirmed the demand of central excise duty of Rs.3,50,963.22 under Rule 9(2) read with Rule 10 of the Rules. He also imposed a penalty of Rs.25,000 under Rule 173Q of the Rules. Aggrieved thereby,the respondent company filed an appeal before the Tribunal and contended that the question of the dutiability of non alcoholic beverage bases manufactured by the respondent had been settled by the Tribunal in its decision in the case of respondent itself, i.e. ,Parle Exports (P)Ltd. vs Collector of Central Excise, Baroda, which are the subject matter of the connected appeals, i.e. C.A. Nos. 3680 82 of 1987 The Tribunal following its earlier order allowed the appeal and hence the present appeal by the Revenue. The First Schedule of the Act which provides for the dutiability and the rates of duty applicable to various goods mentioned therein contains the expressions "Food and Beverages It provides therein description of various types of goods and the rates of duties applicable thereto. In the said description "Food and Beverages" many items are included, viz., sugar produced in a factory ordinarily using power in the course of production of sugar, (1A) confectionery, cocoa powder and chocolates, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power namely. boiled sweets, toffees, caramels, candies, nuts (including almonds) and fruit kernels coated with sweetening agent, and PG NO 938 chewing gums, cocoa powder, drinking chocolates etc. It also includes items (1B) prepared or preserved foods put up in unit containers and ordinarily intended for sale, including preparations of vegetables, fruit, milk, cereals, etc., and as item (1C) food products, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power, namely, biscuits, pasteurised butter, pasteurised or processed cheese, aerated waters, whether or not flavoured or sweetened and whether or not containing vegetable or fruit juice or fruit pulp etc. Tariff Item 68 of the First Schedule of the Act provides for duty on "All other goods not elsewhere specified and manufactured in a factory" but excluding, inter alia alcohol, all sorts, including alcoholic liquor for human consumption and other items not necessary for our present purpose. The exemption Notification No. 55/75 C.E. dated 1st March, 1975 reads as follows: "In exercise of powers conferred by sub rule (10) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods of the description specified in the q Schedule annexed hereto and falling under Item No. 68 of the First Schedule to the (1 of 1944), from the whole of the duty of excise leviable thereon . THE SCHEDULE 1. All kinds of food products and food preparations,including (i) meat and meat products; (ii) dairy products; (iii) fruit and vegetable products; (iv) fish and sea foods; (v) bakery products; and (vi) grain mill products. Electric light and power. " PG NO 939 The question is, whether by the notification of exemption non alcoholic beverage bases have been exempted from payment of duty. The only question, therefore, in other words, is whether non alcoholic beverage bases are `food products ' or `food preparations ' covered by the exemption notification No. 55/75 CE of Ist March, 1975. We are not concerned with the question whether in a broad general sense non alcoholic beverage base is food or not. In Brooke Bond (India) Limited vs Union of India, the question arose before a learned Single Judge of the High Court of Andhra Pradesh whether coffee chicory blend was food product and is an item which fell under Tariff Item 68 of the Tariff. The identical notification involved herein came up for consideration in that case. The question was whether it was food product or food preparation, and as such exempt from excise duty. It was held by the learned Single Judge that what was exempt under the said notification was not food but food products and food preparations and it was further held that coffee chicory blend was neither food nor food preparation. Therefore, it was not exempt from payment of excise duty under the said notification. The word food has no definition of universal application and it varied from statute to statute. In some cases the dividing line between the two might be thin and in some cases it might be varied but so far as coffee chicory blend was concerned there was little doubt that it was beverage and not food. The learned Judge referred to paragraph 109 of Volume 18 of Halsbury 's Laws of England (4th Edn). In that paragraph, coffee chicory products are mentioned under the general heading `Food, Dairies and Salaughter Houses ' and sub heading `Food generally. Coffee chicory blend is also mentioned in that paragraph. But the coffee and coffee products under the heading `Food generally were in the context of the law of Food Adulteration and the Coffee and Coffee Produce Regulations, q1967 in force in England. Reference was also made by the learned Judge to Corpus Juris Secundum, Volume 36 at page 1041. The learned Judge, in our opinion, rightly observed that the aforesaid passage from the Halsbury 's Laws of England and Corpus Juris Secundum could not be mechanically imported into the present case more particularly when we are concerned with the situation under the Tariff Schedule. `Food ', as has been noted, has no fixed definition of universal application and its meaning varies from statute to statute. The dividing line, the learned Judge observed, between the beverage and food might be thin and in some case it might overlap. The learned Judge,, however, observed that it was beverage rather than food. The accordingly held that the notification exempted not food but food products and food preparations and as such coffee chicory blend did not come within the purview of the exemption. The said decision was affirmed by the Division PG NO 940 Bench of that Court in Brooke Bond (lndia) Limited vs Union of India & Ors., The Division Bench after exhaustively discussing the points in controversy and after referring to several authorities referred to the decision of Justice Vivian Bose of this Court in The State of Bombay vs Vir Kumar Gulabchand Shah, [1982] SCR/877, wherein he had observed in his own and inimitable language at pages 880 883 of the report as under: "Much learned judicial thought has been expended upon this problem what is and what is not food and what is and what is not a foodstuff, and the only conclusion I can draw from a careful consideration of all the available material is that the term 'foodstuff is ambiguous. In one sense it has a narrow meaning and is limited to articles which are eaten as food for purposes of nutrition and nourishment and so would exclude condiments and spices such as yeast, salt, pepper, baking powder and turmeric. In a wider sense, it includes everything that goes into the preparation of food proper (as understood in the narrow sense) to make it more palatable and digestible. In my opinion, the problem posed cannot be answered in the abstract and must be viewed in relation to its background and context. But before I dilate on this, l will examine the dictionary meaning of the words The Oxford English Dictionary defines foodstuff a follows: "that which is taken into the system to maintain life and growth and to supply waste to tissue". In Webster 's international Dictionary `food is defined as: "nutritive material absorbed or taken into the body of an organism which serves, for purposes of growth. work repair and for the maintenance of the vital processes". Then follows this explanation: "Animals differ greatly from plants in their nutritive processes and require in addition to certain inorganic substances (water, salts etc.) and organic. substances of unknown composition (vitamins) not ordinarily ' classed as food 'though absolutely indispensable to life, and contained in greater of less quantities in the substances eaten) complex organic substances which fall into three principal groups, Proteins, Carbohydrates and Fats. " PG NO 941 Next is given a special definition for legal purposes, namely "As used in laws prohibiting adulteration etc. , `food ' is generally held to mean any article used as food or drink by man, whether simple, mixed or compound, including adjuncts such as condiments, etc., and often excluding drugs and natural water. " The definition given of `foodstuff ' is "1. Anything used as food, 2. Any substance of food value as protein, fat etc. entering into the composition of a food. " It will be seen from these definitions that "foodstuff" has no special meaning of its own. It merely carries us back to the definition of "food" because "food stuff" is anything which is used as "food". So far as "food" is concerned, it can be used in a wide as well as a narrow sense and, in my opinion, must depend upon the context and background. Even in a popular sense, when one asks another "Have you had your food?", one means the composite preparations which normally go to constitute a meal curry and rice, sweetmeats, pudding, cooked vegetables and so forth. One does not usually think separately of the different preparations which enter into their making, of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non nutritive adjuncts. So also, looked at from another point of view, the various adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make it palatable and nutritive, can hardly be separated from the purely nutritive elements if the effect of their absence would be to render the particular commodity in its finished state unsavoury and indigestible to a whole class of persons PG NO 942 whose stomachs are accustomed to a more spicely prepared product. The proof of the pudding is, as it were, in the eating, and if the effect of eating what would otherwise be palatable and digestible and therefore nutritive is to bring on indigestion to a stomach unaccustomed to such unspiced fare, the answer must, I think, be that however nutritive a product may be in one form it can scarcely be classed as nutritive if the only result of eating it is to produce the opposite effect; and if the essence of the definition is the nutritive element, then the commodity in question must cease to be food, within the strict meaning of the definition to that particular class of persons, without the addition of the spices which make it nutritive. Put more colloguially, "one man 's food is another man 's poison". I refer to this not for the sake of splitting hairs but to show the undesirability of such a mode of approach. The problem must, I think, be solved in a commonsense way. " Justice Bose noted that a comparison of war time measure in English and Indian Statutes might not be safe. But food is one which nourishes and sustains human body for the purposes of growth, work or repair and for the maintenance of the vital process. In the Brooke Bond Ltd. 's case (supra), the Division Bench considered the meaning of the expression "coffee chickory blend" and upheld the decision of the learned Single Judge as mentioned hereinbefore. Mr. Sorabjee, learned counsel appearing for the respondent, drew our attention to several items including Item 68 and the Central Excise Trade Notice dated 18th June 1975 which deals with exemption. The said Trade Notice, inter alia, reads as follows: "A number of doubts have been raised about the general scope of the terms `food products/preparations ' vide Entry No. I in the Schedule to Notification No. 55/75 dated 1.3.75. Specific queries have also been raised as to whether items like oil cakes, rice bran. scented chunam, katna, starch, quargum, gur, flour, ice cream and ice candy, ice, supari, groundnut kernels, and cashew kernels could be regarded as covered under the above entry as claimed by the manufacturers of these goods. The matter has been examined and the following clarifications are used for the information of the trade. PG NO 943 The word `food ' is a general term and applies to all that is eaten by men for nourishment and takes in subsidiaries, further; (i) preparations for use, either directly or after processing such as cooking, dissolving or oiling in water, milk etc. for human consumption; and (ii) preparations used because of their nutritional or flavouring properties in the making of beverages or food stuffs for human consumption, are classiable as food preparations. But such preparations which because of their ingredients and small proportion in which they are normally used, are clearly added for other purposes, or not classiable as food preparations." (underlined by us). Mr. Sorabjee also drew our attention to the explanatory note in Heading No. 21.07 of CCCN which states, inter alis as follows: "21.07 FOOD PREPARATIONS NOT ELSEWHERE SPECIFIED OR lNCLUDED. Provided that they are not covered by any other heading of the Nomenclature the present heading covers: (A) Preparations consisting wholly or partly of foodstuffs, used in the making of beverages or food preparations for human consumption. The heading includes preparations consisting of mixtures of chemicals (organic acids, calcium salts, lecithin etc.) with food stuffs (flour, sugar, milk, milk powder, etc.) for incorporation in food preparations either as ingredients or to improve some of their characteristics (appearance keeping qualities etc.)" Clause (2) of the said explanatory notes in heading No. 20.17 of CCCN contains the following: "(2) Flavouring powders for making beverages, whether or not sweetened with a basis of bicarbonate of soda and glycyrrhizin or liquorice extract (sold on the Continent as "Cocoa powder"). " PG NO 944 Our attention was also drawn to Item ( 12) of the same which runs as follows: "(12). Non alcoholic compound preparations (often known as "concentrated extracts") used for making beverages (liqueurs, etc.) unless they are included elsewhere in the Nomenclature. These preparations are obtained by compounding vegetable extracts of heading 13.03 with lactic acid, tartaric acid, citric acid, phosphoric acid, preserving agents, foaming agents, fruit juices, etc., and sometimes with essential oils. Alcoholic preparations of this type are excluded (heading 22.09)" Mr. Sorabjee further drew our attention to the Appendix 17 of Import Policy of 1981 82 which was relied upon by the Tribunal in the second decision, i.e. the Parle Exports (P) Ltd. case which is the subject matter of the connected appeals, i.e. C.A. Nos. 3680 82 of 1987. It was pleaded that it was always understood and treated as a part of the food product. Reliance was also placed on the reports of the Chief Chemist of the Central Excise Regional Laboratory, Baroda to which Mr. Sorabjee drew our attention. The reports dealing inter alia with some items stated as follow: "Gold Spot Base: S.R.No. 1 Base A (Lab. No.10) The sample is in the form of orange coloured liquid containing flavouring agents free from Alcohol. (Please see note attached). No 2 Base (Lab. No. 11) The sample is in the form of white powder. It is sodium Benzoate a chemical known to be used as a preservative. S.R. No.3 . Base C (Lab. No. 12) The sample is in the form of white powder. It is vitamin `C '(ascorbic acid) an organic chemical. Limca Base: PG NO 945 S.R. No. 4 Base A (Lab. No. 13) The sample is in the form of white liquid containing flavouring agents. It is free from Alcohol. (Please see note attached.) S.R. No. 5 Base B (Lab. No. 14) The sample is in the form of white powder. It is sodium Benvonate a chemical known to be used as a preservative. " The note appended to these reports stated inter alia the following: "NOTE" "The term "food ' ' as defined in the meant any article used as food or drink for human consumption other than drugs and water and includes: (a) Any article which ordinarily enters into, or is used in the composition or preparation of human foods; and (b) any flavouring matter or condiments. Food products which are excluded from item (C) would fall under Item 68 of Central Excise, Tariff read with the Notification 62/78 dated 1.3.78 excluded as amended. The term "Food preparations" on the other hand would cover; (a) Preparation for use either directly or after processing (such as cooking, dissolving or boiling in water, milk etc.) for human consumption. (b) Preparation consisting wholly or partly of food stuffs used in making of Beverages or food preparation for human consumption. This would also include concentrated extract for making non alcoholic beverages. B.T.N. heading 21.07) PG NO 946 In this connection attention is also invited to Bangalore Collectorate trade notice No. 103/75 dated 18.6.75. In view of that has been stated above samples at Sl. No. 1, 4, 8, 9, 13 and 15 may be deemed to fall in the category of food preparations. However, before finalising the assessment, it may be worthwhile ascertaining whether the above products are also known as food preparations in common parlance and trade. The views of the Director. Drugs & Food Laboratory, Baroda may also sought, if necessary." Mr. Sorabjee submitted that the Tribunal has relied on the Bangalore Collectorate Trade Notice as referred hereinbefore, order of the Appellate Collector in the case of Bush Boake Allan (India) Limited, and Heading No. 21.07 of CCCN, Import Policy of the Government of India for 1981 82 as well as the observations in Encyclopaedia Britannica, Volume 13 at pages 420 421. It was submitted that the said orders of the Tribunal had considered and taken into consideration all the relevant factors. The Tribunal has acted on the varied materials, and therefore, such decision of the Tribunal should not be altered or deviated from. Reliance was placed on the observations of this Court in Collector of Customs, Bombay v, Swastic Woollen (P) Ltd. and Ors., at paragraph 9. The expression "food products" is not defined in the Act The product exemption includes `food and food preparations ' and provides an inclusive definition of `food products ' and 'food preparations '. But the correct and the appropriate meaning of the expressions covered in the said notification has to be found out. The question is whether non alcoholic beverage base is either `food product ' or `food preparation ' in terms of the notification in question. Mr. Sorabjee tried to suggest that fruit and vegetable juice might become fruit or vegetable products to come under Item 1(iii) of the Schedule to the exemption notification. Learned Additional Solicitor General, Mr. Kuldip Singh, on the other hand submitted that non alcoholic beverage base though having some food value, is not food product or food preparation, at any rate, in the context of the Act and notification as such. lle drew our attention to the first heading in the First Schedule to the Act dealing with "Food and Beverages" and pointed out that items 1 to IC deal with Food and Food Products while item 1D deals with beverages separately. He submitted before us that this indicates that PG NO 947 the expression "food products and food preparations" are used in contrast to "beverages" so far as the present Act and notifications thereunder are concerned. There is force in the submissions of the learned Additional Solicitor General. Our attention was drawn to a decision of the Government of India in Re: Asian Chemical Works, where the Government of India opined that `Food flavours ' and `food preparations, might improve taste or appearance of food products and/or food preparations, but by themselves could not be legitimately consumed directly or after processing such as cooking, dissolving, or boiling in water for human consumption independently. Mr. Singh submitted that in ordinary common and commercial parlance also the goods in question are not known as food products and/or food preparations as such, therefore, these are not to be treated as exempt under the notification. Mr. Singh submitted that when a person says "I have consumed food" he does not mean or says that he has consumed non alcoholic beverage bases. Therefore, those goods cannot be understood as covered by the notification of exemption. It was submitted that how Government understood a matter at the time of the notification, is a relevant factor and that is a factor which one should bear in mind in view of the principles enunciated by this Court in K.P. Verghese vs Income Tax Officer, Ernakulam & Anr., ; It is a well settled principle of interpretation that courts in construing a statute or notification will give much weight to the interpretation put up on it at the time of enactment or issue, and since by those who have to construe. execute and apply the said enactments. How then should the courts proceed? The expressions in the Schedule and in the notification for exemption should be understood by the language employed therein bearing in mind the context in which the expressions occur. The words used in the provision, imposing taxes or granting exemption should be understood in the same way in which these are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. It is, however, necessary to bear in mind certain principles. The notification in this case was issued under Rule 8 of the Central Excise Rules and should be read along with the Act. The notification must be read as a whole in the context of the other relevant provisions. When a notification is issued in accordance with power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is, as if it were contained in the Act itself. See in this connection the PG NO 948 observations of this Court in Orient Weaving Mills (P) Ltd. vs The Union of India, [1962] Supp. 3 SCR 481. See also Kailash Nath vs State of U.P., AIR The principle is well settled that when two views of a notification are possible, it should be construed in favour of the subject as notification is part of a fiscal enactment. But in this connection, it is well to remember the observations of the Judicial Committee in Coroline M. Armytage & Ors. vs Federick Wilkinson, at 370 that it is only, however, in the event of there being a real difficulty in ascertaining the meaning of a particular enactment that the question of strictness or of liberality of construction arises. The Judicial Committee reiterated in the said decision at page 369 of the report that in a taxing Act provisions establishing an exception to the general rule of taxation are to be construed strictly against those who invoke its benefit. While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoided. In Hindustan Aluminium Corporation Ltd. vs State of Uttar Pradesh & Anr., [1982] l SCR 129 this Court emphasised that the notification should not only be confined to its grammatical or ordinary parlance but it should also be construed in the light of the context. This Court reiterated that the expression should be construed in a manner in which similar expressions have been employed by those who framed relevant notification. The Court emphasised the need to derive the intent from a contextual scheme. In this case therefore, it is necessary to endeavour to find out the true intent of the expressions "food products and food preparations" having regard to the object and the purpose for which the exemption is granted bearing in mind the context and also taking note of the literal or common parlance meaning by those who deal with those goods, of course bearing in mind. that in case of doubt only it should be resolved in favour of the assessee or the dealer avoiding, however. an absurd meaning. Bearing the aforesaid principles in mind, in our opinion, the revenue is right that the nonalcoholic beverage bases in India cannot be treated or understood as new `nutritive material absorbed or taken into the body of an organism which serves for the purpose of growth, work or repair and for the maintenance of the vital process ' and an average Indian will not treat non alcoholic beverage bases as food products or food preparations in that light. PG NO 949 We have also noted how these goods were treated by the Government as mentioned hereinbefore. There is no direct evidence as such as to how in commercial parlance unlike in ordinary parlance, non alcoholic beverage bases are treated or whether they are treated as food products or food preparations. The purpose of exemption is to encourage food production and also give boost to the production of goods in common use and need. After all the purpose of exemption is to help production of food and food preparations at cheaper price and also help production of items which are in common use and need, like electric light and power. The question of interpretation involves determining the meaning of a text contained in one or more documents. Judges are often criticised for being tied too closely to the statutory words and for failing to give effect to the intention of the Parliament or the lawmaker. Such language, it has been said, in Cross 's "Statutory Interpretation" (Second Edn.) at page 21, appears to suggest that there are two units of enquiry in statutory interpretation the statutory text and the intention of the Parliament and the Judge must seek to harmonise the two. This, however, is not correct. According to the tradition of our law, primacy is to be given to the text in which the intention of the law giver has been expressed. Cross refers to Blackstone 's observations that the fairest and most rational method to interpret the will of the law maker is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequences, or the spirit and reason of the law. We have no doubt, in our opinion, that having regard to the language used it would not be in consonance with the spirit and the reason of law to give exemption for non alcoholic beverage bases under the notification in question. Bearing the aforesaid purpose, in our opinion, it cannot be contended that expensive items like Gold Spot base, Limca base or Thumps up base were intended to be given exemption at the cost of public exchequer. For the aforesaid reasons, the appeals have to be allowed and the decision of the Tribunal reversed. We, however. need not go into the question of penalty as well as the question of limitation which have been left open by the Tribunal in its order. It will be open for the parties to urge these points afresh before the Tribunal. We express no opinion on these aspects. The appeals to the extent indicated above are allowed. There will, however, be no order as to costs. R.S.S. Appeals allowed.

The respondent company was engaged in the manufacture of nonalcoholic beverage bases falling under Tariff Item 68 of Central Excise Tariff. According to the Revenue, the company manufactured the nonalcoholic beverage bases without holding proper Central Excise Licence, and had cleared the said goods without payment of the duty due thereon. The stand of the company was that the goods were exempt from duty under Notification No. 55/75 C.E. dated 1st March, 1975 which inter alia exempted "all kinds of food products and food preparations". The Customs and Excise Collector confirmed the demand of central excise duty against the company. In appeal, the Confirmed the demand of and Gold (Control) Appellate Tribunal accepted the contention of the company. The Additional Solicitor General on behalf of the appellants contended that (i) non alcoholic beverage base though having some food value, was not food product or food preparation. at any rate, in the context of the Act and notification as such; (ii) the expression "food products and food preparations" was used in contrast to "beverages" so far as the present Act and notifications thereunder were concerned; (iii) in ordinary common and commercial parlance also the goods in question were not known as food products and/or food preparations as such, and therefore these were PG NO 933 PG NO 934 not to be treated as exempt under the notification; and (iv) how Government understood a matter at the time of the notification, was a relevant factor and that was a factor which one should bear in mind. K.P. Verghese vs Income Tax Officer Ernakulam, ; and Government of India 's decision in Re: Asian Chemical Works, , relied upon. On behalf of the respondent it was contended that the Tribunal had acted on the varied materials, and therefore, such decision of the Tribunal should not be altered or deviated from. Collector of Customs, Bombay vs Swastic Woollen (P) Ltd., , relied upon. Allowing the appeals, it was, HELD: (1) The word `Food ' has no fixed definition of universal application and its meaning varies from statute to statute. But food is one which nourishes and sustains human body for the purposes of growth, work or repair and for the maintenance of the vital process.[939D] Brooke Bond (India) Limited vs Union of India, ; Brooke Bond (India) Limited vs Union of India. 119%41 and The State of Bombay vs Virkumar Gulabchand Shah, ; , referred to. (2) The expression `food products ' is not defined in the Act. The exemption includes food products and food preparations ' and provides an inclusive definition of `food products ' and food preparations '. [946E] (3) The words used in the provision, imposing taxes or granting exemptions, should be understood in the same way in which these are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them. [947F] (4) It is a well settled principle of interpretation that courts in construing a statute or notification will give much weight to the interpretation put upon it at the time of enactment or issue, and since by those who have to construe, execute and apply the said enactments. l947E] PG NO 935 (5) The notification should not only be confined to its grammatical or ordinary parlance but it should also be construed in the light of the context. The expression should be construed in a manner in which similar expressions have been employed by those who framed the relevant notification, [948E] Hindustan Aluminium Corporation Ltd. vs State of Uttar Pradesh, ; , referred to. (6) The question of interpretation involves determining the meaning of a text contained in one or more documents. Judges are often criticised for being tied too closely to the statutory words and for failing to give effect to the intention of the Parliament or the law maker. [949C] (7) According to the tradition of our law, primacy is to be given to the text in which the intention of the law giver has been expressed. [949D] (8) The principle is well settled that when two views of a notification are possible, it should be construed in favour of the subject as notification is part of a fiscal enactment avoiding, however, as absurd meaning. [948F] Coroline M. Armytage & Ors. vs Frederick Wilkinson, , referred to. (9) The notification must be read as a whole in the context of the other relevant provisions. When a notification is issued in accordance with power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is, as if it were contained in the Act itself [947G H] Orient Weaving Mills (P) Ltd. vs Union of India, [1962] Supp.3 SCR 481 and Kailash Nath vs State of U.P., AIR 1975 SC 790, referred to. (10) The purpose of exemption is to encourage food production and also give boost to the production of goods in common use and need. After all, the purpose of exemption is to help production of food and food preparations at cheaper price and also help production of items which are in common use and need, like electric light and power. [949A B] PG NO 936 (11) Having regard to the language used it would not be in consonance with the spirit and the reason of law to give exemption for non alcoholic beverage bases under the notification. Bearing the aforesaid purpose, it cannot be contended that expensive items like Gold spot base, Limca base or Thumps up base were intended to be given exemption at the cost of the public exchequer.[949E F] (12) Non alcoholic beverage bases in India cannot be treated or understood as new 'nutritive material absorbed or taken into the body of an organism which serves for the purpose of growth, work or repair and for the maintenance of the vital process ' and an average Indian will not treat non alcoholic beverage bases as food products or food preparations in that light.[948G H]

Appeal No. 108 of 1954. Appeal from the judgment and decree dated March 21, 1952, of the Calcutta High Court in Appeal from Appellate Decree No. 971 of 1950, arising out of the judgment and decree dated August 29, 1950, of the Court of District Judge of Zillah Burdwan in Title Appeal No. 247/16 of 1948 against judgment and decree dated September 25, 1948, of the Court of Additional Sub Judge, 1st Court, Burdwan, in Title Suit No. 7 of 1946/27 of 1947. 1311 N. C. Chatterjee and Sukumar Ghose, for the appellant. J. N. Banerjee and P. K. Ghose, for the respondents. September 18. The Judgment of the Court was delivered by VENKATARAMA AIYAR J. This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below dismissed his suit, which was one in ejectment. The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This village was granted by the Maharaja of Burdwan in Patni settlement to the predecessors in title of defendants I to 7. The exact date of this grant does not appear, but it is stated that it was sometime prior to the enactment of the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it. The Mahal with which this litigation is concerned, had been at or prior to the permanent settlement set apart as Chaukidari Chakaran lands; that is to say, they were to be held by the Chaukidars for rendering service in the village as watchmen. In 1870, the Village Chaukidari Act, 1870 (Ben. VI of 1870), hereinafter referred to as the Act, was passed, and section 48 of that Act provides that all Chaukidari Chakaran lands assigned for the benefit of any village shall be transferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act. Under section 50, the Collector is authorized to make an order transferring those lands to the Zamindar after determining the assessment payable thereon, and section 51 enacts that: " Such order shall operate to transfer to such zamindar the land therein mentioned subject to the amount of assessment therein mentioned, and subject 1312 to all contracts theretofore made, in respect of, under, or by virtue of, which any person other than the zamindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate. " In accordance with the provisions aforesaid, the suit properties were transferred to the Maharaja of Burdwan, and on June 3,1899, he granted the same to the predecessors in title of defendants I to 7, who at that time held the Patni interest in respect of lot Ahiyapur. Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Rs. 126 8 as., out of which Rs. 84 4 as., had to be paid to the Panchayat within the 7th of Baisakh for being credited to the Chaukidari Fund and the balance of Rs. 42 4 as., was to be paid to the Zamindar within the month of Chaitra. Exhibit B also provides that in default of payment of kist the lands are liable to be sold in proceedings taken under the Bengal Regulation VIII of 1819. Acting under this clause, the Maharaja applied under section 8 of the Regulation to bring the suit lands to sale for realisation of arrears, and at the auction held on May 15, 1937, himself became the purchaser. On February 13, 1941, he granted the lands again on Patni to the appellant, who filed the suit, out of which the present appeal arises, in the Court of the Subordinate Judge, Burdwan, to recover possession thereof from the defendants alleging that they had trespassed thereon. The respondents contested the suit on the ground that, in fact, there were no arrears of rent due under Exhibit B, and that the sale was therefore void. The Subordinate Judge held that there were arrears of rent due from the respondents, and that further as they had not sued to set aside the sale under section 14 of the Regulation within the time limited by law, they could not set up its invalidity as a defence to the action in ejectment. The defendants preferred an appeal against this judgment to the District Court of Burdwan, and there raised a new contention that under the grant, Exhibit B, the suit lands became part of lot Ahiyapur, and that a sale of those lands was 1313 illegal as being a sale of a portion of the Patni. The District Judge after observing that the point was taken for the first time, held on a construction of Exhibit B that it created a new Patni, and that it could therefore be brought to sale, and he also held that section 14 of the Regulation operated as a bar to the validity of the sale being questioned on the ground that the rent claimed was not, in fact, due. He accordingly dismissed the appeal. The respondents took the matter in second appeal to the High Court, and that was heard by a Bench consisting of Das Gupta and Lahiri JJ. who differed from the District Judge both on the construction of Exhibit B and on the bar of limitation based on section 14 of the Regulation. They held that the effect of Exhibit B was merely to make the suit lands part and parcel of the Patni lot Ahiyapur, and that, therefore, the sale of those lands only was bad, as being a sale of a part of the Patni. They further held that as such a sale was void, section 14 of the Regulation had no application. They accordingly allowed the appeal, and dismissed the suit. It is against this judgment that the present appeal has been brought on a certificate granted by the High Court under article 133(1)(a). Mr. N. C. Chatterjee for the appellant urged the following contentions in support of the appeal: (1) The defendants did not raise either in the written statement or during the trial, the plea that under the sanad, Exhibit B, the Chaukidari Chakaran lands comprised therein became part of the Patni settlement of lot Ahiyapur, and, in consequence, their sale was bad as being of a part of the Patni, and the learned Judges should not have allowed that point to be raised in appeal. (2) Exhibit B properly construed must be held to create a new Patni distinct from lot Ahiyapur, and its sale is therefore valid. (3) Assuming that the sale is invalid as being of a part of a tenure, the only right of the defendants was to sue to have it set aside, as provided in section 14 of the Regulation, and that not having been done, it is not open to them to attack it collaterally in these proceedings. We see no substance in the first contention. It is 1314 true that the defendants did not put forward in the trial Court the plea that the effect of Exhibit B was to incorporate the suit lands in lot Ahiyapur Patni, and that, in consequence, the sale was illegal as being of a part of the Patni. On the other hand, the written statement proceeds on the view that Exhibit B created a new Patni unconnected with lot Ahiyapur, and the only defence raised on that basis was that no arrears of rent were due under Exhibit B, and that the sale was therefore invalid. But the true nature of the grant under Exhibit B is a matter to be decided on a construction of the terms of the document, and that is a question of law. It is argued for the appellant that it would be proper in determining the true character of the grant under Exhibit B to take into account surrounding circumstances, that to ascertain what those circumstances are, it will be necessary to take evidence, and that, in consequence, a question of that kind could not be permitted to be agitated for the first time in appeal. But it is well settled that no evidence is admissible on a question of construction of a contract or grant, which must be based solely on the terms of the document, there being no suggestion before us that there is any dispute as to how the contents of the document are related to existing facts. Vide Balkishen Das vs Legge (1) and Maung Kyin vs Ma Shwe La (2). It should, moreover, be mentioned that when the defendants sought to raise this contention in their appeal in the District Court, no objection was taken by the plaintiff thereto. Under the circumstances, the learned Judges were right in allowing this point to be taken. This contention must therefore be rejected. The next point for determination is as to the true character of the grant under Exhibit B, whether it amounts to a new Patni with reference to the Chaukidari Chakaran lands as contended for by the appellant, or whether it incorporates those lands in the Patni of lot Ahiyapur, so as to make them part and parcel of the lands comprised therein, as is maintained by the respondents. To appreciate the (1) (1899) L.R. 27 I.A. 58, 65. (2) (1917) L.R 44 I.A. 236, 243. 1315 true position, it is necessary to examine what the rights of the Zamindar and of the Patnidar were with respect to Chaukidari Chakardan lands at the time of the grant, Exhibit B. These lands had been originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted to the Zamindar in permanent settlement, the income therefrom was not taken into account in fixing the jama payable by him, though they passed to him under the permanent settlement. Then came the Village Chaukidari Act, and under that Act the Government put an end to the services of the Chaukidars as village watchmen, resumed the lands and imposed assessment thereon, and, subject to it, transferred them to the Zamindar; and where the Zamindar had already parted with the village in which the lands were situate, by granting Patni, it became necessary to define the rights of the Zamindar and the Patnidar with reference to those lands. Dealing with this matter, section 51 of the Act provides that the title of the Zamindar on resumption and transfer by the Government shall be subject to " all contracts theretofore made ". Under this section, the Patnidar would be entitled to the Chaukidari Chakaran lands in the same right and on the same terms on which lie held the village in which they are situate. The nature of this right has been the subject of consideration in numerous authorities, and the law on the subject is well settled. In Ranjit Singh vs Maharaj Bahadur Singh (1), it was held by the Privy Council that though the reservation under section 51 is of rights under contracts made by the Zamindar and the word " contract " primarily means a transaction which creates personal obligations, it might also refer to transactions which create real rights, and that it was in that sense the word was used in section 51, and that accordingly the Patnidar was entitled to institute a suit against the Zamindar for possession of those lands and was not obliged to suit for specific performance. But this does not mean that the Patnidar is (1) (1918) L.R. 45 I.A. 162. 167 1316 entitled to hold the lands free of all obligations. He is under a liability to pay to the Zamindar the assessment due thereon, when it is fixed under section 50, and also a share of profits. Vide Bhupendra Narayan Singh vs Narapat Singh (1), where it was held by the Privy Council that when Chaukidari Chakaran lands included in a Patni settlement had been resumed and transferred to the Zamindar under section 51 of the Act, he is entitled to the payment of a fair and equitable rent in respect thereof, and that the fixing of the rent is a condition to the Patnidar being put in possession. Vide also Rajendra Nath Mukherjee vs Hiralal Mukherjee (2) and Gopendra Chandra vs Taraprasanna (3). These being the rights and obligations of the Zamindar and the Patnidar under section 51 of the Act, a grant of the Chaukidari Chakaran lands by the former to the latter serves, in fact, two purposes. It recognises that the grantee is entitled to hold those lands by virtue of his title as Patnidar of the village of which they form part, and it fixes the amount payable by him on account of assessment and share of profits. The question then arises as to what the exact relationship is in which the new grant stands to the original Patni grant. Now, when section 51 of the Act recognises and saves rights which had been acquired under contract with the Zamindar, its reasonable implication is that the rights so recognised are the same as under the contract, and that, in consequence, the settlement of the Chaukidari Chakaran lands in Patni must be taken to be a continuance of the Patni of the village in which they are included. But it is open to the parties to agree that the Chaukidari Chakaran lands should form a new and distinct Patni, and the result of such an agreement will be that while the grantee will hold those lands in Patni right, that is to say, the tenure will be permanent, heritable and alienable so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there is any default in the (1) (1925) L.R. 52 I.A. 355. (2) (3) Cal. 1317 payment thereof are concerned, the now grant will be an entity by itself independent of the original Patni. That that could be done by agreement of parties is well settled, and is not disputed before us. If that is the true position, then the real question to be considered is, what is the agreement of parties with reference to the Chaukidari Chakaran lands, whether they are to be constituted as an independent Patni or whether they should be treated as a continuation of the original Patni or an accretion thereto, and the answer to it must depend on the interpretation to be put on the grant. It is now necessary to refer to the material terms of Exhibit B under which the Chaukidari Chakaran lands were granted to the predecessors of respondents I to 7. It begins by stating that the Patnidars of lot Ahiyapur appeared before the Zamindar and ,prayed for taking Patni settlement of the said 84 Bighas 18 Cottas of land at a yearly rental of Rs. 126/8 as.", and then provides how the amount is to be paid. Then there is the following clause, which is important: "You will pay the rent etc., Kist after Kist according to the Kistbandi in accordance with law, and if you do not pay the same, I will realise the arrears together with interest and costs by causing the aforesaid lands to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws which are in force or will come into force. " Then follow provisions relating to the transfer by the Patnidars of " the aforesaid lands ", succession by inheritance or by will to " the aforesaid lands " and the registration of the name of the transferee or successor in the Sherista, and it is expressly stated that "so long as the name of the new Patnidar is not recorded in the Sherista, the former Patnidar whose name is recorded in the Sherista will remain liable for the rent, and on a sale of the Mahal by auction on institution of proceedings against him under Regulation VIII of 1819 or any other law that will be in force for realisation of arrears of rent, no objection thereto on the Part of the new Patnidar can be entertained." 1318 Then ,there are two clause on which on the respondents rely, and they are in these terms: " If in future it transpires that any other persons besides yourselves have Patni rights in the Patni interest of the, said lot Ahiyapur, such persons shall have Patni rights in these Chakaran lands also to the same extent and in the same manner as they will be found to have interests in the Patni of the aforesaid lot, and if for the said reason any person puts forward any claim against the Raj Estate and the Raj Estate has to suffer any loss therefor, you will make good the said claim and the loss without any objection. If in future the Patni interest in the said lot Ahiyapur be transferred for liability for arrears of rent or if the same comes to an end for any reason, then your Patni interest in these Chakaran lands also will be transferred or will come to an end alongwith the original Patni ,simultaneously. " It is on these two clauses that the learned Judges in the Court below have based their decision that the intention of the par ties was to treat the suit lands as part of the Patni of lot Ahiyapur. Now, it cannot be disputed that the two clauses aforesaid afford considerable support to the conclusion to which the learned Judges have come. The first clause provides that if besides the grantee under Exhibit B there were other persons entitled to Patni rights in lot Ahiyapur, those persons also shall have Patni rights in Chaukidari Chakaran lands to the same extent as in Patni Ahiyapur. That clearly means that the rights conferred on the grantees under Exhibit B have their roots in the Patni lot of Ahiyapur. Likewise, the provision in the last clause that the grantees will lose their rights to the Chaukidari Chakaran lands if their interest in Ahiyapur Patni was sold clearly suggests that the grant under Exhibit B is to be an annexe to the grant of Ahiyapur. As against this, the appellant argues that the other clauses in Exhibit B quoted above strongly support his contention, and that when the document is read as a whole, it unmistakably reveals an intention to treat the suit lands as a distinct Patni. We must now 1319 refer to these clauses. Exhibit B begins by reciting that the grantees desired to take a Patni settlement of 84 Bighas 18 Cottas, which is some indication, though not very strong, that it is to be held as a distinct entity. We have then the clause which provides that when there is default in the payment of kist, the lands are liable to be sold in proceedings instituted under the Regulation. Now, the law had long been settled that a sale of a portion of a Patni is bad, but that if by agreement of all the parties interested different portions thereof are held under different sadads, which provide for sale of those portions for default in pay ment of kist payable respectively thereon, then each of those sanads might be held to have created a separate Patni in respect of the portion comprised therein. Vide Mohadeb Mundul vs Mr. H. Cowell(1) and Monomothonath Dev and another vs Mr. G. Glascott (2). When, therefore, the Zamindar and the Patnidar agreed under Exhibit B that the lands comprised therein could be sold under the Regulation when there was default in payment of kist fixed therefor, they must clearly have intended that those lands should be constituted into a distinct Patni. Otherwise, the clause will be inoperative and void, and indeed, the learned Judges in the Court below have, on that ground, declined to give any effect to it. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim " ut res magis valeat quam per eat ". What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, (2) (1873) 20 Weekly Reporter 275. 1320 that no doubt posits the continuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees tinder the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni. Then there is the clause as to the cesser of interest of the grantees in the Chaukidari Chakaran lands when their title to lot Ahiyapur comes to an end, and according to the respondents, this shows that under Exhibit B the Chaukidari Chakaran lands are treated as part and parcel of the Ahiyapur Patni. If that were so, a sale of lot Ahiyapur must carry with it the Chaukidari Chakaran lands, they being ex hypothesi, part and parcel thereof, and there was no need for a provision such is is made in the last clause. But that clause would serve a real purpose if the Patni under Exhibit B is construed as separate from that of lot Ahiyapur. In that view, when the major Patni of lot Ahiyapur is sold, the intention obviously is that the minor Patni under Exhibit B, should not stand out but be extinguished, a result which could be achieved only by a special provision. We should finally refer to the clauses in Exhibit B providing for transfer of or succession to the Chaukidari Chakaran lands and for the recognition of such transferee or successor as a Patnidar of those lands. It is clear from these provision,s that such a transferee or successor is to hold the lands as a Patnidar, different from the Patnidar of lot Ahiyapur. Reading these clauses along with the last clause, it seems clear that the intention of the parties 1321 was that while a transfer of the Ahiyapur Patni by sale should extinguish the title of the holders of the Chaukidari Chakaran lands a transfer of these lands would have no effect on the title to the lot Ahiyapur Patni. Construing Exhibit B, as a whole, we are of opinion that the intention of the parties as expressed therein was that the Chaukidari Chakaran lands should be held as a distinct Patni. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi vs Umesh Chandra (1), the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. The Chaukidari Chakaran lands situated within that village were resumed under the Act and transferred to the Zamindar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B. In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Sint. Kanchan Barani Debi. She then sued as such purchaser to recover possession of the Chaukidari Chakaran lands. The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did not operate to vest in the purchaser the title in the Chaukidari Chakaran lands, as they formed a distinct Patni. Dealing with this contention, B. B. Ghose J. who delivered the judgment of the Court, observed : concerned to alter the terms of the original patni if they chose to do so; and what we have to see is whether that was done. In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee." The learned Judge then refers to the two clauses cor responding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purchaser was entitled to the Patni as it was created in 1820, (1) A.I.R. 1925 Cal. 807, 1322 and that the plaintiff was entitled to the possession of the Chaukidari Chakaran lands as being part of the Patni. Now, it is to be observed that in deciding that the Chaukidari Chakaran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of ret payable thereon under the deed, and that, in our opinion, deprives the deci sion of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakaran lands in default of the payment of jama, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa. In Forbes vs Git (1), Lord Wrenbury stated the rule in the following terms : " If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later. " We accordingly hold that Exhibit B created a new Patni and that the sale of the lands comprised therein is not bad as of a portion of a, Patni. We are conscious that we are differing from the learned Judges of the Court below on a question relating to a local tenure on which their opinion is, by reason of the special knowledge and experience which they have of it, entitled to the greatest weight. It is also true that the decision in Kanchan Barani Debi vs (1) ,259. 1323 Umesh. Chandra (1) has stood now for over three decades, though it is pertinent to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High Court, prior to this litigation. But then, the question is one of construction of a deed, and our decision that the effect of an agreement of the kind in Exhibit B was to constitute the Chaukidari Chakaran lands into a distinct Patni will not result in any injustice to the parties. On the other hand, the rule that a portion of a Patni should not be sold being one intended for the benefit of the Patnidars, there is no reason why an agreement entered into by them with the Zamindars providing for the sale of a portion, thereof which is really to their advantage, should not be given effect to. Having anxiously considered the matter, we have come to the conclusion that Exhibit B creates a distinct Patni, that the sale thereof on May 15, 1937, is valid, and that the plaintiff has therefore acquired a good title to the suit lands under the grant dated February 13, 1941. In this view, it is unnecessary to express any opinion on the point that was the subject of considerable argument before us as to whether it is open to the defendants to raise the invalidity of the sale held on May 15, 1937, in answer to this action, they not having taken steps to have set it aside, as provided in section 14 of the Regulation. In the result, the appeal is allowed, the judgment of the lower Court reversed and that of the District Judge restored, with costs throughout. Appeal allowed. (1) A.I.R. 1925 Cal.

The Constitutional validity of similar provisions in the States of Kerala and Tamil Nadu which result in imposition of Sales Tax on cooked food sold only in luxury hotels while exempting the same from sales tax in modest eating houses was challenged by some hoteliers in both States on the ground that this amounted to hostile discrimination and therefore violative of Article 14 of the Constitution. While the Kerala High Court rejected the challenge, the High Court of Madras upheld it. Consequently one set of appeals and a Writ Petition under Article 32 of the Constitution have been preferred by the unsuccessful hoteliers of Kerala and the other set of appeals by the State of Tamil Nadu against the decision of the Madras High Court allowing the Writ Peti tions filed before it by the hoteliers. Upholding the constitutional validity of the impugned provisions in both States, while dismissing the appeals and Writ Petition filed by the hoteliers and allowing the ap peals by the State of Tamil Nadu, this Court, HELD: It is the substance and not form alone which must be seen. The difference in the cooked food classified dif ferently, taxed and taxfree, is as intelligible and real as the two types of customers to whom they are served at these different eating houses. This difference must also be avail able to support the difference in the incidence of the impugned sales tax. This classification does bear rational nexus with the 517 object sought to be achieved. The object clearly is to raise the needed revenue from this source, determined by the fiscal policy, which can be achieved by taxing sale of costly food on the affluent alone in the society. The clas sification is made by grouping together only those places where costly food is sold leaving out the comparatively modest ones. The classification is, therefore, rounded on intelligible differentia and has a rational nexus with the object sought to be achieved. In other words, those grouped together possess a common characteristic justifying their inclusion in the group, but distinguishing them from those excluded; and performance of this exercise bears a rational nexus with the reason for the exercise. [526B D] The scope for classification permitted in taxation is greater and unless the classification made can be termed to be palpably arbitrary, it must be left to the legislative wisdom to choose the yardstick for classification, in the background of the fiscal policy of the State to promote economic equality as well. It cannot be doubted that if the classification is made with the object of taxing only the economically stronger while leaving out the economically weaker sections of society, that would be a good reason to uphold the classification if it does not otherwise offend any of the accepted norms of valid classification under the equality clause. [526F G] The predominant object is to tax sale of cooked food to the minimum extent possible, since it is a vital need for sustenance. Those who can afford the costlier cooked food, being more affluent, would find the burden lighter. This object cannot be faulted on principle and is, indeed, laud able. In addition, the course adopted has the result of taxing fewer people who are more affluent in the society for raising the needed revenue with the added advantage of greater administrative convenience since it involves dealing with fewer eating houses which are easier to locate. This accords with the principle of promoting economic equality in the society which must, undoubtedly, govern formulation of the fiscal policy of the State. [532G H] The classification is made in the present case to bring within the tax next hotels or eating houses of the higher status excluding therefrom the more modest ones. A rational nexus exists of this classification with the object for which it is made ,and the classification is rounded on intelligible differentia. This being a relevant basis of classification related to the avowed object, the legislature having chosen an existing classification instead of resort ing to a fresh method of classification, it cannot be a ground of invalidity even assuming there are other better 518 modes of permissible classification. The classification made under the impugned provisions is neither discriminatory nor arbitrary. [533F G; 534B] Ganga Sugar Corporation Limited vs State of Uttar Pra desh & Ors. ; , ; M/s section Kodar vs State of Kerala, ; ; P.H. Ashwathanarayana Setty & Ors. vs State of Karnataka & Ors. , [1989] Suppl. 1 SCC 696; ITO vs K.N. Takim Roy Rymbai; Federation of Hotel and Res taurant Association of India & Ors. vs Union of India & Ors. , ; A.R. Krishna lyer & Ors. vs State of Madras, [1956] 7 STC 346; Kadiyala Chandrayya vs The State of Andhra, [1957] 8 STC 33 and Budhan Chowdhary vs State of Bihar; , , referred to.

Civil Appeal No. 366 of 1979. Appeal by Special Leave from the Judgment and Order dated 28 2 1978 of the Madhya Pradesh High Court (Indore Bench) in Civil Revision No. 93 of 1976. Shanker Ghosh and section K. Gambhir for the Appellant. R. K. Garg and A. K. Sanghi for Respondent No. 1. The Judgment of the Court was delivered by UNTWALIA, J. This appeal by special leave is from the judgment of the Madhya Pradesh High Court reversing the decision of the Second Additional District Judge, Indore in Miscellaneous Judicial Case No. 23 of 1975. The appellant company had filed that case under Order 9 Rule 13 of the Code of Civil Procedure, hereinafter called the Code, for setting aside an ex parte decree for Rs. 28,479/ passed in favour of the respondent firm on 22 4 1975 against the appellant. The learned Additional District Judge held that summons in the suit was not duly served on the company and it came to know about the decree on 29 7 1975. Hence he set aside the ex parte decree. The respondent firm filed a revision in the High Court under section 115 of the Code. The High Court allowed the revision, set aside the judgment of the Trial Court and upheld the passing of the ex parte decree. Hence this appeal. The respondent filed the suit at Indore on 24 2 1975 against the appellant claiming damages to the tune of Rs. 26,000/ on account of the alleged non delivery of certain goods. Summons in the suit was sent to the registered office of the company in Calcutta and is said to have been served on one Shri Navlakha on 17 3 1975 asking the company to appear at Indore on 25 3 1975 for settlement of issues. Since the company did not appear in the Court on that date, eventually, 1030 the ex parte decree was passed on 22 4 1975. According to the case of the appellant the company came to know about the ex parte decree for the first time when its constituted attorney Shri section K. Jhunjhunwala received a notice from the respondent by registered post demanding the decretal dues. Thereupon Shri N. section Pareek, the Works Secretary of the company who is in charge of the legal matters was sent to Indore to ascertain as to how the ex parte decree came to be passed. Pareek learnt that the summons purported to have been served on Navlakha on 17 3 1975. Navlakha was mere Office Assistant in the Sales Department of the company. He was neither a Secretary nor a Director nor any other Principal Officer of the company authorised to receive summons in the suit. He did not bring the fact of the receipt of summons by him to the knowledge of any responsible officer of the company. The company remained in dark and, as stated above, learnt for the first time on 29 7 1975 about the passing of the ex parte decree. N. section Pareek was the only witness examined on behalf of the appellant in the Miscellaneous case tried by the learned Additional District Judge. No witness was examined on behalf of the respondent. The Trial Court held: "I hold that handing over of summons to Navlakha who was only an Office Assistant working in the company and who was not an officer duly authorised to accept summons on behalf of the company did not amount to valid service of summons on the applicant company. " It also accepted the appellant 's case about the knowledge of the ex parte decree for the first time on 29 7 1975 and hence the application filed is about a week 's time thereafter was held to be within time. The High Court in its impugned judgment has held: "It is not in dispute that the person who received the summons in the office of the Company is not a person who is entitled to be served on behalf of the company in accordance with sub clause (a) of Rule 2 of Order 29 of C.P.C." The High Court, however, took the view that since Navlakha was an employee of the company sitting in its registered office in Calcutta the summons will be deemed to have been duly served on the company within the meaning of the first part of clause (b) of Order 29, Rule 2 of the Code. In the opinion of the High Court since the learned Additional District Judge did not apply his mind to the provision of law contained in clause (b), it committed a material irregularity and illegality in exercise of its jurisdiction in setting aside the ex parte decree. 1031 In our opinion the High Court was clearly wrong in upsetting the judgment of the Trial Court. There was no error in that judgment much less any error of jurisdiction entitling the High Court to interfere with it. Order 29 of the Code is headed "Suits by or against Corporations". There are only three Rules in it. We are concerned with Rule 2 which reads as follows: "Subject to any statutory provision of process, where the suit is against a corporation, the summons may be served (a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business." Rule 2 is not an exhaustive provision providing for all modes of service on the company in the sense as to what is meant by service of summons on the Secretary, Director or Principal Officer in Jute and Gunny Brokers Ltd. and another vs The Union of India and others it was held that the words "Principal Officer" in clause (a) of Rule 2 would include managing agents and it can, under this rule, be on a juristic person. Accordingly service on managing agents who are a corporation is valid under clause (a). The meaning of clause (b) has got to be understood in the background of the provisions of the Code in Order 5 which is meant for issue and service of summons on natural persons. Sending a summons by post to the registered office of the company, unless the contrary is shown, will be presumed to be service on the company itself. But the first part of clause (b) has got to be understood with reference to the other provisions of the Code. In Rule 17 of Order 5 it has been provided: "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, 1032 and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. " Sending summons to a corporation by post addressed to it at its registered office may be a good mode of service either by itself, or preferably, by way of an additional mode of service. But leaving the summons at the registered office of the corporation if it is literally interpreted to say that the summons can be left anywhere uncared for in the registered office of the company, then it will lead to anomalous and absurd results. It has to be read in the background of the provision contained in Order 5 Rule 17 of the Code. In other words, if the serving peon or bailiff is not able to serve the summons on the Secretary or any Director or any other Principal Officer of the Corporation because either he refuses to sign the summons or is not to be found by the serving person even after due diligence then he can leave the summons at the registered office of the company and make a report to that effect. In the instant case nothing of the kind was done. It was not the case of the respondent in its rejoinder filed in the Miscellaneous case that the service of the summons as effected in accordance with the first part of clause (b) of Rule 2 of Order 29 of the Code. Annexure A to the counter affidavit filed by the respondent is the petition filed by the appellant under Order 9 Rule 13 of the Code. In paragraph 9 of the said petition it was stated: "Inspection of record of this Hon 'ble Court relating to the service of the summons reveals that the bailiff of the Small Cause Court at Calcutta seems to have delivered a copy of the summons to a gentleman who is described as an office assistant, on 17 3 1975 at about 12.40 P.M. No office assistant of the defendant No. 1 Company is empowered or authorised to receive summons. The original summons which has been returned by the bailiff to this Hon 'ble Court, has been signed by one Shri Nawlakha. Shri Nawlakha was concerned merely with sales and had nothing to do with legal matters generally or with receiving summons in particular. Service of the summons on Shri Nawlakha cannot be regarded as due service on the defendant No. 1 for the purpose of Order 9 Rule 13 C.P.C." The rejoinder of the respondent is Annexure B to the counter affidavit. Para 9 of the rejoinder which is in reply to para 9 of the petition reads as follows: 1033 "In reply to para 9 it is stated that the summons was duly served as stated in this para. But it is denied that Shri Nawlakha was concerned merely with sales and has nothing to do with legal matters, generally or with receiving summons in particular. It is denied that service on Shri Nawlakha cannot be regarded as due service on the Company Defendant No. 1 for the purpose of Order 9 Rule 13 C.P.C. Shri Nawlakha was a responsible officer who could have intimated the receipt of the summons to his so called bosses. Without prejudice it is submitted that the Madhya Pradesh amendment in Order 9 Rule 13 C.P.C. may kindly be perused. " No where in the rejoinder a stand was taken that the summons was duly served on the company because it was left at the registered office of the company. Reference to the Madhya Pradesh amendment of Order 9 Rule 13 is immaterial as the Trial Court has pointed out that the company had no knowledge of the ex parte decree, even otherwise, before 29 7 1975. No contrary finding has been recorded by the High Court. We, therefore, hold that the judgment by the Trial Court setting aside the decree was correct. In any event no error of jurisdiction was committed by it. The High Court went wrong in interfering with it. We accordingly allow the appeal, set aside the judgment of the High Court and restore that of the Trial Court. The suit shall now proceed to disposal in accordance with the law. We may, however, make it clear that the appellant under the orders of the Court had furnished bank guarantee for the decretal amount. It has agreed to continue the same till the disposal of the suit. We shall make no order as to costs. S.R. Appeal allowed.

The appellant Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni. Both were convicted under section 302 read with section 34 Indian Penal Code and sentenced to imprisonment for life. On appeal the High Court acquitted Mange but confirmed the conviction and sentence of Ram Chander. In appeal by special leave it was contended that the conviction and sentence were vitiated as the principle of fair trial was abandoned by the Sessions Judge who rebuked the witnesses and threatened them with prosecution for perjury and based his conviction on such extorted evidence. Allowing the appeal, the Court ^ HELD: 1: 1. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, "like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old. " F] Sessions Judge, Nellore vs Intna Ramana Reddy and Anr. , I.L.R. , approved. Jones vs National Coal Board, ; , quoted with approval. In the instant case, the questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecution for perjury were certainly intimidating, coming as they did from the presiding judge. In an effort to compel 13 the witnesses to speak what he thought must be truth, the learned Sessions Judge, very wrongly, firmly rebuked them and virtually threatened them with prosecutions for perjury. He left his seat and entered the ring. The principle of "fair trial" was abandoned. [19 F H] 2. The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses. These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable. Even assuming that under certain circumstances it is permissible to use the first information report under the first part of section 11 there is in the present case no question of invoking the first part of section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case. Nor can first information report be used by resort to the second part of section 11. [20 H 21 A; 20 F G] Ram Kumar Pande vs The State of Madhya Pradesh, ; @ 522, discussed.

Civil Appeal No. 443 of 1985. 503 From the Judgment and order dated 6.5.1985 of the Allahabad High Court in C.M.W.P. No. 2822 of 1983. Dr. Y.S. Chitale, Mrs. Rekha Pandey, S.P. Pandey, Atul Tiwari, Pinaki Misra, Mrs. Mamta Kachawala and Miss Bina Gupta for the Appellant. M.K. Banerjee, Solicitor General, A.K. Ganguli, Gopala Subramaniam, K.J. John, M.M. John, Harish N. Salve and Miss Nisha Srivastava for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. This is an appeal by special leave. The appellant was employed on the production side of the Uttar Pradesh State Handloom Corporation, a public sector undertaking (hereinafter referred to as 'Corporation ' for short) on temporary basis. Having been appointed on 30th of October, 1976 as Bunker Sewa he obtained two promotions while still working in temporary status and by 1983 was working as Deputy Production Manager. The appellant 's letter of appointment, as far as material, stated: "With effect from the date of taking over charge Shri Rabindra Kumar Mishra . is hereby appointed as Bunker Sewa . on the following terms and conditions: (1) That his appointment is temporary and his services are liable for termination with one month 's notice or one month 's pay in lieu of notice from either side On November 22, 1982 the appellant was placed under suspension and that order read as follows: "As a result of preliminary enquiries made by the Central Manager on 13.11.1982 of the Production Center, Kunda and other Centres under the same, it has come to notice that Sri R.K. Misra, former Dy. Production Manager, Kunda, is responsible for misconduct, dereliction of duty, mismanagement and showing fictitious production of terrycot cloth. He is, therefore, placed under suspension with immediate effect . . . " (Underlinings are ours) 504 On the 1st of February, 1983 the order of suspension was A revoked and on 10th of February, 1983 the impugned order terminating his services being to the following effect was passed: "The undersigned hereby gives notice to Shri R.K. Misra, Deputy Production Manager, Production Center, Kunda, Prataapgarh, Salon Rai Bareilly that his services are no more required and his service will be deemed to be terminated from receipt of this notice by him. It is directed that he will be entitled to receive one month 's salary in lieu of notice period on the same rate on which he was receiving salary before termination of his service. " The appellant challenged the order of termination of his service before the Allahabad High Court but the High Court declined to interfere by holding that the termination was not punitive and the question of breach of principles of natural justice did not arise. It is not disputed that the employer Corporation is 'State ' within the meaning of Article 12; yet it has not been contended and rightly that the protection of Article 311(2) of the Constitution is avilable to the employees of the Corporation. The appellant has however, claimed that he is entitled to the protection of Article 14 and 16 of the Constitution; though his order of termination is innocuous the setting in which it has been made clearly makes it an order of dismissal and the High Court has gone wrong in holding that the order of termination was not punitive; as service was determined by the order of termination attaching stigma the appellant was entitled to a hearing commensurate with rules of natural justice and in the absence of that opportunity of being heard the order is liable to be quashed. It cannot be disputed that temporary service can be terminated by notice. The order of appointment in the appellant 's case made it abundantly clear that with a month 's notice or payment of salary m lieu of notice such termination could be effected by either side Rule 63 of the Corporation Rules made in exercise of Article 127 of the Articles of Association of the Uttar Pradesh State Handloom Corporation Limited recognised such a power. That Rule provides: " 1. The appointing authority may, at any time, during the pendency of the temporary tenure terminate the services of a temporary employee by giving him one month 's notice or emoluments for such lesser period by H 505 which the notice falls short of one month. The temporary employee, on his part, shall have the option of quitting service by giving one month 's notice to the appointing authority or paying to the Corporation an amount equal to his one month 's pay . " The order of termination of service in this case is indeed innocuous. The appellant is not entitled to the protection of Article 311(2) of the Constitution not being a member of a civil service of the Union or a State nor holder of a civil post under the State but his own Service Rules provide under Rule 68 that if the punishment of discharge or dismissal is imposed, an enquiry commensurate with requirements of natural justice is a condition precedent. Admittedly no such enquiry has been held. The question that crops up here for determination, therefore, is whether the impugned order was an order of termination simpliciter or really amounted to an order of dismissal. In Purshotam Lal Dhingra vs Union of India, [ ; a Constitution Bench of this Court stated: "This use of expression 'terminate ' or 'discharge ' is not conclusive. In spite of the use of such innocuous expressions, the Court has to apply the two tests mentioned above, namely. (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind herinbefore referred to? If the case satisfied either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant. This view has been approved by another Constitution Bench of this Court in Champaklal Chimanlal Shah vs The Union of India, [ 19641 5 SCR 190. After indicating approval, Wanchoo, J. as he then was, spoke for the Constitution Bench thus: "It is well known that Government does not terminate 506 nate the services of a public servant, be he even a temporary servant without reason; nor is it usual for Government to reduce a public servant in rank without reason even though he may be holding the higher rank only tempoarily. One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end. In that case, there is nothing further to be said and his services terminate when the post comes to an end. Similarly a Government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end. But besides the above, the Government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work. The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure. This dissatisfaction with the work and/or conduct of a temporary servant may arise on complaint against him. In such cases two courses are open to Government. It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct. Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary, he will have the protection of Article 311(2). But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work. ln this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered. It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him. An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and his enquiry is held in accordance with the principles of natural 507 justice. This is what is known as a formal departmental enquiry into the conduct of a public servant . . "Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the Two should not be confused. Even where Government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually is held to satisfy Government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already, Government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a Government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which generally follows such a preliminary enquiry) when the Government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned, there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of Government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. " Both Pershotam Lal Dhingra 's case (supra) and Champaklal 's case 508 (supra) were referred to and relied upon in Shamsher Singh & Anr. vs State of Punjab, ; This is a case which was heard by a 7 Judge Bench. Ray, CJ., who spoke for the majority of five considered all the cases rendered by this Court till then touching on the point and at page 841 of the Reports stated as follows: "The form of the order is not decisive as to whether the order is by way of punishment. Even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity. " In Sharnsher Singh 's case (supra) the ratio of the two earlier Constitution Bench judgment was approved. On facts it was found that the order of termination though innocuous in form was really an order by way of punishment removing the appellant from service on the basis of charges of gross misconduct found to have been established by an exparte enquiry conducted by the S.P. Vigilance Department with the only object of ascertaining truth of the alleged misconduct and for the purpose of dismissing or removing the appellant, if charges were found established. It was ultimately on the basis of specific findings recorded by the S.P. Vigilance that the appellant 's services were terminated. The Court found that the enquiry by the S.P. Vigilance was essentially and in character and object different from the informal enquiry into the and in object different from the informal enquiry into the suitability of the appellant. Ray, CJ. in Shamsber Singh 's case (supra) further pointed out: "The fact of holding an enquiry is not always conclusive. What is decisive is whether the order is really by way of punishment . . A probationer whose terms of services provided that it could be terminated without any notice and without any cause being assigned could not claim the protection of Article 311(2). An order terminating the services of a temporary servant or probationer under the Rules of employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted 509 unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. " In Regional Manager & Anr. vs Pawan Kumar Dubey, ; it was observed by this Court thus: 1 "We think that the principles involved in applying Article 311(2) having been substantially explained in Shamsher Singh 's case (supra) it should not no longer be possible to urge that Sughar Singh 's case could give rise to some misapprehension of the law. Indeed we do not think that the principles of law declared and applied so often have really changed. But the application of the same law to the differing circumstances and facts of various cases which have come up to this court could create the impression some times that there is some conflict between decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a word of difference between conclusions in two cases even when the same principles are applied in each case to similar facts . ". As we have already observed, though the provisions of Article 311(2) of the Constitution do not apply, the Service Rules which are almost at par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of 'motive ' and 'foundation ' has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operative motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such H 510 an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character. In a large democracy as ours, administration is bound to be impersonal and in regard to public officers whether in Government or public Corporations, assessments have got to be in writing for purposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character. There may be cases where an enquiry is undertaken and prima facie material for serious charges are found; by disclosing the result of such preliminary enquiry, the officer concerned is put under suspension in contemplation of disciplinary action. After such steps have been taken, the employer/appropriate authority decides not to continue the departmental proceedings but makes an order terminating the service, as has been done in this case. Counsel for the respondents pointed that that in the matter of ordering termination of service of a temporary employee, the order follows a review of his working. Unless the termination is ordered because there is no need for the post, in the absence of reasons for termination, the action is open to challenge as arbitrary, particulary when other similarly situated employees are continued in service. When reasons are given, they are bound to disclose adverse features of the employee and disclosure of such features become the ground of challenge of the order on the plea that termination is not innocuous. To meet this position, the distinction between 'motive ' and 'foundation ' has been adopted by the courts. As long as the adverse feature of the employee remains the motive and does not become transformed as the foundation of the order of termination it is unexceptionable. No straight jacket test can be laid down to distinguish the two and whether 'motive ' has become the foundation has to be decided by the court with reference to the facts of a given case. The two are certainly two points of one line ordinarily apart but when they come together 'motive ' does get transformed and merges into foundation. As has been held by a three Judge Bench in State of U.P. vs Ram C 'handra Trivedi, ; the position in regard to cases of the present nature is clear and the examination of the decisions of this court shows that there is no real conflict in their ratio decidendi. On facts as established in different cases, courts have applied the known 511 tests and in order that complete justice may be done on the facts found, there have been punishable deviations. We may point out that this Court in a Consitution Bench judgment in the case of State of Orissa & Anr. vs Ram Narayan Dass, [ ; , indicated: "The fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order in the light of the decisions laid down in Parshotam Lal Dhingra 's case. Keeping in view the principles indicated above, it is difficult to accept the claim of the appellant. He was a temporary servant and had no right to the post. It has also not been denied that both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month 's notice. The order to which exception is taken is expressly an order of termination in innocuous terms and does not cast any stigma on the appellant nor does it visit him with any evil consequences. It is also not founded on misconduct. In the circumstances, the order is not open to challenge . We may point out that the learned Solicitor General appearing for the Corporation had at the commencement of the arguments suggested that the appellant could be given some compensation for termination. Ordinarily, under the law he would not be entitled to compensation in a case of this type, but since he has been put out of employment at an advanced age and it may be difficult for him to get an alternate employment, while dismissing his appeal we think it reasonable to call upon the Corporation to pay a consolidated amount of Rs.25000 (Rupees Twenty five Thousand only). Accordingly the appeal is dismissed. The amount of Rs.25,000 as indicated above may be paid to the appellant within one month from today. There would be no order for costs. P.S.S. Appeal dismissed.

The appellant, a company, set up a fertilizer factory at Kota in Rajasthan. The factory manufactures urea for which the main raw material is Naptha, which has to be transported from the Koyali Refinery of the Indian oil Corporation. Before the actual setting up of the factory, the appellant requested the Railway Board by letter for a concessional frieght rate for the carriage of Naptha to the factory. The Railway Board by its letter EX 5 dated November 5, 1966, quoted station to station rate equal to 85 B (special) as against the rate equivalent to classification 62.5 B requested for by the appellant, and also stated that as the special rate was being quoted ahead of the actual setting up of the factory, the frieght rate would be reviewed when the traffic actually began to move. When the factory was almost ready for operation, the appellant again requested the Railway Board by letter for charging the rate under classification 62 5 B instead of 85 B (special) quoted by it. The Railway Board refused to oblige. The appellant wrote another letter to the Board, requesting it to permit charging the rate equivalent to 85 B (special) pending its final decision, as the movement of naptha was to commence from June/July, 1968. The Railway Board refused to grant that request also, saying that it could reconsider the question if on the basis of the facts and figures of the cost of production vis a vis the sale price of the fertilizers, it could be established that the production of the fertilisers at Kota was uneconomical unless freight concession on the movement of naptha was granted. The appellant filed a complaint under section 41(1)(a) and (b) of the Railways Act, 1890, before the Railway Rates Tribunal. The Tri 384 bunal decided against the appellant. Aggrieved, the appellant appealed to this Court by special leave for relief against the order and judgment of the Tribunal. Dismissing the appeal, the Court ^ HELD: Three questions arise for consideration of the Court: (1) whether the Railway Board was bound to allow the concessional rate offered to the appellant, that is, 85 B (special) quoted in its letter exhibit C 5 dt. November 5, 1966, to the appellant, (2) whether the rate charged for the carriage of the naptha between the stations concerned was unreasonable, and (3) whether the Railways were showing undue preference or advantage in respect of other traffic in contravention of the provisions of section 28 of the Railways Act. [389E F ] Dealing with the third question first, which relates to the contravention of section 28 of the Railways Act, the scope of the section was considered by this Court in Rajgarh Jute Mills Ltd vs Eastern Railway and another; , at 241, and the Railway Rates Tribunal, considering the material on record in the light of the decision of the Court in case, held that there was no evidence produced by the appellant to justify any grievance under section 28. This conclusions is perfectly justified. [390E; 391C] The second question above said relates to the rate charged by the Railway Administration being per se unreasonable. Even assuming, as argued by appellant 's counsel, that the Railways are earning some surplus income, that by itself is no ground to hold that the frieght charged is per se unreasonable. In the case of commodities of national needs such as foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost, and to offset the loss, the Railways may charge higher freight for some other classified commodities. The cost of operation cannot by itself be the basis for judging the reasonableness of the rate charged. Counsel for the appellant also argued that crude oil and naptha were comparable commodities for the purpose of carriage but there was disparity in the rates charged in respect of the two, naptha being charged at a much higher rate. The Tribunal rejected the demand of the appellant for parity in frieghts, and the Court cannot interfere with the finding to the Tribunal in this appeal under Article 136 of the Constitution. On merits also, there is no justification to demand that neptha should take the same freight rate as that of the crude oil. [391D, F H; 392B. D E] 385 Lastly, the first question: It relates to the correctness of the view taken by the Tribunal on doctrine of promissory estoppel consequent upon the letter exhibit 5 of the Railway Board. The Tribunal rejected this claim of the appellant. Considering the conclusion of the Tribunal on this question, it appears the Tribunal has not correctly understood the doctrine of promissory estoppel: The party asserting the estoppel must have relied and acted upon the assurance given to him. It means the party has changed or altered the position by relying on the assurance or representation. The alteration of position by the party is the only indispensable requirement of the doctrine. It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel. "A promise intended to be binding, intended to be acted upon, and in fact acted upon, is binding", said Lord Denning, sitting as a trial judge in Central London Properties Ltd vs High trees House Ltd., If the promisee has acted upon the promise, the promisor is precluded from receding from his promise. The concept of detriment as it is understood now is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation. It is, however quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or The Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from equitable doctrine. it requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. or the purpose of invoking the doctrine, it is not necessary for the appellant to show that the insurance contained in exhibit (I S was mainly responsible for the establishing of the factory at Kota. There may be several representation to one party from different authorities in regard to different matters. Or there may be several representations from the same party in regard to different matters; In the instant case, there was one representation by the Rajasthan government to supply power to the appellant 's factory at concessional rate. There is another representation from the same government to exempt the appellant from payment of tax for a certain period. If those representations have been relied upon by the appellant, the Court would compel the authorities to adhere to their representations. What is required is the fact that the appellant was induced to act on the representations. The assurance given by the Railway Board in the letter exhibit S was not clear and unqualified. it was subject to review to be undertaken 386 when the appellant started moving the raw material. Accordingly, A appellant was put to notice that it has to approach the Railway administration again when it would review the whole matter. From the tenor of exhibit 5, the railways are entitled to say that they have reviewed the matter and found no justification for a concessional frieght rate for naptha; that does not amount to resiling from the earlier assurance. No question of estoppel arises in favour of the appellant in the case out of the representation made in Ex 5. The Court agreed with the conclusion of the Tribunal but not for all the reasons stated. Rajgarh Jute Mills Ltd vs Eastern Railway & Anr, at 241; Central London Properties Ltd vs High Trees House Ltd, ; Central Newbury Car Auctions Ltd vs Unity Finance Ltd, at 909; Article "Recent Development in the Doctrine of Consideration" Modern Law Review, Vol. , Grundt vs The Great Boulder Ptv Gold, Mines Ltd, ; ; Mohlal Padampet Sugar Mills Co Ltd vs State of UP and ors; , at 695= ; ; Union of India and ors vs Godfrey Philips Ltd, ; [1985] Supp. 3 SCR 123 and Halsbury 's Laws of England 4th Edn., Vol. , para 1595, referred to.

72 of 1950. Petition under article 32 of the Constitution of India for a writ of mandamus. V.K.T. Chari, J.S. Dawdo, Alladi Kuppuswami, and C.R. Pattabhi Raman, for the petitioner. M.C. Setalvad, Attorney General for India (G. N. Joshi with him) for opposite party Nos. 1 and 2. G.N. Joshi, for opposite party Nos. 3 to 5 and 7 to 10. 1950. December 4. The Court delivered Judgment as follows. KANIA C.J. This is an application by the holder of one ordinary share of the Sholapur Spinning and Weaving Company Ltd. for a writ of mandamus and certain other reliefs under article 32 of the Constitution of India. The authorized capital of the company is Rs. 48 lakhs and the paid up capital is Rs. 32 lakhs, half of which is made up of fully paid ordinary shares of Rs. 1,000 each. 875 I have read the judgment prepared by Mr. Justice Mukher jea. In respect of the arguments advanced to challenge the validity of the impugned Act under articles 31 and 19 of the Constitution of India, I agree with his line of reasoning and conclusion and have nothing more to add. On the question whether the impugned Act infringes article 14, two points have to be considered. The first is whether one individual shareholder can, under the circum stances of the case and particularly when one of the re spondents is the company which opposes the petition, chal lenge the validity of the Act on the ground that it is a piece of discriminatory legislation, creates inequality before the law and violates the principle of equal protec tion of the laws under article 14 of the Constitution of India. The second is whether in fact the petitioner has shown that the Act runs contrary to article 14 of the Con stitution. In this case having regard to my conclusion on the second point, I do not think it is necessary to pro nounce a definite opinion on the first point. I agree with the line of reasoning and the conclusion of Mr. Justice Mukherjea as regards the second point relating to the inva lidity of the Act on the ground that it infringes article 14 of the Constitution and have nothing more to add. In my opinion therefore this petition fails and is dismissed with costs. FAZL ALI J. I am strongly of the opinion that this peti tion should be dismissed with costs. The facts urged in the petition and the points raised on behalf of the petitioner before us are fully set forth in the judgments of my brethren, Sastri, Mukherjea and Das JJ., and I do not wish to repeat them here. It is sufficient to say that the main grounds on which the Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950 (Act No. XXVIII of 1950), which will hereinafter be referred to as "the Act", has been assailed, is that it infringes three fundamental rights, these being: 876 (1) the right to property secured by article 31 of the Constitution; (2) the right to acquire, hold and dispose of property, guaranteed to every citizen by article 19 (1) (f); and (3) the right to equal protection of the laws, guaran teed by article 14. It has been held in a number of cases in the United States of America that no one except those whose rights are directly affected by a law can raise the question of the constitutionality of that law. This principle has been very clearly stated by Hughes J. in McCabe vs Atchison(1), in these words : "It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainant 's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant not to others which justifies judicial interference. " On this statement of the law, with which I entirely agree, the scope of the discussion on this petition is greatly restricted at least in regard to the first two fundamental rights. The company and the shareholders are in law separate entities, and if the allegation is made that any property belonging to the company has been taken possession of without compensa tion or the right enjoyed by the company under article 19 (1) (f) has been infringed, it would be for the company to come forward to assert or vindicate its own rights and not for any individual shareholder to do so. In this view, the only question which has to be answered is whether the peti tioner has succeeded in showing that there has been an infringement of his rights as a shareholder under articles 31 and 19 (1) (f) of the Constitution. This question has been so elaborately dealt with by Mukherjea J., that I do not wish to add anything to what he has said in his judg ment, and all that is necessary for me to say is that I adopt his conclusions, (1) 235 u.s. 151. 877 without committing myself to the acceptance of all his reasonings. The only serious point, which in my opinion, arises in the case is whether article 14 of the Constitution is in any way infringed by the impugned Act. This article corresponds to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States of America, which declares that "no State shall deny to any person within its jurisdiction the equal protection of the laws". Professor Willis dealing with this clause sums up the law as prevail ing in the United States in regard to it in these words: "Meaning and effect of the guaranty The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and condi tions both in the privileges conferred and in the liabili ties imposed. ' 'The inhibition of the amendment . was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation '. It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."( ') Having summed up the law in this way, the same learned author adds : "Many different classifications (1) Constitutional Law by Prof. Willis, (1st Edition). p.579. 878 of persons have been upheld as constitutional. A law apply ing to one person or one class of persons is constitutional if there is sufficient basis or reason for it. " There can be no doubt that article 14 provides one of the most valuable and important guarantees in the Constitution which should not be allowed to be whittled down, and, while ac cepting the statement of Professor Willis as a correct exposition of the principles underlying this guarantee, 1 wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. The petitioner 's case is that the shareholders of the Sholapur company have been subjected to discrimination visa vis the shareholders of other companies, inasmuch as section 13 of the Act subjects them to the following disabilities which the shareholders of other companies governed by the Indian Companies Act are not subject to: : "(a) It shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company. (b) No resolution passed at any meeting of the share holders of the company shall be given effect to unless approved by the Central Government. (c) No proceeding for the winding up of the company or for the appointment of a receiver in respect thereof shall lie in any court unless by or with the sanction of the Central Government. " Primafacie, the argument appears to be a plausible one, but it requires a careful examination, and, while examining it, two principles have to be borne in mind : (1) that a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applica ble to others, 879 that single individual may be treated as a class by himself; (2) that it is the accepted doctrine of the American courts, which I consider to be well founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. A clear enunciation of this latter doctrine is to be found in Middleton vs Texas Power and Light Company(1), in which the relevant passage runs as follows : "It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. " The onus is therefore on the petitioner to show that the legislation which is impugned is arbitrary and unreasonable and there are other companies in the country which should have been subjected to the same disabilities, because the reasons which led the Legislature to impose State control upon the Sholapur company are equally applicable to them. So far as article 14 is concerned, the case of the share holders is dependent upon the case of the company and if it could be held that the company has been legitimately sub jected to such control as the Act provides without violation of the article, that would be a complete answer to the petitioner 's complaint. Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred, and we are merely asked to presume that there must necessarily be other compa nies also which would be open to the charge of mismanagement and negligence. The question cannot in my opinion be treated so lightly. On the other hand, how important the doctrine of burden of proof is and how much harm can be caused by ignor ing it or tinkering with it, will be fully illustrated, by referring to the proceedings in the Parliament in connec tion with the enactment of the (1) ,157. 880 Act, where the circumstances which necessitated it are clearly set out. I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions, but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitat ed it. A reference to the Parliamentary proceedings shows that some time ago, a representation was made on behalf of a section of the shareholders of the Sholapur company to the Registrar of Joint Stock Companies in Bombay, against the conduct of the managing agents, and the Government of Bombay was moved to order a special inquiry into the affairs of the company. For the purpose of this inquiry, two special inspectors were appointed by the Bombay Government and their report revealed "certain astounding facts" and showed that the mill had been grossly mismanaged by the Board of Direc tors and the managing agents. It also revealed that the persons who were responsible for the mismanagement were guilty of certain acts and omissions which brought them under the purview of the law. The Bombay Government accept ed the report of the inspectors and instructed the Advocate General of Bombay to take legal proceedings against certain persons connected with the management of the company. Thereafter, the Government of India was approached by the Provincial Government and requiested to take special action in order to secure the early opening of the mill. The Government of India found that they had no power to take over the management of a particular mill, unless its working could be ensured through the existing management acting under the direction of a Controller appointed under the Essential Supplies Act, but they also found that a peculiar situation had been created in this case by the managing agents themselves being unable or unwilling to conduct the affairs of the company in a satisfactory and efficient manner. The Government of India, as a matter of precaution and lest it should be said that they were going to interfere unnecessarily in the affairs 881 of the company and were not allowing the existing provisions of the law to take their own course, consulted other inter ests and placed the matter before the Standing Committee of the Industrial Advisory Council where a large number of leading industrialists of the country were present, and ultimately it was realized that this was a case where the Government could rightly and properly intervene and there would be no occasion for any criticism coming from any quarter. It appears from the discussion on the floor of the House that the total number of weaving and spinning mills which were closed down for one reason or other was about 35 in number. Some of them are said to have closed for want of cotton, some due to overstocks, some for want o[ capital and some on account of mismanagement. The Minister for Indus try, who sponsored the Bill, in explaining what distin guished the case of the Sholapur mill from the other mills against whom there might be charges of mismanagement, made it clear in the course of the debate that "certain condi tions had to be fulfilled before the Government can and should intervene", and he set out these conditions as fol lows : "(1) The undertaking must relate to an industry which is of national importance. Not each and every undertaking which may have to close down can be taken charge of tempo rarily by Government. (2) The undertaking must be an economic unit. If it appears that it is completely uneconomic and cannot be managed at all, there is no sense in Government taking charge of it. If anything, it will mean the Government will have to waste money which belongs to the taxpayer on an uneconomic unit. (3) There must be a technical report as regards the condition of the plants, machinery, etc. which either as they stand, or after necessary repairs and reconditioning can be properly utilised. (4) Lastly, and this is of considerable importance there must be a proper enquiry held before Government take any action. The enquiry should show that 113 882 managing agents have so misbehaved that they are no longer fit and proper persons to remain in charge of such an impor tant undertaking. "(1) It appears from the same proceedings that the Sholapur mill is one of the largest mills in Asia and employs 13,000 workers. Per shift, it is capable of producing 25 to 30 thousand pounds of yarn, and also one lakh yards of cloth. It was working two shifts when it was closed down on the 29th August, 1949. The closure of the mill meant a loss of 25 lakhs yards of cloth and one and a half lakhs pounds of yarn per month. Prior to 1947, the highest dividend paid by the company was Rs. 525 per share and the lowest Rs. 100, and, in 1948, when the management was taken over by the managing agents who have been removed by the impugned Act, the accounts showed a loss of Rs. 30 lakhs, while other textile companies had been able to show very substantial profits during the same period. Another fact which is brought out in the proceedings is that the. managing agents had acquired control over the majority of the shares of the company and a large number of shareholders who were dissatisfied with the management had been rendered powerless and they could not make their voice heard. By reason of the preponderance of their strength, the managing agents made it impossible for a controller under the Essential Supplies Act to function and they also made it difficult for the company to run smoothly under the normal law. It was against this background that the Act was passed, and it is evident that the facts which were placed before the Legislature with regard to the Sholaput mill were of an extraordinary character. and fully justified the company being treated as a class by itself. There were undoubtedly other mills which were open to the charge of mismanagement, but the criteria adopted by the Government which, in my opinion, cannot be said to be arbitrary or unreasonable, is not applicable (1) parliamentary Debates, Volume III, No. 14; 31st March 1950, pp.2394 5 883 to any of them. As we have seen, one of the criteria was that a mere allegation of mismanagement should not be enough and no drastic step such as is envisaged in the Act should be taken without there being a complete enquiry. In the case of the Sholapur mill, a complete enquiry had been made and the revelations which were made as a result of such enquiry were startling. We are familiar with the expression "police power" which is in vogue in the United States of America. This expression simply denotes that in special cases the State can step in where its intervention seems necessary and impose special burdens for general benefit. As one of the judges has pointed out, "the regulations may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. "(1) It need not be emphasized that the principles underlying what is known as police power in the United States of America are not peculiar to that country, but are recognized in every modern civilized State. Professor Willis dealing with the question of classification in exercise of police power makes the following observa tions: "There is no rule for determining when classification for the police power is reasonable. It is a matter for judicial determination, but in determining the question of reasonableness the Courts must find some economic, political or other social interest to be secured, and some relation of the classification to the objects sought to be accomplished. In doing this the Courts may consider matters of common knowledge, matters o[ common report, tile history of the times, and to sustain it they will assume every state of facts which can be conceived of as existing at the time Of legislation. The fact that only one person or one object or one business or one locality is affected is not proof of denial of the equal protection of the laws. For such (1) Per Field J. in Barbier vs Connally. ; 884 proof it must be shown that there is no reasonable basis for the classification. " In this particular case, the Government initially took control of the Sholapur Company by means of an Ordinance (Ordinance No. II of 1950), of which the preamble runs as follows : "Whereas on account of mismanagement and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially af fected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community; And whereas an emergency has arisen which renders it necessary to make special provision for the proper manage ment and administration of the aforesaid Company; Now, therefore,. . . . " In the course of the Parliamentary debate, reference was made to the fact that the country was facing an acute cloth shortage, and one of the reasons which apparently influenced the promulgation of the Ordinance and the passing of the Act was that the mismanagement of the company had gravely affected the production of an essential commodity. The facts relating to the mismanagement of this mill were care fully collected and the mischief caused by the sudden clos ing of the mill to the shareholders as well as to the gener al public were fully taken into consideration. Therefore, it seems to me that to say that one particular mill has been arbitrarily and unreasonably selected and subjected to discriminatory treatment, would be an entirely wrong propo sition. Article 14 of the Constitution, as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but, in construing it, we should not adopt a doctrinaire approach which might choke all benefi cial legislation. The facts to which I have referred are to be found in a public document, and, though some of them may (1) Constitutional Law by Prof. Willis (1st Edition) p. 580. 885 require further investigation forming as they do part of a one sided version, yet they furnish good prima, facie grounds for the exercise of the utmost caution in deciding this case and for not departing from the ordinary rule as to the burden of proof. In the last resort, this petition can be disposed of on the simple ground that the petitioner has not discharged the onus which lies upon him, and I am quite prepared to rest my judgment on this ground alone. I think that the petitioner has failed to make out any case for granting the writs or directions asked for, and the petition should therefore be dismissed with costs. PATANJALI SASTRI J. This is an application under article 32 of the Constitution seeking relief against alleged infringe ment of certain fundamental rights of the petitioner. The petitioner is a shareholder of the Sholapur Spinning and Weaving Company, Limited, Sholapur, in tim State of Bombay, (hereinafter referred to as "the Company "). The authorised share capital of the Company consisted of 1590 fully paid up ordinary shares of Rs. 1,000 each, 20 fully paid up ordinary shares of Rs. 500 each and :32,000 partly paid up redeemable cumulative preference shares of Rs. 100 each, of which Rs. 50 only was paid up. Of these, the petitioner held one ordinary share in his own name and 80 preference shares which, however, having been pledged with the Bank of Baroda Ltd., now stand registered in the Bank 's name. The company was doing flourishing business till disputes arose recently between the management and the employees, and in or about August, 1949, the mills were temporarily closed and the company, which was one of the largest producers of cotton textiles, ceased production. Thereupon, the Gover nor General intervened by promulgating on the 9th January, 1950, an Ordinance called the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (No. II ' of 1950), which empowered tim Government of India to 886 take over the control and management of the company and its properties and effects by appointing their own Directors and to delegate all or any of their powers to the Provincial Government. In exercise of the powers thus delegated, the Government of Bombay appointed respondents 3 to 9 as Direc tors to take charge of the management and administration of the properties and affairs of the company. Subsequently, on 10th April, '1950, the Ordinance was repealed and was re placed by an Act of Parliament containing similar provisons, namely the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (No. XXVIII of 1950) (hereinafter referred to as the "impugned Act"). The petitioner complains that the impugned Act and the action of the Government of Bombay pursuant thereto have infringed the fundamental rights conferred on him by arti cles 11, 19 and 31 of the Constitution with the result that the enactment is unconstitutional and void, and the inter ference by the Government in the affairs of the company is unauthorised and illegal. He accordingly seeks relief by way of injunction and mandamus against the Union of India and the State of Bombay impfended as respondents 1 and 2 respec tively in these proceedings and against respondents a to 9 who are now in management as already stated. The company is irapleaded proforma as the 10th respondent. Before discussing the issues involved, it is necessary to examine the relevant provisions of the impugned Act in order to see in what manner and to what extent the petition er 's rights have been affected thereby. The preamble to the repealed Ordinance stated that "on account of mis management and neglect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudicially affected the production of an essen tial commodity and has caused serious unemployment amongst a certain section of the community and that an emergency has arisen which renders it necessary to make special provi sion for the proper management and administration of the aforesaid 887 Company." This preamble was not reproduced in the impugned Act. Section a empowers the Central Government to appoint as many persons as it thinks fit to be directors of the company "for the purpose of taking over its management and administration. " Section 4 states the effect of the order appointing directors to be that (1) the old directors shall be deemed to have vacated their office, (2) the contract with the managing agents shall be deemed to have been termi nated, (3) that the properties and effects of the company shall be deemed to be in the custody of the new directors who are to be "for all purposes" the directors of the compa ny and "shall alone be entitled to exercise all the powers of the directors of the company whether such powers are derived from the Companies Act or from the memorandum or articles of association or otherwise. " Section 5 defines the powers of the new directors. They are to manage the busi ness of the company "subject to the control of the Central Government" and shall have the power to raise funds offering such security as they think fit, to carry out necessary repairs to the machinery or other property in their custody and to employ the necessary persons and define the necessary conditions of their service. Section 12 provides for the restoration of the management to directors nominated by the shareholders when the purpose of the Government 's interven tion has been fulfilled. Section 13 is important and reads thus: "13. Application of the Companies Act. (1) Notwith standing anything contained in the Companies Act or in the memorandum or articles of association of the company (a) it shall not be lawful for the shareholders of the company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of the company shall 'be given effect to unless approved by the Central Government; (c) no proceeding for the winding up of the company or for the appointment of a receiver in respect, thereof shall lie in any Court unless by or with the sanction of the Central Government. (2) Subject. 888 to the provisions contained in sub section (1) and to the other provisions of this Act. and subject to such excep tions, restrictions and limitations as the Central Govern ment may, by notified order, specify, the Companies Act shall continue to apply to the company in the same manner as it applied thereto before the issue of the notified order under section 3. " By section 14 the provisions of the Act are to have effect "notwithstanding anything inconsistent therewith contained in any other law or in any instrument having effect by virtue of any law other than this Act. " Section 16 provides for delegation of powers to the Govern ment of Bombay to be exercised subject to the directions of the Central Government, and section 17 bars suits or other proceedings against the Central Government or the Government of Bombay or any director "for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act. " As a result of these provisions all the properties and effects of the company passed into the absolute power and control of the Central Government or its delegate the Gov ernment of Bombay, and the normal functioning of the company as a corporate body came to an end. The shareholders have been reduced to the position of interested, if helpless, onlookers while the business is carried on against their will and, may be, to their disadvantage by the Government 's nominees. The declared purpose of this arrangement was, according to the Preamble of the repeated Ordinance to keep up the production of an essential commodity and to avert serious unemployment amongst a certain section of the commu nity. The question accordingly arises whether the impugned Act. which thus affects the petitioner and his co sharehold ers, while leaving untouched the shareholders of all other companies, including those engaged in the production of essential commodities, denies to the petitioner the equal protection of the laws under article 14 of the Constitution. The correct approach to 889 this question is first to see what rights have been con ferred or protection extended to persons similarly situated. The relevant protection is to be found in the provisions of the Indian Companies Act which regulates the rights and obligations of the shareholders of incorporated companies in India. Section 21 of the Act assures to the shareholders the protection of the stipulations contained in the memoran dum and articles of association by constituting. them a binding contract, so that neither the company nor the share holders have the power of doing anything inconsistent there with. The basic right of the shareholders to have their undertaking managed and conducted by the directors of their own choice is ensured by section 83B. Their right to exer cise control and supervision over the management by the directors by passing resolutions at their general meeting is regulated by various provisions of the Act. The important safeguard of winding up the company in certain unfavourable circumstances either through court or by the shareholders thems elves voluntarily is provided for in sections 162 and 203. All these rights and safeguards, on the faith of which the shareholders embark their money in their undertaking, are abrogated by the impugned Act in the case of the share holders of this company alone. In fact, the Central Govern ment is empowered to exclude, restrict or limit the opera tion of any of the provisions of the Companies Act in rela tion to this company. It is thus plain that the impugned Act denies to the shareholders of this particular company the protection of the law relating to incorporated joint stock companies in this country is embodied in the Companies Act and is primafacie within the inhibition of article 14. It is argued, however, that article 14 does not make it incumbent on the Legislature always to make laws applicable to all persons generally, and that it is open to the Legis lature 'to classify persons and things and subject them to the operation of a particular law according to the aims and objects which that law is designed to secure. In the present case, Parliament, 114 890 it was said, came to the conclusion, on the materials placed before them, that the affairs of the company were being grossly mismanaged so as to result in the cessation of production of an essential commodity and serious unemploy ment amongst a section of the community. In view if the detriment thus caused to public economy, it was competent for Parliament to enact a measure applicable to this company and its shareholders alone, and Parliament must be the judge as to whether the evil which the impugned Act was designed to remedy prevailed to such an extent in this company as to call for special legislation. Reliance was placed in support of this argument on certain American decisions dealing with the equal protection clause of the Fourteenth Amendment of the Federal Constitution. It is, however, unnecessary to discuss those decisions here, for it is undeniable that equal protection of the laws cannot mean that all laws must be quite general in their character and application. ' A legislature empowered to make laws on a wide range of sub jects must of necessity have the power of making special laws to attain particular objects and must, for that pur pose, possess large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the legis lature has in view. While, for instance, a classification in a law regulating labour in mines or factories may be based on age or sex, it may not b`e based on the colour of one 's skin. It is also true that the class of persons to whom a law is made applicable may be large or small, and the degree of harm which has prompted the enactment of a particular law is a matter within the discretion of the law makers. It is not the province of the court to canvass the legislative judgment in such matters. But the issue here is not whether the impugned Act was ill advised or not justified by the facts on which it was based, but whether it transgresses the explicit constitutional restriction on legislative power imposed by article 14. 891 It is obvious that the legislation is directed solely against a particular company and shareholders and not against any class or category of companies and no question, therefore, of reasonable legislative classification arises. If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing. For instance, a law may be passed imposing certain restric tions and burdens on joint stock companies with a share capital of, say, Rs. 10 crores and upwards, and it may be found that there is only one such company for the time being to which the law could be applied. If other such companies are brought into existence in future the law would apply to them also, and no discrimination would thus be involved. But the impugned Act, which selects this particular company and imposes upon it and its shareholders burdens and disa bilities on the ground of mismanagement and neglect of duty on the part of those charged with the conduct of its under taking, is plainly discriminatory in character and is, in my judgment, within the constitutional inhibition of article 14. Legislation based upon mismanagement or other miscon duct as the differentia and made applicable to a specified individual or corporate body is not far removed from the notorious parliamentary procedure formerly employed in Britain of punishing individual delinquents by passing bills of attainder, and should not, I think, receive judi cial encouragement. It was next urged that the burden of proving that the impugned Act is unconstitutional lay on the petitioner, and that, inasmuch as he has failed to adduce any evidence to show that the selection of this company and its shareholders for special treatment under the impugned Act was arbitrary, the application must fail. Whilst all reasonable pre sumption must undoubtedly be made in support of the consti tutional validity of a law made by a competent legislature, the circumstances of the present case would seem, to my 892 mind to exclude such presumption. Hostile discrimination is writ large over the face of the impugned Act and it dis closes no grounds for such legislative intcrvcntion. For all that appears no compelling public intercsts were involved. Even the preamble to the original Ordinance was omitted. Nor did respondents 1 and 2 file any counter statement in this proceeding explaining the circumstances which led to the enactment of such an extraordinary measure. There is thus nothing in the record even by way of allegation which the petitioner need take steps to rebut. Supposing, howev er, that the impugned Act was passed on the same grounds as were mentioned in the preamble to the repealed Ordinance, namely, mismanagement and neglect prejudicially affecting the production of an essential commodity and causing seri ous unemployment amongst a section of the community, the petitioner could hardly be expected to assume the burden of showing, not that the company 's affairs were properly man aged, for that is not his case, but that there were also other companies similarly mismanaged, for that is what, according to the respondents, he should prove in order to rebut the presumption of constitutionality. In other words, he should be called upon to establish that this company and its shareholders were arbitrarily singled out for the impo sition of the statutory disabilities. How could the peti tioner discharge such a burden ? Was he to ask for an inves tigation by the Court of the affairs of other industrial concerns in India where also there were strikes and lock outs resulting in unemployment and cessation of production of essential commodities? Would these companies be willing to submit to such an investigation ? And even so, how is it possible to prove that the mismanagement and neglect which is said to have prompted the legislation in regard to this company was prevalent in the same degree in other companies ? In such circumstances, to cast upon the petitioner a burden of proof which it is as needless for him to assume as it is impracticable to discharge is to lose sight of the realities of the case. 893 Lastly, it was argued that the constitutionality of a statute could not be impugned under article 32 except by a person whose rights were infringed by the enactment. and that, inasmuch as there was no infringement of the individ ual right of a shareholder, even assuming that there was an injury to the company as a corporate body, the petitioner was not entitled to apply for relief under that article. Whatever validity the argument may have in relation to the petitioner 's claim based on the alleged invasion of his right of property under article 31, there can be little doubt that, so far as his claim based on the contravention of article 14 is concerned, the petitioner is entitled to relief in his own right As has been pointed out already, the impugned Act deprives the shareholders of the company of important rights and safeguards which are enjoyed by the shareholders of other joint stock companies in Indian under the Indian Companies Act. The petitioner is thus denied the equal protection of the laws in his capacity as a sharehold er, and none the less so because the other shareholders of the company are also similarly affected. The petitioner is thereled to seek relief under article 32 of the Constitu tion. In this view it becomes unnecessary to consider the questions raised under articles 19 and 31 of the Constitu tion. In the result]t, I would allow the application. MUKHERJEA J. This is an application presented by one Chiranjitlal Chowdhuri, a shareholder of the Sholapur Spinning and Weaving Company Limited (hereinafter referred to as the company), praying for a writ of mandamus and certain other reliefs under article 32 of the Constitution. The company, which has its registered office within the State of Bombay and is governed by the provisions of the Indian Companies Act, was incorporated with an authorised capital of Rs. 48 lakhs divided into 1590, fully paid up ordinary shares of Rs. 100 each, 20 fully paid up ordinary shares of Rs. 500 each and 32,000 partly paid up cumulative preference shares of Rs. 100 each. The 894 present paid up capital of the company is Rs. 32 lakhs half of which is represented by the fully paid up ordinary shares and the other half by the partly paid up cumulative prefer ence shares. The petitioner states in his petition that he holds in his own right three ordinary shares and eighty prefercnce shares in the company, though according to his own admission the ,preference shares do not stand in his name but have been registered in the name of the Baroda Bank Limited with which the shares are pledged. According to the respondents, the petitioner is the registered holder of one single ordinary share in the company. It appears that on July 27, 1949, the directors of the company gave a notice to the workers that the mills would be closed, and pursuant to that notice, the mills were in fact closed on the 27th of August following. On January 9, 1950, the Governor General of India promulgated an Ordinance which purported to make special provisions for the proper man agement and administration of the company. It was stated in the preamble to the Ordinance that "on account of mis management and neglect, a situation has arisen in the af fairs of the Sholapur Spinning and Weaving Company Limited which has prejudicially affected the production of an essen tial commodity and has caused serious unemployment amongst a certain section of the community ", and it was on account of the emergency arising from this situation that the promulga tion of the Ordinance was necessary. The provisions of the Ordinance, so far as they are material for our present purpose, may be summarised as follows: Under section 3 of the Ordinance, the Central Government may, at any time, by notified order, appoint as many persons as it thinks fit, to be directors of the company for the purpose of taking over its management and administration and may appoint one of such directors to be the Chairman. Section 4 provides that on the issue of a notified order under section 3 all the directors of the company holding office as such immediately before the issue of the order shall be deemed to have vacated their offices. and any existing 895 contract of management between the company and any managing agent thereof shall be deemed to have terminated. The directors thus appointed shall be for all purposes the directors of the company duly constituted under the Compa nies Act and shall alone be entitled to exercise all the powers of the directors of the company. The powers and the duties of the directors are specified in section 5 and this section inter alia empowers the directors to vary or cancel, with the previous sanction of the Central Government, any contract or agreement entered into between the company and any other person if they are satisfied that such contract or agreement is detrimental to the interests of the company. Section 10 lays down that no compensation for premature termination of any contract could be claimed by the managing agent or any other contracting party. It is provided by section 12 that so long as the management by the statutory directors continues, the shareholders would be precluded from nominating or appointing any person to be a director of the company and any resolution passed by them will not be effective unless it is approved by the Central Government. This section lays down further that during this period no proceeding for winding up of the company, or for appointment of a receiver in respect thereof could be instituted in any court, unless it is sanctioned by the Central Government, and the Central Government would be competent to impose any restrictions or limitations as regards application of the provisions of the Indian Companies Act to, be affairs of the company. The only other material provision is that contained in section 15, under which the Central Government may, by notified order, direct that all or any of the powers exercisable by it under this Ordinance may be exercised by the Government of Bombay. In accordance with the provisions of section 15 men tioned above, the Central Government, by notification issued on the same day that the Ordinance was promulgated, delegat ed all its powers exercisable under the Ordinance to the Government of Bombay, 896 On the next day, the Government of Bombay appointed respond ents 3 to 7 as directors of the company in terms of section 3 of the Ordinance. On the 2nd of March, 1950, the re spondent No. 9 was appointed a director and respondent No. 5 having resigned his office in the meantime, the re spondent No. 8 was appointed in his place. On the 7th of April, 1950, the Ordinance was repealed and an Act was passed by the Parliament of India, known as the Sholapur Spinning and Weaving Company (Emergency Provisions)Act which re enacted almost in identical terms all the provisions of the Ordinance and provided further that all actions taken and orders made under the Ordinance shall be deemed to have been taken or made under the corresponding provisions of the Act. The preamble to the Ordinance was not however repro duced in the Act. The petitioner in his petition has challenged the con stitutional validity of both the Ordinance and the Act. As the Ordinance is no longer in force and all its provisions have been incorporated in the Act, it will not be necessary to deal with or refer to the enactments separately. Both the Ordinance and the Act have been attacked on identical grounds and it is only necessary to enumerate briefly what these grounds are. The main ground put forward by the petitioner is that the pith and substance of the enactments is to take posses sion of and control over the mills of the company which are its valuable assets and such taking of possession of proper ty is entirely beyond the powers of the Legislature. 'The provisions of the Act, it is said, amount to deprivation of property of the shareholders as well as of the company within the meaning of article 31 of the Constitution and the restrictions imposed on the rights of the shareholders in respect to the shares held by them constitute an unjustifia ble interference with their rights to hold property and as such are void under article 19 (1) (f). It is urged that there was no public purpose for which the Legislature could authorise the taking possession or acquisition of 897 property and such acquisition or taking of possession with out payment of compensation is in violation of the funda mental rights guaranteed by article 31 (2) of the Constitu tion. It is said further that the enactment denies to the company and its shareholders equality before the law. and equal protection of laws and thus offends against the provi sions of article 14 of the Constitution. The only other material point raised is that the legislation is beyond the legislative competency of the Parliament and is not covered by any of the items in the legislative lists. On these allegations, the petitioner prays, in the first instance. that it may be declared that both the Act and the Ordinance are ultra vires and void and an injunction may be issued restraining the respondents from exercising any of the powers conferred upon them by the enactments. The third and the material prayer is for issuing a writ of mandamus, "restraining the respondents 1 to 9 from exercising or purporting to exercise any powers under the said Ordinance or Act and from in any manner interfering with the manage ment or affairs of the company under colour of or any pur ported exercise of any powers under the Ordinance or the Act," The other prayers are not material for our purpose. Before I address myself to the merits of this applica tion it will be necessary to clear up two preliminary matters in respect to which arguments were advanced at some length from the Bar. The first point relates to the scope of our enquiry in the present case and raises the question as to what precisely are the matters that have to be inves tigated and determined on this application of the petition er. The second point relates to the form of relief that can be prayed for and granted in a case of this description. Article 32 (1) of the Constitution guarantees to every body the right to move this court, by appropriate proceed ing, for enforcement of the fundamental rights which are enumerated in Part 1II of the Constitution. Clause (2) of the article lays down that the 115 898 Supreme Court shall have the power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate for the enforcement of any of the rights conferred by this part. Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution is at liberty to move the Supreme Court for the enforcement of such rights and this court has been given the power to make orders and issuue directions or writs similar in nature to the prerogative writs of English law as might be considered appropriate in particular cases. The fundamental rights guaranteed by the Constitution are available not merely to individual citizens but to corporate bodies as well except where the language of the provision or the nature of the right compels the inference that they are applicable only to natural persons. An incorporated company, there fore, can come up to this court for enforcement of its fundamental rights and so may the individual shareholders to enforce their own; but it would not be open to an individual shareholder to complain of an Act which affects the funda mental rights of the company except to the extent that it constitutes an infraction of his own rights as well. This follows logically from the rule of law that a corporation has a distinct legal personality of its own with rights and capacities, duties and obligations separate from those of its individual members. As the rights are different and inhere in different legal entities, it is not competent to one person to seek to enforce the rights of another except where the law permits him to do so. A well known illustra tion of such exception is furnished by the procedure that is sanctioned in an application for a writ of habeas corpus. Not only the man who is imprisoned or detained in confine ment but any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment. 899 The application before us under article 32 of the Con stitution is on behalf of an individual shareholder of the company. Article 32, as its provisions show,. is not di rectly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. To make out a case under this article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative lists, but that it affects or invades his fundamental rights guaranteed by the Constitu tion, of which he could seek enforcement by an appropriate writ or order. The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains I of infraction of such rights and approaches the court for relief. This being the position, the proper subject of our investigation would be what rights, if any, of the petitioner as a shareholder of the company have been violated by the impugned legislation. A discussion of the fundamental rights of the company as such would be outside the purview of our enquiry. It is settled law that in order to redress a wrong done to the company, the action should prima facie be brought by the company itself. It cannot be said that this course is not possible in the circumstances of the present case. As the law is alleged to be unconstitutional, it is open to the old directors of the company who have been ousted from their position by reason of the enactment to maintain that they are directors still in the eye of law, and on that footing the majority of shareholders can also assert 'the rights of the company as such. None of them, however, have come forward to institute any proceeding on behalf of the compa ny. Neither in form nor in substance does the present application purport to be one made by the company itself. Indeed, the company 900 is one of the respondents, and opposes the petition. As regards the other point, it would appear from the language of article 32 of the Constitution that. the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this article cannot really have any affinity to what is known as a declaratory suit. The first prayer made in the petition, n seeks relief in the shape of a declaration that the Act is invalid and is apparently inappropriate to an application under article 32; while the second purports to be framed for a relief by way of injunc tion consequent upon the first. As regards the third pray er, it has been contended by Mr. Joshi, who appears for one of the respondents, that having regard to the nature of the case and the allegations made by the petitioner himself, the prayer for a writ of mandamus, in the form in which it has been made, is not tenable. What is argued is that a writ of mandamus can be prayed for, for enforcement of statutory duties or to compel a person holding a public office to do or forbear from doing something which is incumbent upon him to do or forbear from doing under the provisions of any law. Assuming that the respondents in the present case are public servants, it is said that the statutory duties which it is incumbent upon them to discharge are precisely the duties which are laid down in the impugned Act itself. There is no legal obligation on their part to abstain from exercising the powers conferred upon them by the impeached enact ment which the court can be called upon to enforce. These is really not much substance in this argument, for according to the petitioner the impugned Act is not valid at all and consequently the respondents cannot take their stand on this very Act to defeat the application for a writ in the nature of a mandamus. Any way, article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the 901 ground that 'the proper writ or direction has not been prayed for. Proceeding now to the merits of the case, the first contention that has been pressed before us by the learned Counsel for the petitioner is that the effect of the Shola pur Spinning and Weaving Company Limited (Emergency Provi sions) Act, has been to take away from the company and its shareholders, possession of property and other interests in commercial undertaking and vest the same in certain persons who are appointed by the State, and the exercise of whose powers cannot be directed or controlled in any way by the shareholders. As the taking of possession is not for any public purpose and no provision for compensation has been made by the law which authorises it, such law, it is said, violates the fundamental rights guaranteed under article 31 of the Constitution. To appreciate the contention, it would be convenient first of all to advert to the provisions of the first two clauses of article 31 of the Constitution. The first clause of article 31 lays down that "no person shall be deprived of his property save by authority of law" The second clause provides: "No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken posse sion of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. " It is a right inherent in every sovereign to take and appropriate private property belonging to individual citi zens for public use. 'this right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Govern ment that private property acquired by its 902 citizens under its protection may be taken or its use con trolled for public benefit irrespective of the wishes of the owner. Article 31 (2) of the Constitution prescribes a two fold limit within which such superior right of the State should be exercised. One limitation imposed upon acquisition or taking possession of private property which is implied in the clause is that such taking must be for public purpose. The other condition is that no property can be taken, unless the law which authorises such appropriation contains a provision for payment of compensation in the manner laid down in the clause. So far as article S1 (2) is concerned, the substantial question for our consideration is whether the impugned legislation authorises any act amounting to acquisition or taking possession of private property within the meaning of the clause. It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which were vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property. Article 31 (,?) of the Constitu tion itself makes a clear distinction between acquisition of property and taking possession of it for a public purpose, though it places both of them on the same footing in the sense that a legislation authorising either of these acts must make provision for payment of compensation to the displaced or expropriated holder of the property. In the context in which the word "acquisition" appears in article 31 (2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and I have no hesitation in holding that there is no such acquisition either as regards the property of the company or of the shareholders in the present case. The question, therefore, narrows down to this as to whether the legisla tion in 903 question has authorised the taking of possession of any property or interest belonging to the petitioner. It is argued by the learned Attorney General that the taking of possession as contemplated by article 31 (2) means the taking of possession of the entire bundle of rights which the previous holder had, by excluding him from every part or item thereof. If the original holder is still left to exercise his possession with regard to some of the rights which were within the folds of his title, it would not amount to taking possession of the property for purposes of article 31 (2) of the Constitution. Having laid down this proposition of law, the learned Attorney General has taken us through the various provisions of the impugned Act and the contention advanced by him substantially is that nei ther the company nor the shareholders have been dispossessed from their property by reason of the enactment. As regards the properties of the company, the directors, who have been given the custody of the property, effects and actionable claims of the company, are, it is said, to exercise their powers not in their own right but as agents of the company, whose beneficial interest in all its assets has not been touched or taken away at all. No doubt the affairs of the company are to be managed by a body of directors appointed by the State and not by the company, but this, it is argued, would not amount to taking possession of any property or interest within the meaning of article 31 (2). Mr. Chari on the other hand, has contended on behalf of the petitioner that after the management is taken over by the statutory directors, it cannot be said that the company still retains possession or control over its property and assets. Assuming that this State management was imposed in the interests of the shareholders themselves and that the statutory directors are acting as the agents of the company, the possession of the statutory directors could not, it is argued, be regarded in law as possession of the company so long as they are bound to act in obedience to the dictates of the Central Government and not of the company itself in the administra tion of its affairs. Possession of an 904 agent, it is said, cannot juridically be the possession of the principal, if the agent is to act not according to the commands or dictates of the principal, but under the direc tion of an exterior authority. There can be no doubt that there is force in this con tention, but as I have indicated at the outset, we are not concerned in this case with the larger question as to how far the inter position of this statutory management and control amounts to taking possession of the property and assets belonging to the company. The point for our consider ation is a short one and that is whether by virtue of the impugned legislation any property or interest of the peti tioner himself, as a shareholder of the company, has been taken possession of by the State or an authority appointed under it, as contemplated by article 31 (2) of the Constitu tion. The petitioner as a shareholder has undoubtedly an interest in the company. His interest is represented by the share he holds and the share is movable property according to the Indian Companies Act with all the incidence of such property attached to it. Ordinarily, he is entitled to enjoy the income arising from the shares in the shape of divi dends; the share like any 'other marketable commodity can be sold or transferred by way of mortgage or pledge. The hold ing of the share in his name gives him the right to vote at the election of directors and thereby take a part, though indirectly, in the management of the company 's affairs. If the majority of shareholders sides with him, he can have a resolution passed which would be binding on the company, and lastly, he can institute proceedings for winding up of the company which may result in a distribution of the net assets among the shareholders. It cannot be disputed that the petitioner has not been dispossessed in any sense of the term of the shares he holds. Nobody has taken the shares away from him. His legal and beneficial interest in respect to the shares he holds is left intact. If the company declares dividend, he would be entitled to the same. He can sell or otherwise dispose of the shares at any 905 time at his option. The impugned Act has affected him in this way that his right of voting at the election of direc tors has been kept in abeyance so long as the management by the statutory director continues; and as a result of that, his right to participate in the management of the company has been abridged to that extent. His rights to pass resolutions or to institute winding up proceedings have also been restricted though they are not wholly gone; these rights can be exercised only with the consent or sanction of the Central Government. In my opinion, from the facts stated above, it cannot be held that the petitioner has been dispossessed from the property owned by him. I may apply the test which Mr. Chari himself formulated. If somebody had taken possession of the petitioner 's shares and was clothed with the authority to exercise all the powers which could be exercised by the holder of the shares under law, then even if he purported to act as the petitioner 's agent and exer cise these powers for his benefit, the possession of such person would not have been the petitioner 's possession if he was bound to act not under the directions of the petitioner or in obedience to his commands but under the directions of some other person or authority. There is no doubt whatsoever that is not the position in the present case. The State has not usurped the shareholders ' right to vote or vested it in any other authority. The State appoints directors of its own choice but that it does, not in exercise of the share holders ' right to vote but in exercise of the powers vested in it by the impugned Act. Thus there has been no dispos session of the shareholders from their right of voting at all. The same reasoning applies to the other rights of the shareholders spoken of above, namely, their right of passing resolutions and of presenting winding up petition. These rights have been restricted undoubtedly and may not be capable of being exercised to the fullest extent as long as the management by the State continues. Whether the restric tions are such as would bring the case within 116 906 the mischief of article 19 (1) (f) of the Constitution, 1 will examine presently; but 1 have no hesitation in holding that they do not amount to dispossession of the shareholders from these rights in the sense that the rights have been usurped by other people who are exercising them in place of the displaced shareholders. In the view that I have taken it is not necessary to discuss whether we can accept as sound the contention put forward by the learned Attorney General that the word "property" as used in article 31 of the Constitution con notes the entire property, that is to say the totality of the rights which the ownership of the object connotes. According to Mr. Setalvad, if a shareholder is not deprived of the entirety of his rights which he is entitled to exer cise by reason of his being the owner or holder of the share and some rights, however insignificant they might be, still remain in him, there cannot be any dispossession as contem plated by article 31(2). It is difficult, in my opinion, to accept the contention formulated in such broad terms. The test would certainly be as to whether the owner has been dispossessed substantially from the rights held by him or the loss is only with regard to some minor ingredients of the proprietory right. It is relevant to refer in this connection to an observation made by Rich J. in a Full Bench decision of the High Court of Australia,(1) where the ques tion arose as to whether the taking of exclusive possession of a property for an indefinite period of time by the Com monwealth of Australia under Reg. 54 of the National Securi ty Regulation amounted to acquisition of property within the meaning of placitum 31, section 51, of the Commonwealth Constitution. The majority of the Full Bench answered the question in the affirmative and the main reason upon which the majority decision was based is thus expressed in the language of Rich J. "Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in fee simple in possession has the largest possible bundle. But there is nothing in (1) See Minister of Stain for the Army vs Dalziel, 68 C L.R. p. 261, 907 the placitum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it was expropriat ing. " It is not, however, necessary for my purpose to pursue the matter any further, as in my opinion there has been no dispossession of the rights of a shareholder in the present case. Mr. Chari in course of his opening relied exclusively on clause (2) of article 31 of the Constitution. During his reply, however, he laid some stress on clause (1) of the article as well, and his contention seems to be that there was deprivation of property in the present case in contra vention of the terms of this clause. It is difficult to see what exactly is the contention of the learned Counsel and in which way it assists him for purposes of the present case. It has been argued by the learned Attorney General that clause (1) of article 31 relates to a power different from that dealt with under clause (2). According to him, what clause (1) contemplates is confiscation or destruction of property in exercise of what are known as 'police powers ' in American law, for which no payment of compensation is neces sary. I do not think it proper for purposes of the present case to enter into a discussion on this somewhat debatable point which has been raised by the learned Attorney General. In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution makers and the importing of expressions like 'police power ; which is a term of variable and indefinite connotation in American law can only make the task of interpretation more difficult. It is also not necessary to express any opinion as to wheth er clauses (1) and (2) of article 31 relate to exercise of different kinds of powers or they are to be taken as cumula tive provisions in relation to the same subjectmatter, namely, compulsory acquisition of property. If the word "deprived" as used in clause (1) connotes the idea of de struction or confiscation of property, obviously no such thing has happened in the present 908 case. Again if clauses (1) and (2) of article 31 have to be read together and "deprivation" in clause (1) is given the same meaning as compulsory acquisition in clause (2), clause (1), which speaks neither of compensation nor of public purpose, would not by itself, and apart from clause (2), assist the petitioner in any way. If the two clauses are read disjunctively, the only question that may arise in connection with clause (1) is whether or not the depriva tion of property is authorised by law. Mr. Chari has raised a question relating to the validity of the legislation on the ground of its not being covered by any of the items in the legislative list and to this question I would advert later on; but apart from this, clause (1) of article 31 of the Constitution seems to me to be altogether irrelevant for purposes of the petitioner 's case. This leads me to the consideration of the next point raised by Mr. Chari, namely, whether these restrictions offend against the provision of article 19(1)(f) of the Constitution. Article 19(1) of the Constitution enumerates the dif ferent forms of individual liberty, the protection of which is guaranteed by the Constitution. The remaining clauses of the article prescribe the limits that may be placed upon these liberties by law, so that they may not conflict with public welfare or general morality. Article 19(1)(f) guarantees to all citizens ' the right to acquire, hold or dispose of property. ' Any infringement of this provision would amount to a violation of the fundamental rights, unless it comes within the exceptions provided for in clause (5) of the article. That clause permits the imposition of reasonable restrictions upon the exercise of such righ teither in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Two questions, therefore, arise in this connection: first, whether the restrictions that have been imposed upon the rights of the petitioner as a shareholder in the company under the Sholapur Act amount to infringement of his.right to acquire, hold or dispose of property within the meaning of article 19(1)(f) of the Constitution and 909 secondly, if they do interefere with such rights, whether they are covered by the exceptions 1aid down in clause (5) of the article. So far as the first point is concerned, it is quite clear that there is no restriction whatsoever upon the petitioner 's right to acquire and dispose of any property. The shares which he holds do remain his property and his right to dispose of them is not lettered in any way. If to 'hold ' a property means to possess it, there is no infringe ment of this right either, for, as I have stated already, the acts complained of by the petitioner do not amount to dispossession of him from any property in the eye of law. It is argued that 'holding ' includes enjoyment of all benefits that are ordinarily attached to the ownership of a property. The enjoyment of the fruits of a property is undoubtedly an incident of ownership. The pecuniary benefit, which a share. holder derives from the shares he holds, is the dividend and there is no limitation on the petitioner 's right in this respect. The petitioner undoubtedly has been precluded from exercising his right of voting at the elec tion of directors so long as the statutory directors contin ue to manage the affairs of the company. He cannot pass an effective resolution in concurrence with the majority of shareholders without the consent or sanction of the Central Government and without such sanction, there is also a disa bility on him to institute any winding up proceedings in a court of law. In my opinion, these are rights or privileges which are appurtenant to or flow from the ownership of property, but by themselves and taken independently, they cannot be reck oned as property capable of being acquired, held or disposed of as is contemplated by article 19 (1) (f) of the Constitu tion. I do not think that there has been any restriction on the rights of a shareholder to hold, acquire or dispose of his share by reason of the impugned enactment and conse quently article 19 (1) (f) of the Constitution is of no assistance to the petitioner. In this view, the other point does not arise for consideration, but I may state here that even if it is conceded for argument 's sake that the 910 disabilities imposed by the impugned legislation amount to restrictions on proprietory right, they may very well be supported as reasonable restraints imposed in the interests of the general public, viz., to secure the supply of a commodity essential to the community and to prevent a seri ous unemployment amongst a section of the people. They are, therefore, protected completely by clause (5)of article 19. This disposes of the second point raised by Mr. Chari. The next point urged on behalf of the petitioner raises an important question of constitutional law which turns upon the construction of article 14 of the Constitution. It is urged by the learned Counsel for the petitioner that the Sholapur Act is a piece of discriminatory legislation which offends against the provision of article 14 of the Constitu tion. Article 14 guarantees to all persons in the territo ry of India equality before the law and equal protection of the laws and its entire object, it is said, is to prevent any person or class of persons from being singled out as a special subject of discriminatory legislation. It is pointed out that the law in this case has selected one particular company and its shareholders and has taken away from them the right to manage their own affairs, but the same treatment has not been meted out to all other companies or shareholders situated in an identical manner. Article 14 of the Constitution, it may be noted, corre sponds to the equal protection clause in the Fourteenth Amendment of the American Constitution which declares that "no State shall deny to any person within its jurisdiction the equal protection of the laws. " We have been referred in course of the arguments on this point by the learned Counsel on both sides to quite a number of cases decided by the American Supreme Court, where questions turning upon the construction of the 'equal protection ' clause in the Ameri can Constitution came up for consideration. A detailed examination of these reports is neither necessary nor prof itable for our present purpose but we think we can cull a few general principles from some of the pronouncements of 911 the American Judges which might appear to us to be consonant with reason and help us in determining the true meaning and scope of article 14 of our Constitution. I may state here that so far as the violation of the equality clause in the Constitution is concerned, the peti tioner, as a shareholder of the company, has as much right to complain as the company itself, for his complaint is that apart from the discrimination made against the company, the impugned legislation has discriminated against him and the other shareholders of the company as a group vis a vis the shareholders of all other companies governed by the Indian Companies Act who have not been treated in a similar way. As the discriminatory treat ment has been in respect to the shareholders of this company alone, any one of the shareholders, whose interests are thus vitally affected, has a right to complain and it is immate rial that there has been nodiscrimination inter se amongst the shareholders themselves. It must be admitted that the guarantee against the denial of equal protection of the laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America, "equal protection of laws is a pledge of the protection of equal laws( ')," and this means "subjection to equal laws applying alike to all in the same situation("). " In other words, there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would per se violate the guarantee of the equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be (1) Yick Wo vs Hopkins, 118 U.S. at 369 (2) Southern Raliway Company vs Greene, ; ,412. 912 unconstitutional if it is not discriminatory in its charac ter (1). It would be bad law "if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency(2). " The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a cer tain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just rela tion to the things in respect to which the classification is made; and classification made without any ' substantial basis should be regarded as invalid(3). The question is whether judged by this test the im pugned Act can be said to have contravened the provision embodiedin article 14 of the Constitution. Obviously the Act purports to make provisions which are of a drastic character and against the general law of the land as laid down in the Indian Companies Act, in regard to the admin istration and management of the affairs of one company in indian territory. The Act itself gives no reason for the legislation but the Ordinance, which was a precursor of the Act expressly stated why the legislation was necessary. It said that owing to mismanagement and neglect, a situation had arisen in the affairs of the company which prejudicially affected the production of an essential commodity and caused serious unemployment amongst a certain section of the community. Mr. Chari 's contention in substance is that there are various textile companies in India situated in a simi lar manner as the Sholapur company, against which the same charges could be brought and for the control and regulation of which all the reasons that are mentioned in the preamble to the Ordinance (1) Willis Constitutional Law, p. 580. (2) Gulf C. & section F.R. Co. vs Ellis. , at 159. (3) Southern Railway Co. vs Greene, ; , at 412 913 could be applied. Yet, it is said, the legislation has been passed with regard to this one company alone. The argument seems plausible at first sight, but on a closer examination I do not think that I can accept it as sound. It must be conceded that the Legislature has a wide discretion in determining the subject matter of its laws. It is an accepted doctrine of the American Courts and which seems to me to be well founded on principle, that the presumption is favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a transgression of constitutional principles. As was said by the Supreme Court of America in Middleton vs Texas Power and Light Company(1), 'It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds. " This being the position, it is for the petitioner to establish facts which would prove that the selection of this particular subject by the Legislature is unreasona ble and based upon arbitrary grounds. No allegations were made in the petition and no materials were placed before us to show as to whether there are other companies in India which come precisely under the same category as the Sholapur Spinning and Weaving Company and the reasons for imposing control upon the latter as mentioned in the preamble to the Ordinance are applicable to them as well. Mr. Chari argues that these are matters of common knowledge of which we should take judicial notice. I do not think that this is the correct line of approach. It is quite true that the Legislature has, in this instance, proceeded against one company only and its shareholders; but even one corporation or a group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some excep tional features which are not possessed by others. The courts should prima facie (1) 219 u.s. 152 at p. 157. 117 914 lean in favour of constitutionality and should support the legislation if it is possible to do so on any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the court which would go to show that the selection is arbitrary and unsupportable. Throwing out of vague hints that there may be other instances of similar nature is not enough for this purpose. We have not even before us any statement on oath by the petitioner that what has been alleged against this particular company may be said against other companies as well. If there was any such statement, the respondents could have placed before us the whole string of events that led up to the passing of this legislation. If we are to take judi cial notice of the existence of similar other badly managed companies, we must take notice also of the facts which appear in the parliamentary proceedings in connection with this legislation which leave been referred to by my learned brother, Fazl Ali J. in his judgment and which would go to establish that the facts connected with this corporation are indeed exceptional and the discrimination that has been made can be supported on just and reasonable grounds. I purpose ly refrain from alluding to these facts or basing my deci sion thereon as we had no opportunity of investigating them properly during the course of the hearing. As matters stand, no proper materials have been placed before us by either side and as I am unable to say that the legislature cannot be supported on any reasonable ground, I think it to be extremely risky to overthrow it on mere suspicion or vague conjectures. If it is possible to imagine or think of cases of other companies where similar or identical condi tions might prevail, it is also not impossible to conceive of something" peculiar" or "unusual" to this corporation which led the legislature to intervene in its affairs. As has been laid down by the Supreme Court of America, "The Legislature is free to recognise degrees of harm and it may confine its restrictions to those cases where the need is deemed to be the clearest"(1). We should (1) Radics, vs New York, 264 U.S. 915 bear in mind that a corporation, which is engaged in produc tion of a commodity vitally essential to the community, has a social character of its own, and it must not be regarded as the concern primarily or only of those who invest their money in it. If its possibilities are large and it had a prosperous and useful career for a long period of time and is about to collapse not for any economic reason but through sheer perversity of the controlling authority, one cannot say that the legislature has no authority to treat it as a class by itself and make special legislation applicable to it alone in the interests of the community at large. The combination of circumstances which are present here may be of such unique character as could not be existing in any other institution. But all these, I must say, are matters which require investigation on proper materials which we have not got before us in the present case. In these circum stances I am constrained to hold that the present applica tion must fail on the simple ground that the petitioner made no attempt to discharge the primafacie burden that lay upon him and did not place before us the materials upon which a proper decision on the point could be arrived at. In my opinion , therefore, the attack on the legislation on the ground of the denial of equal protection of law cannot succeed. The only other thing that requires to be considered is the argument of Mr. Chari that the law in question is in valid as it is not covered by any of the items in the legis lative list. In my opinion, this argument has no substance. What the law has attempted to do is to regulate the affairs of this company by laying down certain special rules for its management and administration. It is fully covered by item No. 43 of the Union List which speaks inter alia of "incor poration, regulation and winding up of trading corporations. " The result is that the application fails and is dis missed with costs. DAS J. As I have arrived at a conclusion different from that reached by the majority of this Court, I 916 consider it proper, out of my respect for the opinion of my learned colleagues, to state the reasons for my conclusions in some detail. On January 9, 1950, the Governor General of India, acting under section 42 of the Government of India Act, 1935, promulgated an Ordinance, being Ordinance No. II of 1950, concenrning the Sholapur Spinning and Weaving Company, Limited, (hereafter referred to as the said company). The preambles and the provisions of the Ordinance have been referred to in the judgment just delivered by Mukherjea J. and need not be recapitulated by me in detail. Suffice it to say that the net result of the Ordinance was that the managing agents of the said company were dismissed, the directors holding office at the time automatically vacated their office, the Government was authorised to nominate directors, the rights of the shareholders of this company were curtailed in that it was made unlawful for them to nominate or appoint any director, no resolution passed by them could be given effect to without the sanction of the Government and no proceeding for winding up could be taken by them without such sanction, and power was given to the Government to further modify the provisions of the Indian Companies Act in its application to the said company. On the very day that the Ordinance was promulgated the Central Government acting under section 15 delegated all its powers to the Government of Bombay. On January 10, 1950, the Government of Bombay appointed Respondents Nos. 3 to 7 as the new directors. On March 2, 1950, Respondent No. 5 having resigned, Respondent No. 8 was appointed a director in his place and on the same day Respondent No. 9 was also appointed as a director. In the meantime the new Constitu tion had come into force on January 26, 1950. On February 7, 1950, the new directors passed a resolution sanctioning a call for Rs. 50 on the preference shares. Thereupon a suit being Suit No. 438 of 1950 was filed in the High Court of 917 Bombay by one Dwarkadas Shrinivas against the new directors challenging the validity of the Ordinance and the right of the new directors to make the call. Bhagwati J. who tried the suit held that the Ordinance was valid and dismissed the suit. An appeal (Appeal No. 48 of 1950) was taken from that decision which was dismissed by a Division Bench (Chagla C.J. and Gajendragadkar J.) on August 29, 1950. In the meantime, on April 7, 1950, the Ordinance was replaced by Act No. XXVIII of 1950. The Act substantially reproduced the provisions of the Ordinance except that the preambles to the Ordinance were omitted. On May 29, 1950, the present petition was filed by one Chiranjitlal Chowdhuri. The petitioner claims to be a shareholder of the said company holding 80 preference shares and 3 ordinary shares. The preference shares, according to him, stand in the name of the Bank of Baroda to whom they are said to have been pledged. As those preference shares are not registered in the name of the petitioner he cannot assert any right as holder of those shares. According to the respondents, the petitioner appears on the register as holder of only one fully paid up ordinary share. For the purposes of this application, then, the petitioner 's interest in the said company must be taken as limited to only one fully paid up ordinary share. The respondents are the Union of India, the State of Bombay and the new directors besides the company itself. The respondent No. 5 having resigned, he is no longer a director and has been wrongly impleaded as respond ent. The reliefs prayed for are that the Ordinance and the Act are ultra vires and void, that the Central Government and the State Government and the directors be restrained from exercising any powers under the Ordinance or the Act, that a writ of mandamus be issued restraining the new direc tors from exercising any powers under the Ordinance or the Act or from in any manner interfering with the management of the affairs of the company under colour of or in purported exercise of any powers under the said Ordinance or Act. 918 The validity of the Ordinance and the Act has been challenged before us on the following grounds: (i) that it was not within the legislative competence (a) of the Gover nor General to promulgate the Ordinance, or (b) of the Parliament to enact the Act, and (ii) that the Ordinance and the Act infringe the fundamental rights of the shareholders as well as those of the said company and are, therefore, void and inoperative under article 13. Re (i) . The present application has been made by the petitioner under article 52 of the Constitution. Sub section (1) of that article guarantees the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part [1] of the Constitution. Sub section (2) empowers this Court to issue directions or orders or writs, including certain specified writs, whichever may be appro priate, for the enforcement of any of the rights conferred by that Part. It is clear, therefore, that article 32 can only be invoked for the purpose of the enforcement of the fundamental rights. Article 32 does not permit an applica tion merely for the purpose of agitating the competence of the appropriate legislature in passing any particular enact ment unless the enactment also infringes any of the funda mental rights. In this case the claim is that the fundamen tal rights have been infringed and, therefore, the question of legislative competence may also be incidentally raised on this application. It does not appear to me, however, that there is any substance in this point for, in my opinion, entry 33 of List I of the Seventh Schedule to the Government of India Act, 1935, and the corresponding entry 43 of the Union List set out in the Seventh Schedule to the Constitu tion clearly support these pieces of legislation as far as the question of legislative competency is concerned. Sec tions 83A and 83 B of the Indian Companies Act can only be supported as valid on the ground that they regulate the management of companies and are, therefore, within the said entry. Likewise, the provisions of the Ordinance and the Act relating to the appointment of directors by the 919 Government and the curtailment of the shareholders ' rights as regards the election of directors, passing of resolutions giving directions with respect to the management of the company and to present a winding up petition are matters touching the management of the company and, as such, within the legislative competence of the appropriate legislative authority. In my judgment, the Ordinance and the Act cannot be held to be invalid on the ground of legislative incompe tency of the authority promulgating or passing the same. Re (ii) The fundamental rights said to have been in fringed are the right to acquire, hold and dispose of property guaranteed to every citizen by Article 19(1)(f) and the right to property secured by article 31, In Gapalan 's case (1) 1 pointed out that the rights conferred by article 19 (1) (a) to (e) and (g) would be available to the citizen until he was, under article 21, deprived of his life or personal liberty according to procedure established by law and that the right to property guaranteed by article 19 (1)(f) would likewise continue until the owner was, under article 31, deprived of such property by authority of law. Therefore, it will be necessary to consider first whether the shareholder or the company has been deprived of his or its property by authority of law under Article 31 for, if he or it has been so deprived, then the question of his or its fundamental right under article 19 (1) (f) will not arise. The relevant clauses of article 31 run as follows "31. (1) No person shall be deprived of his property save by authority of law. (2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorisingthe taking of such possession or such acquisition, unless the law provides for compensation for the property taken posses sion of or acquired (1) ; 920 and either fixes the amount of the compensation, or speci fies the principles on which, and the manner in which, the compensation is to be determined and given. " Article 31 protects every person, whether such ' person is a citizen or not. and it is wide enough to cover a natu ral person as well as an artificial person. Whether or not, having regard to the language used in article 5, a corpora tion can be called a citizen and as such entitled to the rights guaranteed under article 19, it is quite clear that the corporation is protected by article 31, for that article protects every "person" which expression certainly includes an artificial person. The contention of the peitioner is that the Ordinance and the Act have infringed his fundamental right to property as a shareholder in the said company. Article 31, like article 19(1) (f), is concerned with "property ". Both the articles are in the same chapter and deal with fundamental rights. Therefore, it is reasonable to say that the word "property" must be given the same meaning in construing those two articles. What, then, is the meaning of the word "property"? It may mean either the bundle of rights which the owner has over or in respect of a thing, tangible or intangible, or it may mean the thing itself over or in respect of which the owner may exercise these rights. It is quite clear that the Ordinance or the Act has not deprived the shareholder of his share itself. The share still be longs to the shareholder. He is still entitled to the dividend that may be declared. He can deal with or dispose of the share as he pleases. The learned Attorney General contends that even if the other meaning of the word "proper ty" is adopted, the shareholder has not been deprived of his" property" understood in that sense, that is to say he has not been deprived of the entire bundle of rights which put together constitute his "property ". According to him the" property" of the shareholder, besides and apart from his right to elect directors, to pass resolutions giving directions to the directors and to present a winding up petition, consists in his right to participate 921 in the dividends declared on the profits made by the working of the company and, in case of winding up, to participate in the surplus that may be left after meeting the winding up expenses and paying the creditors. Those last mentioned rights, he points out, have not been touched at all and the shareholder can yet deal with or dispose of his shares as he pleases and is still entitled to dividends if and when declared. Therefore, concludes the learned Attorney General, the shareholder cannot complain that he has been deprived of his "property", for the totality of his rights have not been taken away. The argument thus formulated appears to me to be somewhat too wide, for it will then permit the legisla ture to authorise the State to acquire or take possession, without any compensation, of almost the entire rights of the owner leaving to him only a few subsidiary rights. This result could not, in my opinion, have been intended by our Constitution. As said by Rich J. in the Minister for State for the Army vs Datziel (i) while dealing with section 31 (XXXI) of the Australian Constitution "Property, in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencurnbered estate in fee simple in possession has the largest possible bundle. But there is nothing in the placi tum to suggest that the legislature was intended to be at liberty to free itself from the restrictive provisions of the placitum by taking care to seize something short of the whole bundle owned by the person whom it is expropriating. " The learned Judge then concluded as follows at p. 286 : "It would in my opinion, be wholly inconsistent with the language of the placitum to hold that whilst preventing the legislature from authorising the acquisition of a citi zen 's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession indefinitely, on any terms it chooses or upon no terms at all." (1) ; 118 922 In my judgment the question whether the Ordinance or the Act has deprived the shareholder of his "property" must depend, for its answer, on whether it has taken away the substantial bulk of the rights constituting his "property". In other words, if the rights taken away by the Ordinance or the Act are such as would render the rights left un touched illusory and practically valueless, then there can be no question that in effect and substance the "property" of the shareholder has been taken away by the Ordinance or the Act. Judged by this test can it be said that the right to dispose of the share and the right to receive dividend, if any, or to participate in the surplus in the case of winding up that have been left to the shareholder are illu sory or practically valueless, because the right to control the management by directors elected by him, the right to pass resolutions giving directions to the directors and the right to present a winding up petition have, for the time being, been suspended ? I think not. The right still pos sessed by the shareholder are the most important of the rights constituting his "property", although certain privi leges incidental to the ownership have been put in abeyance for the time being. It is, in my opinion, impossible to say that the Ordinance or the Act has deprived the shareholder of his "property" in the sense in which that word is used in article 19 (1) (f) and article 31. The curtailment of the incidental privileges, namely, the right to elect directors, to pass resolutions and to apply for winding up may well be supported as a reasonable restraint on the exercise and enjoyment of the shareholder 's right of property imposed in the interests of the general public under article 19 (5), namely, to secure the supply of an essential commodity and to prevent unemployment. Learned counsel for the petitioner, however, urges that the Ordinance and the Act have infringed the sharehold er 's right to property in that he has been deprived of his valuable right to elect directors, to give directions by passing resolutions and, in case of apprehension of loss, to present a petition for the winding 923 up of the company. These rights, it is urged, are by them selves "property" and it is of this "property" that the shareholder is said to have been deprived bythe State under a law which does not provide for payment of compensation and which is, as such, an infraction of the shareholder 's funda mental right to property under article 31 (2). Two ques tions arise on this argument. Are these rights "property" within the meaning of the two articles I have mentioned ? These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are "proper ty" within the meaning of those articles, for those articles only regard that as "property" which can by itself be ac quired, disposed of or taken possession of. The right to vote for the election of directors, the right to pass reso lutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be ac quired or disposed of or taken possession of as contemplated by those articles. The second question is assuming that these rights are by themselves "property ", what is the effect of the Ordinance and the Act on such "property". It is nobody 's case that the Ordinance or the Act has autho rised any acquisition by the State of this "property" of the shareholder or that there has in fact been any such acquisi tion. The only question then is whether this "property" of the shareholder, meaning thereby only the rights mentioned above, has been taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject 0 course, to the sanction of the Government. Assuming, however, that the fetters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, 924 vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder. The Government undoubtedly appoints directors under the Act, but such appointment is made in exercise of the the powers vested in the Government by the Ordinance or the Act and not in exercise of the shareholder 's right. As already indicated, entry 43 in the Union List authorises Parliament to make laws with respect, amongst other things, to the regulation of trading corpora tions. There was, therefore, nothing to prevent Parliament from amending the Companies Act or from passing a new law regulating the management of the company by providing that the directors, instead of being elected by the shareholders, should be appointed by the Government. The new law has undoubtedly cut down the existing rights of the shareholder and thereby deprived the shareholder of his unfettered right to appoint directors or to pass resolutions giving direc tions or to present a winding up petition. Such depriva tion, however, has not vested the rights in the Government or its nominee. What has happened to the rights of the shareholder is that such rights have been temporarily de stroyed or kept in abeyance. The result, therefore, has been that although the shareholder has been for the time being deprived of his "property", assuming these rights to be "property", such "property" has not been acquired or taken possession of by the Government. If this be the result brought about by the Ordinance and the Act, do they offend against the fundamental rights guaranteed by article 31 ? Article 31 (1) formulates the fundamental right in a nega tive form prohibiting the deprivation of property except by authority of law. It implies that a person may be deprived of his property by authority of law. Article 31 (2) prohib its the acquisition or taking possession of property for a public purpose under any law, unless such law provides for payment of compensation. It is suggested that clauses (1) and (2)o[ article 31 deal with the same topic, namely, compulsory acquisition or taking possession 925 of property, clause (2) being only an elaboration of clause (1). There appear to me to be two objections to this sug gestion. If that were the correct view, then clause (1).must be held to be wholly redundant and clause (2), by itself, would have been sufficient. In the next place, such a view would exclude deprivation of property otherwise than by acquisition or taking of possession. One can conceive of circumstances where the State may have to deprive a person of his property without acquiring or taking possession of the same. For example, in any emergency, in order to prevent a fire spreading, the authorities may have to demolish an intervening building. This deprivation of property is sup ported in the United States of America as an exercise of "police power ".This deprivation of property is different from acquisition or taking of possession of property which goes by the name of "eminent domain" in the American Law. The construction suggested implies that our Constitution has dealt with only the law of "eminent domain ", but has not provided for deprivation of property in exercise of police powers ' '. I am not prepared to adopt such construction, for I do not feel pressed to do so by the language used in article 31. On the contrary, the language of clause (1) of article 31 is wider than that of clause (2), for deprivation of property may well be brought about otherwise than by acquiring or taking possession of it. I think clause (1) enunciates the general principle that no person shall be deprived of his property except by authority of law, which, put in a positive form, implies that a person may be de prived of his property, provided he is so deprived by au thority of law. No question of compensation arises under clause (1). The effect of clause (2) is that only certain kinds of deprivation of property, namely those brought about by acquisition or taking possession of it, will not be permissible under any law, unless such law provides for payment of compensation. If the deprivation of property is brought about by means other than acquisition or taking possession of it, no compensation is required, provided that such deprivation is by 926 authority of law. In this case, as already stated, although the shareholder has been deprived of certain rights, such deprivation has been by authority of law passed by a compe tent legislative authority. This deprivation having been brought about otherwise than by acquisition or taking pos session of such rights, no question of compensation can arise and, therefore, there can be no question of the infraction of fundamental rights under article 31 (2). It is clear, therefore, that so far as the shareholder is concerned there has been no infringement of his fundamental rights under article 19 (1) (f) or article 31, and the shareholder cannot question the constitutionality of the Ordinance or the Act on this ground. As regards the company it is contended that the Ordi nance and the Act by empowering the State to dismiss the managing agent, to discharge the directors elected by the shareholders and to appoint new directors have in effect authorised the State to take possession of the undertaking and assets of the company through the new directors appoint ed by it without paying any compensation and, therefore, such law is repugnant to article 31 (2) of our Constitution. It is, however, urged by the learned Attorney General that the mills and all other assets now in the possession and custody of the new directors who are only servants or agents of the said company are, in the eye of the law, in the possession and custody of the company and have not really been taken possession of by the State. This argument, however, overlooks the fact that in order that the posses sion of the servant or agent may be juridically regarded as the possession of the master or principal, the servant or agent must be obedient to, and amenable to the directions of, the master or principal. If the master or principal has no hand in the appointment of the servant or agent or has no control over him or has no power to dismiss or discharge him, as in this case, the possession of such servant or agent can hardly, in law, be regarded as the possession of the company(1). In this view of the (1) See Elements of Law by Markby. 6th Edition. Para 371. p. 192. 927 matter there is great force in the argument that the proper ty of the company has been taken possession of by the State through directors who have been appointed by the State in exercise of the powers conferred by the Ordinance and the Act and who are under the direction and control of the State and this has been done without payment of any compen sation. The appropriate legislative authority was no doubt induced to enact this law, because, as the preamble to the Ordinance stated, on account of mismanagement and neglect, a situation had arisen in the affairs of the company which had prejudicially affected the production of an essential com modity and had caused serious unemployment amongst a certain section of the community, but, as stated by Holmes J. in Pennsylvania Coal Company vs Mahon(1), "A strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional. way of paying for the change. " Here, there fore, it may well be argued that the property of the company having been taken possession of by the State in exercise of powers conferred by a law which does not provide for payment of any compensation, the fundamental right of the company has, in the eye of the law, been infringed. If the fundamental right of the company has been in fringed, at all, who can complain about such infringement ? Primafacie the company would be the proper person to come forward in vindication of its own rights. It is said that the directors having been dismissed, the company cannot act. This, however, is a misapprehension, for if the Act be void on account of its being unconstitutional, the directors appointed by the shareholders have never in law been dis charged and are still in the eye of the law the directors of the company, and there was nothing to prevent them from taking proceedings in the name of the company at their own risk as to costs. Seeing that the directors have not come forward to make the application on behalf of the company and in its name the question arises whether (1) ; 928 an individual shareholder can complain. It is well settled in the United States that no one but those whose rights are directly affected by a law can raise the question of the constitutionality of that law. Thus in McCabe vs Atchison(1) which arose out of a suit filed by five Negros against five Railway Companies to restrain them from making any distinction in service on account of race pursuant to an Oklahoma Act known as ' 'The Separate Coach Law," in uphold ing the dismissal of the suit Hughes J. observed : "It is an elementary principle that in order to justify the granting of this extraordinary relief, the complainants ' need of it and the absence of an adequate remedy at law must clearly appear. The complaint cannot succeed because some one else may be hurt. Nor does it make any difference that other persons who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant not to others which justi fies judicial interference. " In that case there was no allegation that anyone of the plaintiffs had ever travelled on anyone of the rail roans or had requested any accommodation in any of the sleeping cars or that such request was refused. The same principle was laid down in Jeffrey Manufacturing Company vs Blagg(2), Hendrick vs MaCyland(3) and Newark Natural Gas and Fuel Company vs The City of Newark(1). In each of these cases the Court declined to permit the person raising the question of constitutionality to do so on the ground that his rights were not directly affected by the law or Ordinance in ques tion. On the other hand, in Truax vs Raich(5) and in Bu chanan vs Warley(5) the Court allowed the plea because in both the cases the person raising it was directly affected. In the first of the two last mentioned cases an Arizona Act of 1914 requiring employers employing more than five workers to employ not less than eighty per cent. native born citi zens was (1) 235 u.s. 151. (4) 242 u.s. 403. (2) 235 u.s. 571. (5) 239 u.s. 33. (3) ; (6) 245 u.s. 60. 929 challenged by an alien who had been employed as a cook in a restaurant. That statute made a violation of the Act by an employer punishable. The fact that the employment was at will or that the employer and not the employee was subject to prosecution did not prevent the employee from raising the question of constitutionality because the statute, if en forced, would compel the employer to discharge the employee and, therefore, the employee was directly affected by the statute. In the second of the two last mentioned cases a city Ordinance prevented the occupation of a plot by a colored person in a block where a majority of the residences were occupied by white persons. A white man sold his property in such a block to a Negro under a contract which provided that the purchaser should not be required to accept a deed unless he would have a right, under the laws of the city, to occupy the same as a residence. The vendor sued for specific performance and contended that the Ordinance was unconstitutional. Although the alleged denial of con stitutional rights involved only the rights of coloured persons and the vendor was a white person yet it was held that the vendor was directly affected, because the Courts below, in view of the Ordinance, declined to enforce his contract and thereby directly affected his right to sell his property. It is, therefore, clear that the constitutional validity of a law can be challenged only by a person whose interest is directly affected by the law. The question then arises whether the infringement of the company 's rights so directly affects its shareholders as to entitle any of its shareholders to question the constitutional validity of the law infringing the company 's rights. The question has been answered in the negative by the Supreme Court of the United States in Darnell vs The State of Indi ana(1). In that case the owner of a share in a Tennessee corporation was not allowed to complain that an Indiana law discriminated against Tennessee corporations in that it did not make any allowance, as it did in the case of Indiana corporations, where the corporation (1) 119 930 had property taxed within the State. This is in accord with the well established legal principle that a corporation is a legal 'entity capable of holding pro perty and of suing or being sued and the corporators are not, in con templation of law, the owners of the assets of the corpora tion. In all the cases referred to above the question of constitutionality was raised in connection with the equal protection clause in the Fourteenth Amendment of the American Federal Constitution. If such be the require ments of law in connection with the equal protection clause which corresponds to our article 14, it appears to me to follow that only a person who is the owner of the property can raise the question of constitutionality under article 31 of a law by which he is so deprived of his property. If direct interest is necessary to permit a person to raise the question of constitutionality under article 14, a direct interest in the property will, I apprehend, be necessary to entitle a person to challenge a law which is said to infringe the right to that property under article 31. In my opinion, although a shareholder may, in a sense be interested to see that the company of which he is a shareholder is not deprived of its property he cannot, as held in Darnell vs Indiana(1), be heard to complain, in his own name and on his own behalf, of the infringement of the fundamental right to property of the company, for, in law, his own right to property has not been infringed as he is not the owner of the company 's properties. An interest in the company owning an undertak ing is not an interest in the undertaking itself. The interest in the company which owns an undertaking is the "property" of the shareholder under article 31 (2), but the undertaking is the property of the company and not that of the shareholder and the latter cannot be said to have a direct interest in the property of the company. This is the inevitable result of attributing a legal personality to a corporation. The proceedings for a writ in the nature of a writ of habeas corpus appear to be somewhat different for the (1) 226 u. section 338 931 rules governing those proceedings permit, besides the person imprisoned, any person, provided he is not an utter strang er, but is at least a friend or relation of the imprisoned person, to apply for that particular writ. But that special rule does not appear to be applicable to the other writs which require a direct and tangible interest in the appli cant to support his application. This must also be the case where the applicant seeks to raise the question of the constitutionality of a under articles 14, 19 and 31. For the reasons set out above the present petitioner cannot raise the question of constitutionality of the impugned law under article 31. He cannot complain of any infringement of his own rights as a shareholder, because his "property" has not been acquired or taken possession of by the State although he has been deprived of his right to vote and to present a winding up petition by authority of law. Nor can he complain of an infringement of the compa ny 's right to property because he is not, in the eye of law, the owner of the property in question and accordingly not directly interested in it. In certain exceptional cases where the company 's property is injured by outsiders, a shareholder may, under the English law, alter making all endeavours to induce the persons in charge of the affairs of the company to take steps, file a suit on behalf of himself and other shareholders for redressing the wrong done to the company, but that principle does not apply here for this is not a suit, nor has it been shown that any attempt was made by the petitioner to induce the old directors to take steps nor do these proceedings purport to have been taken by the petitioner on behalf of himself and the other shareholders of the.company. The only other ground on which the Ordinance and the Act have been challenged is that they infringe the the fundamen tal rights guaranteed by article 14 of the Constitution. "Equal protection of the laws", as observed by Day 3. in Southern Railway Company vs Greene (1), "means subjection to equal laws, applying (1) ; 932 alike to all in the same situation". The inhibition of the article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrim ination amongst equals and to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not, howev er, mean that every law must have universal application, for all persons are not, by nature, attainment or circumstances, in the same position. The varying needs of different class es of persons often require separate treatment and it is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the Ameri can Constitution does not take away from the State the power to classify persons for legislative purposes. This classi fication may be on different bases. It may be geographical or according to objects or occupations or the like. If law deals equally with all of a certain well defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no applica tion to other persons, for the class for whom the law has been made is different from other persons and, there fore, there is no discrimination amongst equals. It is plain that every classification is in some degree likely ' to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary. " Said Day J. in Southern Railway Company vs Greene(1) : " While reasonable classification is permitted, without doing vio lence to the equal protection of the laws, such classifica tion must be based upon some real and substantial distinc tion, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification". Quite conceivably there may be a law 933 relating to a single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself. In Middieton vs Texas Power and Light Company(1) it was pointed out that there was a strong presumption that a legislature understood and correctly appreciated the needs of its own people, that its laws were directed to problems made manifest by experience and that the discriminations were based upon adequate grounds. It was also pointed out in that case that the burden was upon him who attacked a law for unconstitutionality. In Lindsley vs Natural Carbonic Gas Company(2) It was also said that one who assailed the classification made in a law must carry the burden of showing that it did not rest upon any reasonable basis but was essentially arbitrary. If there is a classi fication, the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the stat ute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbi trarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer J. in the Gulf, Colorado and Santa Fe 'Railway vs W.H. Ellis (3), while good faith (1} ; (2) ; (3) 165 U.S. 150. 934 and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presump tion to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain indi viduals or corporations to hostile and discriminating legis lation was to make the protecting clause a mere rope of sand, in no manner restraining State action. The complaint of the petitioner on this head is formu lated in paragraph 8 (iii) of the petition as follows : "The Ordinance denied to the company and its sharehold ers equality before the law and equal protection of the laws and was thus a violation of article 14 of the Constitution. The power to make regulations relating to trading corpo rations or the control or production of industries was a power which consistently with article 14 could be exercised only generally or with reference to a class and not with reference to a single company or to shareholders of a single company. " The Act is also challenged on the same ground in paragraph 9 of the petition. The learned Attorney General contends that the petitioner as an individual shareholder cannot complain of discrimination against the company. It will be noticed that it is not a case of a shareholder complaining only about discrimination against the company or fighting the battle of the company but it is a case of a shareholder complaining of discrimination against himself and other shareholders of this company. It is true that there is no complaint of discrimination inter se the share holders of this company but the complaint is that the share holders of this company, taken as a unit, have been discrim inated vis a vis the shareholders of other companies. Therefore, the question as to the right of the shareholder to question the validity of a law infringing the right of the company does not arise. Here the shareholder is com plaining of the infringement of his own rights and if such infringement can be established I see no reason why the shareholder cannot come within article 32 to vindicate his own rights. The fact that these proceedings have been taken by 935 one single shareholder holding only one single fully paid up share does not appear to me to make any the least difference in principle. If this petitioner has, by the Ordinance or the Act, been discriminated against and denied equal protec tion of the law, his fundamental right has been infringed and his right to approach this Court for redress cannot be made dependent on the readiness or willingness of other shareholders whose rights have also been infringed to join him in these proceedings or of the company to take substan tive proceedings. To take an example, if any law discrimi nates against a class, say the Punjabis, any Punjabi may question the constitutionality of the law, without joining the whole Punjabi community or without acting on behalf of all the Punjabis. To insist on his doing so will be to put a fetter on his fundamental right under article 32 which the Constitution has not imposed on him. Similarly, if any law deprives a particular shareholder or the shareholders of a particular company of the ordinary rights of sharehold ers under the general law for reasons not particularly and specially applicable to him or them but also applicable to other shareholders of other companies, such law surely offends against article 14 and any one so denied the equal protection of law may legitimately complain of the infringe ment of his fundamental right and is entitled as of right to approach this Court under article 32 to enforce his own fundamental right under article 14, irrespective of whether any other person joins him or not. To the charge of denial of equal protection of the laws the respondents in the affidavit of Sri Vithal N. Chandavar kar filed in opposition to the petition make the following reply: "With reference to paragraph 6 of the petition, I deny the soundness of the submissions that on or from the 26th January, 1950, when the Constitution of India came into force the said Ordinance became void under article 13(1) of the Constitution or that the provisions thereof were inconsistent with the provisions of Part III of the said Constitution or for any of the other grounds mentioned in paragraph 8 936 of the said petition. " In the whole of the affidavit in opposition there is no suggestion as to why the promulgation of the Ordinance or the passing of the Act was considered necessary at all or on what principle or basis either of them was founded. No attempt has been made in the affidavit to show that the Ordinance or the Act was based upon any principle of classification at all or even that the particu lar company and its shareholders possess any special quali ties which are not to be found in other companies and their shareholders and which, therefore, render this particular company and its shareholders a class by themselves. Neither the affidavit in opposition nor the learned Attorney General in course of his arguments referred to the statement of the objects and reasons for introducing the bill which was eventually enacted or the Parliamentary debates as showing the reason why and under what circumstances this law was made and, therefore, apart from the question of their admis sibility in evidence, the petitioner has had no opportunity to deal with or rebut them and the same cannot be used against him. The learned Attorney General takes his stand on the presumption that the law was founded on a valid basis of classification, that its discriminations were based upon adequate grounds and that the law was passed for safeguard ing the needs of the people and that, therefore, the onus was upon the petitioner to allege and prove that the classi fication which he challenged did not rest upon any reasona ble basis but was essentially arbitrary. I have already said that if on the face of the law there is no classification at all or, at any rate, none on the basis of any apparent difference specially peculiar to the individual or class affected by the law, it is only an instance of an arbitrary selection of an individual or class for discriminating and hostile legislation and, therefore, no presumption can, in such circumstances, arise at all. Assuming, however, that even in such a case the onus is thrown on the complainant, there can be nothing to prevent him from proving, if he can, from the text of. the law itself, that 937 it is "actually and palpably unreasonable and arbitrary" and thereby discharging the initial onus. The Act is intituled an Act to make special provision for the proper management and administration of the Sholapur Spinning and Weaving Company, Limited. " There is not even a single preamble alleging that the company was being misman aged at all or that any special reason existed which made it expedient to enact this law. The Act, on its face, does not purport to make any classification at all or to specify any special ' vice to which this particular company and its shareholders are subject and which is not to be found in other companies and their shareholders so as to justify any special treatment. Therefore., this Act, ex facie, is nothing but an arbitrary selection of this particular compa ny and its shareholders for discriminating and hostile treatment and read by itself.is palpably an infringement of Article 14 of the Constitution. The learned Attorney General promptly takes us to the preambles to the Ordinance which has been replaced by the Act and suggests that the Act is based on the same consider ations on which the Ordinance was promulgated. Assuming that it is right and permissible to refer to and utilise the preambles, do they alter the situation ? The preambles were as follows : "Whereas on account of mismanagement and ne glect a situation has arisen in the affairs of the Sholapur Spinning and Weaving Company, Limited, which has prejudi cially affected the production of an essential commodity and has caused serious unemployment amongst a certain section of the community;And whereas an emergency has arisen which renders it necessary to make special provision for the proper management and administration of the aforesaid compa ny; " The above preambles quite clearly indicate that the justification of the Ordinance rested on mismanagement and neglect producing certain results therein specified. It will be noticed that apart from these preambles there is no material whatever before us establishing or even suggesting that this company and its shareholders have in fact been guilty of any 938 mismanagement or neglect. Be that as it may, the only reason put forward for the promulgation of the Ordinance was mismanagement resulting in falling off of production and in producing unemployment. I do not find it necessary to say that mismanagement and neglect in conducting the affairs of companies can never be a criterion or basis of classifica tion for legislative purposes. I shall assume that it is permissible to make a law whereby all delinquent companies and 'their shareholders may be brought to book and all companies mismanaging their affairs and the shareholders of such companies may, in the interest of the general public, be deprived of their right to manage the affairs of their companies. Such a classification made by a law would bear a reasonable relation to the conduct of all delinquent compa nies and shareholders and may, therefore, create no inequal ity, for the delinquent companies and their shareholders from a separate class and cannot claim equality of treatment with good companies and their shareholders who are their betters. But a distinction cannot be made between the delinquent companies inter se or between shareholders of equally delinquent companies and one set cannot be punished for its delinquency while another set is permitted to continue, or become, in like manner, delinquent without any punishment unless there be some other apparent difference in their respective obligations and unless there be some cogent reason why prevention of mismanagement is more imperative in one instance than in the other. To do so will be nothing but an arbitrary selection which can never be justified as a permissible classiffication. I am not saying that this particular company and its shareholders may not be guilty of mismanagement and negligence which has brought about seri ous fall in production of an essential commodity and also considerable unemployment. But if mismanagement affect ing production and resulting in unemployment is to be the basis of a classification for making a law for preventing mismanagement and securing production and employment, the law must embrace within its 939 ambit all companies which now are or may hereafter become subject to the vice. This basis of classification, by its very nature, cannot be exclusively applicable to any partic ular company and its shareholders but is capable of wider application and, therefore, the law founded on that basis must also be wide enough so as to be capable of being ap plicable to whoever may happen at any time to fall within that classification. Mismanagement affecting production can never be reserved as a special attribute peculiar to a particular company or the shareholders of a particular company. It it were permissible for the legislature to single out an individual or class and to punish him or it for some delinquency which may equally be found in other individuals or classes and to leave out the other individu als or classes from the ambit of the law the prohibition of the denial of equal protection of the laws would only be a meaningless and barren form of words. The argument that the presumption being in favour of the legislature, the onus is on the petitioner to show there are other individuals or companies equally guilty of mismanagement prejudicially affecting the production of an essential commodity and causing serious unemployment amongst a certain section of the community does not, in such. circumstances, arise, for the simple reason that here there has been no classification at all and, in any case, the basis of classification by its very nature is much wider and cannot, in it application, be limited only to this company and its shareholders and, that being so, there is no reason to throw on the petitioner the almost impossible burden of proving that there are other companies which are in fact precisely and in all particu lars similarly situated In any event, the petitioner, in my opinion, may well claim to have discharged the onus of showing that this company and its shareholders have been singled out for discriminating treatment by showing that the Act, on the face of it, has adopted a basis of classifica tion which, by its very nature, cannot be exclusively ap plicable to this company and its shareholders but Which may be equally appplicable to other companies 940 and their shareholders and has penalised this particular company and its shareholders, leaving out other companms and their shareholders who may be equally guilty of the alleged vice of mismanagement and neglect of the type referred to in the preambles. In my opinion the legislation in question infringes the fundamental rights of the petitioner and offends against article 14 of our Constitution. The result, therefore, is that this petition ought to succeed and the petitioner should have an order in terms of prayer (3) of the petition with costs. Petition dismissed. Agent for the petitioner: M.S.K. Aiyengar. Agent for opposite party Nos. 1 & 2:P.A. Mehta. Agent for opposite party Nos. 3 to 5 and 7 to 10: Rajinder Narain.

The workmen claimed bonus for the year 1956 equivalent to nine months ' total earnings on the ground that the employers had admitted their capacity to pay and that there was a big gap between the wage actually received and the living wage. The employers contended that they were paying the workmen a living wage and they were not entitled to any bonus. The employers relying mainly on the Report of the Textile Labour Committee, 1940, contended that if the living wage in 1940, i.e., Rs. 55/ was multiplied by 35 (due to rise in prices) it gave Rs. 192.50 as the living wage in 1956 and they were paying their workmen at a higher rate. The workmen relied on the recommendations of the Indian Labour Conference, 1957, to show that Rs. 209.70 approximated to the standard of the need based minimum wage and that the average wage paid by the employers was nothing more than this. The Tribunal held that the wages paid were fair but that there was still a gap between the actual wage and the living wage and awarded bonus equivalent to five months ' basic wages. Held, that the employers had failed to establish that they were paying a living wage to the workmen. In construing wage structure the considerations of right and wrong, propriety and impropriety, fairness and unfairness are also taken into account to some extent. As the social conscience of the general community becomes more alive and active, as the welfare policy of the State takes a more dynamic form, as the national economy progresses from stage to stage, and as under the. growing strength of the trade union movement collective bargaining enters the field, wage structure ceases to be a purely arithmetical problem. Wages are usually divided into three broad categories: the basic minimum wage, the fair wage and the living wage. The concept of these three wages cannot be described in definite words ,is their contents are elastic and vary from time to time and from place to place. The concept of a living wage is not a static concept; it is expanding and the number of its constituents and their 537 respective contents are bound to expand and widen with the development and growth of national economy. In an under developed country no wage structure could be described as reaching the ideal of a living wage. It is unreasonable and unsafe to treat the Report of the Textile Labour Committee, 1940, as to the monetary value of the living wage in 1940 as sound. The figure reached by the committee in 1940 did not represent anything like a living wage; it really represented the minimum need based wage. Besides, the method of multiplying the figure by 35 was materially defective ; the proper approach was to evaluate each constituent of the concept of the living wage in the light of the present day prices. Even the highest average wage paid by the employers was much below the standard of the living wage though it was above the need based minimum. Express Newspapers (P.) Ltd. vs Union of India, , Standard Vacuum Oil Company vs Their Workmen, , Burmah Shell, etc., Oil Companies in Madras vs Their Employees, , Woykers of S.V.O.C., Ltd. (Standayd Vacuum Employees ' Union) vs Standard Vacuum Oil Co. Ltd., and Standard Vacuum Oil Company vs Their Employees, , referred to. Burmah Shell Oil Storage and Distributing Co. of India, Ltd., Bombay vs Their Workmen, , approved. Quaeye: Whether the workmen would be entitled to bonus even if a living wage is paid to them by the employers. Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, and Syee Meenakshi Mills Ltd. vs Their Workmen, ; , referred to.

vil Appeal No. 2931 (N) of 1981. From the Judgment and Order dated 7.10.1980 of the Madhya Pradesh High Court in Miscellaneous First Appeal No. 78 of 1974. L.M. Singhvi, D. Bhandari and A.K. Sanghi for the Appellant. T.S. Krishnamurthy Iyer and S.K. Gambhir for the Respondent. The Judgment of the Court was delivered by K.N. SAIKIA, J. This Civil Appeal by special leave is from the order dated 7.10.1980 of the High Court of Madhya Pradesh, Jabalpur in Misc (F) Appeal No. 78 of 1974, allow ing the appeal and enhancing compensation for land acquired by the Improvement Trust, Bhopal. The Improvement Trust, Bhopal, hereinafter referred to as 'the Trust ', acquired 152 acres of land of Village Jamal pura by Notification dated 30th April, 1965 issued under Section 68 of the Madhya Pradesh Town Improvement Trust Act, 1960, hereinafter referred to as 'the Act ', and took posses sion of the land sometimes in June, 1967. Out of these acquired land the instant appellant owned 12.62 acres where upon stood a house, a well and some trees. The whole of the acquired land including that of the appellant was within the limits of Bhopal Municipal Corporation. On 25.3.1966 Notifi cation under Section 71 of 911 the Act was issued vesting the land in the Trust. The Trust offered compensation at the rate of Rs.950 per acre (@ 14 paise per sq. ft.) amounting to Rs.11,997.00; for the well Rs.3,108; and for the trees Rs.815 and for compulsory acqui sition 15% amounting to Rs.2,400. The appellant made refer ence, No. 8 of 1970 to the Compensation Tribunal under Section 72(3) of the Act. The Tribunal awarded compensation at the rate of Rs.6,000 per acre (Rs.0.28 Paise per sqr. ft.) for the land, Rs.5,000 for the building, Rs.3,000 for the well and Rs.815 for the trees. Thus the Tribunal by its award dated 25th November, 1972 awarded a total sum of Rs.1,20,060 inclusive of interest as compensation to the appellant, as against his claim at the rate of Rs.20,000 per acre for the land, Rs.20,000 for the building, Rs.5,000 for the well, Rs.2,500 for the trees and Rs. 10,000 for loss of business and earnings, his total claim amounting to Rs. 13,39,560. On appeal, being Misc. (F) Appeal No. 78 of 1974, the High Court maintained the award in respect of the Build ing, well and the trees, but enhanced the compensation in respect of the land determining the market value at Rs. 12,000 per acre and the total area being 12.62 acres the total compensation inclusive of that allowed for the house etc. and 15% solatium worked out to Rs. 1,84,293. Dissatis fied, the appellant obtained leave and filed this appeal. Dr. L.M. Singhvi learned counsel for the appellant submits, inter alia, that the house and the well were gross ly undervalued; that both the Tribunal as well as the High Court misdirected themselves in treating the land as agri cultural land but not as urbanised developed land on the erroneous ground that there was no building activity of substantial nature at the time of acquisition in spite of the fact that a part of the land was already converted to Abadi, that both the Tribunal as well as the High Court failed to take into consideration the potential value of the land; and that evidence of sales of similar plots was not accepted on the ground that those pertained to small plots; and that the High Court committed an error when it deducted the development charge from the agreed price instead of adding it to the agreed price while calculating the market value. Mr. Krishnamurthi learned counsel for the respondent Trust submits that the house and the well were properly valued; that it was not correct that the Tribunal did not correctly consider the question of the nature of the land which it held to be agricultural because it did not find therein any building activity of substantial nature. At any rate, counsel submits, the High Court took into considera tion the potential value of the land and as such there was no omission to consider any 912 relevant material or misdirection in this regard. Counsel, however, fails to explain the reason of deducting the devel opment charge from the agreed price, instead of adding it, while calculating market value of the lands on the basis of evidence produced by the claimant. This, however, according to counsel, is not a sufficient ground for our interference in this appeal under Article 136 of the Constitution of India. In an appeal under Article 136 of the Constitution of India involving the question of valuation of acquired land, this Court will not interfere with the award unless some erroneous principle has been invoked or some important piece of evidence has been overlooked or misapplied, as was held in Atmaram Bhagwant vs Collector of Nagpur, A.I.R. 1929 P.C. 92. In Dollar Company, Madras vs Collector of Madras, the Land Acquisition Officer awarded Rs. 800 per ground as compensation and the City Civil Court on reference awarded at the rate of Rs. 1,000 pet ground, and the High Court on appeal awarded Rs.1800 per ground. The appellant himself purchased the suit land about 10 months before the Notification under Section 4 was made at a price of Rs.410 per ground whereafter the appellant has spent a little money on filling up a pond. Dismissing the appeal it was observed that this Court interferes with the judgment of the High Court only if the High Court applies a principle wrongly or because some important point affecting valuation has been overlooked or misapplied. A Court of appeal inter feres not when the judgment under attack is not right, but only when it is shown to be wrong. As there was no error in principle in the High Court judgment nor had any of the limited grounds on which that Court 's jurisdiction could be legitimately exercised was made out, the appeal was dis missed. Therefore, it is for the the appellant to show that there is ground for interference in this case. As regards the value of the house, the Land Compensation Tribunal clearly observed that it visited the spot and found that the house 'was in extremely dilapidated condition having big cracks in foundation, walls and pillars. The foundation was getting loose. The roof of asbestos sheets was sagging, indicating that the wood rafters had been badly damaged. Doors and windows were in bad condition. The two verandahs of the house were temporary, with roof of asbestos sheets. ' The house, according to the Tribunal might be 20 to 25 years old and depreciation would be 5% per year. Considering the above factors 913 we are of the view that the compensation awarded, namely, Rs.5,000 is reasonable. Also from evidence we find that Rs.3,000 for the well was reasonable. There was no error of principle and hence there can be no grievance on these counts. Regarding nature of the land the Tribunal noted that the claimants in most of the references asserted that the ac quired land should be valued as urban house site because of alleged potential value and had claimed compensation between the Rs.3 to Rs. 1 per sqr. The Trust disputed the claim and urged that the lands at the time of acquisition, were either agricultural or merely fallow land and they had absolutely no urban site value. The claimants also urged that the lands were situated within Corporation limits and lands of some of the claimants were already diverted (con verted). We agree with Mr. Krishnamurthi that though the Tribunal treated it as agricultural, the High Court proceed ed on the principle of developed land. It is true that the market value of the land acquired has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. Dr. Singhvi argues that failing to consider potential value is an error of principle. It is an accepted principle as was laid down in Gajapatiraju vs Rev. Divisional Officer, A.I.R. 1939 P.C. 98 that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to obtain from willing purchaser. The disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded. Neither must be considered as acting under compulsion. The value of the land is not to be estimated at its value to the purchaser but this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion, may always be taken into consideration for what it is worth. Any sentimental value for the vendor need not be taken into account. The vendor is to be treated as a vendor willing to sell at the market price. Section 23 of the Land Acquisition Act, 1894, enumerates the matters to be considered in determining compensation The first to be taken into consideration is the market value of the land on the date of the publication of the Notification under Sec tion 4(1). Market value is that of a willing vendor and a willing purchaser. A willing vendor would naturally take into consideration such factors as would contribute to the value of his land including its unearned increment. A will ing purchaser would also consider more or less the same factors. There may be many ponder 914 able and imponderable factors in such estimation or guess work. Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining compensation. Section 25 provides that the amount of compen sation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. As was observed in Gajapatiraju (supra) sometimes, it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentiali ty. In such a case the court has to ascertain as best as possible from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with that particular potentiality. In the instant case also the ac quired land possesses Some important features being located within the Corporation area and its potentiality for being developed as a residential area. In such a situation in determining its market value, where there was no sufficient direct evidence of market price, the Court was required to ascertain as best as possible from the materials before it, what a willing vendor would reasonably have expected to obtain from a willing purchaser from the land in this par ticular position and with this particular potentiality. It is an accepted principle that the land is not to be valued, merely by reference to the use to which it has been put at the time at which its value has to be determined, that is, the date of the notification under Section 4, but also by reference to the use to which it is reasonably capable of being put in the future. A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or has been used for agricultural purposes, the owner, however willing a vendor he is. is not likely to be content to sell the land for its value as waste or agricultural land as the case may be. The possibility of its being used for building purposes would have to be taken into account. However, it must not be valued as though it had already been built upon. It is the possibilities of the land and not its realised possibilities that must be taken into considera tion, In other words, the value of the land should be deter mined not necessarily according to its present disposition but laid out in its lucrative and advantageous way in which the owner can dispose it of. It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken, is an important element to be taken into consideration in determining the market value of the land. In such a situation the land might have already been valued at more than its value as agricultural land, if it had any other capabilities. However, only rea sonable and fair capabilities but not far fetched and hypo thetical capabilities are to be taken into consideration. In sum, in estimating 915 the market value of the land all of the capabilities of the land, and all its legitimate purposes to which it may be applied or for which it may be adapted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas. The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of the imagination. In Mahabir Prasad Santuka vs Col lector, Cuttack, [1987] 1 S.C.C. 587 the evidence on record was that the land was being used for agricultural purposes but it was fit for non agricultural purposes and it had potentiality for future use as factory or building site and that on industrialisation of the neighbouring areas the prices increased tremendously, and that aspect, it was held, could not be ignored in determining compensation. On the question as to whether the land was urbanised developed land or not we find that the Tribunal consolidated all the 15 references arising out of the acquisition for the purpose of recording evidence and, that is, how it came to consider the Exts. P 1, P 2, P 3, and P 8 being agreements of sale executed by Phool Chand Gupta who was father of the claimant in reference No. 1 of 1970 while the petitioners reference was No. 8 of 1970. Similarly the Ext. D 1 to D 6 also pertained to small plots of land out of land in refer ence No. 1 of 1970. The High Court rightly held that the Exts. P 1, P 2, P 3 and P 8 and the sale deeds Exts. D 1 to D 6 furnished a more reliable data for working out the market value. If those lands were the urban developed house site lands, their prices would have reflected the same. It cannot, therefore be said that High Court was in error in taking the above Exts. into consideration. However, poten tial value was not separately considered. P 1, P 2, P 3 and P 8 were agreements of sale executed on 29th July, 1961 in respect of small parcels of land wherein the vendor agreed to sell the land at that time at the rate of 14 annas per sqr. to Rs. 1 per sqr. It was further agreed that the vendees would pay development charges at the rate of 4 annas per sqr. The vendor and the respective vend ees were examined It should be noted that the Exts. were agreements to sell and not sales. The High Court observed. that the idea behind those transactions was that the vendor would apply to the revenue authority for diversion and the town planning authority for sanction of lay out plan and the sale deeds would be executed after the land was developed. The High Court also noted that 916 there was nothing to show that the agreements were prepared only to be used later as evidence of market value. In Decem ber 1960 Phool Chand Gupta applied for diversion of his land to the Sub Divisional Officer. In January 1961 application was also made to the Town Planning Authority for sanction of the lay out plan but in the meantime the land was notified for acquisition under the Land Acquisition Act sometimes in 1962 and Phool Chand Gupta tried to extricate his land from acquisition which, however, did not materialise and, as already noted, on 30.4.65 the instant notification to ac quire under Section 68 of the Act was issued. Rejecting the contention that the agreements were spurious, the High Court observed that the very fact that applications were made for diversion and for sanction of lay out plan went to show that the owner was interested in the development in the land and in selling it after dividing it into plots. Thus, the High Court, rightly took into consideration the above Exts, which pertained to a part of the acquired land of 152 acres. The High Court also considered the sale deeds Exts. D 1 to D 6 which pertained to small plots of lands out of land in reference No. 1 of 1970. Those sale deeds were registered in 1966 67, but the agreements to sale were entered into in 1959 62. The respective purchasers and the vendors were examined. The market value on the basis of Ext. D 2 made in the sale deed of 1962 selling only to 12.50 sqr. for Rs.260 which worked out to Rs.8712 per acre. The High Court did not say that these Exts. were rejected. By Ext. P 5, P 6 and P 32 small parcels of land, at Kumharpura were sold. Kumharpura was noted to be two to three furlongs away from the acquired land. The market rate according to these Exts. ranged from Rs. 1.88 to 2.34 per sqr. The High Court observed that these sales could not be a useful guide for determining the market value of land acquired. We are of the view that compared to Exts. P 1, P 2, P 3 and P 8 Exts. P 5 and P 6 and P 32 were less indicative of the market value of the acquired land. We feel that the appellant should have no grievance for rejection of these sales of Kumharpura. We find force in the contention of Dr. Singhvi that potential value was not taken into account in this case to the extent it should have been done. From the award dated 25.11.1972 it appears that the acquired land was situated at Village Nissatpura, within Corporation limits of Bhopal Town and consisting of Khasra No. 190/ 73, 136/74, 178/74, 135/75 76, the total area being 12.62 acres. The High Court found that the land was bounded on three sides by three roads: towards the eastern side by Berasia road; towards the western side by Sultania road; and towards the northern side by P.G.B.T. College Road. Southern boundary of the land was a Nala. The High 917 Court also noticed that the land abutted to roads, namely, Berasia road and P.G.B.T. College road and the claimant had a house on the land and that the claimant had stated that he had obtained water and electricity connection from the Corporation and the electricity Board. : 7.60 acres of land out of 12.62 acres had been diverted and the land was even. At paragraph 14 of the special leave petition it is stated that the land is approachable from two different and important localities of Bhopal Town. From Bajaria Chowk Shahjanabad, a road, called Sultania Infantry road, proceeds Military Lines called Sultania Infantry lines. On both sides of this road, there is the thickly habited locality of Shahjahanabad, till about two furlongs. Slightly ahead is the enterance porch gate of the Military lines. Just before the gate, a tarred road bifurcates on the right hand side and it enters the acquired land of Swatantra Kumar Ref. No. 1/70. This tarred road was constructed by the Trust after acquisition of the lands. It goes on all sides of village Jamalpura, which is surrounded on all sides by the lands of Ref. No. 1/70. A part of land of Ref. No. 1/70 was developed after acquisition, and the tarred road reaches the developed plots. We have to note that such detail evidence was not there before the Tribunal and no benefit of development pursuant to and after the acquisition can be taken into consideration. Even so, from the map and juxtaposition we have no doubt that the acquired land had potentialities which deserved to be counted. In U.P. Government vs H.S. Gupta, A.I.R. 1957 S.C. 202 where in computing compensation for acquisition of an estate outside the Municipal area the High Court had given valid and weighty reasons for adopting the principle that the valuation should be on plot wise though there was certain advantages in computing the value at the block rate where vast area of land was acquired, this Court held that in the circumstances of that case the proper mode of valuation was plot rate basis. In the instant case the application of the principle that if the land has to be sold in one block consisting of a large area, the rate likely to be fixed per sq. ft. would be lower than if an equal extent of land is parcelled out into smaller bits and sold to different pur chasers could not be found fault with. The price fetched for smaller extent of land similarly situated with the same kind of advantages and drawbacks can also be applied to a large area valued plot wise instead of block wise. In the instant case relying on Exts. P 1, P 2, P 3 and P~8 and considering the fact that applications were made for diversion and for sanction of a lay out plan the High Court found that it went to show that the owner was interested in developing the land and in selling it by 918 dividing it into plots. The lowest rate of price in these agreements was 14 annas per sqr. and the agreements mentioned that 4 annas per sqr. ft. Would be needed for developing the land. This charge was to be paid by the purchaser. So the price of developed land would be Rs. 1/2 per sqr. The evidence of M.P. Jain (D.W. 9), Senior Draftsman of the Improvement Trust went to show that ex penses for improvement of land ranged from Rs. 1.50 to 2 per sqr. The statement of Shri Jain was recorded in 1972. Making some allowance for the increase in the rate the High Court considered it proper to hold that in 1965 when this land was acquired the charges for improvement would have worked at 75 paise (12 annas) per sqr. It had also come in the evidence of Shri Jain that 50 to 60 per cent of the land had to be left for roads, drainage, gardens, school etc. and it was only then that the lay out plan was sanc tioned. High Court, accordingly, deducted improvement charges at the rate of 12 annas per sqr. ft., and the market rate for unimproved land in the light of these agreements worked out to 6 annas per sqr. As 50% of the land at least had to be left out for roads etc; so the market rate of 3 annas per sqr. ft. was applied for the entire unde veloped land. Market rate thus worked out to Rs.8,000 per acre approximately. However, the High Court awarded Rs. 12,000 per acre. There was an additional factors in the calculation. Mr. Krishnamurthi therefore submitted that the High Court took into consideration the potential value of the land as a developed area but while making calculation it may have committed mistake. To our mind the error was in wholly overlooking the basic price agreed to be paid by the purchaser and the standard of development they visualised. The whole of the basic price could not be expected to be eaten up by the development of the land to the standard contemplated by the vendor and purchaser. When the willing vendor has agreed to sell land at 14 annas per sqr. after development and the development charge was to be paid by the willing purchaser, it could be reasonable to deduct only 50% on account of the land to be set apart for roads, drains etc. and not beyond that. Considering this aspect of the matter and the potential value of the land as urban developed area we are of the view that the compensation may justly be enhanced by 1/6th to Rs. 14,000 per acre and we do so. We maintain 15% solatium but raise the rate of interest to 9% on the enhanced compensation from today till payment. We leave it open for the appellant to move for higher inter est and solatium if entitled by virtue of subsequent judg ment of this Court, if any. In the result, this appeal is allowed as above. We make no order as to costs. Y.L. Appeal allowed.

On 20th February, 1975, the State Government published a joint seniority list of teachers of subordinate Education Service belonging to the Boys branch, and the Higher Second ary Teachers of the Subordinate Educational Service. This joint gradation list was challenged before the High Court, but the writ petition was dismissed as also an application for review of the dismissal. The Special Leave Petition against the aforesaid decision was dismissed by this Court on 30th March, 1981. The aforesaid single cadre known as Secondary Education Service was difurcated by the State Government by its Noti fication dated 8th November 1986 under which the Subordinate Education Service (Teaching Branch) Determination of Senior ity Rules, were framed under the proviso to Article 309 of the Constitution This bifurcation scheme was challenged in the High Court. The stand of the Government was that the demand for such bifurcation was taken up in the legislature and in terms of the decision of the Implementation Committee of the Bihar Legislative Council, the new scheme for bifurcation had to he implemented. The High Court by its decision dated 27th November, 1987 quashed the Notification dated 18th November, 1986 under which the bifurcation was done. The High Court was of the view that though the authority of the state to frame rules in terms of the proviso to Article 309 was unquestionable, yet notice had to he tam of time fact that those who stood 659 together and fell in line to proceed further in the seniori ty list have to he provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the grade may not go down in due course of service, and held that the rules in the Notification dated 18th November, 1986 were ultra vires Articles 16(1) and 14 of the Constitution. Dismissing the Special Leave Petition to this Court, HELD: The High Court, rightly found fault with the State Government action, and holding that the rules in the Notifi cation dated 18th November, 1986 are ultra vires Articles 16(1) and 14 of the Constitution. [660F] Counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration for promotional benefits but by bifurcation became entitled to such benefits. [661C]

Appeal No. 1056 of 1966. Appeal from the judgment and order dated July 6, 1965 of the Calcutta High Court in Appeal from Original Order No. 284 of 1961. A. N. Sinha and D. N. Gupta, for the appellant. R. N. Sachthey and section P. Nayar, for the respondent. The Judgment of the Court was delivered by Bhargava, J. The appellant, M/s. Braithwaite & Co. (India) Ltd., (hereinafter referred to as "the Company") filed an application before the Employees ' Insurance Court for a declaration that 'Inam ' paid or to be paid to its workmen under the Inam Scheme initiated on 28th December, 1955 is not "wages " as defined in the (No. 34 of 1948) (hereinafter referred to as "the Act"), and that no contribution, either as employer 's special contribution or employees ' contribution, is payable by the Company in respect thereof. The opposite party in this application was the present respondent, the Employees ' State Insurance Corporation, and there was. also a prayer for perpetual injunction restraining the respondent from realising any contribution in respect of past or future payments of Inam under that Scheme. A further prayer was for a decree for Rs. 32,761 against the respondent, being the amount which the respondent had already realised from the appellant claiming that the Inam was " wages", and for costs. The case was contested by the respondent, but the Employees ' Insurance Court allowed the application of the appellant, passed a decree with costs, making a declaration that Inam was not wages and that no contribution in respect of Inam paid to the workmen was payable by the appellant to the respondent, and decreeing the claim of the appellant for the sum of Rs. 32,761 against the respondent. The respondent, thereupon, appealed to the High Court of Calcutta under section 82 of the Act. The High Court allowed the appeal, held that the Inam was wages and dismissed the claim of the appellant, but made no order as to costs. The appellant has now come up to this Court on the basis of a certificate granted by the High Court under article 133 of the Constitution. The decision of this appeal depends solely on the question whether the Inam paid by the appellant under the Scheme dated 28th December, 1955 is covered by the definition of "wages" as given in section 2(22) of the Act. That definition is reproduced below. (22) 'wages ' means all remuneration paid or payable in cash to an employee, if the terms of contract of employment. express or implied, were fulfilled and includes L/P(F)7SCI 10 (a) 774 other additional remuneration, if any, paid at intervals not exceeding two months, but does not include (a) any contribution paid by the employer to any pension fund or provident fund, or under this Act; (b) any travelling allowance or the value of any travelling concession; (c) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or (d) any gratuity payable on discharge. " The High Court has held that the Inam in question is covered by this definition where it is laid down that "wages" means ill remuneration paid or payable in cash to an employee, if the terms of the contract of employment, express or implied, were fulfilled. Reliance is not placed on the second clause of the definition which includes other additional remuneration, if any, paid at intervals not exceeding two months. Counsel appearing for the respondent before us also did not rely on this second part of the definition and sought to support the decision of the High Court only on the basis that it is Covered by the first part. Counsel appearing for the appellant also did not rely on the last part of the definition which excludes from the definition of "wages" items mentioned in clauses (a), (b), (c) & (d). In this case, therefore, we have to confine our decision to the interpretation of the first part of the definition of "wages". The facts, which are relevant for deciding this question, are that conditions for the award of Inam were laid down in a Work Notice issued by the appellant on 28th December, 1955, and with this Work Notice were issued two separate Notices laying down the remaining conditions for payment of Inam which were required to be laid down by the Scheme contained in the first Work Notice which only stipulated the general terms. One of these Notices issued on the same date covered the workmen employed in Structural and Tank Shop, while the other covered workmen employed in Wagon Shop. The terms of the general scheme which are important for interpretation are those contained in paras. 4 to 10 of the Work Notice, and it was on the basis of the interpretation of these terms that the Employees ' Insurance Court accepted the plea of the appellant that Inam was not covered by the definition of " wages". The High Court, on interpretation of the same terms, took a contrary view. Both Courts concurrently held that the Inam paid under the Scheme was covered by the word "remuneration" used in the definition of "wages" and counsel appearing for the appellant did not challenge the correctness of this view. The Employees ' Insurance Court held that the payments of Inam had nothing to do with the terms of employment and the workmen were not entitled to claim the Inam as a condition of service, so 775 that it could not be held that this remuneration was paid or payable, if the terms of the contract of employment, express or implied, were fulfilled. On the other hand, the view of the High Court was that this remuneration was paid and became payable, if the terms of the contract of employment, express or implied. were fulfilled. This decision was given by the High Court after holding that, on an interpretation of the Scheme, the right of the employees to receive the Inam had become an implied term of the contract of employment. It appears to us that, on a correct interpretation of the terms of the Scheme, the High Court committed an error in holding that the payment of this Inam had become a term of the contract of employment of the employees. The features of the Scheme, which indicate that the payment of Inam did not become a term of the contract of employment, are clear from the Scheme itself. The first is that this payment of Inam was not amongst the original terms of contract of employment of the employees. In those terms, there was no 'offer of any reward or prize to be paid for any work done by the employees. The employees were expected to work for certain periods at agreed rates of wages which, in some cases, left hourly rated and, in some, monthly rated. This Inam Scheme was introduced at a later stage in December, 1955. The only offer under the Scheme was to make incentive payments, if certain specified conditions were fulfilled by the employees. Even though this offer of incentive payment was made, the appellant, in clear words, reserved the right to withdraw the Scheme altogether without assigning any reason or to revise its conditions at its sole discretion. Clearly, if the right to the Inam had become an implied condition of the contract of employment, the employer could not withdraw that right at its discretion without assigning any reason, nor could the employer vary its conditions without agreement from the employees con cerned. The payment of the Inam was dependent upon the em ployees exceeding the target of output appropriately applicable to him. though primarily the right to receive the Inam depended on the efficient working of the employee, there was another clause which laid down that, if the targets were not achieved due to lack of orders, lack of materials, break down of machinery, lack of labour, strikes, lock outs, go slow or any other reason whatsoever, no Inam was to be awarded. This condition is clearly inconsistent with the payment of Inam having become an implied term of the contract of employment, because Inam became nonpayable even if the production target was not achieved for reasons for which the employees were not at all to blame. If the employer did not receive sufficient orders for sale of its output, or there was lack of raw materials, or there was breakdown of machinery and as a result, during the period for which the Inam was notified, it became impossible for the employee to achieve the minimum target fixed, there was no liability_on the appellant to pay the Inam. Such exemption from payment of the Inam on grounds for which the employees could not be blamed and possibly for which the 776 appellant itself might be responsible clearly shows that the payment of this Inam was not enforceable as one of the terms of the contract of employment, whether implied or express. The appellant had also laid down that, if any deterioration of workmanship was noticed on the part of the employees in order to achieve the targets prescribed for earning the Inam, the Scheme could be abandoned forthwith. It was also made clear to the workmen in the Scheme that this payment of reward was in no way connected with or part of wages. It was on these conditions that the employees were receiving the Inam. Thus, though there was a payment to the employees and since that payment depended on their achieving certain targets, it has to be held to be remuneration, this payment of Inam cannot be held to have become a term of the contract of employment. The High Court, in arriving at the contrary decision, referred to the Explanation to section 41 of the Act and held on its basis that, even if the terms of contract of employment are deemed to have been fulfilled, the remuneration paid would be wages. The Explanation lays down,,.that for the purposes of sections 40 and 41, wages shall be deemed to include payment to an 'employee in respect of any period of authorised leave, lock out or legal strike. It appears to us that the High Court committed an error in applying this legal fiction, which was meant for sections 40 and 41 of the Act only, and extending it to the definition of wages, when dealing with the question of payment in the nature of Inam under the Scheme started by the appellant. The fiction in the Explanation was a very limited one and it only laid down that wages were to be deemed to include payment to an employee in respect of any period of authorised leave, lock out or legal strike. It did not lay down that other payments made to, an employee under other circumstances were also to be deemed to be wages. A legal fiction is adopted in law for a limited and definite purpose only and there is no justification for extending it beyond the purpose for which the legislature adopted it. In the Bengal Immunity Co. Ltd. vs State of Bihar and Others,(1) this Court, dealing with the Explanation to Article 286(1) of the Constitution, as it existed before 11 9 1956, held: "Whichever view is taken of the Explanation, it should be limited to the purpose the Constitution makers had in view when they incorporated it in clause 1. It is quite obvious that it created a legal fiction. Legal fictions are created only for some definite purpose". Applying the same principle, we have to hold that the Explanation to section 41 is not to be utilised fox interpreting the general definition of "wages" given in section 2(22) of the Act and is to be taken into count only when the word "wages" requires interpretation for purposes of sections 40 and 41 of the Act. It cannot, therefore. (1) , 646. 777 be held that remuneration payable under a scheme is to be covered by the word "wages", if the terms of contract of em ployment are taken to have been fulfilled. What is really required by the definition is that the terms of the contract of employment must actually be fulfilled. It is, therefore, not correct to hold that because payments made to an employee for no service rendered during the period of lock out, or during the period of legal strike, would be wages, Inam paid under that scheme must also be deemed to be wages. The second reason which led the High Court to hold against the appellant was that, according to that Court, the Scheme contained an offer by the employer for payments to the employees for service rendered by them, and that offer was accepted by the employees impliedly by having worked on the terms of the Notice and having received payments on that basis. The mere fact that a reward for good work offered by the employer is accepted by the employee after he has successfully satisfied the requirement laid down by the employer for earning reward cannot mean that this payment becomes a part of contract of employment. In fact, in this case, there was no question of offer by the appellant and acceptance by the employees as a condition of their service. The employees were already working in accordance with the terms of their contract of employment when the employer decided 'to make this extra payment if the employees did successfully what they were already expected to do under that contract. It cannot, therefore, be held that this payment of Inam ever became even an implied term of the contract of employment of the employees of the appellant. This Court in Bala Subrahmanya Rajaram vs B. C. Patil & Others,(1) had to interpret the meaning of word "wages" as defined in the Payment of Wages Act, where also wages were defined as remuneration which would be payable if the terms of the contract of employment, express or implied, were fulfilled. The Court expressed its opinion in the following words: "Now the question is whether the kind of bonus contemplated by this definition must be a bonus that is payable `as a clause of the contract of employment '. We think it is. and for this reason. " Thereafter, the Court proceeded to examine whether bonus was in fact, payable as a clause of the contract of employment. The word "wages" in the Act having been defined in similar terms, a remuneration paid to an employee can only be covered by the definition of "wages" if it is payable under a clause of the contract of employment. As we have indicated earlier, there was no express clause in the contract of employment of the employees of the appellant laying down the payment of Inam, and the Scheme, when brought into force, expressly excluded it from the contract of employment. The terms on which the Inam was payable were (1) ; , 1508. 778 also not consistent with the Scheme having become a part of the contract of employment. In this connection, counsel appearing for the respondent brought to our notice one other feature of the Scheme which was not relied upon by the High Court to hold that this Inam was wages. That term is contained in the last paragraph of the Scheme where, after stating that the Company reserved the right to withdraw the Scheme altogether without assigning any reason or revise targets and any condition of the Scheme at its sole discretion, went on to add that the Company also reserved the right to discontinue the scheme at the end of any period, if the scheme is found to be in any respect unworkable or to be a source of labour discontent or for any other reason. It was urged that the fact that the Scheme could only be discontinued at the end of a prescribed period and not in the midst of a period showed that the Inam was payable as one of the conditions of contract of employment of the employees, We do not think that there is any force in this submission. It was again a one sided promise on behalf of the appellant not to deny this payment of Inam during a period for which the Inam Scheme had already been notified by the appellant, but such an assurance on behalf of the appellant does not indicate that the employees could claim that a right to receive the Inam had accrued to them as an implied condition of contract of employment. The decision given by the High Court has, therefore, to be set aside. The appeal is allowed with costs. , The order passed by the High Court is set aside and the order passed by the Employees ' Insurance Court it restored. V.P.S. Appeal allowed.

The respondent is a non proprietary members ' club. It is organised on a vast scale with multifarious activities providing a venue for sports and games, and facilities for recreation, entertainment and for catering of food and refreshment. Guests are admitted but on the invitation of members. It has 194 employees with a wage bill between one lakh and two lakh rupees. For the year 1962, the employees claimed bonus but the Industrial Tribunal held that the club was not an 'industry ' within the meaning of the , and rejected the claim of the employees% In appeal to this Court. Held: (1) The definitions of industrial dispute 'employer ' and 'workman ' show that an industrial dispute can only arise in relation to an 'industry '. The definition of 'industry ' is in two parts, the first, from the point of view of employers and the second, from the angle of employees. In its first part it means any 'trade, business, undertaking, manufacture or calling of employers '. This part determines an industry by reference to occupation of employers in respect of those activities specified by the five words and they determine what an 'industry ' is, and what the cognate expression 'industrial ' is intended to convey. But the second part standing alone cannot define 'industry '. If the existence of an industry viewed from the angle of what the employer is doing is established, all who render service and fall within the definition of 'workman ' come within the fold of industry ' irrespective of what they do. Thus, the cardinal test is to find out whether there is an industry according to the denotation of the word in the first part. [753 A 754 H]. Taking the words in the definition of 'industry ' the word 'trade ' means exchange of goods for goods or goods for money, or, any business carried on with a view to profit, whether manual or mercantile as distinguished from the liberal arts or learned professions and from agriculture. The word 'business ' means an enterprise which is an occupation as distinguished from pleasure. and 'manufacture ' is a kind of productive industry in which the making of articles or material, often on a large scale, is by physical labour or mechanical power. The word 'calling ' denotes the following of a profession or trade. [756 F H]. The word 'undertaking ' has figured in the cases of this Court. In D. N. Banerjee vs P. R. Mukherjee, [1953] S.C.R. 302 it was observed that the word is not to be interpreted by association with the words that precede or follow it in the definition of 'industry '. But the settled view of this Court is: that primarily industrial disputes occur, when the operation undertaken rests upon cooperation between employers and employees with a view to production and dis tribution of material goods, in other words, wealth, but they may 743 arise also in cages where the cooperation is to produce material services. For an 'undertaking ' to be an industry, it is not necessary that it must be carried on with capital by private enterprise or that it must be commercial or result in profit but there must be systematic activity and it must be analogous to the carrying on of a trade or business involving co operation between employers and em ployees. But every human activity in which the relationship of employers and employees enters, is not necessarily creative of an industry. Personal services rendered by domestic and other servants, administrative services of public officials . services in aid of occupations of professional men such as doctors and lawyers etc. , employ ment of teachers and so on, may result in relationships in which there are employers on the one side and employees on the other, but they have been excluded because they do not come within the connotation of the term 'industry ' as the service rendered is not a material service. Therefore, the word 'undertaking ', though elastic, must take its colour from other expressions used in the definition of 'industry ', and must be defined as any business or any work or project resulting in material goods or material services and which one engages in or attempts as an enterprise analogous to business or trade. L740 D; 756 D F; 758 D E; 757 B C; 758 B C]. In the present case, the activity of the club is conducted with the aid of employees who follow callings or avocations. But taking the first part of the definition and the essential character of the club, the activity of the club cannot be described as a 'trade ' business or manufacture ' and the running of clubs is not the 'calling ' of the respon dent club or its managing committee. Also, the club has no existence apart from its members. It exists for its members though occasionally strangers also take benefit from its services. Even with the admission of guests, the club remains a members ' self serving institution. Though the material needs or wants of a section of the community is catered for it is not done as part of trade or business or as an undertaking analogous to trade or business. Therefore, the Tribunal was right in holding that the respondent club was not an industry. [760 A H]. Baroda Borough Municipality vs Workmen , referred to Observations contra in Bengal Club Ltd. vs Shantiranjan Som maddar & Anr. A.I.R. 1956 Cal. 545 and Royal Calcutta Golf Mazdoor Union vs State of West Bengal, A.I.R. 1956 Cal. 550, disapproved. (2) The case of State of Bombay vs Hospital Mazdoor Sabha, ; so far as it relied on the test, namely; could the activity be carried on by a private individual or group of individuals for the purpose of holding that running a Government hospital was an industry must be held. to have taken an extreme view of what is an industry. This test is not enlightening because, there is hardly any activity which private enterprise cannot carry on. [751 D E; 761 A; 750 E F]. (3) In Corporation of City of Nagpur vs Employees. ; this Court relied upon the same test with an unfortunate result. The Court held that the municipal functions of the Corporation, including running a primary school, were covered by the words 'trade and business ' in C.P. & Berar Industrial Disputer. Settlement Act, 1947, since those functions were not regal, the activity was organised, service was rendered, and the functions could not be performed by an individual or firm for remuneration, while, in University of Delhi vs Ramnath [1964] 2 S.C.R. 703, this Court held that educational institutions were not 'industry '. [750 B G; 758 A B]. 744 (4) The fresh test laid down in Ahmedabad Textile Industry Research Association vs State of Bombay, ; that, to be an 'industry ', the employees therein must not share in the product of their labour cannot be regarded as universal, because, there are occasions when the workmen receive a share of the produce as part of their wages or as bonus or as a benefit. [759 C]. (5) The additional test laid down in National Union of Commercial Employees vs Meher (The Solicitor case) [1962] Supp. 3 S.C.R. 157, that, to be an 'industry ' the association of capital and labour must be direct and essential cannot also be regarded as universal because, what partnership can exist between the Board of Directors of a Company on the one hand and the menial staff employed to sweep floors on the other? [753 A]. (6) In Harinagar Cane Farm vs State of Bihar, ; and in the University case this Court observed that it must refrain from laying down unduly broad or categorical propositions. But the attempt to avoid generalizations his one disadvantage, because, taking each operation by itself and determining on the basis of facts whether it is an industry without attempting to pin point whether it is a 'business, or a trade, or an undertaking or manufacture, or calling of employers ' is to ignore the guidance afforded by the sta tute through its dictionary and to rely upon decisions dealing with the problem without a definition. [755 H; 756 A C].

(CRL.) No. 369 of 1986. Under Article 32 of the Constitution of India. 633 Govind Mukhoty, Ms. Nandita Haksar and L.R. Singh for the Petitioners. D. Goburdhan for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Peoples ' Union for Democratic Rights, an organisation said to be committed to the uphold ing. of fundamental rights of citizens has filed this appli cation under Article 32 of the Constitution. It is alleged that on 19th April, 1986, 600 to 700 poor peasants and landless people mostly belonging to the backward classes had collected for holding a peaceful meeting within the compound of Gandhi Library in Arwal, a place within the District of Gaya in the State of Bihar. Without any previous warning by the police or any provocation on the part of the people who had so collected, the Superintendent of Police, Respondent No. 3 herein, reached the spot with police force, surrounded the gathering and opened fire as a result which several people were injured and at least 21 persons including chil dren died. The petitioner alleged that separate unofficial inquiries have been held into the atrocity and the reports indicated that the number of deaths was much more than 21 and there was no justification for the firing. It appears that there was a dispute relating to possession of 26 deci mals of low lying land adjacent to the canal at Arwal and to such dispute members of a rich Rajak family on one side and members of nine poor families on the other were parties. Even though several people died and many more were injured by the ruthless and unwarranted firing resorted to by the police, to give a cover to the atrocities, the police start ed a false case being Arwal P.S. Case No. 59 of 1986 and therein implicated several innocent people including even some of the people who had been killed in the firing. Three specific prayers were made in the writ petition, namely: (1) To issue an appropriate writ or make an order or direction in the matter of payment of full and proper compensation to the vic tims relations of the dead and to the people who were injured by police firing; (2) For a direction to withdraw the police case referred to above; and (3) For a direction to Respondent No. 1 to settle the land in dispute with the nine poor families. 634 During the hearing of the matter, an additional relief was pressed, namely, this Court should give a direction for instituting a judicial inquiry into the alleged atrocity. It may be pointed out that during the pendency of this writ application the State Government in response to the growing demand for a judicial inquiry into the matter di rected an inquiry therein by Shri Vinod Kumar, Member, Board of Revenue, Bihar. The said inquiry has been completed and the report has already been furnished to the Government. On the orders of the Court, the report has been produced before this Court with a claim of privilege against disclosure thereof. The incident drew a lot of publicity and attention both within the State as also outside. Coming to know about it, Shri B.D. Sharma, Assistant Commissioner for Scheduled Castes and Scheduled Tribes visited the locality and made a report. At the instance of the petitioner, that document was summoned and has been produced. In respect thereof the Union Government has also claimed privilege. In the affidavits in opposition filed on behalf of the respondents the factual assertions raised in the writ peti tion have been disputed. It has also been brought to our notice that a writ petition has been filed before the Patna High Court prior to filing of this application under Article 32 before this Court and the writ petition in the High Court is still pending. Once this fact was brought to our notice, Mr. Mukhoty for the petitioners submitted that we should direct transfer of the writ petition pending in the High Court to this Court so that both the matters can be heard together. We are of the view that it would be appropriate that the matter is examined by the High Court. It would be convenient to the parties to produce material before the High Court on account of proximity; the High Court will be in a position to call for documents and, if necessary, affidavits of parties concerned as and when necessary while dealing with the matter; and without notice and without affording a reasonable opportunity to the parties in the writ petition before the High Court an order of transfer may not be appropriate. In these circumstances, we have not thought it proper to have the writ petition in the High Court transferred to this Court. On the other hand, we have considered it expedient and proper in the interest of jus tice to dispose of some aspects of the matter now and leave it open to the petitioner to canvass the other aspects by getting itself impleaded before the High Court in the pend ing writ petition or by the filing of an independent appli cation. 635 There has been no dispute that as a result of the police firing 21 people died and several others were injured. The heirs and relations of a few of the dead people had been compensated by the State to the tune of Rupees ten thousand as found from the record. No justification has been indicat ed as to why the said compensation has not been given in every case of death or injury. It is a normal feature of which judicial notice can be taken that when such unfortu nate consequences emerge even in police firing, the State comes forward to give compensation. Mr. Jaya Narayan, for the State candidly stated before us that it is not the intention of the State to deprive the relatives of some of the victims who succumbed to the injuries sustained by police firing from benefits of compensation. Ordinarily in the case of death compensation of Rupees twenty thousand is paid and we see no reason as to why the quantum of compensa tion should be limited to rupees ten thousand. We may not be taken to suggest that in the case of death the liability of the wrong doer is absolved when compensation of Rupees twenty thousand is paid. But as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased such compensation is being paid. We direct that: (1) Without prejudice to any just claim for compensation that may be advanced by the relations of the victims who have died or by the injured persons themselves, for every case of death compensation of Rupees twenty thou sand and for every injured person compensation of Rupees five thousand shall be paid. Where some compensation has already been paid, the same may be adjusted when the amount now directed is being paid. These payments be made within two months hence. (2) In case the petitioner gets implead ed in the pending writ petition before the High Court or filed a separate writ petition and presses for disclosure of the Report of Mr. Kumar, the High Court may examine the question as to whether the report will be made public and in the event of privilege being claimed, the question of privilege will also be examined by the High Court. (3) We have read the report furnished by the Assistant Commissioner of Scheduled Castes and Scheduled Tribes and since the report is not relevant to the point in issue, it is not necessary to ask the High Court to call for the Report. We direct that the report to be returned 636 to the appropriate Ministry from where it has been brought. (4) The investigation of the pending police case shall be completed within three months from now. In case chargesheet is sub mitted, it would be open to the petitioner or any other aggrieved party to challenge the maintainability of the charges in accordance with law. The writ petition is disposed of with the aforesaid directions. The parties shall bear their own costs. M.L.A. Petition dis posed of.

The petitioner an organisation, said to be committed to the upholding of fundamental rights of citizens, filed an application under Article 32 of the Constitution alleging that there was a dispute relating to possession of 26 deci mals of low lying land at Arwal between members of a rich Rajak family on one side and members of nine poor families on the other; and that on April 19, 1986, the members of one community mostly belonging to the backward classes assembled in the compound of Gandhi library at Arwal for holding a peaceful meeting. At that time, the Superintendent of Police reached the spot with police force, surrounded the gathering and without any warning or provocation opened fire, as a result of which several people were injured and at least 21 persons including children died. The police, it was also alleged, started a false case implicating several innocent people to cover up the aforesaid atrocities. The petitioner in the writ petition prayed: (i) Full and proper compensation should be awarded to the victims rela tions of the dead and to those injured by the police firing; (ii) A direction be given for withdrawal of the police case; (iii) Direction for settlement of the land in dispute with the nine poor families; and (iv) transfer of the writ peti tion pending in the Patna High Court to this Court for hearing. During the pendency of the Writ Petition, the State Government held a judicial inquiry into the aforesaid inci dent by a Member of the Board of Revenue, and, awarded compensation to the heirs and relations of a few of the dead people to the tune of Rs. 10,000 each. Disposing of the writ petition, this Court, HELD: I. It would be appropriate that the matter is examined by 632 the High Court. It would be convenient to the parties to produce material before the High Court on account of proxim ity; the High Court will be in a position to call for docu ments and if necessary, affidavits of parties concerned as and when necessary while dealing with the matter. Without notice and without affording a reasonable opportunity to the parties in the writ petition before the High Court an order of transfer may not be appropriate. It would not be proper therefore to have the writ petition in the High Court trans ferred to this Court. However, the petitioner is at liberty to get itself impleaded before the High Court in the pending writ petition or by filing an independent application. [634F H] 2. It is a normal feature that when such unfortunate consequences emerge in police firing, the State comes for ward to give compensation. No justification has been indi cated as to why the said compensation has not been given in every case of death or injury. Ordinarily in the case of death compensation of Rs.20,000 is paid and there is no reason as to why the quantum of compensation should be limited to Rs.10,000. However, in the case of death the liability of the wrong doer is not absolved when compensa tion of Rs.20,000 is paid. [635B D] 3.(a) Without prejudice to any just claim for compensa tion that may be advanced by the relations of the victims who have died or by the injured persons themselves, for every case of death compensation of Rs.20,000 and for every injured person compensation of Rs.5,000 shall be paid. Where some compensation has already been paid, the same may be adjusted when the amount now directed is being paid. [635D F] (b) In case the petitioner presses for disclosure of the report submitted by the Member, Board of Revenue, the High Court may examine the question as to whether the report will be made public and in the event of privilege being claimed the question of privilege will also be examined by the High Court. [635F G] (c) The investigation of the pending police case shall be completed within three months. In case charge sheet is submitted, it would be open to the petitioner or any other aggrieved party to challenge the maintainability of the charges in accordance with law. [636B]

: Criminal Appeal No. 100 of 1958. Appeal from the judgment and order dated April 24, 1958, of the Calcutta High Court in Criminal Misc Case No. 38 of 1958. G. section Pathak and D. N. Mukherjee, for the appellants. L. K. Jha and R. C. Datta, for respondent No. 1. K. B. Bagchi and P. K. Bose, for respondent No. 2. 1961. January 13. The Judgment of Imam and Raghubar Dayal, JJ. was delivered by Imam, J., Subba Rao, J. delivered a separate judgment. IMAM, J. The appellants were convicted for contempt of court and each of them was sentenced to pay a find of Rs., 500 by, the Calcutta High Court. They applied to the High Court for a certificate that 463 the case was a fit one for appeal to this Court which was granted. Hence the present appeal. On March 19, 1955, one Bimala Kanta Roy Choudhury filed a complaint before the Sub Divisional Magistrate, Alipore, against the respondent B. K. Sen under section 497 of the Indian Penal Code. The Magistrate after examining numerous witnesses declined to frame a charge and discharged the accused under section 253(1) of the Code of Criminal Procedure by his order dated July 13, 1957. Against the order of discharge Bimala Kanta Roy Choudhury filed a revisional application before the Sessions Judge of 24 Parganas, who by his order dated November 22, 1957, directed further enquiry. On January 3, 1958, the Magistrate while holding further enquiry, as directed, allowed the prosecution to tender further evidence. On February 3, 1958, the accused B. K. Sen filed a revision petition in the Calcutta High Court against the order of the Sessions Judge directing further enquiry as well as the order of the Magistrate permitting the prosecution to lead further evidence. The High Court thereupon issued a Rule and stayed further proceedings. The respondent B. K. Sen held the office of Commissioner of the Calcutta Corporation at the time he filed his petition in the Calcutta High Court for proceedings against the appellants for contempt of court. According to that petition, at a special meeting of the Calcutta Corporation held on January 16, 1958, the Mayor suggested the formation of a committee for discussion of necessary and appropriate steps to be taken with 'a view to eradicate alleged malpractices prevailing in different departments of the Corporation. At this meeting Satyananda Bhattacharjee made certain wild allegations against B. K. Sen. Two resolutions were passed at the meeting, one of which, authorised the Mayor to constitute a Special. Committee to give effect to the suggestions and objectives indicated by the Mayor in his statement dated January 10, 1958. On February 14, 1958, at an ordinary meeting of the Calcutta Corporation. the aforesaid Bhattacharjee repeated his allegations made at the previous meeting of January 16. At the meeting 464 it was resolved that a Special Committee be set up and the appellants were elected as members of the committee. The Special Committee was to enquire into certain allegations made against certain officials of the Corporation who are said to have taken advantage of their office in carrying on business in their own names. The resolution was in the following terms: "That a Special Committee consisting of Councillors Shri section K. Gupta, Shri R. N. Majumdar and Shri section K. Roy be set up to enquire into the allegations levelled against certain officials of the Corporation who are alleged to have been taking advantage of their high offices in carrying on business in their own names. The Committee will take up only those matters that relate to the Corporation. " The record of the contempt proceedings in the High Court shows that at a meeting of the Calcutta, Corporation, on March 26, 1958, Bhattacharjee informed the Mayor that on February 14, 1958, he had mentioned on the floor of the House certain charges against some high officials of the Corporation and that the Mayor had asked him to submit his papers to the Special Committee. Bhattacharjee further informed the Mayor that the day before, at a sitting of the Special Committee, he wanted to hand over to the Special Committee some papers that were with him, but the Special Committee would not take them and had stated that they would enquire into "open case only ". Bhattacharjee then asked the Mayor to request the Special Committee to enquire into all the allegations made by him. On this, the Mayor asked Bhattacharjee to hand over the papers to him. Then the Mayor stated that if that was not written in the proceedings he would take it that day that all the papers would he sent to the Special Committee. According to B. K. Sen, on April 11, 1958, Bimala Kanta Roy was examined by the Committee and he admitted Chat his case against B. K. Sen under section 497 of the Indian Penal Code was at that time pending consideration before the High Court. Bimala Kanta Roy Choudhury then alleged that either the witnesses 465 themselves or their near relations got appointments in the Corporation of Calcutta. Bimala Kanta Roy Choudhury had specifically mentioned one Tarak Nath Dey. The entire purpose of the statement of Bimala Kanta Roy Choudhury was to prove the truth of his allegations that B. K. Sen had abused his official position and had created a situation which made it impossible for him to produce relevant witnesses to prove his case. The Special Committee then caused the production of Tarak Nath Dey and confronted him with Bimala Kanta Roy Choudhury. Tarak Nath Dey was then examined but denied that he was the agent of the wife of Bimala Kanta Roy Choudhury or the Tadbirkar of B. K. Sen. The Special Committee went out of their way to traverse the grounds and take evidence on matters which were directly and substantially in issue and were pending in the Calcutta High Court. B. K. Sen further alleged in his petition, that the appellants had set up a parallel court of enquiry for ascertaining the truth or otherwise of the allegations made by Bimala Kanta Roy Choudhury. That the action of the Special Committee was calculated to create an atmosphere of prejudice against him and amounted to unwarranted inter ference with the free flow of justice. The action of the Special Committee had a tendency to prejudice the trial and/or to influence the decision of the case by the trial Court or by the High Court. The Special Committee thereafter issued to him a questionnaire. The relevant portions of the questionnaire are in the following terms : " III (a). It is alleged that between 4th January, 1956, and 20th September, 1957; i.e., at or about the time when the case under section 497, I.P.C., was being tried, you gave appointments to the following persons: (1) Anil Koyal (2) Jogendra Nath Mondal (3) Ahi Kanta Choudhury (4) Govinda Banerjee (5) Narendra Nath Naskar, who are related respectively to Palan Koyal, Haradhan (alias Haridhan) Mondal, Tripti Choudhury, Thakur Raj Smriti Tirtha and Upendra Naskar who were cited as witnesses in the case. 59 466 (b)It is alleged that about the same time you gave appointments to Tarak Nath Dey, Hardhan Dey, Pradip Bhaduri, Ardhangsu Mondal etc. and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case. (c) It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M. L. Ghosh against whom a demolition case was pending. " The case of B. K. Sen before the High Court was that the action of the appellants as members of the Special Committee amounted to gross contempt of the High Court as well as of the Court of trial. Accordingly, B. K. Sen filed on April 16, 1958, his petition in the High Court for proceedings against the appellants for contempt of court. Notice was issued to the appellants by the High Court returnable the same day to show cause why they should not be proceeded against for contempt of court. On April 17, 1958, the appellants showed cause. The ' High Court, however, issued a Rule returnable by April 23. After hearing the parties the High Court on April 24, convicted the appellants as already stated. The only question for determination is whether the conduct of the appellants as members of the Special Committee amounted to contempt of court. On behalf of the appellants it was urged that the enquiry held by the Special Committee was not to determine the guilt or the innocence of B. K. Sen in the case under section 497 pending against him. It was impossible to characterise the enquiry by the Committee as a parallel enquiry. The Special Committee had been constituted specially for the purpose of determining whether the employees of the Calcutta Corporation had abused their position in the discharge of the powers vested in them. The Special Committee was not constituted to enquire into the conduct of B. K. Sen only. Even the questionnaire sent to him referred to three incidents which have nothing to do with the case under a. 497 against him pending in the 467 Magistrate 's court. The first incident was concerned with an agreement with some lady to build a house for Rs. 40,000, and to sell it to her for Rs. 50,000 and that thereby he had engaged in a business for profit which was contrary to his conditions of service. The second incident related to the reduction of the valuation of certain premises, belonging to some persons described as the Guptas who were either his relations or friends, long after their appeal had been disposed of and without recording any adequate reasons for such reduction. The third incident related to I the assessment of his own house when he had reduced its letting value to Rs. 90 per month and on that basis had been paying the Corporation tax whereas he actually received as house rent for the same at Rs. 250 per month. The opinion expressed by the Land Acquisition Collector was that the proper letting value of the premises would be Rs. 281 per month. The entire purpose of the enquiry was to ascertain whether B. K. Sen, as Commissioner of the Corporation, had been abusing his position as such. Even the questionnaire under III(a), (b) and (c) does not state that B. K. Sen had so acted with a view to suborning prosecution witnesses in the case against him under section 497 or that he had acted in a manner so as to suppress the evidence which might be led against him. It was pointed out that the questionnaire throughout stated " it is alleged " and there was no assertion therein that B. K. Sen had actually acted in an improper manner. The letter which accompanied the questionnaire expressly requested B. K. Sen to give the Committee some time between 10 a.m. and 1 1 a. m. on April 16 so that they could get the facts from him. In other words, the Special Committee had not accepted the allega tions against B. K. Sen but had merely pointed out to him the nature of the allegations and desired to get from him the actual facts. This conduct of the appellants as members of the Special Committee could not in any way amount to their converting themselves into a tribunal holding a parallel enquiry to the real matter in issue in ' the case under section 497 against B. K. Sen. 468 It was further urged that if the question at all arose in the enquiry that B. K. Sen had acted with the ulterior motives in the matters stated in questionnaire 111(a), (b) and (c) that would be merely incidental to the main purpose of the enquiry whether he, as Commissioner of the Calcutta Corporation, had abused his position. Before the conduct of the appellants could be characterised as contempt of court it had to be established that their conduct tended to prejudice mankind against B. K. Sen or it tended or was calculated to interfere with the due course of justice. It was further argued that before a person can be convicted for contempt of court it must be found that his act amounted to real contempt and was of a kind that necessitated action being taken by the court against him. In the present case, the incidental question whether B. K. Sen had acted in, an improper way ,in making the appointments under questionnaire 111(a), (b) and (c) with a view to suit his own end,% was something too remote for a court to hold that it tended to or was calculated to interfere with the course of justice and that it amounted to such contempt which required the taking of proceedings for contempt against the appellants. Reliance was also placed on section 99(1) of the Calcutta Municipal Act, 1951, which states that "Every Special Committee shall conform to any instructions that may from time to time be given to it by the Corporation. " The appellants as members of the Special Committee had merely performed their public duty in obeying the instructions of the Corporation when at the meeting of the Corporation on March 26, 1958, the papers presented by Bhattacharjee were sent to the Special Committee. If the action of the appellants at &II amounted in law to contempt of court it was so slight that it did not call for proceedings for contempt being instituted against them. The respondents in this appeal are B. K. Sen and the State of West Bengal. On behalf of the State of West Bengal no submissions were made. On behalf of B. K. Sen, however, it wait contended that the facts asserted in his petition for contempt filed in the High 460 Court had not been controverted by the appellants. All that the appellants had stated in their affidavit was that they did not admit the assertions of fact in the petition for contempt other than those stated in their affidavit. It was strongly urged on behalf of B. K. Sen that he protested at the meeting of the Corporation on February 14, 1958, that Bhattacharjee 's allegations ought not to be entertained as the subject matter of his allegations was at the time sub judice in the Calcutta High Court. Several members of the Corporation had also raised a similar objection. Apparently, from Bhattacharjee 's statement at the meeting of the Corporation on March 26, 1958, the Committee had refused to take the papers submitted by him and the Committee had stated that they would enquire into " open case only ". In spite of the knowledge which the appellants had about the matter being sub judice in the Calcutta, High Court they bad none the less at the meeting of the Special Committee on the 11th of April, 1958, examined Bimala Kanta Roy Choudhury, the complainant in the case under a. 497, Indian Penal Code, against B. K. Sen. Furthermore, they had also examined Tarak Nath Dey with reference to the allegations made by Bhattacharjee. The appellants had thus entered into a parallel enquiry into a matter which was at that time in issue in the proceedings in the Calcutta High Court. That Court had before it a petition of B. K. Sen questioning the validity of the order of the Sessions Judge directing further enquiry in the case under section 497, Indian Penal Code. An important question to be decided in that proceeding was whether it was correct that B. K. Sen had suborned the prosecution witnesses in the case under section 497, Indian Penal Code, against him or had prevented witnesses for the prosecution from appearing against him. It was clear from paragraphs 7 and 15 of Annex. C, the charges made by Bhattacharjee against B. K. Sen, that his case was that B. K. Sen had been tampering with prosecution witnesses of Garia with the aid of Dhiren Mondal. Some of the sets of alleged adultery are said to have been committed at Garia. B. K. Sen had also won over a 470 prosecution witness Kamakshya Chatterjee by procuring an appointment for him in the Central Bank of India Ltd., Calcutta. The action of the appellants in thus holding a parallel enquiry tended to interfere with the course of justice as well as to prejudice mankind against B. K. Sen. The action of the appellants could not be regarded as slight because it had been a deliberate action. It was not enough to say that the appellants had merely sent a questionnaire to B. K. Sen and had not made any comment on the allegations made before them by Bhattacharjee and Bimala Kanta Roy Choudhury. It was the act of holding an enquiry into a matter which was directly in issue and which was pending for determination in the Calcutta High Court which amounted to contempt of court, Mr. Jha, on behalf of B. K. Sen, further contended that the provisions of section 99(1) of the Calcutta Municipal Act could not be pleaded in defence to a charge of contempt if the action of the appellants amounted to contempt of court. Furthermore, as the direction given to the appellants was by the Mayor and not the Calcutta Corporation section 99(1) did not apply. We would now consider whether the action of the appellants amounts in law to real contempt of the Calcutta High Court and the Magistrate before whom the proceedings under section 497 were pending at the time the High Court passed its order convicting the appellants for contempt. There is a controversy between the appellants and B. K. Sen whether Bimala Kanta Roy Choudhury and Tarak Nath Dey were examined by the appellants. There is no clear statement on behalf of the appellants in denial. Their mere assertion that " save and except what was stated in their affidavit nothing else was admitted " would not be enough to controvert this assertion of B. K. Sen. Even if it be assumed that these two persons were examined by the appellants what is stated in paragraph 10 of B. K. Sen 's affidavit in the High Court is that Bimala Kanta Roy Choudhury had mentioned names of the prosecution witnesses and had alleged that either the witnesses themselves or their near 471 relations had received appointments in the Corporation of Calcutta. He had also alleged that Tarak Nath Dey was the agent of the wife of Bimala Kanta Roy Choudhury and Tadbirkar of B. K. Sen. Tarak Nath Dey when examined denied this. He was certainly an employee of the Corporation. Paragraph 10 further stated that the only purpose for which Bimala Kanta Roy Choudhury was examined was to prove the truth of the allegations made by him that B. K. Sen had abused his official position and had created a situation which had made it impossible for Bimala Kanta Roy Choudhury to produce relevant witnesses in proof of his case. Concerning the examination of Tarak Nath Dey, in paragraph 11,B. K. Sen stated that the idea behind the examination of this individual was to prove B. K. Sen 's connection and association with the wife of B. K. Roy Choudhury, and to show that he had appointed Tarak Nath Dey due to services rendered in connection with the case under section 497, Indian Penal Code, against him. It is clear, however, from the questionnaire III (a), (b) and (c) that the appellants in framing the same did not assert that B. K. Sen 's conduct in making the appointments mentioned therein was with a view to suborning prosecution evidence in the case under section 497, Indian Penal Code, against him or to make it impossible for Bimala Kanta Roy Choudhury to produce relevant witnesses in proof of his case. The combined effect of the letter written by the appellants to B. K. Sen in sending the questionnaire and the manner in which the questionnaire III (a), (b) and (c) were framed would indicate that the appellants did not accept all the allegations made by Bimala Kanta Roy Choudhury or Bhattacharjee. The record does not establish that at any time the appellants had made comments on the case under section 497, Indian Penal Code, pending against B. K. Son or in respect of any matter pending in connection with that case in the Calcutta High Court. It was, however, said that in taking the papers filed by Bhattacharjee and thereupon examining Bimala Kanta Roy Choudhury and Tarak Nath Dey the 472 appellants had embarked upon a parallel enquiry on matters which were pending investigation in a court of law. The Special Committee consisting of the appellants was constituted by the Corporation to conduct an enquiry into the conduct of the servants of the Corporation in matters relating to affairs of the Corporation. The Special Committee was enquiring into not only the conduct of the Commissioner of the Corporation (B. K. Sen) but also into the conduct of other servants of the Corporation. The questionnaire sent to B. K. Sen refers to his conduct in relation to matters in questionnaires 1 and 11. These were matters which had no connection whatsoever with the case under section 497, Indian Penal Code, against B. K Sen. Regarding questionnaire III (a), (b), and (c) the principal matter which the Special Committee were to enquire into was whether (1) B. K. Sen had made the appointments in question and (2) those appointments were of persons who were either related to the prosecution witnesses in the section 497 case or were helping B. K. Sen in conducting his defence in that case. The questionnaire nowhere suggested that B. K. Sen had made these appointments in order to suborn prosecution witnesses in that case or that he had made the appointments with a view to preventing Bimala Kanta Roy Choudhury from producing witnesses to prove his case against B. K. Sen. Appointment of persons who were relations of witnesses for the prosecution in the section 497 case or of those who were helping B. K. Sen in his defence in that case would certainly be a relevant matter in ultimately deciding whether B. K. Sen had taken advantage of his position as Commissioner of the Calcutta Corporation in making undeserving appointments. On the other hand, even if it were established that the appointments were made of relations of prosecution witnesses and of those who were helping him in his defence, the Special Committee may have, at the conclusion of their enquiry, found that the appointments in question were, in fact, of suitable and qualified persons and that B. K. Sen had not in making the appointments abused his position as a servant of the, Corporation, 473 The circumstances do not establish that the Special Committee had constituted itself as a court of parallel enquiry to look into matters in issue in the section 497 case against B. K. Sen or which were in issue in the pending proceedings in the High Court. What exactly is meant by a court of parallel enquiry is not clear. No doubt it would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of that investigation. This is because trial by newspapers, when a trial by one of the regular tribunals of the country is going on, must be prevented. The basis for this view is that such action on the part of a newspaper tends to interfere with the course of justice whether the investigation tends to prejudice the accused or the prosecution. There is no comparison between a trial by a newspaper and what has happened in this case. The Special Committee had embarked upon an enquiry on the directions of the Corporation in order to discover malpractice on the part of the Corporation 's servants. Malpractices on the part of a servant of the Corporation would presumably include making unworthy appointments. The ascertainment of the motive for the appointments would be merely incidental to the main purpose of the enquiry. It would be difficult to conclude therefrom that the Special Committee were holding a parallel enquiry on matters pending decision by a court of law and that thereby their action tended to interfere with the course of justice. It was not asserted in the affidavit of B. K. Sen that the Special Committee had knowledge that one of the questions to be decided in the proceedings before the High Court was whether B. K. Son had suborned the prosecution witnesses in the case under section 497 against him. There is no finding of the High Court in this respect either. If the conduct of a particular party amounts to contempt of court usually lack of knowledge of pending proceedings may not be available to him by way of defence. We have looked into the record of this case and have no hesitation in saying that the appellants at no 60 474 time intended to interfere with the course of justice ' and their conduct did not tend to interfere with the course of justice. The appellants had been careful in making no comments on any proceedings pending in a court of law or the issues arising out of them. In these circumstances,, we are of the opinion that the offence of contempt of court by the appellants has not been established. The appeal is accordingly allowed and the conviction of the appellants for contempt of court is set aside. The fines, if paid, must be refunded. SUBBA RAO, J. I have had the advantage of perusing the judgment prepared by my learned brother, Imam, J. I regret my inability to agree with him. In my view, this is one of the typical cases wherein a group of enlightened men constituting a committee did a purposive act which had a clear tendency to obstruct or interfere with the due process of justice. On the facts, the following questions fall to be considered: (1) What was the nature of the criminal proceedings pending in the Court of the Sub Divisional Magistrate, Alipore, and in the High Court at Calcutta and what were the questions that were to be decided therein? (2) What was the nature of the inquiry initiated by the appellants and what was the subjectmatter of the said inquiry? (3) Whether the acts attributed to the appellants constituted contempt of court. (4) If the appellants were guilty of contempt of court, was this an appropriate case for taking contempt proceedings against them ? (5) Whether the punishment imposed on the appellants was excessive. The learned Judges of the High Court were in a position to ascertain the scope of the criminal proceedings taken against the appellants,. for they had before them the entire record pertaining to the criminal revision case. The judgment of the High Court discloses that the learned Judges had freely drawn from the said record the facts necessary to elucidate the question raised before them; but, unfortunately,, none of the parties thought fit to get the relevant portions of the criminal proceedings printed and placed before, us, 475 I would, therefore, proceed on the basis of the allegations made by the respondents in their petition filed before the High Court in so far as they were not specifically controverted by the appellants and on the facts given by the learned Judges in their judgment. On March 19, 1955, one Bimala Kanta Roy Choudhury filed a complaint before the Sub Divisional Magistrate, Alipore, alleging that the first respondent, B. K. Sen, the then Commissioner of the Corporation of Calcutta, committed acts of adultery with his wife, Tripti Roy Choudhury and thereby committed an offence under section 497 of the Indian Penal Code. After protracted trial and on an examination of many witnesses, the Sub Divisional Magistrate, by his order dated July 13, 1957, discharged the first respondent under section 253 (1) of the Code of Criminal Procedure. Before the Sub Divisional Magistrate, it was contended that the case of the complainant was true but he was prevented from proving it by reason of the respondent 's interference with the prosecution witnesses. The Sub Divisional Magistrate in discharging the respondent also found that some prosecution witnesses were won over by the said respondent. Against the said order of discharge, Bimala Kanta Roy Choudhury filed a revision petition in the Court of the Sessions Judge, 24 Parganas, under section 436 of the Code of Criminal Procedure. The learned Sessions Judge accepted the contention of Bimala Kanta Roy Choudhury that by the influence of respondent No. 1 many prosecution witnesses were withheld from the court, and by an order dated November 22, 1957, he set aside the order of the Sub Divisional Magistrate and directed further enquiry by Sri C. L. Choudhury, a Magistrate with 1st Class powers at Alipore. On January 3, 1958, the said Magistrate passed an order enlarging the scope of the further enquiry and directed examination of new witnesses; in the result the prosecution was allowed to tender further evidence and the entire case was reopened and it was, awaiting the decision of that court. On February 3,1958, respondent No. 1 filed a criminal revision, being Criminal Revision Case No. 149 of 1959, 476 in the High Court at Calcutta against the order of the Magistrate dated January 3,1958, directing the examination of new witnesses. A division bench of the High Court issued a rule and stayed further proceedings in the Magistrate 's court. It would be seen that one of the questions that fell to be decided by the High Court was whether there was any truth in the allegation that the respondent suborned the prosecution witnesses, with the result that some important witnesses did not attend the court and others perjured themselves to support the respondent. If the criminal revision was dismissed and the trial before the Magistrate proceeded, a similar question would arise before the Magistrate, namely, whether the prosecution witnesses were kept back from the witness box because they were tampered with by respondent No. 1 and whether the prosecution witnesses examined, or some of them, had been influenced by the respondent. This question would have an important bearing not only on the disposal of the criminal revision petition but also on the appreciation of the evidence before the Magistrate. It may be recalled that on February 3, 1958, a division bench of the High Court issued a rule and stayed further proceedings in the Magistrate 's court. On January 16, 1958, at a special meeting of the Corporation of Calcutta the Mayor suggested the formation of a committee for discussion of necessary and appropriate steps to be taken with a view to eradicate alleged malpractices prevailing in different departments of the Corporation. The Mayor suggested that the Commissioner of the Corporation should place his suggestions on the subject before the Committee. Satyananda Bhattacharjee, one of the councillors, made certain allegations against the Commissioner. The meeting passed two resolutions, one of which authorized the Mayor to constitute a Special Committee. On February 14, 1958, another meeting of the Corporation was held. In that meeting Satyananda Bhattacharjee reiterated his allegations against the Commissioner and particularly referred to the criminal case pending in. the High Court. The respondent protested against 477 reference to matters which constituted the subjectmatter of a pending case in court. After some debate the Corporation passed the following resolution appointing a Special Committee consisting of appellants 1, 2 and 3: Resolved:That a Special Committee consisting of Councillors Sri section K. Gupta, Sri. R. N. Majumdar and Sri S.K. Roy be set up to enquire into the allegations levelled against certain officials of the Corporation who are alleged to have been taking advantage of their high offices in carrying on business in their own names. The Committee will take up only those matters that relate to the Corporation. " It will be seen from the resolution that the said Committee was only authorized to enquire against officials of the Corporation who were carrying on business in their own names. It was further elucidated that the Committee would take up only those matters that related to the Corporation. Neither expressly nor by necessary implication this resolution authorized the Committee to make an inquiry against the Commissioner of the Corporation in regard to any appointments made by him in the Corporation with a view to.suborn witnesses in the aforesaid criminal case. Indeed, the last sentence of the resolution expressly prohibited the Committee from embarking upon any such inquiry in regard to matters that did not relate to the Corporation. On March 29, 1958, a motion was tabled in the meeting of the Corporation for the removal of the Commissioner from his office under section 19(3) of the Calcutta Municipal Act, 1951. Out of the 86 councillors only 38 supported the motion and, as the requisite number of votes was not obtained, the motion was dropped. It appears that Satyananda Bhattacharjee intended to hand over to the Special Committee certain papers relevant to the allegations made against the Commissioner, but in view of the limited terms of the reference they could not be received by the Committee. There. after, on March 26, 1958, Satyananda Bhattacharjee made a complaint of the same in his speech in the meeting of the Corporation and the Mayor took over the 478 papers from him and promised to send them to the Special Committee and he accordingly handed them over to the Special Committee. Two of the documents handed over by the Mayor to the Special Committee were annexed to the affidavit filed by each of the appellants and marked "C". The first document contained various charges made by the said Satyananda Bhattacharjee against the respondent, and the second document purported to be a copy of the petition filed by Bimala Kanta Roy Choudhury in the Court of the Sub Divisional Magistrate, Alipore, on May 31, 1955. In the first document Satyananda Bhattacharjee gave, inter alia, the names of various prosecution witnesses and the names of persons related to them to whom the Commissioner had given appointments. He had also given the name of another prosecution witness and alleged that the Commissioner procured an appointment for him in the Central Bank Ltd., Calcutta, through the good offices of another officer of the Bank by promising the latter to drop a case in respect of his premises. This document, therefore, contained in unambiguous terms specific allegations against the first respondent in the matter of suborning the prosecution witnesses in the criminal proceeding pending in the Magistrate 's court and in the High Court. In the second document also specific allegations were made that the respondent was attempting to influence the Witnesses through the Corporation employees. On the basis of the allegations made by Satyananda Bhattacharjee and Bimala Kanta Roy Choudhury, an inquiry was started by the Committee against the first respondent in respect of charges, among others, pertaining to criminal proceedings pending against him in the court. It was disclosed in the affidavit filed in rejoinder by the respondent that the Special Committee held its deliberations in the lady councillors ' room and that from March 25, 1958, on a black board bung up outside that room it was written in chalk "Allegations Special Committee"; that the first sitting of the Special Committee was held _on March 251, 1958; that a Secretary and a steno grapher attended the meeting; that the notes of the 479 proceedings taken by the stenographer were typed and that Satyananda Bhattacharjee, Bimala Kanta Roy Choudhury and other Councillors attended the meetings: (see the affidavit in rejoinder filed by the first respondent in the High Court). On April 11, 1958, Bimala Kanta Roy Choudhury was examined. It was stated in the affidavit filed by the first respondent in the High Court that the said person admitted before the Committee that he had filed a complaint against the first respondent under section 497 of the Indian Penal Code and that was pending in the High Court and that he also gave the names of the witnesses whom he had cited in proof of his case and that either the witnesses themselves or their near relations got appointments in the Corporation of Calcutta. He also mentioned that one Tarak Nath Dey was the agent of the wife of Bimala Kanta Roy Choudhury and Tadbirkar of the respondent. The Committee thereafter examined Tarak Nath Dey and Bimala Kanta Roy Choudhury identified him as the person referred to by him in his statement. Tarak Nath Dey in his examination denied the said allegations made against him. Presumably on the basis of the allegations made by Satyananda Bhattacharjee and the evidence given before the Com. mittee by Bimala Kanta, Roy Choudhury, the Committee issued the following notice dated April 15,1958, to the first respondent: " As you probably know, we have been appointed to make an enquiry into certain allegations relating to the administration of the Corporation of Calcutta and specially into certain steps taken by you in the matter of assessment and appointments and a few; other matters, we are giving you a synopsis of the cases in which the enquiry is being held and we shall be glad if you kindly give us some time between 10 a.m. and 11 a m. tomorrow (the 16th instant) so that we can get the facts from you. " The synopsis of the cases served upon the first respondent consisted of three questions. We are concerned only with the third question in this case and it reads: " III (a). It is alleged that between 4th January, 1956, and 20th September, 1957, i.e., at or about the, 480 time when the case under section 497, I. P. C., was being tried, you gave appointments to the following persons: 1. Anil Koyal. Jogendra Nath Mondal. Ahi Kanta Choudhury. Govinda Banerjee. Narendra Nath Naskar. (b) It is alleged that about the time you gave appointments to Tarak Nath Dey, Haradhan Dey, Pradip Bhaduri, Ardhangsu Mondal etc., and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case. (c) It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M. L. Ghosh against whom a demolition case was pending. " Thereafter, on April 16, 1958, the respondent filed a petition in the High Court at Calcutta for contempt of court and the High Court by an order of the same date issued notice to show cause why the rule prayed for should not be issued. The following crucial facts emerge from the fore. going narration that led to the filing of the contempt petition: The resolution appointing the Special Committee did not authorize it either expressly or by necessary implication to make an inquiry in respect of the activities of the Commissioner in connection with the criminal case pending in the Magistrate 's Court as well as in the High Court. The members of the Committee were the councillors of the Corporation, and one of them, namely, Saibal Kumar Gupta, belonged to the Indian Civil Service, another, it was represented, was a practising barrister and the third was also an educated person. Being members of the Corporation, they must have known what all happened at the meeting of the Corporation and particularly the objections raised by the respondent and others that no inquiry should be made in respect of matters that were sub judice in courts, They must 481 have also known that in view of the said objections the resolution was precisely drawn to avoid any encroachment on the matters that were sub judice. No further resolution was passed by the Corporation enlarging the scope of the enquiry. Section 91 of the Calcutta Municipal Act, 1951, does not authorize the Mayor to enlarge its scope. The members of the Committee who must be deemed to have had knowledge of the scope of its powers obviously initiated the inquiry which was beyond the scope of the resolution. With the knowledge that criminal proceedings were pending, they examined witnesses, served questionnaire on the respondent, invited or at any rate permitted, apart from the staff which was assisting the committee in the discharge of its duties, councillors and others to attend the meeting. The inquiry could not in any sense of the term be called confidential and was conducted in a manner that it would be known to everybody who was interested in it. The inquiry against the Commissioner of the Corporation in the Corporation building in respect of a, criminal case for the offence of adultery alleged to have been committed by him must have been a sensational news item; at any rate, it must have attracted the attention of the vast staff of the Corporation and its innumerable visitors. With this background I shall briefly consider the law of contempt relevant to the facts of this case. The Contempt of Courts Act, 1926, has not defined the phrase " contempt of court ". The judgment of Lord Hardwicke, L. C., in Re Read & Huggonson (1), which has always been regarded as the locus classics on the subject, declared " Nothing is more incumbent upon courts of justice, than to preserve their proceedings from being misrepresented : nor is there anything of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes before the cause is finally heard." The learned Lord Chancellor characterized contempt as of three kinds, namely, scandalizing the court, abusing par ties in, court, prejudicing mankind against (1) ; 61 482 parties and the court before the cause is heard. Adverting to the third category, which is germane to the present case, the Lord Chancellor proceeded to state at p. 471 thus: " There may also be a contempt of this court, in prejudicing mankind against persons before the cause is heard. There cannot be anything of greater consequence, than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters. " But to constitute contempt of court, in the words of Lord Russel, C. J., " the applicant must show that something has been published which either is clearly intended, or at least is calculated, to prejudice a trial which is pending " (See The Queen vs Payne (1)). In The Queen vs Gray (2), the phrase " contempt of court " is defined as, inter alia, " something done calculated to obstruct or interfere with the due course of justice or the lawful process of the courts. " Lord Goddard, C.J., in R. vs Odham 's Press Ltd. (3), after considering the relevant authority on the subject, laid down the following test to ascertain whether there is contempt of court in a given case, at p. 497: " The test is whether the matter complained of is calculated to interfere with the course of justice Words much to the same effect were used by Parker, C.J., in a recent decision in R. vs Duffy & Others (4) when he stated at p. 894 that: ". . . the question in every case is whether. the article was intended or calculated to prejudice the fair hearing of the proceedings. " In Halsbury 's Laws of England, 3rd edition, Vol. 8, it is stated at p. 8, " It is sufficient if it is clear that the comment tends to prejudice the trial of the action. " Adverting to the third category of contempt described by Lord Hardwicke, L. C., the learned author says at p. 8 thus: " The effect of such misrepresentations may be not only to deter persons from coming forward to (1) , 580. (2) (3) (4) 483 give evidence on one side, but to induce witnesses to give evidence on the other side alone, to prejudice the minds of jurors, or to cause the parties to discontinue or compromise, or to deter other persons with good causes of action from coming to the court. " The said view has been accepted and followed also in India: see State vs Biswanath Mohapatra (1) and Ganesh Shankar Vidyarthi 's case (2). Learned counsel contends that every such act is not contempt of court, but it is a condition of the exercise of the jurisdiction to commit a person for contempt that it must seriously prejudice the course of justice. It is not necessary to go into the question whether, even though an act constitutes a contempt of court, the seriousness of the offence is a condition of the exercise of the jurisdiction or is only an element that a judge has to take into consideration in exercising his discretion whether to take action for contempt of court or not, for in this case, on the facts, I am satisfied that the act of the appellants had a clear tendency to prejudice the fair hearing of the criminal proceedings pending against the first respondent. In a criminal case, it is more strictly the duty of a court to prevent any interference with the course of justice than in civil cases. On the said authorities it is settled law that a person will be guilty of contempt of court if the act done by him is intended or calculated or likely to interfere with the course of justice. How can it be said that the inquiry initiated by the Committee to ascertain whether the witnesses cited or examined for the prosecution in the pending criminal case were suborned by the Commissioner by devious methods alleged to have been adopted by him could not have any serious repercussions on the proceedings pending in the Magistrate 's court as well as in the High Court? Assume for a moment that the High Court dismissed the revision and, as a result, the Magistrate took over the criminal case before him for trial, and the prosecution examined its witnesses with the knowledge that (1) I.L.R. [1955] Cuttack 305. (2) A.I.R. 1929 All. 484 an inquiry would be held by a responsible committee in respect of conduct or credibility of witnesses to be examined in the criminal case. Would it be possible to predicate that the witnesses could be in a position to depose truthfully in the witness box? A truthful witness, who would otherwise speak in favour of the accused, might be tempted to lie in the witness box either to avoid an ignominy that he perjured in the witness box as a relative of his was appointed in the Corporation or to protect the interests of his relation, though as a matter of fact the said relation had been appointed on his own merit& So too, an untruthful witness may perjure himself in the witness box with a view to harm the Commissioner in the inquiry before the Committee. Some honest witnesses might be afraid to come into the witness box, for in the inquiry made by the Committee they might be attributed motives. Though a strong willed Magistrate might exclude from his mind the fact that a high power committee is making an inquiry in respect of the witnesses that are being examined before him, the factum of the inquiry might unconsciously operate on a weaker mind. The inquiry would, therefore, have an obvious tendency to obstruct the even course of justice. Assume again that the High Court had not stayed the proceedings before the Committee and the Committee completed the proceedings and exonerated the Commissioner by holding that the witnesses were not suborned by him, even that finding would have an effect on witnesses and the Magistrate, for with the background of such a finding untruthful witnesses would depose to a false case with greater confidence than otherwise they would. This finding might also affect the result of the case. Assume once again that the Committee completed its inquiry but held that the witnesses were suborned; the effect of such finding would certainly have a far reaching impact on the credibility of witnesses and also would deflect the witnesses from ,speaking the truth. From whatever angle it is looked at, the tendency to prejudice the course of justice is apparent. Now taking the High Court, it may be said that, a Judge of a High Court can be relied upon not 485 to be influenced by what the Committee might or might not say. But that would not prevent the public and the affected parties from reasonably apprehending that the inquiry initiated by a high power committee or the findings given therein would affect the fair hearing of the revision petition. From the aforesaid facts it is manifest that the contempt in the instant case is not merely a technical but a serious one which is calculated to interfere with or obstruct the due course of justice. In my view, therefore, this was preeminently a fit case for the court to take action. The last question is whether the learned Judges were right in imposing a fine on the appellants. The judgment of the High Court shows that the learned Judges were very considerate to the appellants. They bad given them every opportunity to apologize for their conduct. 'The following passage appears in the judgment : "It may be observed at this stage that during, arguments each of the respondents was asked if be wished to apologize for any contempt that might be found against him. Each of the respondents expressed his inability to apologize. At the conclusion of the arguments we made known to the respondents that in our view they were guilty of contempt and asked if they or any of them desired to tender any apology to Court. Respondent No. 4, Bimala Kanta Roy Choudhury, tendered an apology to the Court, but the other respondents refused to do so. " In the circumstances the learned Judges, in my view, rightly convicted each of the appellants for contempt of court and sentenced each of them to pay a fine of Rs. 500/ . In the result, the appeal fails and is dismissed. BY THE COURT: In accordance with the opinion of the majority the appeal is allowed and the conviction of the appellants for contempt of Court is set aside. The fine, if paid, must be refunded. Appeal allowed.

The first respondent, the then Commissioner of the Corpora tion of Calcutta, was after a protracted trial for an alleged offence under section 497 of the Indian Penal Code discharged by the Magistrate under section 253(1) of the Code of Criminal Procedure. The Sessions judge, on a petition in revision filed by the complainant, holding that the said respondent had suborned the complainants witnesses, set aside the order of discharge and directed further enquiry by another Magistrate who permitted the complainant to tender further evidence. The respondent moved the High Court in revision and a Division Bench issued a Rule and stayed further proceedings. While the matter was thus pending before the High Court, the Corporation of Calcutta by a resolution appointed the three appellants members of a Special Committee which ran as follows : " That a Special Committee consisting of Councillors Shri section K. Gupta, Shri R. N. Majumdar and Shri section K. Roy be set up to enquire into the allegations levelled against certain officials of the, Corporation who are alleged to have been taking advantage of, their high offices in carrying on business in their own names, The Committee will take up only those matters that relate to the Corporation. " Subsequent to the passing of the said resolution, the Mayor handed over to the Committee certain papers from a Councillor containing certain allegations against the Commissioner. It was the case of the said respondent that the Special Committee there, upon examined the complainant and another and issued to him a notice along with a questionnaire, the relevant portions of which were as follows: "As you probably know, we have been appointed to make an enquiry into certain allegations relating to the administration of the Corporation of Calcutta and specially into certain steps taken by you in the matter of assessment and appointments and few order matters, we are giving you a synopsis of the cases in which the enquiry is being held and we shall Se glad if you kindly give us some time between 10 a. m. and 11 a. m. tomorrow (the 16th instant) so that we can get the facts from you." * * * 461 " III (a). It is alleged that between 4th January, 1956, and 20th September, 1957, i.e., at or about the time when the case under section 497, I.P.C., was being tried, you gave appointments to the following persons: (1) Anil Koyal (2) jogendra Nath Mondal (3) Ahi Kanta Choudhury (4) Govinda Banerjee (5) Narendra Nath Naskar, who are related respectively to Palan Koyal, Haradhan (alias Haridhan) Mondal, Tripti Choudhury, Thakur Raj Smriti Tirtha and Upendra Naskar, who were cited as witnesses in the case. (b)It is alleged that about the same time you gave appoint ments to Tarak Nath Day, Hardhan Day, Pradip Bhaduri, Ardharigsu Mondal etc. and condoned the punishment previously inflicted on Dhiren Mondal as they were helping you in conducting your defence in the case. (c) It is alleged that you were instrumental in securing the appointment of another probable prosecution witness Kamakshya Chatterjee through one M. L. Ghose against whom a demolition case was pending. " Thereupon the first respondent filed a complaint in the High Court charging the appellants with contempt of the High Court as well as the trial court. The High Court found the appellants guilty and convicted them for contempt of Court. Hence this appeal. Held (per Imam and Raghubar Dayal, JJ., Subba Rao, J. dissenting), that the appellants were not guilty of contempt of Court and the appeal must succeed. It could not be said that the Special Committee had consti tuted itself a court of parallel enquiry with regard to matters in issue either before the trial Magistrate or the High Court. There can be no comparison between the present case and a trial conducted by a newspaper. The Special Committee was directed by the Corporation to enquire into malpractices on the part of its employees, necessarily including unworthy appointments, and the ascertainment of the motive could only be incidental to the main purpose of the enquiry and could not lead to the conclusion that the Special Committee was holding a parallel enquiry on matters pending before the Court and thereby intended to interfere with the course of justice. The record clearly showed that the appellants had at no time intended to interfere with the course of justice, nor had their conduct tended to do so. They had taken care not to comment on any proceedings pending in I court or the issues arising out of them. Per Subba Rao, J. The appellants obviously initiated an enquiry which went beyond the scope of the resolution passed by the Corporation. With the knowledge that criminal proceedings were pending, they examined witnesses and served the 462 questionnaire. They permitted councillors and others to attend the enquiry which was in no sense confidential. It is settled law that a person is guilty of contempt of court if the act done by him is intended or calculated or likely to interfere with the course of justice. Re Read & Huggonson, ; , The Queen V. Payne, , The Queen vs Gray, , R. V. Odham 's Press Ltd., , R. vs Duffy Mohapatra, I.L.R. [1955] Cuttack 305 and Ganesh Shankay Vidyarthi 's case, A.I.R. 1929 All.81, referred to. It could not be said in the instant case that the enquiry, initiated by the committee to ascertain whether the first respondent had suborned witnesses cited or examined against him, could not have serious repercussions on the proceedings pending in the Magistrate 's court or in the High Court. Although a strong willed ' Magistrate might not be influenced by the enquiry, it might unconsciously affect a weaker mind and thug obstruct the even course of justice. Even though a judge of the High Court might withstand the effect of such an enquiry, that would not prevent the public and the parties, especially in a criminal case, from reasonably apprehending that the enquiry or the findings made by the committee might affect a fair hearing of the matter. The contempt, in the instant case, was not merely of a technical nature but of a serious character calculated to interfere with and obstruct the due course of justice and as such was preeminently one against which the court must take action.

ivil Appeal No. 2912 of 1986. From the Judgment and Order dated 1.4.85 of the Bombay High Court in Appeal No. 262 of 1985. J.P. Cama and Mukul Mudgal for the Appellant. V.N. Ganpule for the Respondents; The Judgment of the Court was delivered by, VENKATARAMIAH, J. The appellant is M/s. Isha Steel Treatment, Bombay A firm carrying on the business of metal processing, i.e., heat treatment of metals. In the year 1963 it established a factory (hereinafter referred to as the 'I Unit ') for the purpose of carrying on the business of metal processing with about 32 workmen. Nearly 12 years after the establishment of the I Unit it established a second factory (hereinafter referred to as the "II Unit ') for carrying on the same kind of business employing about 75 workmen about 200 yards 418 away from the I Unit. Both the units had independent loca tion, separate factory licences and separate municipal licences. The said two units also had separate stores and maintained separate accounts and balance sheets. The workmen of both the units were also employed independently and there was a separate muster roll in respect of each of the two units. There was no rule or condition regarding the inter transferability of the workmen. On finding that the workmen of the I Unit were wilfully slacking their work and that there was growing indiscipline among them, the appellant decided in the year 1981 82 to reduce the three shifts working previously to two shifts. The indiscipline and the lack of production continued and on it becoming impossible for the appellant to carry on with even the aforesaid two shifts as reduced, the appellant came to the unhappy conclu sion that it had no alternative but to close down the I Unit altogether. The aforesaid closure of the I Unit (set up in 1963) took effect on 15.12.1982 and closure compensation was offered to the entire staff of the 32 workmen. The workmen of the I Unit raised through their Union, namely, Associa tion of Engineering Workers, Bombay, an industrial dispute before the Deputy Commissioner of Labour (Conciliation), Bombay District Office, Bombay, who in exercise of the powers delegated to him, under clause (d) of sub section (1) of section 10 read with section 12(5) of the (hereinafter referred to as 'the Act ') referred to Shri B.L. Borude, Industrial Tribunal, Maharash tra, Bombay the dispute between the appellant and the work men employed in the I Unit over the demand for reinstatement with full back wages and continuity of service with effect from 15.2. 1982. The said reference was registered as Refer ence (IT) No. 218 of 1982 before the Tribunal. In the statement of claim filed by the workmen it was urged that the two units which were being run by the appel lant had functional integrality and were for all purposes parts of the establishment and that the workmen were mutual ly transferable from one unit to the other. It was further stated that the workmen were originally members of Mazdoor Congress which, according to them, could not improve their service conditions. Therefore, they decided to join another union, namely, the Association of Engineering Workers and were canvassing amongst themselves for organising under the banner of the Association of Engineering Workers. They further pleaded that on the management coming to know about it, it tried to persuade the workers not to join the said Association. On the workmen not agreeing to the suggestion made by the management, the management in an attempt to retaliate against the move of the workmen, removed 22 work men on 419 15.2. 1982 alleging that the I Unit was making a loss, that the workmen had resorted to giving less production, that there was indiscipline in the 1 Unit and, therefore, the management was closing down the said unit. The workmen pleaded that the action of the management was arbitrary and was a colourable exercise of the management 's power of closure. It was alleged that the impugned action was by way of victimisation for the trade union activities of the said workmen. They claimed that the principle of 'last come, first go ' while terminating the services of the workmen having not been followed as required by section 25 G of the Act, the termination was illegal. The appellant resisted the claim made by the workmen. It pleaded inter alia that the closure of the I Unit was due to the non co operation and indiscipline on the part of the workmen, that the two units were independent of each other and there was no functional integrality between them. The management denied that there was any rule or service condition permitting transfer of workmen from one factory to another. The management stated that it was always willing to pay the compensation payable on closure to the workmen concerned and that section 25 G of the Act was inapplicable to the case. After recording the evidence tendered by the parties and hearing the arguments urged on their behalf, the Tribunal held that the two units were independent of each other, there was no common seniori ty list of the workmen of the two units and there was no rule or practice of transferring workmen from one factory to the other. The Tribunal rejected the case of the workmen that the closure was in retaliation to the trade union activities of workmen. It also found that there was no victimisation of the workmen and the workmen concerned were not entitled to be reinstated as the closure of the I Unit had become legally effective from 15.2. Accordingly, it rejected the demand made by the workmen by its Award dated September 6, 1983. Aggrieved by the Award passed by the Tribunal, the workmen filed a petition under Article 226 of the Constitution of India before the High Court of Bombay challenging the legality of the Award. The learned Single Judge, before whom the writ petition came up for considera tion, reversed the Award of the Tribunal and remanded the proceedings back to the Tribunal for afresh disposal. By the time the decision was rendered, there were only 14 workmen, who were interested in the dispute. The learned Single Judge, therefore, directed the Tribunal to consider whether the termination of services of any of the 14 workmen, whose claim for reinstatement still subsisted, was done in viola tion of the principles laid down under section 25 G of the Act. The learned Single Judge also directed the Tribunal to determine whether the workmen were entitled to reinstatement and if the Tribunal found that they were entitled to such reinstatement the 420 question as to the grant of back wages should also be con sidered by it. It should be stated here that the learned Single Judge made it clear that the finding of the Tribunal that the Association of workmen had 'failed to establish that the services of the workmen were terminated because of their joining the petitioner union ' was not disturbed. The learned Single Judge, however, found that there was func tional integrality between the two units and in that connec tion observed thus: "In my judgment the fact that the two units are situate within a distance of 200 meters, the fact that both the units are controlled by the same employer and the fact that the busi ness of heat treatment process carried on in the two units was identical, it leaves no manner of doubt that the two units were really integral and were known separately only be cause the business in the two units commenced on different dates. In my judgment, the find ing recorded by the Tribunal that the two units were separate and independent is clearly erroneous and cannot be sustained. " With these observations, the learned Single Judge set aside the finding recorded by the Tribunal to the effect that the two units were independent and separate and held that they were one and the same. In view of his finding the learned Single Judge held that section 25 G of the Act was applicable. He accordingly set aside the Award and remanded the case to the Tribunal with the directions already set out above. Aggrieved by the judgment of the learned Single Judge, the appellant preferred an appeal before the Division Bench of the High Court. That appeal was dismissed with the obser vation that the finding of the learned Single Judge that the two units had functional integrality was correct and the remitting of the matter to the Tribunal was in order. This appeal by special leave is filed against the decision of the Division Bench of the High Court. It is not disputed before us that after 15.2. 1982 when the work in the I Unit was completely stopped no work is being carried on in the premises where the I Unit had been established. It is also not disputed that the II Unit has been working as usual and the stoppage of the work in the I Unit had no effect on the work of the II Unit. The finding recorded by the Tribunal that the management had not closed down the I Unit by way of retaliation to the alleged trade union activities of the workmen of the I Unit has not been shown to be untenable. It is 421 also seen that the findings of the Tribunal that the two units had been established in two different places although at a distance of about 200 yards from each other; that the muster rolls of the two units were separate; that the two units had separate factory licences and municipal licences; that the balance sheets of the two units were separate; and that there was no rule or condition of service that the workmen were transferable from one unit to the other are not set aside by the learned Single Judge. It is true that in the course of the evidence of one of the witnesses for the management it had been brought out, that the name of workman Kishore Ram of the 1 Unit had been by mistake entered in the Muster Roll of the II Unit in October, 1980 and it had been scored out. This was a stray case. There was no evidence in the case showing that Kishore Ram had actually worked in the II Unit. Neither Kishore Ram nor anybody else had been examined to give evidence in support of the said fact. On a consideration of the entire evidence including the fact that there was no common seniority list of workmen of the two units and the fact that the name of Kishore Ram had been entered in the Muster Roll of the II Unit in October, 1980 and that it had been scored out, the Tribunal came to the conclusion that the workmen of the two units were not trans ferable from one unit to the other. The first question which arises for consideration in this case is whether the two units should be treated as having functional integrality. In the Workmen of the Straw Board Manufacturing Company Limited vs M/s. Straw Board Manufacturing Company Limited, this Court had occasion to consider a similar question. At page 507 this Court considered the above question as follows: "20. After giving due consideration to all the aspects pointed out by the learned counsel for the appellants, we are unable to hold that the R. Mill is not an independently functioning unit and that there is any func tional integrality as such between the R. Mill and the section Mill. The fact of the unity of ownership, supervision and control and some other common features, which we have noticed above, do not justify a contrary conclusion on this aspect in the present case. There is considerable force in the submission of Mr. Chitaley that the R. Mill is a different line of business and the closure of the section Mill has nothing to do with the functioning of the R. Mill. The matter may be absolutely different when in an otherwise going concern or a func tioning unit some workmen 's services are 422 terminated as being redundant or surplus to requirements. That most of the conditions of service of the two mills were substantially identical can be easily explained by the fact that, being owned by the same employer and the two units being situated in close proximity, it will not be in the interest of the manage ment and peace and wellbeing of the company to treat the employees different creating heart burning and discrimination. For the same reason, there is no particular significance in this case even in the application of the standing orders of the company to the employ ees of the R. Mill which, because of the non requisite number of employees employed in the latter, is not even required under the law to have separate standing orders. It is, in our opinion, a clear case of closure of an inde pendent unit of a company and not a closure of a part of an establishment. " In the above decision this Court has held that the unity of ownership, supervision and control that existed in re spect of the two mills involved in that case and the fact that the conditions of the service of the workmen of the two mills were substantially indentical were not by themselves sufficient in the eye of law to hold that there was func tional integrality between the two mills. It held that it was a clear case of closure of an independent unit and not of a part of an establishment. The decision of the learned Single Judge of the High Court that the fact that the two units were situate in a distance of 200 meters, the fact that both the units were controlled by the same employer and that the business of heat treatment processing carried on in the two units was identical had left no room for doubt that the two units were really integral cannot be sustained. The decision in S.G. Chemicals and Dyes Trading Employees ' Union vs S.G. Chemicals and Dyes Trading Limited and Another, ; is not of much assistance to the work men. The management in that case was running its business in pharmaceuticals at three places. The Pharmaceutical Division was at Worli, the Laboratory and Dyes Division was at Trom bay and the Marketing and Sales Division was at Churchgate. In 1984 the company which was managing the said three divi sions of business was sold out. As the buyers proposed to handle the future sales of the Company through their own distribution channels, they found that the services of the staff working at the Churchgate office were no longer re quired. Therefore, the management closed down the office at Churchgate. The question was whether there was functional integrality between the office at the Churchgate and the factory at Trombay. This Court on a 423 consideration of the material before it in that case, held that the functions of the Churchgate division and the Trom bay factory were neither separate nor independent but were so integrally connected as to constitute the Churchgate and the Trombay factory into one establishment, because the Churchgate division used to purchase the raw material re quired by the Trombay factory for producing or processing the goods. it used to market and sell the goods so manufac tured or processed by that factory and it also used to disburse the salary and other employment benefits and main tain accounts etc. of the workmen. These were considered to be integral parts of the manufacturing activities of the factory at Trombay, because the factory could never have functioned independently without the Churchgate division being there. It is not the case of the workmen in the present case that the II Unit could not continue to function after the closure of the I Unit. As already mentioned, the II Unit is continuing to function as usual even now notwith standing the stoppage of the activities at the I Unit. The question of application of section 25 G of the Act arises only when the services of the workmen are retrenched. In Santosh Gupta vs State Bank of Patiala, ; it is laid down that if the termination of service of a workman in a given case falls either under section 25 FF or under section 25 FFF of the Act it would not be a termina tion falling under section 25 F of the Act. This Court has observed in that case that after the enactment of section 25 FF and section 25 FFF retrenchment included every kind of termination of service except those not expressly included in section 25 F or not expressly provided for by other provisions of the Act such as sections 25 FF and 25 FFF. Hence if the case is one of genuine closure then the ques tion of applying section 25 G of the Act which is applicable to a case of retrenchment would not arise. It is not necessary that in order to effect closure of business the management should close down all the branches of its business. In Management of Hindustan Steel Ltd. vs The Workmen & Others, ; this Court has held that the word 'undertaking ' used in section 25 FFF seems to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertak ing. It is not intended to cover the entire industry or business of he employer. Even the closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by the said provision. In deciding the above case this Court relied upon its earlier decision in Workmen of the Indian Leaf 'Tobacco Development Company Limited, Guntur vs Management of the Indian Leaf Tobacco Development Co. Ltd., Guntur, ; In that case the Court 424 observed that a genuine closure of depots or branches, even though it did not amount to closure of the business could not be interfered with by an Industrial Tribunal. It further held that the closure was stoppage of part of the activity or business of the management and such stoppage is an act of management which is entirely in the discretion of the man agement. The Court further observed that no Industrial Tribunal could interfere with the discretion exercised in such a matter. It was, however, argued in this case on behalf of the workmen that since the Provident Fund accounts of the em ployees and the Employees ' State Insurance accounts of the two units had common numbers with the authorities concerned and settlements containing similar terms (copies which are not produced before us) had been entered into in 1974 be tween the management and the workmen of the two units, it should be held that the two units had functional integrality between them. We are of the view that even these factors are not sufficient to hold that the two units were one and the same notwithstanding the fact that the nature of the busi ness carried on in them was the same. In Indian Cable Co. Ltd. vs Its Workmen, this Court has held that the fact that the balance sheet was prepared incorpo rating the trading results of all the branches or that the employees of the various branches were treated alike for the purpose of provident fund, gratuity, bonus and for condi tions of service in general, could not lead to the conclu sion that all the branches should be treated as one unit for purposes of section 25 G of the Act. On a consideration of the entire material before it, the Tribunal had reached the conclusion that the closure of the I Unit was bona fide, that it did not have any functional integrality with the II Unit and that there was no victimi sation of workmen for their trade union activities. On going through the Award passed by the Tribunal we feel that it had not committed any error in recording the said findings which called for interference at the hands of the High Court under Article 226 of the Constitution of India. We are satisfied that this case is one of bona fide closure of an independent unit of business. The learned Single Judge and the Division Bench 'of the High Court were, therefore, in error in hold ing that the termination of service of the workmen in this case amounted to retrenchment and not closure and the case of the workmen had to be considered on remand by the Tribu nal in the light of section 25 G of the Act. They overlooked that it would result in a wholly unjust situation in which a corresponding number of workmen in the II Unit would be prejudicially affected even though they had nothing to do with the I Unit. 425 We, therefore, set aside the judgments of the Division Bench and of the learned Single Judge and restore the Award passed by the Tribunal. Before concluding we should record that the learned counsel for the management submitted that the management was willing to pay ex gratia a sum of Rs.10,000 to each of the workmen who had not received till now any compensation payable to them under section 25 FFF of the Act for closure of the I Unit. He submitted that as on date 11 workmen had not received the compensation payable to them on closure and that each of them would be paid the compensation payable to them on closure and Rs. 10,000. The names of those 11 work men are as under: S/Shri 1. Madanlal Surajbali Jaiswal 2. Sukhdev 3. Dulsinger Rasharak Jaiswal 4. Motilal Pawar Kurmi 5. Mohanram Katwaro Jaiswal 6. Udaychand Keshavasingh 7. Zagaro Palveer Singh 8. Murlidhar Govind Javane 9. Wandev Prasad 10. Radhashyam Rajpati Yadav 11. Karmraj Lakshman Yadav We, therefore, direct the management to pay each of the above workmen compensation payable to them on closure and a sum of Rs. 10,000. The management is given two months ' time to pay the amount due to each of the above eleven workmen. The appeal is accordingly allowed. There shall, however, be no order as to costs. S.R. Appeal al lowed.

The appellant carries on the business of metal process ing i.e. beat treatment of metals. In 1963 it established a factory with about 32 workmen called "No. I Unit". In the year 1975 another factory called "No. II unit" was estab lished for carrying on the same kind of business employing about 75 workmen about 200 yards away from the No. 1 Unit. Both the Units had independent location, separate factory licences and separate municipal licences. The two Units had separate stores and maintained separate accounts and balance sheets. The workmen of both the units were also employed independently and there was a separate muster roll in re spect of each of the two units. There was no rule or condi tion regarding the inter transferability of the workmen. However, there was by mistake the name of one workman by name Kishore Ram of Unit 1 entered in the muster roll of the II Unit in October 1980 and it had been scored out later. On finding that the workmen of No. 1 Unit were wilfully slacking their work and that there was growing indiscipline among them, the appellant decided in the year 1981 82 to reduce the three shifts working previously to two shifts. The indiscipline and the lack of production continued and on it becoming impossible for the appellant to carry on 415 with even the two shifts as reduced, the appellant came to the unhappy conclusion that it had no alternative left but to close down the No. 1 Unit altogether with effect from 15.2.82 and closure compensation was offered to the entire staff of 32 workmen. The workmen of the I Unit raised through their Union, namely, Association of Engineering Workers, Bombay an indus trial dispute reference (IT) No. 218 of 1982. In the state ment of claim filed by the workmen it was urged; (i) that the two units which were being run by the appellant had functional integrality and were for all purposes parts of one establishment and that the workmen were mutually trans ferable from one unit to the other; (ii) that the reasons given by the management for closing down Unit No. 1 is false, the action of the management was arbitrary and was colourable exercise of the management 's power of closure; (iii) the impugned action was by way of victimisation for the trade union activities of the said workmen in Unit No 1 and the principle of "last come, first go" while terminating the services of the workmen having not been followed as required by section 25 G of the Act, the termination was illegal. The Tribunal rejected the case of the workmen that the closure was in retaliation to the trade union activities of workmen and found that there was no victimisation of the workmen and the workmen concerned were not entitled to be reinstated as the closure of the 1 Unit had become legally effective from 15.12.1982 and passed its award to that effect on September 6, 1983. Aggrieved by the Award passed by the Tribunal, the workmen filed a petition under Article 226 of the Constitution of India before the High Court of Bombay challenging the legality of the Award. The learned Single Judge, before whom the writ petition came up for consideration, reversed the Award of the Tribunal and re manded the proceedings back to the Tribunal for afresh disposal. By the time, the decision was rendered, there were only 14 workmen, who were interested in the dispute, and therefore, the learned Single Judge directed the Tribunal to consider whether the termination of services of any of the 14 workmen, whose claim for reinstatement still subsisted, was done in violation of the principles laid down under section 25 G of the Act. Aggrieved by the judgment of the learned Single Judge, the appellant preferred an appeal before the Division Bench of the High Court. That appeal having been dismissed the appellant has come by way of special leave to the Supreme Court. Allowing the appeal, the Court, HELD: 1. The existence of the unity of ownership, supervi sion 416 and control in respect of the two units, the fact that the conditions of the service of the workmen of the two Units were substantially indentical, the fact that both the units are situate at a distance of 200 meters and that the busi ness of heat treatment processing in the two Units are the same are not by themselves sufficient in the eye of law for holding that there was functional integrality between the two Units. This is a clear case of closure of an independent unit and not of a part of an establishment. [422D E] Workmen of the Straw Board Manufacturing Co. Ltd. vs M/s Straw Board Manufacturing Company Ltd., followed. S.G. Chemicals and Dyes Trading Employees ' Union vs S.G. Chemicals and Dyes Trading Ltd. & Anr., ; distinguished. The question of application of section 25 G of the Act arises only when the services of the workmen are re trenched within the meaning of section 25F and not when sections 25FF, and 25FFF are applicable. If the case is one of genuine closure then the question of applying section 25 G of the Act which is applicable to a case of retrench ment would not arise. It is not the case of the workmen in the present case that the II Unit could not continue to function after the closure of the I Unit. In fact the II Unit is continuing to function as usual even now notwith standing the stoppage of the activities at the I Unit. [423C E] Santosh Gupta vs State Bank of Patiala, ; , relied on. It is not necessary that in the order to effect closure of business the management should close down all the branches of its business. A genuine closure of a Unit even though it did not amount to closure of the business could not be interfered with by an industrial Tribunal. The clo sure was stoppage of part of the activity or business of the management and such stoppage is an act of management which is entirely in the discretion of the management. No Indus trial Tribunal could interfere with the discretion exercised in such a matter. [423F H; 424A B] Management of Hindustan Steel Ltd. vs The Workmen & Ors., ; ; Workmen of the Indian Leaf Tobacco Development Co. Ltd. Guntur vs Management of the Indian Leaf Tobacco Development Co. Ltd., Guntur ; fol lowed. 417 4. The two factors; namely: (i) the provident fund accounts of the employees and the Employees ' State Insurance accounts of the two units had common numbers with the au thorities concerned and (ii) settlements containing similar terms had been entered into in 1974 between the management and the workmen of the two units are not sufficient for holding that the two units were one and the same notwith standing the fact that the nature of the business carried on in them was the same. [424B D] 5. On a consideration of the entire material it is clear that (i) the Tribunal had not committed any error in record ing the findings which called for interference at the hands of the High Court under Article 226 of the Constitution; (ii) this case is one of bona fide closure of an independent unit of business and not a case of termination of services of workmen requiring consideration on remand, by the Tribu nal in the light of s.25 G of the Act; (iii) it was a case where the judgment of the High Court if maintained would result in a wholly unjust situation in which a corresponding number of workmen in the II Unit would be prejudicially affected even though they had nothing to do with the 1st Unit. [424E H] Indian Cable Co. Ltd. vs Its Workmen, , followed.

: Criminal Appeal No 592/ 1976. (Appeal by Special Leave from the Judgment and Order dated 19.11.1975 of the Karnataka High Court in Crl. A. No. 551 of 1974. and Reference Case No. 56/74) R.B. Datar, for the appellant Narayan Nettar and R.C. Kaushik, for the respondent. The Judgement of the Court was delivered by GOSWAMI, J. The short question in this. appeal by spe cial leave is whether a person sentenced to imprisonment for life and later released by the Government by remission of the sentence under section 401, Criminal Procedure Code, 1898, continues to "being under sentence of imprisonment for life" fort the purpose of section. 303, Indian Penal Code. The appellant had earlier been convicted on July 26, 1961, by the High Court of Mysore under section 302 IPC and sentenced to. imprisonment for life in an appeal by the State against his acquittal. 395 The earlier murder was on December 3, 1959. The State Government in exercise of its power under section 401 Cr. P.C. conditionally remitted his sentence on Feburary 8, 1972. Thus he was conditionally released from jail on Febu rary 8, 1972. Tragically enough, on January 27, 1973, the appellant got himself involved in the present murder charge even before the expiry of the first year of his release. He was convicted under section 302 and section 303 IPC by the Sessions Judge, Kolar, on November 7, 1974 and sentenced to death under section 303 IPC. On an appeal to the High Court by the appellant which was heard along with the refer ence for confirmation, .the sentence of death under section 303 IPC was confirmed on November 19, 1976. Hence this appeal by special leave limited to the question of ap plicability of section 303 IPC and the sentence. The earlier sentence of imprisonment for life became final and inexorable so far as the judicial process was concerned. It is only when such a sentence is "operative and executable" that section 303 IPC is attracted. (See Dilip Kumar Sharrna & Ors. vs State of Madhya Pradesh (1). The remission of the sentence in this case is by the State of Karnataka in exercise of its statutory power under section 401 Cr. The power has been exercised, in the instant case, laying down certain conditions which the convict had accepted. The two conditions were that, during the unexpired period of his sentence conditionally remitted, (1 ) he will not commit any offence punishable by any law in Mysore and (2 ) he will not in any way associate with per sons known to. be of bad character or lead a dissolute or evil life. The portion of the remitted sentence, in this case, was a period of four years and four months after the appellant had undergone over years of his sentence including a little over five years ' remission earned by him in jail. In the normal course, in absence of the order of remission, the appellant would have been released from jail on June 1976. Shortly stated, was the appellant under sentence of impris onment for life on the date of occurrence of the second murder on January 27, 1973 ? If he was continuing to be under the sentence of imprisonment for life on that day the court cannot come to his rescue by exercising discretionary clemency in favour of the alternative sentence. Then the only sentence the court has power and is obliged to impose, and no other, is the sentence of death. That is the true effect of section 303 IPC. The fact that the accused is of the age of 73 years will be of no consequence once he is found guilty under section 303 IPC. The court will be helpless in such an event. The Sessions Judge as well as the High Court held that section 303 IPC was applicable as this was a case of condi tional remission under section 401 Cr. P.C. and the second murder was committed during the unexpired portion of the sentence of imprisonment for life. (1) ; 396 It is the correctness of the above view of the law that falls for consideration before us. That view receives support from the following decisions cited at the bar. The first decision is from the Rangoon High Court in Po Kun vs The King(1). It was held in that case that "if the sentence of transportation for life passed on a person is conditionally remitted by the Government under section 403 ? Criminal P.C., and the person is released, such person must still be deemed to be under, sentence of transportation for life in spite of the fact that he is not actually under sentence or in a penal settlement". 0 The next decision is from the Punjab High Court in Sohan Singh vs The State(2). It was held in that case that "it is not essential for the applica tion of the section (303 IPC) that a person should be actually undergoing the sentence of imprisonment for life when he commits murder". X X X X " . the effect of a conditional order of remission is not to altogether wipe out or efface the remitted portion of the sentence, but to. keep it in abeyance. As soon as there is breach of the conditions of the remission, the remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence. In the circumstances. the accused should be deemed to be under sentence of imprisonment for life when the present occurrence took place". Our attention was drawn to a decision Of the Sind Court in Ghularn Muhammad Wali Muhammad vs Emperor(3) which was a case of unconditional remission of the sentence under sec tion 401 Cr. It was held in that decision that since the Provincial Government had 'remitted the sentence without condition under section 401 Cr. P.C. the accused committing the second murder after the remission would no longer be said to be "under a sentence of transportation for life, that sentence having in effect been served". We are, however, clearly of opinion that for the purpose of section 303 IPC it does not make any difference whether the remission under section 401 Cr. P.C. with or without conditions. This: is clear from a perusal of sub section (3) of section 401 Cr. P.C. which, reads as follows : 401 (3) "If any condition on which a sentence has been suspended or remitted, is in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission and there upon the person (1) A.I.R. 1939 Rangoon 124. (2) (1) Punjab 201. (3) A.I.R. 1943 Sind 114. 397 in whose favour the sentence has been suspend ed or remitted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence". 0 It is manifest from the above provision that on breach of any condition of the remission there is not an automatic revival of the sentence. It will certainly be open to. the Government in a particular case to cancel the remission but it may not. The Government is not under a legal obligation to cancel the remission. It is only when the Government chooses to pass an order of cancellation of the remission of sentence that the convict is arrested and is required to serve the unexpired portion of the sentence. During the interregnum. the accused who is released cannot be said to be under a sentence of imprisonment for life. While he is in enjoyment of the freedom on account of remission, that period is not even reckoned under section 401 Cr. P.C. for the purpose of calculation of the sentence to. be served in the eventuallty. Take the present case. Suppose during the unexpired period of this sentence, which would had normally ended on January 9, 1976, the accused made breach of the first condi tion of the remission giving a slap to a person an offence punishable under section 358 IPC. Clearly there is a breach of one of the conditions laid down, namely, that "he will not commit any offence punishable by any law in Mysore". Can it be conceived that in such a case the Govern ment will immediately cancel the remission and remand him to serve the remaining period of his sentence of imprisonment for life ? That is why section 401 (3) Cr. P.C. advisedly leaves it to the option of the Government to take the penal action and there is no automatic return of the prisoner to the jail. Counsel for the State of Karnataka relies upon the above decisions and also upon the decision of this Court in Sarat Chandra Rabha and Others vs Khagendranath Nath and Others(1). In Sarat Chandra Rabha case (supra) the ques tion of remission under section 401 Cr. P.C. came up for consideration in the context of a disqualification clause under section 7(b) of the Representation of the People Act, 1951. In that case the appellant 's nomination paper was rejected by the Returning Officer for incurring disqualifi cation under section 7(b) of the Representation of the People Act. According to section 7(b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period. as the Election Commission may allow in any particular case, has elapsed. , since his release. It was admitted in that case that the appellant was convicted under section 4(b) of the Explosive Substances Act, (VI of 1908) and sentenced to three years ' rigorous impris onment on July 10, 1953 and the nomination paper was filed (1) ; 398 in January 1957 and the election was held in Feburary 1957 Thus the period of five years had not elapsed since iris release by the, State under section 401 Cr. P.C. on November 14, 1954. This Court held in that case that section 401 Cr. P.C., unlike the grant of a free pardon, cannot wipe out either the conviction or the sentence. and affirmed the order of rejection of the nomination paper on the ground of disqualification incurred under section 7(b) of the Representation the People Act. Mr. Nettar for the State emphasises upon the observa tion of this Court in Sarat Chandra Rabha case (supra) that there is no wiping out of the conviction and sentence under section 401 Cr. P.C. in the present case and, therefore, the present appellant 'section conviction and sentence subsisted on the date of the second murder. In Sarat Chandra Rabha case (supra), this Court had to consider the effect of remission vis a vis a disqualifica tion clause under an Act which even provides for removal of disqualification by the Election Commission and which was not actually done. There is a complete purging process provided in the Representation of the People Act itself by an efflux of a period of five years from release on expiry of the sentence. Conviction and sentence recorded by a judicial court cannot be wiped out by executive remission under section 401 Cr. P.C. in order to set at naught the penitentiary period provided for in the Act, in absence of removal of the disqualification by the Election Commission under the Act. Those were the considerations which weighed with this Court when it refused to do away with the effect of the judicial conviction and sentence merely on the basis of executive remission. Even if the sentence were run through without remission, the five years, ' period had to elapse for commencement of new electoral life. The facturn of conviction and the sentence is sufficient and it does not matter whether it has been served out wholly or a portion of it has been remitted. The person remains convicted and sentenced for the purpose of the Representation of the People Act notwithstanding the remission. The decision in Sarat Chandra Rabha 'case (supra) does not at all support the submission that even after remission of the sentence the convict therein was under a sentence of imprisonment. No such Corollary follows flora the above decision of this Court. The observations of this Court in Sarat Chandra Rabha case (supra) with regard to wiping out of conviction and sentence cannot be pressed too far in a criminal trial where the provisions of the penal section have to be very strictly construed and in case of ambiguity or possibility of two views the benefit of construction must be in favour of the accused. To revert, at the end, to the only question with which we started. Was the appellant under sentence of imprisonment for life during the unexpired period of his imprisonment conditionally remitted under 1 section 401 Cr. P.C.? We are clearly of opinion that an accused cannot be under a sen tence of imprisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence 399 which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401 Cr. P.C. Section 303 IPC is applicable only to an ac cused who, on the date of commission of the second offence of murder, had earlier committed a murder for which his conviction and sentence of imprisonment for life were beyond judicial controversy and were operative. Unlike in the case of section 75, Indian Penal Code, section 303 IPC does not contemplate a mere enhanced punish ment for a convict with a past criminal history for the same offence. Section 303 IPC creates a most aggravated form of offence when committed by a person under sentence of impris onment for life to be punished only with death, the maximum penalty under the law. A person must be actually and irrev ocably a lifer beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited with the penalty of death under section 303 IPC. If the sentence of a convict had already been remitted at the time of commission of the second murder he would cease to be an actual lifer to come within the lethal clamp of section 303 IPC. For the purpose of section 303 IPC there can be no warrant for introducing a legal fiction of being deemed to be under a sentence of imprisonment for life. The deci sion of the Punjab High Court in Sohan Singh case (supra); with respect, is not correct. We are also, with respect, unable to agree with the view of the Rangoon High Court in Po Kun case (supra). We find from the judgement of the trial court as well as that of the High Court that if the appellant were not con victed under section 303 IPC, a sentence of death would not have been ' imposed on him. For the reasons set out earlier we are clearly of opinion that the appellant is not liable for conviction under section 303 IPC and his sentence of death is, therefore, set aside. The judgment and order of the High Court are set aside to that extent. The appel lant, however, stands convicted under section 302 IPC and is sentenced to imprisonment for life. The appeal is partly allowed with the above modification of the sentence. S.R. Appeal allowed in part.

The respondent No. 1 is an Under Secretary in the Central Government He was in occupation of residential premises allotted to him by the Central Government and was required by the Government order to vacate such residential accommo dation on the ground that he owned in Delhi a residential accommodation in his own name at Shakti Nagar. The Shakti Nagar House is a two storeyed house. The first floor was let out to the appellant tenant and the ground floor to another tenant. Relying on section 14A of the Delhi Rent Control Act, 1958, the respondent evicted the tenant on the ground floor. Thereafter, the respondent sought eviction of the appellant on the same ground. The Controller direct ed eviction refusing leave to the tenant to contest the application for eviction. The Revision Application filed by the appellant before the High Court failed. In appeal by special leave the appellant contended: (1) In view of the eviction of the tenant on the ground floor the right of the respondent to evict the tenant under section 14A was exhausted. (2) The respondent No. 1 claims to be a legatee of the deceased landlord under a Will. He has not got the will probated. (3) Respondent No. 1 is only one of the co owners and, therefore, cannot file the application for eviction. (4) The respondent No. 1 has not let out the premises to the appellant and the premises does not stand in the name of the respondent No. 1. At the hearing, the parties settled their dispute by agree ing that the appellant would vacate the first floor premises consisting of 4 rooms and shift to the ground floor and respondent No. 1 would be handed over the possession of the first floor. The parties also agreed to certain adjustment in the rent. Disposing of the appeal in terms of the compromise the Court observed: (1) The landlord cannot use the same weapon. of section 14A in getting two dwelling houses vacated. It is contrary to the intendment of section 14A. The object of section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him. This is made clear by the proviso to .s. 14A(1) which makes plain that the section shall.not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course, it gives choice to the landlord to indicate the particular house among a plurality owned by him, the pos session of which he intends to recover. [417 A D] (2) A co owner is as much an owner of the entire proper ty as any sole owner of the property. He owns every part of the composite property along with others and it cannot be said that he is only a part owner. The absence of other co owners on record cannot disentitle the first respondent from suing for eviction. From the definition of landlord in section 2(c) and tenant in section 2(1) when read in the context of the Rent Control Law is the simple sense of the situation is that there should be a building which is let. There must be a landlord who 413 collects rent and a tenant who pays it to the one whom he recognises as landlord. The complications of estoppel or the concepts of the Transfer of Property Act need not neces sarily or inflexibly be imported in the proceedings under the Rent Control Law, tried by special Tribunals under a special statute. The Court left open the question if some co owner seek eviction of a tenant and others oppose it whether such application would be maintainable. [416 C E]

[4] S.C. 164), and the same orders/directions as given in that case, be passed in this case. Accordingly, respondents directed to pay wage. to the workmen employed as contingent paid staff of the Income tax Department throughout India, doing the work of class IV employees at the rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres, without any increments with effect from December 1, 1986. Such workmen are also entitled to corresponding dearness allowance and additional dearness allowance payable thereon. Whatever other benefits are now being enjoyed by the said workmen shall continue to be extended to them. The respondents shall prepare a scheme on a rational basis for absorbing as far as possible the contingent paid staff of the Income tax Department, who have been continuously working for more than one year as Class lV employees in the Income tax Department. [l7lH; 172H; 173A C] 171 & ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1670 of 1986. (Under Article 32 of the Constitution of India). R.C. Kaushik for the Petitioner. V.C. Mahajan, Ms. A. Subhashini and Girish Chandra for the Respondents. The following order of the Court was delivered O R D E R This is a petition under Article 32 of the Constitution of India. The petitioner in this case is the U.P. Income tax Department Contingent Paid Staff Welfare Association. The members of the said association, as the name of the Association itself suggests, are the contingent paid staff in the Income tax Department. Their complaint is that even though they have been rendering the service as Class IV employees in the Income tax Department for a large number of years, the Income tax Department has not taken steps to regularise their services and to absorb them as members of the Class IV services and that they are being paid wages as daily rated labourers lower than the salary and allowances which the Class IV employees of the Department have been drawing. They pray for the issue of a writ in the nature of mandamus to the respondents to pay them the same salary and allowances which are paid to the employees of the Department in corresponding posts and also for regularising their service. A counter affidavit has been filed on behalf of the respondents. The respondents do not deny that the contingent paid staff are being paid daily wages lower than what is being paid to regular employees. It also refers to certain Government order providing for regularisation under certain terms and conditions. When this petition came up for admission the Court directed that this case should be listed after the disposal of the Writ Petitions No. 373 and 302 of 1986 instituted by the daily rated casual labour employed in the Posts and Telegraph Department, since the questions involved in this case and in those two writ petitions were almost the same. By its judgment dated 27.10.1987 in Daily Rated Casual Labour employed under P & T Department 172 though Bhartiya Dak Tar Mazdoor Manch vs Union of lndia & Ors., (JT. , this Court has issued the following directions as regards the claim of the daily rated workmen involved therein for higher wages: "We accordingly direct the Union of India and the other respondents to pay wages to the workmen who are employed as casual labourers belonging to the several categories of employees referred to above in the Posts & Telegraph Department at the rates equivalent to the minimum pay in the pay scales of the regularly employed workers in the corresponding cadres but without any increments with effect from 5th February, 1986 on which date the first of the above two petitions, namely, Writ Petition No. 302 of 1986 was filed. The petitioners are entitled to corresponding Dearness Allowance and Additional Dearness Allowance? if any, payable thereon. Whatever other benefits which are now being enjoyed by the casual labourers shall continue to be extended to them. " On the claim for regularisation of the services of the workmen involved in the above mentioned case, this Court issued the following direction: "We, therefore, direct all the respondents to prepare a scheme on a rational basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraph Department. " The facts and circumstances of the present case are similar to the facts and circumstances of the case relating to the daily rated labour in the Posts and Telegraph Department. We have carefully considered the pleas in the counter affidavit. The Government orders providing for the absorption of the contingent paid staff are hedged in by a number of conditions. We also find that many such employees have been working on daily wages for nearly eight years and more. We are not satisfied with the scheme which is now in force. We are, therefore, of the view that in this case also we should issue the same directions as in the above decision for the reasons given by the Court in the above decision. We accordingly allow this Writ Petition and direct the respondents to pay wages to the workmen who are employed as the contingent paid staff of the Income tax Department 173 throughout India, doing the work of Class IV employees at the A rates equivalent to the minimum pay in the pay scale of the regularly employed workers in the corresponding cadres, without any increments with effect from 1st December, 1986. Such workmen are also entitled to corresponding Dearness Allowance and Additional Dearness Allowance payable thereon. Whatever other benefits which are now being enjoyed by the said workman shall continue to be extended to them. We further direct the respondents to prepare a scheme on a rational basis for absorbing as far as possible the contingent paid staff of the Income tax Department who have been continuously working for more than one year as Class IV employees in the Income tax Department. This petition is accordingly disposed of with no order as to costs. S.L. Petition allowed.

% The Assam Taxation (on Goods Carried by Road or Inland Water ways) Act,1954 was struck down as ultra vires the Constitution in Atiabari Tea Co. Lld. vs State of Assam, ; A new Act was thereafter passed which received the President 's assent on April 6, 1961. The High Court declared the said Act to be ultra vires on August 1, 1963. The State and other respondents preferred appeals before Supreme Court against the decision. In the meantime, in Khyerbari Tea Co. Ltd. & Anr. vs State of Assam, ; the Court held the Act to be intra vires on December 13, 1963. Following the decision in Khyerbari case the appeals filed by the State and others were allowed by this Court on April 1, 1968. After this decision the respondents required the appellants by notices under section 7(2) of the Act issued on July 8, 1968 to submit return for the period ending June 30, 1961, September 30, 1961, December 31, 1961 and March 31, 1962. Due to the penal consequences mentioned in the said notices the appellants filed returns on July 11, 1968. The assessment orders were passed under section 9(3) of the Act. The tax was duly paid. In November 1973 the appellants filed writ petitions before the High Court seeking direction for refund of the tax paid under mistake relying on the High Court 's Judgment in Loong Soong Tea Estate (Civil Rule No. 1005 of 1969) dated July lO, 1973 declaring the assessment as without jurisdiction. 475 The High Court set aside the orders and notices of demand but refused claim of refund on the ground of delay and laches. It took the view that it was possible for the appellants to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires. The taxes having been paid in 1968 the claim in November 1973 was belated. It, however, held that the claim for refund was a consequential relief. In the appeals to this Court it was contended for the appellants that they had paid the tax under a mistake of law and were entitled to seek refund thereof, and a writ petition seeking refund of tax realised without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party. Allowing the appeals, ^ HELD: By the Court: (Per Sabyasachi Mukharji & Ranganathan, JJ.) The money was refundable to the appellants. The writ petitions were within time. [4X4H] Per Mukharji, J. 1. No State has the right to receive or to retain taxes or monies realised from citizens without the authority of law. There is in such cases concomitant duty to refund the realisation as a corollary of the constitutional inhibition that should be respected unless it causes injustice or loss in any specific case or violates any specific provision of law. [480H; 485E F] In the instant case, tax was collected without the authority of law. The notices were without jurisdiction. So was the assessment made under section 9(3) of the Act. The respondents, therefore, had no authority to retain the money so collected, and as such the money was liable to refund. [480D] 2.1 In an application under Article 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause an injury either to respondent or any third party. [484C D] 476 2.2 Courts have, however, made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. A petition of the former nature is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit wherein it is open to the State to raise all possible defences to the claim, defences which cannot in most cases be appropriately raised and considered in the exercise of writ jurisdiction. [480F H; 48;B] In the instant case, s.23 of the Assam Act provided for refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under that Act. The section thus applies only in a case where money is paid under the Act. If there is no provision for realisation of the money under the Act, the act of payment was ultra vires, the money had not been paid under the Act. In that view of the matter the case did not come within section 23 of the Act. The High Court having found that the claim for refund was a consequential relief, it could have directed the State to refund the amount in question. [483 G H;484A B] 2.3 Exercise of every discretion must be fair and equitable. The period of limitation prescribed for recovery of money paid by mistake under the was three years from the date when the mistake was known. In the instant case, knowledge is attributable from the date of judgment in Loong Soong 's case on 10th July, 1973. There being a statement that the appellants came to know of that fact in October 1973 and there being no denial by the averment made on this ground, the High Court was in error in presuming that there was a triable issue on this ground and refusing to grant refund. Within a month in November 1973 the present petitions were filed. There was no unexplained delay. The appellants had proceeded diligently. There is nothing to indicate that had they been more diligent, the appellants could have discovered the constitutional inhibition earlier. The position is not clear even if there is a triable issue. The position becomes clearer only after the decision in Loong Soong 's case. It could not, therefore, be said that the appellants had abandoned their claims. [487B D] Suganmal vs State of Madhya Pradesh and others. , AIR 1965 SC 1740; Tilokchand Motichand & Ors. vs H.B. Munshi & Anr., ; Kantilal Babulal vs H.C. Patel 21 S.T.C. 174; Chandra Bhushan & Anr. vs Deputy Director of Consolidation (Regional), U.P. & Ors., ; ; R.L. Kapur vs State of Madras, ; ; State of Madhya Pradesh vs Bhailal Bhai & Ors. J [1964] 6 477 SCR. 261; Ramchandra Shankar Deodhar & ors. vs The State of Maharashtra & Ors., ; ; A.V. Venkateswaran, Collector of Customs, Bombay vs Ramchand Sobhraj Wadhwani and another; , ; Shiv Shankar Dal Mills etc. vs State of Haryana & Ors. etc. ; , and State of Madhya Pradesh and others etc. vs Nandlal Jaiswal and others etc. ; , referred to. It is only on the delivery of the judgment in Loong Soong 's case in 1973, the appellants realised the right to claim the relief of refund as a consequential relief, setting aside the assessment and the assessment was set aside by the very order itself. That right has been granted by the High Court. The High Court has not refused the setting aside on the ground of delay. It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment. If the realisation was without the authority of law and that was declined by the High Court by the judgment in the instant case, which claimed also the consequential relief, that relief must automatically follow. Refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. [489F H] 4. The challenge to the assessment on the ground that the assessment was bad could not be made in an appeal under the Act because the right to appeal being a creature of the Act, if the Act is ultra vires that right would not ensure to the benefit of the appellant. Section 16 of the Act under which an appeal lay within thirty days from the date of service of an assessment order therefore had no application. Similarly, rule 55 of the Rules framed under the Act barring claims of refund unless made within one year from the date of the original order of assessment being unconstitutional had no application. [485H; 486A B; 487H] 1. The assessments on the appellants were illegal. The taxes demanded on the basis thereof had been collected without the authority of law. The High Court, therefore, while allowing the appellant 's prayer for quashing the assessment should also have allowed the refund of the illegally collected taxes. [490D] Superintendent of Taxes vs Onkarmal Nathmal Trust, [1975] Supp. SCR 365, applied. 478 The petitions filed in November, 1973 were within the period of limitation prescribed in Article 113 of the read with section 23 of the Assam Act. The appellants ' averment that they realised their mistake only when they came to know about the decision of Loong Soong Tea Estate case in July, 1973 stands uncontroverted. There is nothing on record to show that the appellants had realised their mistake earlier[491D f] State of M. P. vs Bhailal Bhai [1964]6 SCR 261 referred to. It was considered unnecessary therefore to consider the larger question whether the bar of limitation would be fatal to a writ petition for refund.

No. 61 of 1950. Appeal from an order of the High Court of Patna dated 9th September, 1948, (Agarwala C.J. and Meredith J.) in M.J.C. No. 5 of 1948. The appeal was originally filed as Federal Court Appeal No. 71 of 1948 on a certificate granted by the Patna High Court under cl. 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court. H.P. Sinha (S.C. Sinha, with him) for the appellant. S.K. Mitra (section L. Chibber, with him) for the respondent. November 30. The judgment of the Court was deliv ered by FAzL ALl J. 800 FAZL ALI J. This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September, 1948, declining to call upon the board of Revenue to state a case under section 21 (3) of the Bihar Sales Tax Act, 1944 (Act VI of 1944), with reference to an assessment made under that Act. The Bihar Sales Tax Act was passed in 1944, and section 4 of the Act provides that "every dealer whose gross turn over during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified. " It is not disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing contract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway, comes within the category of a dealer mentioned in section 4. Section 7 of the Act provides that "no dealer shall, while being liable under section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate". In pursuance of this provision, the appellant filed an applica tion for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December, 1944. On the 8th October, 1945, the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under section 10 (5) of the Act. Section 10 (5), under which the notice purported to have been issued, runs thus: "If upon information which has come into his posses sion, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registra tion, the Commissioner shall, alter giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such 801 period and all subsequent periods and the Commissioner may direct that the dealer shall pay, 'by way of, penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount. " The appellant appeared before the Sales Tax Officer in response to this notice, but obtained several adjournments till 16th March, 1046, and ultimately failed to appear. Thereupon, he was assessed by the Sales Tax Officer, accord ing to the best of his judgment, and was ordered to pay Rs. 4,526 13 0 as tax and a penalty amounting to one and a half times the amount assessed, under section 10 (5) of the Act. The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946. He then filed a peti tion for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947. He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of is order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations : "No case for review of my predecessor 's order made out. No reference necessary. " Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court. The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judg ment under the seal of the Court . . and the Board shall dispose of the case accordingly. " In accordance with this section, the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer 802 it to the High Court. Dealing with this application, the High Court pointed out that the Member of the Board had not been asked to review his predecessor 's order but only to state a case, and gave the following directions : "The ease must, therefore, go back to the Board of Revenue for a case to be stated or for a proper ,order rejecting the application to be passed." The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court. The appellant thereafter made an application to the High Court for requiring the Board of Revenue to state a case, but this application was summarily rejected. He then applied to the High Court for leave to appeal to the Federal Court, which the High Court granted, following the decision of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khd vs Income tax Commissioner, punjab and N.W.F.P., Lahore The High Court pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case, an objection had been raised as to the competency of the appeal, but the Privy Council, while dismissing the appeal on the merits, had made the following observation: " The objection is a serious one. Admittedly such an appeal as the present is not authorized by the Income tax Act itself. If open at all, it must be justified under clause "9, Letters Patent of the Lahore High Court, as being an appeal from a final judgment, decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court. And this present appeal was held by the Full Court to be so justified. Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it" (2). The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong. (1) A.I.R. 1981 Lah. (2) A.I.R. 1933 P. C. 198. 803 At the commencement of the hearing of the appeal in this Court, a preliminary objection was raised by the learned counsel for the respondent that this appeals was not compe tent, and, on hearing both the parties, we are of the opin ion that the objection is wellfounded. In Sri Mahanth Harihar Gir vs Commissioner of Income tax, Bihar and Orissa (1) it was held by a special Bench of the Patna High Court that no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an application under section 66 (3) of the Income tax Act, (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income tax to state a case. In that case, the whole law on the subject has been clearly and exhaustively dealt with, and it has been pointed out that the view taken by the Full Bench of the Lahore High Court in the case cited by the appellant was not supported by sever al other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its correctness. In our opinion, the view expressed in the Patna case is correct. Clause 31 of the Letters Patent of the Patna High Court, on the strength of which the appellant resists the prelimi nary objection raised by the respondent, runs thus : "And We do further ordain that any person or persons may appeal to Us, Our heirs and successors, in Our or Their Privy Council, in any matter not being of criminal juris diction, from any final judgment, decree, or order of the said High Court of Judicature at Patna, made on appeal and from any final judgment, decree on order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court, from which an appeal does not lie to the said High Court under the provisions contained in the 10th clause of these (1) A.I.R. 1941 Prat. 804 presents: provided, in either case, that the sum or matter at issue is of the amount or value of not less than ten thousand rupees, or that such judgment,decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees; or from any other final judgment, aecree or order made either on appeal or otherwise as aforesaid, when the said High Court declares that the case is a fit one for appeal to Us . " In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order; and secondly, that it was passed in the exer cise of the original or appellate jurisdiction of the High Court. The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties. All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board 's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue. This question has been fully dealt with in Tata Iron and Steel Company vs Chief Revenue Authority, Bombay(1), where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society(2): "In the case of Ex parte County Council of Kent, where a statute provided that a case might be stated (1) at 617. 805 for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was noth ing which amounted to a judgment or order. " It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction. It is not contended that the matter arose in the exercise of the appellate jurisdiction of the High Court, because there was no appeal before it. Nor can the matter, properly speaking, be said to have arisen in the exercise of the original jurisdiction of the High Court, as was held by the Judges of the Lahore High Court in the case to which reference was made, because the proceeding did not commence in the High Court as all origi nal suits and proceedings should commence. But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act. The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate. In this view, the appeal must be dismissed, though on hearing the parties, it appeared to us that the salestax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appel lant under section 10 15) of the Act which had no applica tion to his case, inasmuch as he had been registered as required by section 7 of the Act. In the circumstances, while dismissing the appeal, we make no order as to costs. Appeal dismissed. Agent for the respondent: K. Chatterjee.

No appeal lay to the Federal Court from an order of the Patna High Court dismissing an application under section 21(3)of the Bihar Sales Tax Act, 1944, to direct the Board of Reve nue, Bihar, to state a case and refer it to the High Court. Such an order is not a` "final order" within the meaning of cl. 31 of the Letters Patent of the Patna High Court, inas much as an order of the High Court under section '21 (3) is advisory and standing by itself does not bind or affect the rights of the parties though the ultimate order passed by the Board of Revenue may be based on the opinion expressed by the High Court. Nor is such an order passed by the High Court in the exercise either of its appellate or original jurisdiction within the meaning of the said clause. Sri Mahant Harihar Gir vs Commissioner of Income tax, Bihar and Orissa (A.I.R. 1941 Pat. 225) and Tata Iron and Steel Company vs Chief Revenue Authority, Bombay (50 I.A. 212 applied. Feroze Shah Kaka Khel vs Income tax Commissioner, Punjab (A.I.R. 1931 Lab. 138)disapproved.

Civil Appeal No. 453 of 1969. (From the Judgment and order dated 12 9 68 of the Orissa High Court in Misc. Appeal No. 208 of 1966). Sardar Bahadur Saharya and Vishnu Bahadur Saharya for the appellant. Nemo for the respondent. CHANDRACHUD, C.J. Respondent 1 obtained a money decree on August 18, 1962 against respondent 3 and his mother respondent 4. On June 28, 1963 respondent 1 filed an execution petition for recovering the decretal amount and prayed therein for attachment of the Immovable property belonging to respondent 3. The property was attached by an order passed by the Executing Court on July 13, 1963. On November 27, 1963 respondent 1 filed an application in the Executing 198 Court praying that permission be obtained of the Revenue Divisional officer for sale of the property since respondent 3 to whom the property belonged was a member of the Scheduled Tribe. The permission was considered necessary by reason of the provisions contained in Clause 6 of the ""Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation No. 2 of 1966". It provides: In execution of money decree against a member of a Scheduled Tribe no right title or interest held by him in any immovable property within any scheduled area shall be liable to be attached and sold except as and if prescribed. Rule 4 made under the aforesaid Regulation provides: There shall be no attachment or sale of immovable property in execution of a money decree against a member of a Scheduled Tribe within any scheduled area without the writ ten permission of the competent authority. The property at such a sale shall be sold only to a member of a Scheduled Tribe unless otherwise specifically directed in writing by the competent authority. The Revenue Divisional officer, Nowrangpur, was the competent authority for the present purpose. Respondent 3 who was in the meantime negotiating for the private sale of the property moved the R.D.O., Nowrangpur on June 18, 1963 for permission to sell the property to a non Scheduled Tribe person. He obtained the requisite permission by an order dated October 23, 1963 for the sale of the property for Rs. 4,000/ . On the strength of the aforesaid permission respondent 3 sold the property to the appellant on January 2, 1964 by a registered deed of sale. A copy of the order passed by the R.D.O. was produced by respondent 1 in the Executing Court whereupon on May IS, 1964 the property was put to sale. Respondent 2, who is the son of respondent 1 purchased the property in the auction sale. On June 22, 1964 the appellant filed an application under order 21 Rules 89 and 90 and Sections 47 and 151 of the Code of Civil Procedure praying that the auction sale should be set aside on the ground that the attachment and the auction sale were void since they were effected without obtaining the permission of the competent authority under Orissa Regulation No. 2 of 1956. The appellant also alleged that the decree holder had played a fraud on the Court by inducing it 23, 1963 which was passed by the competent authority at the instance 23, 1963 which was passed by the competent authority at the instance of the appellant. 199 Respondent 2 resisted the appellant 's application on the ground that he was a bona fide purchaser in a court sale, that the aforesaid sale was held after the competent authority had granted permission for the sale of the property and that therefore his title to the property was not liable to be displaced at the instance of the appellant. The learned District Munsif who dealt with the matter accepted the contention of the appellant and set aside the auction sale. In Civil Miscellaneous Appeal No. 9 of 1965 filed by respondent 1, the Appellate Judge confirmed the order of the District Munsif and dismissed the appeal. Respondent l then filed a second appeal in the Orissa High Court, being Miscellaneous Appeal No. 208 of 1966. Before the High Court respondent 1 raised two contentions only viz., (1) that the judgment debtor, respondent 3, was not a member of the Scheduled Tribe and therefore the attachment and the court sale were not void; and (2) that the judgment debtors, having failed to take objection to the attachment on the ground that they belonged to a Scheduled Tribe, were debarred from objecting to the sale of the property on the principle of constructive res judicata. The High Court rejected the first contention relying mainly on the circumstance that respondent 1, the decree holder, had accepted the position that respondent 3 whose property was being put to sale was a member of the Scheduled Tribe. The High Court however accepted the second contention on the ground that neither respondent 3 nor the appellant had taken any objection in the execution proceedings that since the former had no saleable interest in the property the auction sale could not be held or that the permission given by the, R.D.O. did not authorise the sale. Being apprieved by the judgment of the High Court dated September 12, 1968, the, private purchaser from the decree holder has filed this appeal. We are in agreement with the view of the High Court that it is not open to respondent 1, the decree holder, to contend that respondent 3 whose property was put to sale in the execution proceedings was not a member of the Scheduled Tribe. Respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors, respondent 3. Respondent 1 himself asked the Executing Court to secure the permission of the competent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the Scheduled Tribe. The permission from the competent authority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The 200 permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent I in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property. Respondent 1 cannot then be permitted to dispute that respondent 3 did not belong lo a Scheduled Tribe and therefore the permission of the competent authority was not needed to validate the sale. The contention that respondent 3 did not belong to a Scheduled Tribe was founded solely on the consideration that he belonged to the Bhotra tribe which is not expressly mentioned as on of the Scheduled Tribes in the schedule to the Constitution (Scheduled Tribes), order 1950. It may be assumed that respondent 3 is a Bhotra. But paragraph 2 of the Scheduled Tribes order, 1950 provides to the extent material that the Tribes, or parts of, or groups within the Tribes specified in the Schedule to the order shall also be deemed to be Scheduled Tribes. Whether Bhotras fall within any of the sub groups or the Scheduled Tribes enumerated in Part IX of the Schedule to the 1950 order is a question which could not have been permitted to be raised for the first time in the second appeal. Much less can it be allowed to be raised before us. This appeal, like the second appeal before the High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled Tribe. Upon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the property was purchased by the appellant from respondent 3 on January 2, 1964. Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being contrary to the express inhibition contained in Clause 6 of Regulation No. 2 of 1956 read with Rule 4 made thereunder. Both Clause 6 and Rule 4 provide that no immovable property belonging to a member of the Scheduled Tribe is liable to be attached or sold except in accordance with the Permission granted by the competent authority. Under the registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the appellant. The appellant having become an owner of the property on account of the aforesaid private sale, respondent 3 had no saleable interest left in the property which could be put to sale in the court auction. It is elementary that what can be brought to sale in a court sale is the right, title and interest of the judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest. The judgment debtor not having any saleable interest in the property at all on the date of the auction sale, there was nothing that respondent 2 could get in the auction sale which was 201 held in execution of the money decree obtained by his father, respondent 1. The auction sale therefore cannot displace the title of the appellant which is the same thing as saying that as between the title of the appellant and the so called title of the auction purchaser, the appellant 's title must prevail. It must follow that the auction sale is bad and must be set aside. There is an additional reason why the auction sale is not valid By the permission granted by the R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the conditions imposed on the judgment debtor was that the property shall be sold for a sum of Rs 4,000/ . In the private sale, the appellant purchased the property for Rs. 4,000/ and therefore the condition of the permission was complied with. But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/ , the decree itself being in the sum of Rs. 1,000 odd and the highest bid at the auction being of Rs. 3,000/ only. As the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the property under that sale. In this view, no question of res judicata can arise because the basic issue ill the appeal is as regards the validity of the auction sale in favour of respondent 2. The appellant claims through the judgment debtor and neither the latter nor the decree holder ever disputed that he, the judgment debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur. The decree holder himself, apprised the Executing Court of that position. The failure, there, of the judgment debtor to raise any particular contention cannot operate as res judicata, actually or constructively, either against him or against the appellant. For these reasons we allow the appeal, set aside the judgment of the High Court and confirm that of the learned Subordinate Judge, Koraput, setting aside the court sale in favour of respondent 2. There will be no order as to costs. S.R. Appeal allowed.

Section 6(1) of the U.P. Agricultural Income tax Act, 1948 gives an option to an assessee to select one of the two alternative methods of computation of agricultural income as provided in section 6(2), whichever is more advantageous to him. Such option is required to be indicated along with his return submitted under section 15 of the Act. While submitting its return for the assessment year 1954 55 the assessee chose the option to be assessed under section 6(2) (b) of the Act. It later submitted a revised return under section 15(4) but stuck to the option to be assessed under section 6(2) (b) . The assessing authority, notwithstanding the filing of these two returns by the assesses, called upon it to file a return of the income computed under section 6(2)(a). Thereafter the assessing authority served a notice on the assesses requiring it to produce evidence in support of it return. After the assesses produced the required evidence, the assessing authority issued a notice to the effect that certain income escaped assessment and called for its objections, if any. The assesses asked for inspection of records; but it was refused. At the instance of the assesses the Revision Board directed true assessing authority to permit inspection of the record. After inspection of the record he assesses filed a fresh (third) return. At this stage the assesses preferred the method of computation of income provided under section 6(2)(a) instead of section 6(2)(b) which it chose earlier. Without deciding the question as to whether the assesses was entitled to change the option, the assessing authority made a best judgment assessment under section 6(2)(b). On appeal the Commissioner directed the assessing authority to first decide the question relating to change of option whereupon the assessing authority held that the assesses had no right to change its earlier option. On further appeal the Revision Board upheld the order of the assessing authority. In the assessee 's writ petition challenging the order of the assessing authority a single Judge of the High Court held that it was open to the assesses to change its option at the time of filing a subsequent or fresh return. But the Division Bench was of the view that the assesses had no right to change its option. In its appeal the assessee contended before this Court that (1) it is open to the assessee to change its option not merely every year but during the year by filing a fresh return or a revised return provided it is done before tho assessment is completed (2) although the assessee filed its first return and the 110 revised return, the assessing authority issued a notice under 8. 15(3) along with a statement of provisional estimate computed in accordance with section 6(2) (a) pursuant to which the assessee filed the third return exercising the option for computation in accordance with section 6(2) (a) and, therefore, the assessing authority had to make the assessment in accordance with section 6(2) (a) and (3) in any event since the assessing authority had proceeded to make a best judgment assessment under section 16(4) it had no option but to make the assessment with due regard to the provisional estimate served under section 15(3B) notwithstanding any option exercised under section 6(1) of the Act. Allowing the appeals, ^ HELD: The Division Bench of the High Court was wrong in holding that when once the option is exercised by an assessee by filing the requisite declaration he will have no right to change the option by filing a fresh return or revised return before the assessment is made for that year. [121 Cl 1. Whatever restrictions had been imposed on the change of option by the original proviso to section 6(1) had been removed and the concept of "first return ' was deleted from r. 5 That being so, the expression "his return of income" occurring in r. S would apply to any of returns contemplated under section 15, In fact r. 5 is obligatory and makes it incumbent upon an assessee to file, along with his return, a, declaration indicating his option under section 6(1). The exercise of such option. including a change of option indicated in the declaration filed along with a subsequent return or a fresh return or a revised return, will be valid provided the return itself is validly submitted. [120 G H] 2. If the return was filed under section 15(4), then in order to avail of the change of the option the assessee will have to show that it was really a revised return in the sense that the same had been filed because of a wrong statement discovered in the earlier returns. Clearly the third return was filed in response to) the notice issued by the assessing authority under section 15(3). This return was rejected by the assessing authority not on the ground that it had been filed beyond time but on the ground that the assessee had no right to change its option which suggests that the return was treated by the assessing authority as having been filed within time but was rejected on merits holding that the assessee was not entitled to change its option. Therefore the third return was not a revised return under section 15(4) but a fresh return filed within time in response to the notice under section 15(3) and as such the assessee was entitled to change its option and have the computation made in accordance with section 6(2) (a). The fact that the assessee had produced come evidence in pursuance to the notice in relation to its earlier returns or that it took inspection of the records cannot and does not amount to acquiescence or waiver of its right to file a declaration indicating its option afresh along with the return validly filed in response to the notice under section 15(3) of the Act. [121 F G;122D; G H] 3. Moreover, irrespective of whatever option might have been exercised by the assessee the best judgment assessment has to be made by the assessing authority by having due regard to the statement of provisional estimate of agricultural income made in accordance with section 6(2) (a). Under section 16(4) whenever the assessing authority proceeds to make the assessment the same is required to be made "with due regard to the statement, if any, sent under 111 section 15(3 B) notwithstanding any option exercised under section 5(1). " The scheme of section 16(4) clearly shows that in regard to the best judgment assessment there is nothing sacrosanct about the option exercised by the assessee under section 6(1); equally it can be said that in regard to the assessments other that best judgment assessments under the scheme of section 15 there is nothing sacrosanct about tho particular option previously exercised by the assessee and he need not be held bound by it provided he changes the option by filing a subsequent or a fresh or a revised return in accordance with the applicable provisions in section 15. So far as the assessing authority is concerned such option, whether original or subsequent, would be binding on it. [124F; H]

l Appeal No. 1519 of 1968. Appeal under section 116A of the Representation of the People Act, 1951 from the judgment and order dated May 28, 1968 of the Madras High Court in Election Petition 11 of 1967. R.M. Seshadri and R. Gopalakrishnan, for the appellant. section V. Gupte, A. C. Muthanna, S.S. JavaIi, Anjali K. Verma and O.C. Mathur, for respondent No. 1. G. Ramanujam and A. V. Rangam, for intervener. C.J., This appeal is directed against the judgment of the High Court of Madras, 28th May 1968, by which the election of the appellant Seshadri has been set aside. The election in question was to the Madras Legislative Council from the Madras District Graduates Constituency. That constituency consisted of 19,498 votes and the total votes polled were 12,153. Since the voting was by a single transferable vote, three 1029 out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second person named by the elector on the ballot. At the final count the appellant Seshadri received 5643 votes and G. Vasantha Pai (his nearest rival) who is the first respondent in 'the appeal received 5388 votes. Seshadri was, therefore, elected by a majority of 255 votes. The election petition was filed by G. Vasantha Pai to question the election of Seshadri on many grounds. Only one ground prevailed, namely, that he had employed cars which had been hired or procured for the conveyance of the voters to the polling booths which numbered 73 in this constituency. The other charges were numerous but they need not be mentioned here because in our opinion this charge has been substantiated. It may be mentioned that Seshadri filed a petition of recrimination but it was dismissed because he failed to furnish security required under the Act. Later he corrected this mistake but the petition was not accepted because it was held to be delayed. The learned Judge who ' heard the case held that instead of Seshadri, Vasantha Pai deserved to be declared elected under the law. In this appeal, therefore, Seshadri contends that the decision in his respect was erroneous and in the alternative that in any event Vasantha Pal could not be declared as the successful candidate. We shall deal with these two points separately. It may further be mentioned that in the original order passed by the learned Judge he had not named Seshadri as guilty of corrupt practice. By a subsequent order he reviewed his previous order and gave a declaration. This point also will require to be considered in this judgment. The allegation in the election petition was that a large number of motor cars were hired or procured from various sources for the conveyance of the voters to the polling booths. These were sometimes occupied by persons wearing badges which bore the name of Seshadri and sometimes were received at the polling booths by persons who wore the same badges. From this, it is inferred that the motor cars were used for the conveyance of voters by Seshadri as one of the contesting candidates. Such conduct, if it is established, amounts to a corrupt practice under section 123(5) of the Representation of People Act. The short question, therefore, on the first point is whether Seshadri was guilty of this corrupt practice. The appeal has been fought by Seshadri on the grounds that the plea which was included on this head in the election petition was vague and not sufficiently definite so as to give him notice of the charge he had to meet, that a charge of corrupt practice is of the nature of a criminal charge and must therefore be 1022 proved by the election petitioner himself beyond all reasonable doubt, that there exists some room for doubt and therefore he should have the benefit of it and that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had procured on his own behalf. It is therefore contended that all the evidence which the learned Judge collected suo motu should not be locked at and the case of the petitioner should be confined to the bare plea which was raised in this case. If this is so, says Seshadri, the election petition deserves to be dismissed because the case as found was not clear in the plea and was certainly lacking in the proof as required by law. Since the matter is one fought primarily with regard to pleadings in the case, we shall begin by setting out the pleas which have been advanced by the election petitioner. The plea consists of several parts. The election petitioner states that the Swatantra Party and its agents conveyed the voters to and from the polling booths in certain cars hired or procured from M/s Kumarswamy Automobiles and T.S. Narayanan, Authorised Tourist Taxi Operators. The petitioner goes on to say that the detailed analysis of the use of the cars and particulars of the user are given in a schedule attached to his petition. That schedule names a large number of cars which were used and at many polling booths in different divisions for the purpose of carrying the voters to the polling booths. Some of these cars came admittedly from the garage of Messrs. Kumarswamy Automobiles and some others from the other motor garage named by us or were loaned for the day by certain private owners including companies. The essence of this plea is that cars were procured or hired for the conveyance of the voters. There is, however, no mention in the plea as to who had hired the vehicles or caused them to be procured and it is this fact which has been made much of by Seshadri in the appeal before. His contention is that without the particulars being sufficiently full and precise, it was not possible for him to controvert the case set up against him, particularly as the case of the election petitioner was supplemented by the learned Judge by calling at a later stage court witnesses who deposed to the connection between the cars and Seshadri. We have, therefore, to determine first whether the plea which was raised was sufficient for the purpose of investigation before we go to see whether the plea has received adequate support through evidence. Seshadri personally argued his appeal on two separate occasions. On the first occasion he confined himself entirely to the pleas he expounded it and urged in support that the plea in the election petition did not allege anything nor did the evidence in 1023 support establish anything further. But before the case concluded, Seshadri made a request to us that as he had misunderstood his own position with regard to the appeal, regard being had to certain observations of the Court, he had not argued the case fully on the first occasion and he should be allowed an opportunity to supplement his arguments by urging the points de novo. Since Seshadri was conducting his case in person and appeared to be under some emotional stress, we felt that the ends of justice would be satisfied if we accorded him a second opportunity and this is how the case was set down again for hearing. On the second occasion Seshadri supplemented his arguments with numerous citations from the law reports in support of two propositions, namely, that the particulars should be complete before the evidence could be looked into and secondly that amendment of the pleadings through evidence is not permissible. It may be mentioned here that the evidence in the case discloses that not one, two or three cars were used but as many as 63 cars were employed. This evidence has been weighed by the learned Judge. He has gone critically into every aspect of it and come. to the conclusion that many cars in fact were used. The learned counsel for Vasantha Pai placed in our hands a tabulated statement of the evidence bearing upon the use of the cars and having looked into the judgment of the learned Judge as also the evidence with the aid of the tabulated statement, we are satisfied and it is sufficient to say for us that we entirely agree with the conclusion of the learned Judge that many cars were, in fact, used for conveyance of voters in this constituency. The alternative suggestion that on some of the days an election from the Teachers ' Constituency was going on and that since the polling booths were sometimes located for the two constituencies in the same building, it is possible that the cars were used for that election and not this, does not merit any consideration. The suggestion is extremely vague and the evidence even more tenuous. It is said that one Varadachari was responsible for the hiring of the cars and that in our opinion does not stand either substantiated or any scrutiny. We are therefore satisfied with the finding of the learned Judge in the High Court that cars that were employed for conveyance of voters and that they were in fact used in this constituency and none other. The question then remains as to who was responsible for this? Now the plea on this subject, as we have said, is contained in several parts of the election petition. One part we have summarised above. The second part was that the Swatantra Party_ was supporting Seshadri and that the workers of the Swatantra Party were working strenously for his success. From this it has been reasoned in the High Court that the Swatantra Party was an agent of Seshadri. Its actions therefore would be his actions L6Sup. C.I/69 14 1024 if he was a Consenting party. In this connection it is also stated that Seshadri was being supported by some persons connected with him who helped him by procuring these vehicles for the conveyance of the voters. In the schedule which is filed with the plaint a large number of cars is mentioned and the schedule shows in one of its columns to which polling booths were the voters carried. It is too detailed to be reproduced here. Suffice it to say that it contains names of six divisions and 17 polling booths. It also mentions over two dozen cars which were so used. In the body of the election petition, the petitioner further stated as follows: "Besides Tourist Taxis, the petitioner understands the Private Commercial Firms and Cinema Producers placed at the disposal of the first respondent their cars for conveying voters. The persons who were conveying the voters were members of the Swatantra Party, who were acting as the Agents of the first respondent under the guidance in particular of Mr. H.V. Hande. The Agents of the first respondent wore a distinctive badge with R.M. Seshadri printed in bold letters attached to a blue ribbon and pinned to their shirts. They were either escorting the voters or receiving them at the polling stations specified above. In Booth Nos. 60 to 65, prominent among the persons so escorting was Violin Mahadevan who had a badge pinned to his shirt and who the petitioner understands is a member of the Swatantra Party. In Saidapet South, the petitioner states, the car MSS 3336 conveying the voters was in charge of an Advocate 's Clerk by name T.K. Vinayagam of No. 16, Karani Garden II Street, Saidapet, Madras 15. The said Vinayagam was wearing a badge of Mr. Seshadri. At Raja Annamalaipuram the petitioner learns that a green coloured Station Wagon MSP 5398 was in charge of Mr. Venkataraman, member of the Swatanthra Party and residing at 30, IV Main Road, Raja Annamalaipuram, Madras 28. The petitioner states that in almost every polling booth, Tourist Taxis and cars engaged by the first respondent were being used by the Swatanthra Party Agents for conveying voters. " Seshadri contends that in this plea only four names are mentioned, namely, H.V. Hande, Violin Mahadevan, T.K. Vinayagam and Venkatraman. He starts therefore by analysing whether the connection between these persons and him had been successfully established and further whether they were responsible for 1025 conveying voters to the polling booths in the cars. He examines critically the evidence of these witnesses before us and also the other evidence bearing upon the subject and contends that the evidence taken as a whole does not establish their connection with him or with the voters or with the cars. We shall, therefore, begin by considering what was said about these persons by Seshadri. In regard to Hande, Seshadri 's contention is that no other person had spoken about Hande excepting the petitioner (P.W. 33) and he spoke about him only in one place. He therefore states that the evidence on this part is extremely insufficient because it depends upon the interested word of the petitioner himself. He refers us to his deposition contained in pages 419 to 531 of the Paper Book, but he draws our attention in particular to certain passages where only one car was mentioned by him in connection with Hande. That car was MSR 7065. The evidence of the election petitioner was that as he was emerging from Doraiswamy Road he found that this car was going past him with a gentleman with a blue upper cloth. The gentleman looked at him and he found that it was Hande. According to Seshadri this evidence was not sufficient to show that Hande was conveying voters to the polling booth. On this part of the case Seshadri is right because the evidence of the complicity of Hande with the hiring or procuring of the cars was not established nor his complicity with regard to the carriage of voters to the polling booths. With regard to Vinayagam, Seshadri 's argument is that the fact is deposed to by the election petitioner himself who said that he had seen a car with a lady and a gentleman arriving at the polling booth and that a lawyer 's clerk opened the door and received them. This car bore the number MSS 3336. Support for this evidence is sought by the election petitioner through the evidence of Laxshaman Hegde (P.W. 15) who said that he had seen an Ambassador car carrying two voters just halting at the polling booth. Two voters whom he knew from before came down from the car. A 'short gentleman ' directed them to the polling booth. Vasantha Pai then asked the witness if the person was known to the witness. As he did not know the name of the gentleman he could not tell him but Vasantha Pai noted the number of the car. This person who received the voters at the polling booth was later identified by the witness as Vinayakam. The way in which he obtained this information has been given by him in his deposition. He appears to have obtained it from the person concerned. Whatever it may be, there is nothing incriminating in a worker of the party receiving a voter at the polling booth. Polling agents cannot canvass within 100 meters but there is nothing to show in the law that they cannot open the door of a car in which a voter has arrived. The gravamen of the charge, as Seshadri correctly points out was that Vinaya 1026 kam was wearing a badge such as we have described and that of course is a different matter and we are not concerned with it here. On the whole, therefore, this evidence does not show that the cars were hired by Seshadri. It only furnishes some link in the circumstantial chain to which we shall later refer and that in our opinion is the only use to which this evidence can be put. The next person connected with the use of the car is Venkatraman. Three persons deposed to his connection. of these one is the election petitioner himself; the others are P.Ws. 23 and 27. Seshadri argues that we should not believe these witnesses; one because he is himself a party and the other two because they were connected intimately with the prospects of Vasantha Pal. K.V. Padmanabha Rao (P.W. 23) is said to be the junior of Vasantha Pal and was canvassing for him. He was standing near the vehicle with a list, presumably of the voters, and at that time several vehicles arrived there. He stated that he connected Venkataraman with Seshadri because he was moving about in the company of one Sivasankaran (Junior of Seshadri) in the IInd Main Road. He had also seen him with Sivasankaran going with lists in his hand from house to house. Later he found out from some of his friends what was the purpose of this visit and was told that they were asking the voters whether they needed any conveyance for the next day 's polling, as they had command over a large number of vehicles. The latter part of the evidence is hearsay and Seshadri is perfectly right in claiming that it should not be accepted. The fact remains that the witness did see Venkataraman moving with the clerk of Seshadri and therefore there is room for thinking that they were connected together. T.L. Ram mohan (P.W. 27), it is said, was assisting Vasantha Pai. He wrote a letter Ext. P 109 and his evidence is also described as hearsay. We need not therefore go by his evidence to reach the conclusion that the cars were hired by Seshadri or some one on his behalf. We can only use this evidence if there were some other evidence to which it can be read as corroborative, because by itself it does not furnish proof of the hiring of vehicles by Seshadri. it only shows that the vehicles were in fact used and that the vehicles were bringing voters to the polling booth. The connection of Violin Mahadevan was deposed to by four witnesses. V. Murali (P.W. 5) who works in the chamber of two lawyers Rao and Reddy admitted that he.was working for Vasantha Pai. He also said that he saw Violin Mahadevan wearing the badge and standing near the polling booth. He stated this to Vasantha Pai and communicated to him his own observation. He admitted that he did not know Violin Maha . devan from before but somebody had told him about him. He could not name the voters who had been brought. He saw that Violin Mahadevan was wearing the same badge which we have 1027 described and the voters were accosted by persons wearing the same badge and were received at the polling booth. section Ramamurthy (P.W. 10) saw Venkataraman. He admitted that he had not seen anybody brought by Venkataraman and he also did not know the names of the voters who were brought. But the evidence of section Ramamurthy (P.W. 10) is sufficient to show that the voters did in fact come by cars to the polling booth. Therefore to that extent, his evidence is material in determining whether the alleged corrupt practice was committed or not. A. Sankaran (P.W. 20) also saw Violin Mahadevan receiving voters at the polling booths. Seshadri contends that as the plea was limited to the naming of these four persons, it is clear that the plea as made was insufficient to bring home the charge which is now brought to his door, namely, that he had hired or procured these vehicles. As has been said above, the hiring and procuring of the vehicles is a totally different matter. These witnesses only speak to what they saw at the polling booths and their evidence is believable that voters were brought to the polling booth. The question is by whom? The case then goes on to another point and that is: Where did the cars come from? Neither side had examined either Kumarswamy or the owner of the other garage or any other person. The learned Judge then felt that he should examine some court witnesses and he summoned three, namely, Kumarswamy (C.W. 2), Krishnaswamy (C.W. 3) and one Ganesan (C.W. 1). He also called for a report from the police as to whom the cars belonged and he perused the evidence of these three witnesses as also the report sent by the police and come to the conclusion that the hiring or procuring was by Seshadri himself. A great deal of argument is therefore directed by Seshadri to exclude the evidence of these witnesses and the reference to the police to find out to whom the cars belonged. In this connection Seshadri cites a number of ruling which he says show quite clearly that a plea cannot be allowed to be magnified particularly by evidence not brought by the parties, but at the instance of the Court. This requires an examination closely. The first contention of Seshadri is that the Court trying the election petition is limited by the law which is contained in the Representation of the People Act and the Rules made thereunder. This law, according to him, confers no power upon the Presiding Judge to enter the arena to summon witnesses on his own behalf. The learned Judge who summoned witnesses passed a very short order while doing so. He did not refer to any law on the subject but extracted a passage from the trial of Warren Hastings in which it was stated that a Judge 'is not to be a dummy but is to take an active interest in the case. Seshadri contends therefore that the action of the Judge in summoning the court 1028 witnesses was entirely erroneous and that this evidence should be excluded. The Vower of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Code of Civil Procedure. Now the Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be applicable to the trial of civil suits may be followed in the trial of election petitions. It would appear therefore that in the absence of any prohibition contained in the law, the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. It must be remembered that an election petition is not an action at law or a suit in equity. It is a special proceeding. The law even requires that an election petitioner should not be allowed to withdraw an election petition which he has once made and that the election petition may be continued by another person, so long as another person is available. The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of real practices including corrupt practices at elections should be thoroughly made. Here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths. The question is: in the face of this voluminous evidence was it not open to the judge if evidence was available to establish who had procured or hired vehicles, to summon witnesses who could depose to the same ? In our opinion, such a power was properly exercised by the learned judge. Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice. Section 98 of the Act itself allows the Court to name a person who is guilty of corrupt practice after giving him notice and this would be more so in the case of a candidate whose name. appears to be connected with the corrupt practice, the proof whereof is not before the Court but can be so brought. In such a ease we think that the court would be acting within its jurisdiction in using O. XVI r. 14 to summon witnesses who can throw light upon the matter. Having disposed of this preliminarg objection, we are now in a position to consider the evidence which was brought; but before doing so, we must show its relevance to the pleas which had been raised in the case, because much discussion was made 1029 of the law of pleadings in the case. We have pointed out above that the plea in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law. The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths have been mentioned. It is true that the drivers of the cars or the voters themselves have not been examined. But it has been sufficiently pleaded and proved that the cars were in fact used. The connection of Seshadri with the use of the cars has been specifically pleaded. In our opinion, the rest were matters of evidence which did not require to be pleaded and that plea could always be supported by evidence to show the source from where the cars were obtained, who hired or procured them and who used them for the conveyance of voters. This is exactly what has happened in this case. The learned Judge after reaching the conclusion that a large number of cars were used for conveying voters to the polling booths,. felt impelled further to consider who was responsible for hiring them. The names of the two garages were already given and there was the allegation that certain companies and cinema producers were also helping Seshadri by the loan of cars. Since the name of Kumarswamy 's garage was mentioned, it was but natural for the Judge to have summoned the proprietor of the garage. The proprietor of the garage came and gave the story about the use of the cars by some other candidate but not Seshadri. lie however brought on record documents to show that the cars were hired on payment from his garage by one Krishnaswamy. The next step was therefore to summon Krishnaswamy and he was therefore summoned and questioned. Krishnaswamy admitted that he had hired these cars and paid bills amounting to a few thousand rupees. It is obvious that these cars were not employed for any other purpose that day except for election work. It is ridiculous to imagine that they were ordered for a picnic or for a marriage which did not take p1ace. Therefore the inference was that Krishnaswamy had hired these cars to convey voters to the polling booths. The question therefore boils down to this, for whom was Krishnaswamy working? Here we have the evidence of various types against Krishnaswamy. Kumarswamy and Krishnaswamv have been amply proved in the ease to be connected with Seshadri. Kumarswamv was shown exhibit c 2A. lie stated that it was an order form filled bV R. Krishnaswamy. He also admitted that he had received payments and that the trip sheets of the cars were maintained for that date. Those trip sheets are C 7 to C 36. Now with regard to these trip sheets, it may be stated that in some of them there was mention that the cars were used for election work, but subsequently it was 1030 found that someone had rubbed out that entry. We are not here to find out who was guilty of attempting to create evidence by rubbing this out. The fact remains that some of the trip sheets still read clearly that the cars had been used for election work. exhibit C 6 was the bill which was issued for these cars, and it was issued to Krishnaswamy. Therefore the cars were engaged at least from Kumarswamy garage for conveying voters and they were hired by Krishnaswamy and he paid for them. Now Krishnaswamy is connected intimately with Seshadri. He was employed by two companies in which Seshadri was a Director. A party was arranged in honour of Seshadri to celebrate his victory. The arrangement for this was made by Krishnaswamy although the expenses for the party were paid by Seshadri by cheque. Seshadri contends that his entire accounts were. examined but it was not proved from those accounts that he had paid any money towards the hire of the cars. It is not possible for anyone to say how Seshadri, if he was willing to pay for the cars, would have procured the money. It would have been the worst thing for him to have paid the amount by cheque so that it could enter into the accounts. Obviously such payments would be made in a way that they could not be traced back to the person actually paying the amount. The connection, however, of Krishnaswamy with the hiring of the cars and with the celebration of the victory of Seshadri furnishes a very important link in the chain of reasoning. It is quite clear to us that the Swatantra Party was in favour of Seshadri. Seshadri relies upon finding which has been given by the Court in which it is stated that the Judge found that the first respondent, the Swatantra party and the persons mentioned therein acted as agents of the first respondent and committed corrupt practices under section 123(5) with which we are now dealing. The argument was that this finding. is somewhat obscure because it shows that the first respondent was the agent of the first respondent himself. It seems to us that the learned Judge in recording this finding gave it unthinkingly taking the words from the plea in the petition. It is quite clear that the learned Judge reaches the conclusion that the Swatantra party was working actively in support of Seshadri. It is of course not proved, that he was the adopted candidate of the party nor is it proved that he had appointed any particular person as his agent, but it is quite clear that the Swatantra party was actively supporting him. Thus there is the presence of the workers of the Swatantra party like Hande, Vinavakam, Violin Mahadevan and Venkatraman on the scene at the polling booths. It may also be mentioned that in one of the trip sheets, one Kalyanasundaram had signed in token of the cars having been used. This Kalyanasundaram was the polling agent of Seshadri. The circumstantial 1031 evidence is now complete. There is the hiring of the cars from the Kumaraswamy Garage by Krishnaswamy, the payment of money by Krishnaswamy to the garage, Krishnaswamy 's attachment to Seshadri because of his past connection and the further proof that he arranged the party on his behalf after his victory and the trip sheet was signed by Kalyanasundaram the polling agent of Seshadri. The amount paid was so large that only a candidate would incur that expense, and no supporter. If there was any doubt as to who hired or procured these cars, it is resolved by the concatenation of circumstances which clearly demonstrate that it could have been only Seshadri and no one else who had hired these vehicles. We can infer this circumstantially even though direct evidence be not available. In addition, there is the patent fact that Seshadri did not himself go into the witness box and clear these facts standing out against him although opportunity ' was offered. It is true that Seshadri complained before us that the plea was vague, that it had been magnified by the evidence brought in this manner and the Court allowed the election petitioner to take advantage of the evidence so brought, but we have already held that the evidence was legitimately brought and that it could be led in the case. As to the plea, we have already shown that it was sufficiently cogent to establish the connection between Seshadri and the hiring and procuring of the cars. The missing links were supplied by that evidence by showing the connection of the only person who had hired the cars and paid several thousand rupees for their hire. If that person is intimately connected with Seshadri, the conclusion is inescapable that it was Seshadri for whose benefit the cars were hired or procured. In our opinion, the circumstantial chain of evidence is sufficient to show the connection between him and the use of the cars for the conveyance of voters. As to the rulings which were cited before us, it is sufficient to say that each case is decided on its own facts, and circumstances. It is true that better particulars can only be given by the party, but that is only where better particulars are required. It was not necessary for Vasanta Pai to have pleaded his evidence in this behalf. He made a very full plea by giving the numbers of the cars, by naming the polling booths at which voters were brought and by stating quite categorically that it was Seshadri who had procured these cars for the conveyance of voters. Rest was matter of evidence and the facts had to be established by evidence. It may be that without the evidence of Kumaraswamy and Krishnaswamy the case might have taken a different turn but we have already pointed out that the learned Judge very correctly brought these two persons intimately connected with the cars into the Case before him, and to give their version. Their version is partly 1032 true and partly false and the false evidence was to exclude Seshadri from the charge. In our opinion, this also demonstrates the connection between these persons and Seshadri which had been established in other ways through their own mouths. We accordingly hold that this corrupt practice was brought home. It remains to consider the argument of Mr. Gupte whether Vasanta Pai could be declared elected. This will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practice to the polling booths, the result of the election had been materially affected. In a 'single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidate who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in the cars. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated. In the result therefore, we set aside the direction that Vasanta Pai is elected to the constituency. There will inevitably have to be a fresh election in this constituency. In so far as Seshadri is concerned, we think that he was properly named as guilty of corrupt practice although that order was incorporated by the learned Judge through a review. It was his duty to have named persons who had been guilty of corrupt practice and he made this up later. There is no need for any specific power for review since the power to name any person guilty of corrupt practice is already contained in the Act. Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose; that order was correctly made. In the result, the appeal fails and it will be dismissed with costs. R.K.P.S. Appeal dismissed.

The appellant was elected to the Madras Legislative Council from the Madras District Graduates Constituency. His election was challenged by the Respondent, his nearest rival candidate by an election petition alleging, mainly, that a large number of cars had been employed for the conveyance of voters to the polling booths in violation of section 123(5) of the Representation of the People Act, 1951. The High Court held that the corrupt practice was established and set aside the appellant 's election. It also declared the respondent elected in his place. The original order passed by the High Court did not :name the appellant as guilty of corrupt practice but the Court, by a subsequent order reviewing its previous order, gave a declaration to that effect. In the appeal to this Court, it was contended by the appellant that the plea in the petition regarding violation of section 123(5) was vague and not sufficiently defined so as to give him notice of the charge he had to meet, and furthermore, that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had no power to do. It was therefore contended that all the evidence which the learned Judge collected suo motu should not be looked at and if the case of the petitioner was confined to the bare plea raised, the petition would deserve to be dismissed because it was not clear in the plea and was lacking in proof. HELD: dismissing the appeal: On the facts, the High Court had rightly found that many cars were employed for the conveyance of voters in the constituency. The circumstantial chain of evidence was sufficient to show the connection between the appellant and the use of the cars for the conveyance of voters. The corrupt practice under section 123(5) was therefore brought home. A B] (i) The plea in the petition in essence was that cars were used for the purpose of conveying voters contrary to the prohibition contained in the Election Law. The names of the booths and the divisions in which the booths were situated together with the particulars of the cars and the persons primarily concerned with cars at the polling booths had been mentioned. The connection of the appellant with the use of the cars had been specifically pleaded. Sufficient particulars of the allegation had therefore been given and the rest were matters of evidence which did not require to be pleaded. (ii) The power of a Civil Court to summon court witnesses is contained in O. XVI r. 14 of the Co& of Civil Procedure. The Representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be ,applicable to the trial 1020 of civil suits may be followed in the trial of election petitions. The court trying an election petition therefore has the power to summon a Court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. The policy of election law seem to be that for the establishment of purity of elections, investigation into to be that for the nasal factices including corrupt practices at elections all allegations of malpractices include corrupt practices at elections should be thoroughly made. In the present case a large number of cars were obviously used presumably for the purpose of carrying voters to the booths. In the face of this voluminous evidence it was open to the judge, if evidence was available to establish who had procured or hired judge, summon witnesses who could depose to the same. Such a vehicles, to exercised by the learned judge . [1028 B F] (iii) In the present case it was not possible to reach the conclusion the voters were brought to the polling booths in violation of that 23(5), the result de the election had been materially affected. In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which the appellant had got, had gone to one of the other candidates who were eliminated at the earlier counts, those candidates could have won. The declaration of the respondent 's election would be merely a guess or surmise as to the nature of the voting which would have taken place if the corrupt practice had not been perpetrated and the High Court 's direction declaring him elected must therefore be set aside. [1032 B D] (iv) The appellant was properly named as guilty of corrupt practice although the order was incorporated by the learned Judge through a review. It was his duty to have named persons who had been guilty of corrupt practice and he made this up later. There is no need 'for any specific power for review since the power to name any person guilty of corrupt Practice is already contained in the Act. Whether it comes in the original judgment or by a supplementary or complementary order, is not much to the purpose that order was correctly made. [1032 E]

Appeal No. 265 of 1972. From the Judgment and Order dated the 24th August, 1971 of the Kerala High Court in I.T.R.No. 25 of 1969. G.B. Pai, K.J. John for M/s Dadabhanji & Co., for the Appel lant. B.B. ,Ahuja and R.N. Sachthey for Respondent. The Judgment of the Court was delivered by GUPTA, J. The question for decision in this case is whether the money contributed by the assessee, public limit ed company, for the construction of a new road in the area where its factory is located to improve transport facilities is capital expenditure or revenue expenditure. The assess ment year in question is 1964~65, the relevant accounting period being the financial year ended March 31, 1964. The assessee company is engaged in the manufacture of chemicals; it had been receiving and despatching materials required for and produced in its factory through lorries. The assessee along with three, 716 other public undertaking approached the Government of Kerala for laying a new road from kalamasseri to Udyogamanndal; this area where the assessee 's factory is situate was not at the material tune served by pucca roads. It was agreed that the Government of Kerala would bear the cost of the acquisition of the land and 25 per cent of the cost of construction. The total cost to be shared by the four companies was Rs. 1,04,550/ and the assessee 's share came to Rs. 26,100/ . The assessee company sought to deduct this amount from its total income c/aiming this as revenue expenditure for the year in question. The Income tax Officer disallowed the claim holding that the assessee 's contribution was capital expenditure. The Appellate As sistant Commissioner took the same view. The Appellate Tribunal, mainly relying on the decision of the Calcutta High Court in Commissioner of Income tax vs Hindustan Motors Limited,(1) held that the assessee was entitled to deduct the amount as revenue expenditure. At the instance of the Commissioner of Income tax, Kerala, Ernakulam, the Tribunal referred the following question to the High Court of Kerala under section 256(1) of the Income Tax Act,1961: "Whether, on the facts and in the circum stances of the case, the Appellate Tribunal was legally justified in allowing the expendi ture of Rs. 26,100/ being the respondent 's contribution to government for constructing a road as a permissible deduction under section 37(1) 0f the Income Tax Act, 1961." The High Court held that the assessee in this case ob tained an advantage of an enduring nature by the construc tion of the road and, therefore, the amount contributed was capital expenditure. The High Court accordingly answered the question in negative and against the assessee. In this appeal, brought on a certificate under section 261 of the Income Tax Act, 1961, the assessee challenges the correct ness of the answer given by the High Court to the question. The authorities both in this country and in England have pointed out the difficulties in formulating precise rules for distinguishing capital expenditure from revenue expendi ture. The line of demarcation has been found to be very thin. Certain broad tests have however been laid down, and of them the test suggested by viscount Cave, L. C., in Atherton vs British Insulated and Helsby Cables Limited(2) appears to have been largely accepted in this country. This Court in Assam Bengal Cement Company Limited vs Commis sioner of Income tax, West Begnal(3); Sitalpur Sugar Works Limited vs Commissioner of Income tax, Bihar and Orissa( ') and a number of other decisions has adopted the test as laid down in Atherton 's case: to refer again to these often quoted lines from Viscount Cave 's Judgment "when an expendi ture is made, . . with a view to bringing into existence an asset or an advantage for the enduring benefit of a (1) (2) (1925) 10 Tax Cases 155. (3) (4) 717 trade, I think that there is very good reason (in the ab sence of special circumstances leading to an opposite con clusion) for treating such an expenditure as properly at tributable not to revenue but to capital". Referring to Atherton 's case and certain other authorities on the dis tinction between capital expenditure and revenue expenditure and the tests to be applied, this Court in Assam Bengal Cement Company Limited vs Commissioner of Income tax(1) observed: "If the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset or advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure. If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital of the income of the concern or whether tire payment was made once and for all or was made periodically. The aim and object of the expenditure would determine the character of the expenditure whether it is a capital ex penditure or a revenue expenditure. The source or the manner of the payment would then be of no consequence. It is only in those cases where this test is of no avail that one may go to the test of fixed or circulating capital and consider whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. If it was part of the fixed capital of the business it would be of the nature of capital expenditure and if it was part of its circu lating capital it would be of the nature of revenue expenditure. " In the case before us, the High Court applied viscount Cave 's test and found that the expenditure made by the assessee brought into existence an advantage for the endur ing benefit of the assessee 's trade and accordingly held that this was capital expenditure. Each case turns on its own facts. It is not disputed here that the correct test has been applied. Did the money spent by the assessee on construction of the new road secure for it an enduring benefit, or was it necessary for running its business? On the facts of the case the position seems to be clear enough not to merit an elaborate consideration, that by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The High Court rightly pointed out that the decision of the Calcutta High Court in Commis sioner of Income tax vs Hindustan Motors Ltd.(2) on which the appellate tribunal relied, is clearly distinguishable on facts; that was a case where the expenditure incurred was for repair of an existing road which is different from the case where a new road is laid out for the purpose of the assessee 's (1) (2) (1968)68 I.T.R. 301. 718 business. Mr. Pai, learned counsel for the appellant, has relied on the decision of this CoUrt in Lakshmiji Sugar Mills Company Private Limited vs Commissioner of Income tax, New Delhi(1), to contend that even the expenditure on the construction of roads could be revenue expenditure and not expenditure of a capital nature. In Lakshmiji Sugar Mills case the assessee was a private limited company carrying on the business of manufacture and sale of sugar. Under the provisions of the U.P. Sugarcane Regulation of Supply and Purchase Act, 1953, the assessee company was obliged to contribute certain amounts for the development of roads which were originally the property of the government and remained so even after the improvement had been made. Apart from the fact that in this case the expenditure incurred was under a statutory compulsion, there was no finding that the roads were newly made. On the facts of that case this Court was satisfied that the development of the roads was meant for facilitating the carrying on of the assessee 's business. Lakshmiji Sugar Mills(1) case is quite different on facts from the one before us and must be con fined to the peculiar facts of that case. On the facts of the instant case, we have no doubt that the expenditure incurred by the assessee was of a capital nature. The appeal accordingly fails and is dismissed but in the circumstances of the case without any order as to costs.

The appellant assessee is a public limited company who spent Rs.26,100/ for the construction of a new road for improving transport facilities in the area where its factory is located and sought to deduct this amount from its total income claiming this as revenue expenditure for the year. The claim was disallowed by the Income tax Officer and the Appellate Assistant Commissioner. The Appellate Tribunal held that the amount could be deducted as revenue expendi ture but at the instance of the respondent referred the matter to the High Court under section 256(1) of the Income Tax Act, 1961, where it was decided against the appellant. Dismissing the appeal, the Court, HELD: The line of demarcation between capital expendi ture and revenue expenditure has been found to be very thin. According to the test suggested in Atherton 's case by Vis count Cave, L.C. by having the new road constructed for the improvement of transport facilities, the assessee acquired an enduring advantage for its business. The expenditure incurred was, therefore of a capital nature. F II & 718 D] Atherton vs British Insulated and Helsby Cables Ltd. [1925] 10 Tax Cases 155: Assam Bengal Cement Co. Ltd. vs Commissioner of Income Tax, West Bengal and Sitalpur Sugar Works Ltd. vs Commissioner of Income Tax. Bihar and Orissa , applied. Commissioner of Income tax vs Hindustan Motors Ltd. and Lakshmiji Sugar Mills Co. (P) Ltd. vs Commissioner of Income tax, New Delhi , distinguished.

Appeal No. 359 of 1962. Appeal by special leave from the Award dated April 3, 1961 of the Seventh Industrial Tribunal, West Bengal, in Case No. VIII 303 of 1960. B.Sen, S.C. Mazumdar, D. N. Mukherjee for B. N. Ghosh, for the appellant. Janardhan Sharma, for the respondents. February 22. The judgment of the Court was delivered by HIDAYATULLAH J. By this appeal filed with the special leave of this Court, by the Meenglas Tea 167 Estate against its Workmen the Company seeks to challenge an award dated April 3 , 1961, pronounced by the Seventh Industrial Tribunal, West Bengal. The order of reference was made by the Government of West Bengal as far back as October 29, 1957, in respect of the dismissal of 44 workmen. The issue which was referred was as follows: "Whether the dismissal of the workmen mentioned in the attached list is justified ? What relief by way of reinstatement and/or compensation are they entitled to?" From November 5, 1957, to August 17, 1960, this reference remained pending before the First Labour Court. It was then transferred to the Seventh Industrial Tribunal and the letter made the impugned award on April 3, 1961. By the time the award was made two of the workmen (Nos. 12 and 37) had died and four had been reemployed (Nos. 31, 33, 34 and 35). One of the workmen (No. 22) was not found to be a workman at all. The Tribunal held that the orders of dis missal of fourteen workmen were justified though retrospective effect could not be given to the orders. The Company was ordered to re instate the remaining workmen and to pay them compensation in some cases (but not all) amounting to three months ' wages. In the present appeal the Company seeks to challenge the award regarding 13 of those workmen who have, been ordered to 'be reinstated. of these workmen the cases of three fall to be considered separately and those of the remaining ten can be considered together. We shall now give the facts from which the reference arose. The appellant Meenglas Tea Estate in Jalpaiguri District of West Bengal is owned by Dun can Brothers Ltd. The workers belong to the Zilla Chabagan Workers ' Union, Malbazar, District 168 jalpaiguri. On January 18, 1956, there was an ugly incident in which a group of workmen assaulted the Manager, Mr. Marshall and his two Assistant Managers Mr. Nichols and Mr. Dhawan. This happened one morning in a section of the tea gardens where about two hundred workmen had surrounded Mr. Nichols and were making a violent demonstration. First Mr. Dhawan and soon after Mr. Marshall arrived on the scene and the workmen surrounded them also. In the assault that followed these three officers were wounded Mr.Marshall seriously. A criminal cage was started against some of the rioters but we are not concerned with it. The Company also started proceedings against some workmen. It first issued a notice of suspension which was to take effect from February 6, 1956, and then served charge sheets on a large number of workmen charging them with participation in . the riot. The Work men replied denying their complicity. The Company then held enquiries and ordered the dismissal of a number of workmen with effect from January 18, 1956. A sample order of dismissal is exhibited as annexure F in the case. In the enquiry before the Tribunal the Union admitted the incident though it said that it was caused by provocation on the part of the Management. The Union, however, denied that any of the workmen who were charged was concerned in the affray pointing out that none of these workmen was prosecuted by the police. The enquiry was held by Mr., Marshall and Mr. Nichols and the record of the proceedings is marked Exhibits 17 and 18 series. That record was produced before us by the appellant for our perusal. It was admitted before us that there was no further record of evidence for the Company as none was recorded. Exhibit 17 and 18 series are the answers of the workmen to the charges against . them and such replies as they gave to questions put to them in cross examination, 169 The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was, questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirements must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statement made by any witness tendered in evidence. The enquiry, such as it was, was made by Mr. Marshall or Mr. Nichols who were not only in the positionof judges but also of prosecutors and witnesses. There Was DO opportunity to the persons charged to cross examine them and indeed they drew upon their own knowledge of the incident and instead cross examined the persons charged. This was such a travesty of the principles of natural ,justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it. In the enquiry which the Tribunal held the Company examined five witnesses including Mr. Marshall, Mr. Nichols and Mr. Dhawan, who were the eye witnesses. In view of the fact that the 170 enquiry was being made into an incident which took place four and a half years ago the Tribunal in assessing the evidence held that it would not accept that any workman was incriminated unless at least two witnesses deposed against him. Some of the workmen got the benefit of this approach and it is now contended that the Tribunal was in error in insisting upon corroboration before accepting the evidence of a single witness. Reference in this connection is made to section 134 of the Indian Evidence Act (1 of 1872) which lays down that no particular number of witnesses shall in any case be required for the proof of any fact. It is not a question of an error in applying the Evidence Act. It is rather a question of proceeding with caution in a case where admittedly many persons were involved and the incident itself took place a very long time ago. The Tribunal acted with caution and did not act upon uncorroborated testimony. It is possible, that the evidence against some of the persons to whom the benefit has gone, might be cogent enough for acceptance, but the question is not one of believing a single witness in respect of any particular workman but of treating all workmen alike and following a method which was likely to eliminate reasonably chances of faulty observation or incorrect recollection. On the whole, it cannot be said that the Tribunal adopted an approach which made it impossible for the company to prove its case. It followed a standard which in the circumstances was prudent. We do not think that for this reason an interference is called for. Since no other point was argued the appeal of the Company in respect of the ten workmen, who were alleged to be concerned in the occurrence of January 18, 1956, must be dismissed. This brings us to the consideration of the three special cases. They concern Dasarath Barick (No. 25), Lea Bichu (No. 26) and Nester Munda (No. 27). Dasarath Barick was said to have threatened the 171 loyal workers and to have prevented them from work on March 15, 1956. Lea Bichu was said to have forced the chowkidar to hand over the keys of the gate to him on the same day and to have locked the gate with a view to hampering the movement of workmen. The Tribunal held that the enquiry in both the cases was not a proper enquiry and the conclusion was not acceptable. Here, again no witness was examined in the enquiry to prove the two occurrences and even before the Tribunal there was no evidence against them except the uncorroborated testimony of Mr. Mar shall. No worker was examined to prove that he was threatened by Dasarath Barick or to show that it was Lea Bichu who had taken the keys from the chowkidar and locked the gate. In view of these circumstances the Tribunal was justified in not accepting the findings which proceeded almost on no evidence. We agree with the Tribunal that no case was made out before the Tribunal for the dismissal of Dasarath Barick and Lea Bichu. The last case is of Nester Munda who is the Secretary of the Union., ' It was alleged against him that on, January 16, 1956, he had abused Mr. Nichols and had demonstrated at the head of a hostile group of workmen. Here, again, no proper enquiry was held and the conclusion reached at the enquiry by the Company was not acceptable. The Tribunal, therefore, enquired into the case for itself. Mr. Nichols and Mr. Dhawan gave evidence which the Tribunal was not prepared to accept. It pointed out that their testimony conflicted on vital points. Since the Tribunal had the opportunity of hearing and seeing Mr. Nichols and Mr. Dhawan we should be slow to reach a conclusion different from that of the Tribunal. In addition, in such cases, it is not the practice of this Court to enter into evidence with a view to finding facts for itself. Following this well settled practice we see no reason 172 to interfere with the conclusion of the Tribunal. The result is that the appeal fails and is dismissed with costs.

There is a Scotish Masonic institution known as Grand Lodge of Scotland. Under this institution there are District Grand Lodges. Under its superintendence there are Daughter Lodges. These institutions arc governed by their own constitutions and laws. Under those laws a member against whom disciplinary action has been taken by a Daughter Lodge can appeal to the District Grand Lodge and there is a right of second appeal to the Grand Lodge of Scotland. The appellant was a member of one of the Daughter Lodges at Belgaum known as Lodge Victoria. The second respondent made a complaint against the appellant alleging that he has committed 12 masonic offences. A notice was issued to the appellant by the Secretary of the Victoria Lodge alleging the commission of these offences and requiring him to reply within 14 days. The appellant submitted his answer in extenso to the various charges. A special meeting of the Lodge was held at which each charge was read, members gave their comments and each charge was put to vote and it was unanimously decided that the appellant was guilty of each charge. By a resolution the appellant was expelled subject to the confirmation of the District Grand Lodge. The decision was communicated to the appellant who therefore filed an appeal to the District Lodge which body after giving him adjournment to appear in person dismissed the appeal at the next meeting at which the appellant absented himself. A further appeal was filed to the Grand Lodge which was also dismissed. Thereafter the appellant filed a suit before the Civil judge, Belgaum for a declaration that the resolution of the 2 Lodge Victoria expelling him was void and that he still continued to be a member of that Lodge. The Civil Judge dismissed the suit. Thereupon an appeal was filed before the High Court of Mysore. The High Court dismissed the appeal. The present appeal is by way of a certificate granted by the High Court. The appellant contended that the Lodge Victoria had no jurisdiction to try Masonic offences since such offences were within the jurisdiction of the District Grand Lodge, Bombay. Secondly, it was contended that the disciplinary proceedings prescribed by law 198 which governs such proceedings were not strictly complied with. It was further contended that the fourteen days to which he was entitled after he filed his answer were not granted to him. Lastly, it was argued that the decision to expel him was wrong on merits. Held, that the source of the power of associations, clubs and Lodges to expel their members is the contract on the basis of which they become members. Bonsor vs Musicians Union, , followed. A member of a Masonic Lodge is bound to abide by the rules of the Lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. Maclean vs The Workers ' Union and Ezra vs Mahendra Nath Banerji, I. L.R. [1946] 2Cal. 88, approved. The Lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. The jurisdiction of the Civil Court is rather limited; it cannot obviously sit as a court of appeal from the decision of such a body, it can set aside the order of such a body if the said body acts without jurisdiction or does not act in good faith or act,, in violation of natural justice. Maclean vs The Workers Union, and L.A.P.0 ' Beilly vs C. C. Gettens, A I.R. , referred to. The rules governing tribunals cannot mutatis mutandis be applied to such bodies as Lodges. One has to see broadly in the circumstances of cacti case whether the principles of natural justice has been applied. In the circumstances of this case, 3 particularly when it is found that the appellant had not raised any objection, it cannot be said that the resolution passed by the Lodge Victoria is bad for violating any principles of natural justice. Maclean vs The Workers Union, , referred to. Law 198 expressly confers a jurisdiction on a Daughter Lodge to try a member if he commits an offence, the jurisdiction conferred on it cannot be excluded by Law 128 which is a general law. The word offence ' in the context of Law 198 can only mean the infringement of laws of the Daughter Lodge. In the present case the rules relating to the disciplinary proceedings have been strictly complied with. With regard to the contention that the additional fourteen days, to which he is entitled to file his case, were not granted to him it is held that there was no prejudice caused to him by this failure and since he never made a complaint of it before any of the two appellate bodies, he has waived the requirement of the rule. From the facts and circumstances of the case, particularly when it is found that the appellant did not raise any objection, it cannot be said that the resolution passed by the Lodge Victoria is bad for violating natural justice. Since Civil Courts have no jurisdiction to decide on the merits of a decision given by a domestic tribunal and since both courts below have found concurrently that the Daughter Lodge has acted in good faith and since no exceptional circumstance has been shown, this Court will not examine the merits of the decision.

Appeal No. 212 of 1954. Appeal from the Judgment and Decree dated the 10th day of November 1953 of the High Court of Judicature at Bombay in Appeal No. 8 of 1953 under the Letters Patent, against the decree dated the 23rd day of September 1952 of the said High Court in Appeal No. 67 of 1952 from Original Decree arising out of Order dated the 20th November 1951 of the City Civil Court, Bombay, in Summary Suit No. 233 of 1948. R.Subramania Iyer and K. R. Choudhry, for the appellant. H.J. Umrigar, J. B. Dadachanji and Rajinder Narain, for the respondent. March 7. The following Judgments were delivered. DAS J. The facts leading up to this appeal are few and simple. Two persons named Mahomedali Habib and Sakerkhanoo Mahomedali Habib used to carry on business as merchants and pucca adatias in bullion and cotton at Bombay under the name and style of Habib & Sons. In 1948 that firm instituted a suit in the Bombay City Civil Court, being Summary Suit No 233 of 1948, against the present appellant Juga lkishore Saraf, a Hindu inhabitant carrying on business at Bombay, for the recovery of Rs. 7,113 7 0 with interest at 6 per cent. per annum said to be due by him to the firm in respect of certain transactions in gold and silver effected by the firm as pucca adatias. On the 7th February,. 1949 when that summary suit was still pending a document was executed whereby it was agreed that the two partners would transfer and Messrs Raw Cotton Company, Limited, (hereinafter called the respondent company) 1372 would accept the transfer of, inter alia, all book and other debts due to them in connection with their business in Bombay and full benefit of all securities for the debts and all other property to which they were entitled in connection with the said business. The respondent company did not take steps under 0. XXII, r. 10 of the Code of Civil Procedure to get themselves substituted as plaintiffs in the place and stead of Habib & Sons, the plaintiffs on record, but allowed the suit to be continued in the name of the original plaintiffs. Evidently, the two partners migrated from India to Pakistan and their properties vested in the Custodian of Evacuee Property. On the 15th December 1949 a decree was passed in the summary suit for the sum of Rs. 8,018 7 0 for the debt and interest and the sum of Rs. 410 for costs of the suit, aggregating to Rs. 8,428 7 0, and for further interest at 4 per cent. per annum from the date of the decree until payment. Habib & Sons being the plaintiffs on record the decree was passed in their favour. On the 11th December 1950 the Custodian of Evacuee Property, Bombay, informed the respondent company that by an order made on the 2nd August 1950 the Additional Custodian of Evacuee Property had confirmed "the transaction of transfer" of the business of Habib & Sons to the respondent company. On or about the 25th April, 1951 the respondent company presented before the Bombay City Civil Court a tabular statement purporting to be an application for execution under Order XXI,rule 11 of the Code of Civil Procedure. In the last column of the tabular statement, under the heading "The mode in which the assistance of the Court is required", the respondent company prayed that the Court "be pleased to declare the Applicants the assignees of the decree as the decrement debt along with other debts bad been transferred by the plaintiffs to the Applicants by a deed of assignment dated the 7th February 1949 which was confirmed by the Custodian of Evacuee Property, Bombay, and order them to be substituted for the plaintiffs". There was, in that column, no specification of any of the modes in which the assist 1373 ance of the Court might be required as indicated in clause(j)of Order XXI,rule 11 of the Code. On the 10th May 1951 the Bombay City Civil Court issued a notice under Order XXI, rule 16 of the Code to Habib & Sons, who were the decree holders on record, and Jugalkishore Saraf, who was the defendant judgment debtor, requiring them to show cause why the decree passed in the suit on the 15th December 1949 in favour of the plaintiffs and by them transferred to the respondent company, should not be executed by the said transferees against the said defendant judgment debtor. The defendant judgment debtor showed cause by filing an affidavit affirmed by him on the 15th June 1951. Amongst other things, he denied that the document in question had been executed or that the document transferred the decree to the respondent company. The matter was tried on evidence and the execution of the document was proved by the evidence of an attesting witness which has been accepted by the executing Court. The executing Court, however, rejected the second contention and made the notice absolute with costs and gave leave to the respondent company to execute the decree against the judgment debtor. The judgment debtor filed an appeal before the High Court. The appeal was heard by Dixit, J. Before him the execution of the document was not challenged and nothing further need be said about that. The only substan tial question raised wag whether the respondent company were the transferees of the decree within the meaning of Order XXI, rule 16. The learned Judge answered the question in the affirmative on the authority of the decisions of the Bombay High Court in Purmananddas Jivandas vs Vallabdas Wallji(1) and in Chimanlal Hargovinddas vs Ghulamnabi(2) and affirming the order of the executing Court dismissed the appeal. The judgment debtor preferred a Letters Patent Appeal before the High Court which was dismissed by Chagla, C.J., and Shah, J., following the two earlier decisions mentioned above. They, however, (1) Bom. (2) I.L.R. 1374 granted, under article 133 (1) (c) of the Constitution, a certificate of fitness for appeal to this Court. The principal question urged before us is as to whether the respondent company can claim to be the transferees of the decree within the meaning of Order XXI, rule 16 of the Code of Civil Procedure. Order XXI, rule 16 of the Code of Civil Procedure, omitting the local amendments which are not material for our present purpose, provides: "16. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such Provided that, where the decree or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution: Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others". The first thing that strikes the reader is the sequence of events contemplated by this rule. It postulates, first, that a decree has been passed and, secondly, that decree has been transferred (i) by assignment in writing or (ii) by operation of law. The cardinal rule of construction of statutes is to read the statute literally, that is by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no ,such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case a literal construction of the rule 1375 leads to no apparent absurdity and, therefore, there can be no compelling reason for departing from that golden rule of construction. It is quite plain that if .Order XXI, rule 16 is thus construed the respondent company cannot possibly contend that the decree now sought to be executed by them was, after its passing, transferred to them by an assignment in writing within the meaning of that rule, for the document in question was executed on the 7th February 1949 but the decree was passed subsequently on the 15th December 1949. Whether they can claim to have become the transferees of the decree after it was passed by operation of law within the meaning of this rule or to have otherwise become entitled to the benefit of it is a different matter which will be considered later on. For the moment it is enough to say that there had been no transfer of the decree to the respondent company by any assignment in writing executed after the decree was passed, as contemplated and required by Order XXI, rule 16. Indeed, Dixit, J., conceded "If the language of Order XXI, rule 16 is strictly construed, it seems to me that the Respondents have no case". And so did chagla , C,J.; when he said; ". . and it is perfectly clear that if one were to construe rule 16 strictly there is no assignment of the decree in favour of the first respondent". The learned Chief Justice, like Dixit, J., however, departed from the rule of strict or literal construction as they felt pressed by the fact that the Bombay High Court had consistently taken the view that there might be an equitable assignment of a decree which would constitute the assignee an assignee for the purpose of rule 16 and that what the Court must consider is not merely a legal assignment but also an assignment which operates in equity. The equitable principle relied upon by the Bombay High Court is what had been enunciated by Lord Westbury in Holroyd vs Marshall(1) in the following words: (1) ; , 210, 211. 176 1376 "It is quite true that a deed which professes to convey property which is not in existence at the time is as a conveyance void at law, simply because there is nothing to convey. So in equity a contract which engages to transfer property, which is not in existence, cannot operate as an immediate alienation merely because there is nothing to transfer. But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a Court of Equity would compel him to perform the contract, and that the contract would, in equity, transfer the beneficial interest to the mortgagee or purchaser immediately on the property being acquired. This, of course, assumes that the supposed contract is one of that class of which a Court of Equity would decree the specific performance". The same principle was thus reaffirmed by Jessel, M.R., in Collyer vs Isaacs(1): "A man can contract to assign property which is to come into existence in the future, and when it has come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment". Applying the above principles to the facts of the instant case the High Court came to the conclusion that the document of the 7th February, 1949, on a proper reading of it, constituted an assignment of the decree. The reasoning, shortly put, is: that on a true construction the document in question amounted to. a transfer of the decree that was expected to be passed in the pending suit, that as the decree was not in existence at the date of the document it operated as an agreement to transfer the decree when it would be passed, that such an agreement could be enforced by a suit for specific performance as indicated by the (1) L.R. 19 Ch. D. 312, 351. 1377 Privy Council in Raja Sahib Perhlad vs Budhoo(1), that as soon as a decree was passed equity, treating as done what ought to be done, fastened upon the decree and the agreement for transfer became the transfer of the decree and the transferee became a transferee of the decree within the meaning of Order XXI, rule 16. It is to be noted that to attract the application of this equitable principle there must be an agreement to transfer the decree to be passed in future. As soon as the decree is passed equity fastens upon it and, by treating as done what ought to be done, that is by assuming that the transferor has executed a deed transferring the decree to the transferee as in all conscience he should do equity regards the transferee as the beneficial owner of the after acquired decree. The equitable principle we are considering only implements or effectuates the agreement of the parties. This equity does not, however, take upon itself the task of making any new agreement for the parties either by filling up the lacunas or gap in their agreement or otherwise. If, therefore, there is no agreement between the parties to transfer the future decree the equitable principle referred to above can not come into play at all. In order, therefore, to test the propriety of the application of this equitable principle to the facts of the present case we have to enquire whether there was here any agreement between the parties to transfer the decree to be passed in the then pending suit. This necessarily leads us to scrutinize the terms of the document in question and ascertain its true meaning and import. No point has been taken before us that the document of the 7th February 1949 is only an executory agreement and not a deed of transfer. Indeed, the argument has proceeded before us, as before the Court below, that the document in question is a completed deed of transfer. This relieves us of the task of closely examining the form of the document. For our present purpose we have, therefore, only to consider what properties were covered by the document. The High Court has held that the decree to be 2(1) [1869] 12 M.I.A. 275; 2 B.L.R. 111. 1378 passed was also included in this document. The reasoning appears to be this: Clause 1 of the document comprised six several items of properties. Each of these items referred to "the said Indian business". The Fourth item was "All the book and other debts due to the vendors in connection with the said Indian business and the full benefits of all securities for the debts" and the last and residuary item was "All other property to which the vendors are entitled in connection with the said Indian business". One of the book debts was the subject matter of the pending suit. The decree that the plaintiff would obtain in, that suit would, therefore, be property or right "in connection with the said Indian business". Therefore, as they were transferring all property in connection with their business they must have intended to transfer the future decree also. Therefore, it must be regarded as covered by the document. I am unable to accept this line of reasoning. It cannot be overlooked that there was no mention in that document of any suit or decree to be passed in that suit as one would have expected if the parties really intended to transfer the future decree also. In this connection it is significant that the residuary item covered "All properties to which the vendors are entitled" and not all properties to which they might in future become entitled. Reference may also be made to the provisions of the Transfer of Property Act. Under section 8 of that Act the transfer of property passes to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, and if the property transferred is a debt or actionable claim, also the securities therefore. It is urged that as the respondent company thus became entitled, by virtue of this document read in the light of section 8, to all the rights and remedies including the right to prosecute the pending suit and to obtain a decree the decree that was eventually passed automatically and immediately upon its. passing must be taken as having been transferred by this very document. This argument appears to me to really amount to a begging of the question, The 1379 transfer of the debt passed all the interest which the transferors were then capable of passing in the debt and in the legal incidents thereof. There was then no decree in existence and, therefore, the transferors could not then pass any interest in the non existing decree. Therefore, section 8 of the Transfer of Property Act does not assist the respondent company. Upon the assignment of the debt the respondent company undoubtedly became entitled to get themselves substituted under Order XXII, rule 10 as plaintiffs in the pending suit but they did not choose to do, so and allowed the transferors to continue the suit and a decree to be passed in their favour. The true position, therefore, is that at the date of the transfer of the debt to the respondent company the transferors could not transfer the decree, because the decree did not exist. On a true construction of the document the transferors agreed only to transfer, besides the five items of specified properties, "All other properties to which the vendors are entitled", that is to say, all properties to which at the date of the document they were entitled. At the date of the document they had the right to proceed with the suit and to get such relief as the Court by its decree might award but no decree had yet been passed in that suit, and, therefore, property to which they were then entitled could not include any decree that might in future be passed. It is significant that there was, in the document, no provision purporting in terms to transfer any future decree. Section 8 of the Transfer of Property Act does not operate to pass any future property, for that section passes all interest Which the transferor can then, i.e., at the date of the transfer, pass. There was thus no agreement for transfer and much less a transfer of a future decree by this document. All that was done by the transferors by that document was to transfer only the properties mentioned in clause 1 together with all legal incidents and remedies. The properties so transferred included book debts. A book debt which was made the subject matter of the pending suit did not, for that reason, cease to be a book debt and, therefore, it was also transferred but no 1380 decree to be passed in respect of that book debt was If in terms transferred. In such a situation there was no room or scope for the application of the equitable principle at all. The transfer in writing of a property which is the subject matter of a suit without in terms transferring the decree passed or to be passed in the suit in relation to that property does not entitle the transferee to apply for execution of the decree as a transferee of the decree by an assignment in writing within the meaning of Order XXI, r. 16. See Hansraj Pal vs Mukhraj Kunwar(1) and Vithal vs Mahadeva(2). In my judgment the decree was not transferred or agreed to be transferred to the respondent company by the document under consideration and the latter cannot claim to be transferees of the decree by an assignment in writing as contemplated by Order XXI, rule 16. The matter, however, has been argued before us at length on the footing that the decree had been transferred or agreed to be transferred by this document and therefore. , the equitable principle came into play and that as soon as the decree was passed the respondent company became the transferees of the decree by assignment in writing within the meaning of Order XXI, rule 16. As considerable legal learning has been brought to bear on the question of the application of the equitable principle and its effect on the prior written agreement and as the different decisions of the High Courts are not easily reconcilable, I consider it right to record my views on that question. I shall. , then, assume, for the purposes of this part of the argument, that the document of the 7th February 1949 was a completed deed of transfer covering the decree to be passed in future in the then pending suit. Under the Transfer of Property Act there can be no transfer of property which is not in existence at the date of the transfer. Therefore, the purported transfer of the decree that might be passed in future could only operate as a contract to transfer the decree to be performed in future, i.e., after the passing of the (1) All. (2) [1924) 1381 decree. The question then arises: What is the effect of the operation of the equitable principle on the decree as and when it is passed? Where there is a contract for the transfer of property which is not in existence at the date of the contract, the intending transferee may, when the property comes into existence, enforce the contract by specific performance, provided the contract is of the kind which is specifically enforceable in equity. It is only when the transferor voluntarily executes a deed of transfer as in all conscience he should do or is compelled to do so by a decree for specific performance that the legal title of the transferor in that property passes from him to the transferee. This transfer of title is brought about not by the prior agreement for transfer but by the subsequent deed of transfer. This process obviously involves delay, trouble and expenses. To obviate these difficulties equity steps in again to short circuit the process. Treating as done what ought to be done, that is to say, assuming that the intending transferor has executed a deed of transfer in favour of the intending transferee immediately after the property came into existence, equity fastens upon the after acquired property and treats the beneficial interest therein as transferred to the intending transferee. The question for consideration is: Is this transfer brought about by the earlier document whereby the property to be acquired in future was transferred or agreed to be transferred? In other words, can it be said, in such a situation, that the after acquired property had been transferred, proporio vigore, by the earlier document? Does that document operate as an assignment in writing within the meaning of Order XXI, rule 16? Learned counsel for the respondent company contends that the answer to these questions must be in the affirmative. He relies on several cases to which reference may now be made. In Purmananddas Jivandas vs Vallabdas Wallji (supra) the facts were these. In May 1859 one died leaving his properties to executors in trust for the appellant. In August 1868 the executors filed a suit in the Original Side of the Bombay High Court 1382 against Luckmidas Khimji for recovery of money lent to him as manager of Mahajan Wadi. During the pendency of the suit, the executors on the 11th May 1870 assigned in very wide and general terms all the properties of the testator to the appellant including "all movable property, debts claims and things in action whatsoever vested in them as such executors". The appellant was not brought on the record but the suit proceeded in the name of the executors. On the 23rd January 1873 a decree was passed for the plaintiffs on the record, i.e. the executors, for Rs. 31, 272 13 5 which was made a first charge on the Wadi properties. The appellant thereupon applied for execution of the decree under section 232 of the Code of 1882 (corresponding to our Order XXI, rule 16), as transferee of the decree. The Chamber Judge dismissed the application. On appeal Sargent, C. J., and Bayley, J., held that the appellant was competent to maintain the application. After pointing out that the ssignment was in the most general terms, Sargent, C. J., observed: ". . . . and the effect of this assignment was, in equity, to vest in Purmananddas the whole interest in the decree which was afterwards obtained. But it has been suggested that Purmananddas is not a transferee of the decree under section 232 of the Civil Procedure Code, because the decree has not been transferred to him "by assignment in writing or by operation of law", and that, therefore, he is not entitled to apply for execution. There is no doubt that in a Court of equity, in England the decree would be regarded as assigned to Purmananddas, and he would be allowed to proceed in execution in the name of the assignors. Here there is no distinction between "law" and "equity", and by the expression 'by operation of law ' must be understood the operation of law as administered in these Courts. We think under the circumstances that we must hold that this decree has been transferred to Purmananddas 'by operation of law ' The last sentence in the above quotation, standing by itself, quite clearly indicates that the learned 1383 Chief Justice was of the view that as the benefit of the decree became available to the appellant by operation of the equitable principle it had to be held that the decree had been transferred to the appellant "by operation of law" rather than by an assignment in writing and that is how it was understood by the reporter who framed the head note. The learned Chief Justice, however, immediately after that last sentence added: "In the present case the decree has been transferred by an assignment in writing as construed in these Courts". This sentence prima facie appears to be somewhat in consistent with the sentence immediately preceding and it has given rise to a good deal of comments in later cases. The learned Chief Justice has not referred to any case in which the Bombay High Court had adopted such a construction. The case of Ananda Mohon Roy vs Promotha Nath Ganguli(1) follows the decision of the Bombay High Court in Purmananddas Jivandas vs Vatllabdas Wallji (supra). It should be noted, however, that in this Calcutta case the decree was obtained and the transfer was made on the same day and it was held that though there was no assignment of the decree in so many words the property with all arrears of rent having been assigned to the mortgagee simultaneously with the passing of the decree the assignment passed the decree also. The case of Chimanlal Hargovinddas vs Ghulamnabi (supra) has been strongly relied upon. In that case a shop was held by A and B as tenants incommon. In May 1936 A agreed to sell his half share ,to C. As per arrangement A filed a partition suit on the 16th January 1937 to recover his share. The disputes in the suit were referred to arbitration by order of Court and eventually the umpire made his award on the 16th January 1939 declaring that A was entitled to a half share. A then, on the 7th March, 1939, sold all his rights under the award (which was (1) ; , 177 1384 called a decree) to C by a registered deed. C did not apply for substitution of his name on the record of the suit. The Court passed a decree upon the award on the 1st September, 1939. On the 24th November 1939 C applied for execution of the decree. It was held that C was entitled to execute the decree under Order XXI, rule 16, for what had been transferred to him was not merely A 's half share in the property but all his rights under the award including the right to take a decree. In this case, having regard to the terms of the previous agreement and the fact that the parties were treating the award as a decree the intention was quite clear that by the subsequent deed of sale both the award and the decree upon it had been transferred. It was quite clearly recognised by the Full Bench that if the sale deed transferred only. A 's half share in the property or only his right to take a decree C could not apply under Order XXI, rule 16. Reading the three cases relied on by learned counsel for the respondent company it seems to me that they proceeded on the footing that the equitable title related back to the earlier agreement in writing and converted the agreement to transfer the future decree into an assignment in writing of that decree as soon as it was passed. Some support is sought to be derived by learned counsel for this doctrine of relation back from the above quoted observations of Lord Westbury in Holroyd vs Marshall (supra) "that the contract would, in equity, transfer the beneficial ' interest" and of Jessel, M.R., in Collyer vs Isaacs (supra) that "the contract to assign thus becomes a complete assignment". I find considerable difficulty in accepting this argument as sound. In the first place the Lord Chancellor and the Master of the Rolls were not concerned with the question of relation back in the form in which it has arisen before us. In the next place it must not be overlooked that the equitable principle herein alluded to is not a rule of construction of documents but is a substantive rule which confers the benefit of the after acquired property on the person to whom the transferor had, by his agreement, promised to transfer the same. Thus, by treating as done that 1385 which ought to be done, equity fastens upon the after acquired property and brings about a transfer of it. The implication of this principle, to my mind, is clearly that the agreement, by itself and proprio, vigore, does not transfer the property when it is subsequently acquired but that instead of putting the intending transferee to the trouble and expense of going to Court for getting a decree for specific performance directing the promisor to execute a deed of transfer which when executed will transfer the afteracquired property, equity intervenes and places the parties in a position relative to each other in which by the prior agreement they were intended to be placed as if a deed of transfer had been made. As I apprehend the position, it is by the operation of equity on the subsequent event, namely, the actual acquisition of the property on its coming into existence that the beneficial interest therein is transferred to the promisee. This transfer, to my mind, is brought about by operation of equity which is something dehors the prior agreement. It is true that that agreement makes the application of the equitable principle possible or I may even say that it sots the equity in motion but, nevertheless, it is equity alone which denudes the transferor of his interest in the after acquired property and passes it to the intending transferee. That being the true position, as I think it is, the after acquired property cannot, logically and on principle, be said to have been transferred to the intending transferee by the agreement in writing. I do not see on what principle this transfer can be said to relate back to the previous agreement. I am fortified in my view by the observations of Lord Cave in the case of Performing Right Society vs London Theatre of Varie ties(1). In that case, in 1916 a firm of music publishers, being members of the plaintiff society, assigned by an indenture of assignment to the society the performing right of every song, the right of performance of which they then possessed or should thereafter acquire, to be held by the society for the period of the assignor 's membership. Subsequently, a certain (1) 1386 song was written, and the copyright in it, together with the right of performance, was assigned by the author to the said firm, but there was no fresh assignment in writing by the firm to the plaintiff society such as was required by section 5(2) of the Copyright Act, 1911. The defendants, who were music hall proprietors, permitted this song to be publicly sung in their music hall without the consent of the plaintiff society. The plaintiff society then sued the defendants for infringement of their performing rights and claimed a perpetual injunction. The defence was that as there was no assignment in writing of the copyright subsequently acquired by the firm to the plaintiff society the latter was not the legal owner and, therefore, was not entitled to a perpetual injunction. Discussing the nature of the right acquired by the plaintiff society under the indenture of 1916 and its claim to the after acquired copyright secured by the firm and referring to section 5, sub section (2) of the Copyright Act, 1911, Viscount Cave, L.C., observed at p. 13: "There was on the respective dates of the instruments under which the appellants claim no existing copyright in the songs in question, and therefore no owner of any such right; and this being so, neither of those instruments can be held to have been an assignment "signed by the owner of the right within the meaning of the section. No doubt when a person executes a document purporting to assign property to be afterwards acquired by him, that property on its acquisition passes in equity to the assignee: Holroyd vs Marshall, ; ; Tailby vs Official Receiver, 13 A.C. 523; but how such a subsequent acquisition can be held to relate back, so as to cause an instrument which on its date was not an assignment under the Act to become such an assignment, I am unable to understand. The appellants have a right in equity to have the performing rights assigned to them and in that sense are equitable owners of those rights; but they are not assignees of the rights within the meaning of the statute. This contention, therefore, fails", 1387 The above observations, to my mind, completely cover the present case. On a parity of reasoning the respondent company may have, by operation of equity, become entitled to the benefit of the decree as soon as it was passed but to say that is not to say that there has been a transfer of the decree by the document of the 7th February 1949. And so it has been held in several cases to which reference may now be made. In Basroovittil Bhandari vs Ramchandra Kamthi(1) the plaintiff assigned the decree to be passed in the pending suit. The assignee was not brought on the record under section 372 of the 1882 Code corresponding to Order XXII, rule 10 of the present Code but the suit proceeded in the name of the original plaintiff and a decree was passed in his favour. The assignee then applied for execution of that decree claiming to be a transferee decree holder under section 232 of the 1882 Code. That application was dismissed. White,C.J., observed: "We are asked to hold that in the event which happened in this case the appellant is entitled to be treated as the transferee of a decree from a decree holder for the purposes of section 332, notwithstanding that at the time of the assignment. there was no decree and no decree holder. It seems to us that we should not be warranted in applying the doctrine of equity on which the appellant relies, which is stated in Palaniappa vs Lakshmanan, I.L.R. , for the purpose of construing section 232 of the Code. We think the words "decree holder" must be construed as meaning decree holder in fact and not as including a party who in equity may afterwards become entitled to the rights of the actual decree holder, and that the words of the section relating to a transfer of a decree cannot be construed so as to apply to a case where there was no decree in existence at the time of the agreement". It is true that the case of Purmananddas Jivandas vs Vallabdas Wallji (supra) was not cited in that case but the case of Palaniappa vs Lakshmanan() which (1) , (2) Mad. 1388 adopted the equitable principle enunciated by Jessel, M.R., in Collyer vs Isaacs (supra) on which that Bombay case bad been founded was brought to the notice of the Court. In Dost Muhammad vs Altaf HUsain Khan(1) one M instituted a suit for recovery of some immovable property. During the pendency of the suit M transferred his interest in the property to the respondent. The respondent did not apply to bring himself on the record and the suit went on in the name of M as the plaintiff. By a compromise decree M was awarded a portion of the property. After the decree was passed the respondent applied to execute the decree as the transferee of the decree. The Munsiff rejected the application but the District Judge reversed his order. On second appeal Chamier, J., found it impossible to treat the respondent as the transferee of the decree, for the document on which he relied was executed before the decree was passed. Peer Mahomed Rowthen vs Raruthan Ambalam(2) may also be referred to. In that case the Madras High Court followed its earlier decision in Basroovittil Bhandari vs Ramchandra Kamthi (supra). The case of Thakuri Gope V. Mokhtar Ahmad(3) does not carry the matter any further, for it only follows the three earlier cases herein before mentioned. Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal(4) represents the view taken by the Calcutta High Court. In that case Hennessey and his brothers, who were Zamindars, instituted rent suits against their tenants. Pending those suits Hennessey and his brothers transferred the Zamindari to the appellant company. The appellant company did not get themselves substituted as plaintiff but allowed the suits to proceed in the names of the original plaintiffs who were the transferors. Eventually, decrees were passed in favour of Hennessey and his brothers. The appellant company then applied for execution. The executing Court and the lower appellate Court held that (1) (2) (3)[1922] C.W.N. (Patna) 256; A.I R. 1922 Pat. (4) Cal. 1389 the appellant company was not a transferee of the decree. The appellant company thereupon preferred, this second appeal to the High Court. it was held that the appellant company could not apply under Order XXI, rule 16, for that rule could not properly cover a case where there was no decree at the date of the assignment of the property and the term "decree holder" could not cover a party who, in equity, might afterwards have become entitled to the rights of the actual decree holder. The case of Ananda Mohon Roy vs Promotha Nath Ganguli (supra) was explained as being based really on the construction that was put upon the conveyance, namely, that it covered a decree which had been passed "simultaneously with, if not before, the execution of the conveyance". After pointing out that in Purmananddas Jivandas vs Vallabdas Wallji (supra) the transferor and transferee stood in the position of trustee and cestui que trust and that that circumstance might have attracted the application of the equitable principle the Court could not assent to the broad proposition supposed to have been laid down in that case that the transferee in equity became a transferee of the decree by the prior agreement so as to come under Order XXI, rule 16 and preferred to follow the decision of the Madras High Court in Basroovittil Bhandari vs Ramchandra Kamthi (supra) and the other decisions to which reference has been already made. In Pandu Joti Kadam vs Savla Piraji Kate(1) one Tuljaram obtained a decree on a mortgage against the appellant Pandu Joti. Later on, the respondent Savla brought a suit against the appellant Pandu and Tuljaram. In that suit a decree was passed directing Tuljaram to transfer the mortgage decree ' to Savla. The respondent Savla thereupon without having obtained, amicably or by execution of his decree, an actual assignment of the mortgage decree sought to execute that decree. It was held that although Savla had a legal right, by executing his own decree, to compel his judgment debtor Tuljaram to assign to him the mortgage decree obtained by Tuljaram, such (1) 1390 right alone, without an assignment in writing, did not make him a transferee of the mortgage decree so as to be entitled to execute that decree. Even the Bombay High Court (Fawcett and Madgavkar, JJ.) in Genaram Kapurchand Marwadi vs Hanmantram Surajmal(1) followed the decision of the Madras High Court in Basroovittil Bhandari vs Ramchandra Kamthi (supra). The question came up for consideration in connection with a plea of limitation. There in February 1914 the appellant obtained an assignment of the rights of the plaintiff in a pending suit which was thereafter continued by the original plaintiff. In November 1914 a decree was passed in favour of the original plaintiff. The appellant made several applications for execution of the decree in 1916, 1917, 1920 and 1921 all of which were dismissed. In November 1923 the appellant obtained a, fresh assignment in writing from the plaintiff and made a fresh application for execution. The judgment debtor pleaded that the earlier applications were not in accordance with law and did not keep the decree alive. It was held that although the appellant was entitled, in equity, to the benefit of the decree he did not, before he actually obtained an assignment of the decree in 1923, become a transferee of the decree by an assignment in writing within Order XXI, rule 16 and, therefore, the applications made by him prior to 1923 were not made in accordance with law and, therefore, the last application was barred by limitation. This decision clearly proceeded on the ground that Order XXI, rule 16 contemplated only the transfer of a decree after it had been passed. The case of Abdul Kader vs Daw Yin(2) does not ,assist the respondent company, for in that case the Court took the view that, on its true construction, the deed under consideration in that case actually transferred the decree that bad already been passed. In Prabashinee Debi vs Rasiklal Banerji(3), Rankin, C.J., considered the previous cases and preferred to (1) ; (2) A.I.R. 1920 Rang. (3) Cal. 1391 follow the case of Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal (supra). The case of Purna Chandra Bhowmik vs Barna Kumari Debi(1) does not, when properly understood, afford any support to the contention of the respondent company. There the defendant No. 1 had executed a mortgage bond in favour of the plaintiff assigning by way of security the decree that would be passed in a pending suit which he, the defendant No. I had instituted against a third party for recovery of money due on unpaid bills for work done. After this mortgage a decree was passed in that suit in favour of the defendant No. 1 who bad continued that suit as the plaintiff. The plaintiff claiming to be the assignee by way of mortgage of that decree instituted this suit against two defendants. The defendant No. 1 was the plaintiff in the earlier suit who had mortgaged to the plaintiff the decree to be passed in that suit and the defendant No. 2 was a person who claimed to be a transferee of the same decree under a conveyance subsequently executed in his favour by the first defendant. The judgment debtor under the decree in the first suit was not made a party defendant in this suit. The first defendant did not contest this suit and it was only contested by the second defendant. One of the points raised by the contesting defendant was that this subsequent suit which was one for a, pure declaration of title was bad under section 42 of the Specific Relief Act inasmuch as the plaintiff did not pray for consequential relief in the shape of a permanent injunction restraining him, the contesting defendant, from executing the decree. In repelling that argument as manifestly untenable Mukherjea, J., as he then was, said: "All that the plaintiff could want possibly at the present stage was a declaration that she was an assignee of the decree and if she gets a declaration it would be open to her to apply for execution of the decree under Order XXI, rule 16, of the Code of Civil Procedure. No other consequential relief by way of (1) I.L.R. 178 178 1392 injunction or otherwise could or should have been prayed for by the plaintiff in the present suit". It will be noticed that the construction of Order XXI, rule 16, was not in issue at all. The question was not between the person claiming to be the transferee of the decree and the judgment debtor. Indeed, the judgment debtor was not a party to this suit at all. The simple question was whether the suit was maintainable under section 42 by reason of the absence of a prayer for consequential relief. In view of the facts of that case the observation quoted above appears to me to be a passing one not necessary for the decision of the question then before the Court and not an expression of considered opinion on the meaning, scope and effect of Order XXI, rule 16. All the cases, except the three cases relied on by learned counsel for the respondent company, quite clearly lay down and I think correctly that Order XXI, rule 16, by the first alternative, contemplates the actual transfer of the decree by an assignment in writing executed after the decree is passed And that while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not relate back to the prior agreement and does not render the transferee a transferee of the decree by an assignment in writing, within the meaning of Order XXI, rule 16. Learned counsel for the respondent company then contends that even if the respondent company did not, by force of the prior agreement in writing read in the light of the equitable principle alluded to above or of the provisions of the Transfer of Property Act, become the transferees of the decree by an assignment in writing, they, nevertheless, became the transferees of the decree "by operation of law" within the meaning of Order XXI, rule 16. That phrase has been considered by the different High Courts in numerous cases but the interpretations put upon it are not at all uniform and it is difficult to reconcile all of them. 1393 In this judgment in the present case the executing court expressed the view that the phrase could only mean that the rights had been transferred "on account of devolution of interest on death, etc". In delivering the judgment in the Letters Patent Appeal, Chagla, C.J., said: "The operation of law contemplated by Order XXI, rule 16 is not any equitable principle but operation by devolution as in the case of death or insolvency". The learned Chief Justice does not give any reason for the view expressed by him but assumes the law to be so. The genesis for such assumption is probably traceable to the observations of Sir Robert P. Collier who delivered the judgment of the Privy Council in Abedoonissa Khatoon vs Ameeroonissa Khatoon(1). The question arose in that case in this way. One Wahed sued his father Abdool for possession of certain properties. The trial Court dismissed the suit and Wahed appealed to the High Court. During the pendency of the appeal Wahed died and his widow Abedoonissa was substituted in the place of Wahed for prosecuting the appeal. The High Court allowed the appeal and by its decree declared that Wahed was in his lifetime and those who became his heirs were entitled to recover the properties in suit. Abedoonissa applied for execution of the decree for herself and for one Wajed who was said to be the posthumous son of Wahed born of her womb. Objection was taken, inter alia, that Wajed was not the legitimate son of Wahed. This objection was overruled and it was held that Abedoonissa was entitled to execute the decree for herself and as the guardian of Wajed. Then the judgment debtor Abdool died. Abdool 's widow Ameeroonissa filed a suit for a declaration that Wajed was not the legitimate son of Wahed and for setting aside the last mentioned order. Abedoonissa took the point that the matter was concluded by principles of res judicata. To that Ameeroonissa 's reply was that the proceeding in which the question of the legitimacy of Wajed was decided was wholly incompetent so far as (1) [1876] L.R. 4 I.A. Cal. 1394 Wajed was concerned because, the decree being in favour of Abedoonissa, Wajed was not a transferee of the decree within the meaning of section 208 of Act VIII of 1859 corresponding to Order XXI, rule 16 of the present Code and could not apply for execution and that being so any adjudication on his status in such proceeding was not binding at all. The question for decision in the suit was whether Wajed was a transferee of the decree within the meaning of section 208 of the Code of 1859. It was in that connection that Sir Robert P. Collier in delivering the judgment of the Privy Council, after quoting that section, observed: "It appears to their Lordships, in the first place, that,, assuming Wajed to have the interest asserted, the decree was not, in terms of this section, transferred to him, either by assignment, which is not pretended, or by operation of law, from the original decree holder. No incident bad occurred, on which the law could operate, to transfer any estate from his mother to him. There had been no death; there bad been no devolution; there had been no succession. His mother retained what right she had; that right was not transferred to him; if he had a right, it was derived from his father; it appears to their Lordships, therefore, that be is not a transferee of a decree within the terms of this section". The above observations seem to put upon the phrase by operation of law" an interpretation which, in the language of Chakravartti, J., in his judgment in Sailendra Kumar vs Bank of Calcutta(1) "suggests that it would apply only in cases where certain events, not connected with any act on the part of anybody towards making a transfer, happen and the law, operating on those events, brings about a transfer". Some of the decisions of certain High Courts to be presently cited seem to assume that their Lordships of the Privy Council were out to give an exhaustive enumeration of the cases of transfer of property by operation of law but I find myself in agreement with Chakravartti, J., that there is no reason for making (1) I.L.R. 1395 such an assumption and treating these observations as the text of a statute. In Dinendranath Sannyal vs Ramcoomar Ghose(1) Sir Barnes Peacock pointed out the great distinction between a private sale in satisfaction of a decree and a sale in execution of a decree. One of the principal distinctions so pointed out was: "Under the former the purchaser derives title through the vendor, and cannot acquire a better title than that of the vendor. Under the latter the purchaser notwithstanding he acquires merely the right, title and interest of the judgment debtor, acquires that title by operation of law adversely to the judgment debtor, and freed from all alienations or incumbrances effected by him subsequently to this attachment of the property sold in execution". Here the act of the decree holder in seeking execution by attachment and sale and the act of the Court in directing attachment and sale cannot possibly be said to be the happening of an event unconnected with the act of making a transfer such as death or devolution or succession referred to in Abedoonissa 's case (supra) could be said to be. By the act of applying for execution the decree holder quite clearly desires that the judgment debtor should be stripped of all his right, title and interest in the property attached and sold and the order of the Court has the effect of so denuding the judgment debtor and of passing his right, title and interest to the purchaser of the property at the Court sale. This transfer 'of property is not by any assignment in writing executed by the transferor in favour of the transferee but is brought about by the operation of the statutory provisions relating to and governing execution of decrees. Thus this Privy Council decision itself shows that transfers "by operation of law" were not intended by it to be confined to the three cases of death, devolution or succession. More often than not transfers "by operation of law" will be found to be brought about by the opera (1) [1889] L.R. 8 I.A. 65, 75. 1396 tion of statutory law. Thus when a person dies testate there is a devolution of his properties to his legal representatives by operation of the law of testamentary succession which is now mainly statutory in this country. When a person is adjudged insolvent his properties vest in the official assignee and that transfer is brought about by the operation of the insolvency laws which have been codified. Court sale of property in execution of a decree vests the right, title and interest of the judgment debtor in that property in the auction purchaser thereby effecting a transfer by operation of the law embodied in the Code of Civil Procedure. Likewise, statutes in some cases provide for the forfeiture of property, e.g. property in relation to which an offence has been committed, namely, illicit liquor or opium, etc., and thereby effect a transfer of such property from the delinquent owner to the State. It is neither necessary nor profitable to try and enumerate exhaustively the instances of transfer by operation of law. Suffice it to say that there is DO warrant for confining transfers "by operation of law" to transfers by operation of statutory laws. When a Hindu or a Mohammaden dies intestate and his heirs succeed to his estate there is a transfer not by any statute but by the operation of their respective personal law. In order to constitute a transfer of property "by operation of law" all that is necessary is that there must be a passing of one person 's rights in property to another person by the force of some law, statutory or otherwise. Reference has already been made to the case of Purmananddas Jivandas vs Vallabdas Wallji (supra) where, by applying the equitable principle, Sargent, C.J., upheld the appellant 's right to maintain the application for execution. In the beginning the learned Chief Justice founded his decision on the ground that the appellant had become the transferee of the decree "by operation of law". This view appears to me to be logical, for it was by the operation of the equitable principle that the right, title and interest of the transferor in the after acquired decree became the property of the appellant, In other words, 1397 it was equity which operated on the decree as soon as it was passed and passed the interest of the decree , holder to the appellant. The result of this transmission was to transfer the property from the decree holder to the appellant and this transfer was brought about by the operation of the equitable principle discussed above which is as good as any rule of law. The actual decision in Purmananddas Jivandas vs Vallabdas Wallji (supra) may well be supported as an in stance of transfer by operation of law and indeed Sargent, C.J., himself first described the transfer in that case as being one by operation of law. The same remarks apply to the other two cases of Ananda Mohon Roy vs Promotha Nath Ganguli (supra) and Chimanlal Hargovinddas vs Ghulamnabi (Supra) relied on by learned counsel for the respondent company. In Abdul Kader vs Daw Yin (supra) in July 1928 the plaintiff obtained a decree that a certain sale deed be set aside on payment of a certain sum and for possession of the properties and mesne profits. In August 1928, i.e., after the passing of the decree the plaintiff executed a deed for the sale of the properties to the appellant who by the terms of the deed was to obtain possession of the properties through Court on payment of the amount mentioned therein. The plaintiff deposited the necessary amount and applied for execution of the decree but she died shortly thereafter. Thereupon the appellant applied for execution of the decree. On a construction of the terms of the sale deed the Court came to the conclusion that the sale deed covered the decree and, therefore, the appellant was a transferee of the decree by assignment in writing. This was sufficient to dispose of the case but the learned Judges tried to reconcile some of the earlier cases by deducing two propositions: (1) that the words "by operation of law" cannot be invoked so as to make an assignment operative to transfer the decree and the right under it which would upon the true construction of its terms, otherwise, be inoperative in that regard; and (2) that although in certain cases principles of equity may be relied on, e.g., in the case of a transfer 1398 by trustees and a beneficiary, such principles cannot be considered as rendering a transfer valid "by operation of law". It is difficult to appreciate the implication of the first proposition. When on a true construction of the deed it actually operates to transfer a decree then in existence, no equitable principle need be invoked, for in that case the transfer is by the deed itself and as such is by an assignment in writing. It is only when the deed does not effectively transfer the decree because, for instance, the decree is not then in existence, but constitutes only an agreement to transfer the decree after it is passed that the invocation of the equitable principle becomes necessary and it is in those circumstances that equity fastens and operates upon the decree when it is passed and effects a transfer of it. If, however, the learned Judges meant to say that if on a true construction of the deed it did not cover the decree then the equitable principle would not come into play at all and in that case the principle of transfer by operation of law could not be invoked, no exception need then be taken. As regards the second proposition which appears to be founded on the observations of Mukherji, J., in Mathurapore Zamindary Co. 's case (supra) I do not see why the equitable principle may be relied on only in the case of a transfer by trustees to cestui que trust. Indeed, it was applied in the two earlier English cases as between mortgagor and mortgagee and in Performing Right Society vs London Theatre of Varieties (supra) to an indenture of assignment of copyright to be acquired in future made between persons who did not stand in the relationship of trustee and beneficiary. Nor do I see why, in cases where the equitable principle applies, the transfer should not be regarded as one by operation of law. In Mahadeo Baburao Halbe vs Anandrao Shankarrao Deshmukh(1) the judgment confined transfers by operation of law to cases of death, devolution or succession for which, as already stated, I see no warrant. (1) Bom. 1399 The decision in Periakatha Nadar vs Mahalingam(1) is somewhat obscure. There a receiver appointed in a partnership action filed a suit against a debtor of the firm and obtained a decree. Thereafter the assets of the firm including the decree were directed to be sold by auction amongst the partners. This order was made in spite of the objection of the partners. The decree was purchased by one of the partners who was defendant No. 2. The purchaser then applied for execution of the decree. Pandrang Rao, J. said, at p. 544: "It appears to us that the words 'operation of law ' cannot apply to, a case where a person has become the owner of a decree by some transaction inter vivos. It applies to cases where the decree has been transferred from one to another by way of succession or where there is a bankruptcy or any similar event which has the effect in law of bringing about such a transfer". If the purchaser of a property in execution sale becomes the transferee of the property by operation of law 1, for one, cannot see why the purchaser of a property at an auction sale held in a partnership action under the order of the Court made in invitum will not be a transferee by operation of law. If an involuntary execution sale is not a transaction inter vivos why should an auction sale held in a partnership action in the teeth of opposition of the parties be a transaction inter vivos? The learned Judges concluded that as no particular form of assignment was prescribed for transfer, the order of the Court might be treated as an assignment in writing of the decree. I find it much easier to hold that there was in that case a transfer by operation of law than that the Court acted as the agent of the partners and the order of the Court was the assignment in writing. The law authorised the Court in a partnership action to order the sale of the partnership assets and consequently the sale passed the interest of all the partners other than the purchasing partner in the decree solely to (1) A.I.R. 1936 Mad. 179 179 1400 the latter. I do not see why a transfer thus brought about should not, like a transfer effected by a Court sale in execution, be regarded as a transfer by operation of law. Further, as,I have already said, there is no valid reason for confining transfer by operation of law to succession and bankruptcy or the like. In G. N. Asundi vs Virappa Andaneppa Manvi(1) a father sued his sons for a declaration of his sole title to a decree previously obtained by the sons against a third party on promissory notes. The parties came to a compromise and a joint petition signed by the father and the sons was filed in Court in which it was stated that the sons had no objection to surrender all their rights in the decree to the father. The Court passed a decree in accordance with the compromise. On an application for execution by the father of the decree on the promissory notes it was held that on its true construction the compromise petition amounted to an assignment of the decree within the meaning of Order XXI rule 16. So far there can be no difficulty; but the learned Judges went on to say, without, I think, any good reason, that transfer by operation of law was obviously intended to be confined to testamentary and intestate succession, forfeiture, insolvency and the like. This was only because the Court felt bound to hold that the decision in Abedoonisa 's case had so limited it. It was also pointed out I think correctly that a decree declaring the title of the decree holder to another decree previously passed in another suit did not effect a transfer of the earlier decree by operation of law and the decree holder under the latter decree did not become the transferee of the earlier decree by operation of law within the meaning of Order XXI, rule 16. This was also held in a number of cases including Mahadeo Baburao Halbe 's case (supra) and Firm Kushaldas Lekhraj vs Firm Jhamandas Maherchandani(2). This must follow from the very nature of a declaratory decree. A declaratory decree does not create or confer any new right but declares a pre existing right. Therefore, when a (1) I.L.R. (2) A.I.R. 1944 Sind 230. 1401 declaratory decree declares the right of the decree holder to another decree passed in an earlier suit, there is no divesting of interest of one person and ' vesting of it in another. There is no transfer at all and, therefore, the person in whose favour the declaratory decree is passed does not fall within Order XXI, rule 16, Code of Civil Procedure. The last case to which reference need be made is that of Maya Debi vs Rajlakshmi Debi(1). There a Darpatnidar deposited under section 13(4) of the Bengal Patni Taluqa Regulation (VIII of 1819) the arrears of revenue to avoid a putni sale and entered into possession of the putni as he was entitled to do under the above section. He then filed a suit and obtained a decree for arrears of rent due to the Patnidar from another Darpatnidar. Subsequently he relinquished possession in favour of the Patnidar by giving a notice to the Patnidar. The question was whether the Patnidar, after he got back the possession of the putni, could be regarded as the assignee of the decree which had been obtained by the Varpatnidar against another Darpatnidar. It was held that in view of the provisions of section 13(4) the Patnidar on getting back possession of the putni became the transferee of the decree by operation of law. It was also held that the notice given by the Darpatnidar to the Patnidar could also be construed as an assignment in writing, The result of the authorities appears to me to be that if by reason of any provision of law, statutory or otherwise, interest in property passes from one person to another there is a transfer of the property by operation of law. There is no reason that I can see why transfers by operation of law should be regarded as confined to the three cases referred to by the Privy Council in Abedoonissa 's case. If, therefore, I were able to construe the document of the 7th February 1949 to be a transfer or an agreement to transfer the decree to be passed in future then I would have had no difficulty in holding that by operation of equity the beneficial interest in the decree (1) A.I.R. 1950 Cal. 1. 14O2 was immediately after its passing taken out of the transferors and passed to the respondent company and that the latter had become the transferees of the decree now sought to be executed by operation of law. As, however, I have held that that document did not cover the decree, there was no room for the application of the equitable principle and the respondent company cannot, therefore, claim to come under Order XXI, rule 16 as transferees by operation of law and cannot maintain the application for execution. There is another ground on which the right of the respondent company to maintain the application for execution has been sought to be sustained. This point was not apparently taken before the High Court and we have not had the advantage and benefit of the opinion of the learned Judges of that Court. Section 146 of the Code of Civil Procedure on which this new point is founded provides as follows: "146. Proceedings by or against representatives. Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". There are two questions to be considered before the section may be applied, namely, (1) whether the Code otherwise provides and (2) whether the respondent company can be said to be persons claiming under the decree holder. As regards. (1) it is said that Order XXI, rule 16 specifically provides for application for execution by a transferee of decree and, therefore, a transferee of decree cannot apply under section 146 and must bring himself within Order XXI, rule 16. This is really begging the question. Either the respondent company are transferees of the decree by an assignment in writing or by operation of law, in which case they fall within Order XXI, rule 16, or they are not such transferees, in which event they may avail themselves of the provisions of section 146 if the other condition is fulfilled. There is nothing in Order XXI, rule 16 which, expressly or by necessary implication 1403 precludes a person, who claims to be entitled to the benefit of a decree under the decree holder but does not answer the description of being the transferee of that decree by assignment in writing or by operation of law, from making an application which the person from whom he claims could have made. It is said: what, then, is meant by the words "save as otherwise provided by this Code"? The answer is that those words are not meaningless but have effect in some cases. Take, by way of an illustration, the second proviso to Order XXI, rule 16 which provides that where a decree for payment of money against two or more persons has been transferred to one of them it shall not be executed against the others. This is a provision which forbids one of the judgment debtors to whom alone the decree for payment of money has been transferred from making an application for execution and, therefore, he cannot apply under section 146 as a person claiming under the decree holder. As the respondent company do not fall within Order XXI, rule 16 because the document did not cover the decree to be passed in future in the then pending suit that rule cannot be a bar to the respondent company making an application for execution under section 146 if they satisfy the other requirement of that section, namely, that they can, be said to be claiming under the decree holder. A person may conceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree holder and so it has been held in Sitaramaswami vs Lakshmi Narasimha(1), although in the earlier case of Dost Muhammad vs Altaf Husain (supra) it was held otherwise. The case of Kangati Mahanandi Reddi vs Panikalapati Venkatappa(2) also hold that the provisions of Order XXI, rule 16 did not prevent execution of the decree under section 146. In that case it was held that the appli (1) Mad. 510. (2) A.I.R. 1942 Mad. 21, 1404 cant could not execute the decree under Order XXI, rule 16 but he could execute the same under section 146. The main thing to, ascertain is as to whether the respondent company had any right, title or interest in the decree and whether they can be said to be persons claiming under the decree holder. I have already held that the document under consideration did not transfer the future decree and, therefore, the equitable principle did not apply and, therefore, the respondent company did not become a transferee of the decree within the meaning of Order XXI, rule 16. What, then, was the legal position of the respondent company? They had undoubtedly, by the document of the 7th February 1949, obtained a transfer of the debt which was the subject matter of the then pending suit. This transfer, under the Transfer of Property Act, carried all the legal incidents and the remedies in relation to that debt. The transferors no longer had any right, title or interest in the subject matter of the suit. After the transfer it was the respondent company which had the right to continue the suit and obtain a decree if the debt was really outstanding. They, however, did not bring themselves on the record as the plaintiffs in the place and stead of the transferors but allowed the latter to proceed with the suit. The transferors, therefore, proceeded with the suit although they had no longer any interest in the debt which was the subject matter of the suit and which had been transferred by them to the respondent Company. In the premises, in the eye of the law, the position of the transferors, vis a vis the respondent company, was nothing more than that of benamidars for the respondent company and when the decree was passed for the recovery of that debt it was the respondent company who were the real owners of the decree. As between the respondent company and the transferors the former may well claim a declaration of their title. Here there is no question of transfer of the decree by the transferors to the respondent company by assignment of the decree in writing or by operation of law and the respondent company cannot apply for execution of the 1405 decree under Order XXI, rule 16. But the respondent company are, nonetheless, the real owners of the decree because it is passed in relation to and for the recovery of the debt which undoubtedly they acquired by transfer by the document under consideration. The respondent company were after the transfer, the owners of the debt which was the subject matter of the suit and the legal incidents thereof and consequently were the real owners of the decree. The respondent company derived their title to the debt by transfer from the transferors and claimed the same under the latter. When the respondent company be,came the owner of the decree immediately on its passing they must, in relation to the decree, be also regarded as persons claiming under the transferors. The respondent company would not have become the owner of the decree unless they were the owners of the debt and if they claimed the debt under the trans ferors they must also claim the relative decree under the transferors as accretions, as it were, to their original right as transferees of the debt. In my opinion, the respondent company are entitled under section 146 to make the application for execution which the original decree holders could do. In Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal (supra) Mukherji, J., felt unable to assent to the broad proposition that Courts of execution have to look to equity in considering whether there has been an assignment by operation of law. I see no cogent reason for taking this view. If the executing Court can and, after the amendment of Order XXI, rule 16 by the deletion of the words "if that Court thinks fit", must deal with complicated questions relating to transfer of decree by operation of statutory provisions which may be quite abstruse, I do not see why the executing Court may not apply its mind to the simple equitable principle which operates to transfer the beneficial interest in the after acquired decree or to questions arising under section 146. Section 47 of the Code of Civil Procedure does require that the executing Court alone must determine all questions arising between the 1406 parties or their representatives and relating to the execution,, discharge or satisfaction of the decree and authorises it even to treat the proceedings as a suit. As the assignees from the plaintiff of the debt which was the entire subject matter of the suit the respondent company were entitled to be brought on the record under Order XXII, rule 10 and must, therefore, be also regarded as a representative of the plaintiff within the meaning of section 47 of the Code. Learned Counsel for the appellant contends that the application for execution was defective in that although it purported to be an application for execution under Order XXI, rule 1 1, it did not comply with the requirements of that rule in that it did not specify any of the several modes in which the assistance of the Court was required. The application was undoubtedly defective as the decision in the case of Radha Nath Das vs Produmna Kumar Sarkar(1) and Krishna Govind Patil vs Moolchand Keshavchand Gujar(1) will show but this objection was not taken before the executing Court which could then have returned the application, nor was any objection taken by the appellant at any later stage of the proceedings. Further, it appears that the respondent company actually presented another tabular statement for execution specifying the mode in which the assistance of the Court was required. In these circumstances, it is not open to the appellant to contend that the application is not maintainable. The result, therefore, is that this appeal must be dismissed with costs. BHAGWATI J. I agree that the appeal be dismissed with costs. I would however like to record my own reasons for doing so. Habib & Sons, a partnership firm which carried on business as merchants and Pukka Adatias in bullion and cotton in Bombay filed a suit against the Appellant in the City Civil Court, Bombay being Summary (1) I.L.R. (2) A.I.R. 1911 Bom. 1407 Suit No. 233 of 1948, to recover a sum of Rs. 7,113 7 0 with interest and costs. During the pendency of the suit an agreement was arrived at between Habib & Sons and the Respondents on the 7th February, 1949 under which Habib & Sons transferred to the Respondents inter alia. . Fourthy: All the book and other debts due to the Vendors in connection with the said Indian business and the full benefit of all securities for the debts. . . Sixthly: All other property to which the Vendors are entitled in connection with the said Indian business". As consideration for the said transfer the Respondents undertook to pay satisfy, discharge and fulfill all the debts, liabilities contracts and engagements of the vendors in relation to the said Indian business and to indemnify them ' against all proceedings, claims and demands in respect thereof. The Respondents did not take any steps under Order XXII, rule 10 of the Code of Civil Procedure to bring themselves on the record of the suit as plaintiffs in place and stead of Habib & Sons and a decree was passed in favour of Habib & Sons against the Appellant on the 15th December, 1949 for Rs. 8,428/7/ inclusive of interest and costs with interest on judgment at 4 per cent. per annum till payment. Both the partners of Habib & Sons were declared evacuees and by his order dated the 2nd August, 1950 the Custodian of Evacuee Property, Bombay confirmed the transaction of transfer of the business of Habib & Sons to the Respondents as evidenced by the agreement dated the 7th February, 1949. A communication to that effect was addressed by the Custodian to a Director of the Respondents on the 11th December 1950. On the 25th April, 1951 the Respondents filed in the City Civil Court, Bombay an application for execution under Order XXI ' rule 11 of the Code of Civil Procedure to execute the decree obtained by Habib & Sons against the Appellant. That application was by the Respondents as assignees of the decree and the mode in which the assistance of the Court was required was that the Court should declare the Respon 1408 dents the assignees of the decree as the decretal debt along with other debts were transferred by Habib & Sons to them by a deed of assignment dated the 7th February, 1949 which was confirmed by the Custodian of Evacuee Property, Bombay and should order them to be substituted for the plaintiffs. A notice under Order XXI, rule 16 of the Code of Civil Procedure was issued by the Court on the 10th May, 1951, calling upon Habib & Sons and the Appellant to show cause why the decree passed in favour of Habib & Sons and by them transferred to the Respondents, the assignees of the decree should not be executed by the said transferees against the Appellant. The Appellant showed cause and contended (1) that the deed of assignment in favour of the Respondents was not executed by Habib & Sons and (2) that the assignee of the subject matter of the suit and not of the decree itself was not entitled to apply for leave under Order XXI, Rule 16 of the Code of Civil Procedure. The Chamber Summons was adjourned to Court in order to take evidence whether the document in question was executed by Habib & Sons or not. Evidence was led at the hearing and the Court held the document duly executed by the two partners of Habib & Sons and as such duly proved. On the question of law the Court followed the decisions in Purmananddas Jiwandas vs Vallabdas Wallji (1) and Chimanlal Hargovinddas vs Gulamnabi(2) and held that the Respondents were entitled to execute the decree under Order XXI, rule 16 of the Code of Civil Procedure. An appeal was taken by the Appellant to the High Court against this decision of the City Civil Court. The appeal came for hearing before Dixit, J. The finding that the deed of assignment was duly proved was not challenged. But the contention that inasmuch as there was no transfer of the decree itself, but only of the property the Respondents were not entitled to apply to execute the decree was pressed and was negatived by the learned Judge. The learned Judge observed that if the language of Order XXI, (1) Bom. (2) I.L.R. 1409 rule 16 was strictly construed it seemed to him that the Respondents had no case. But he followed the decisions in Purmananddas Jiwandas vs Vallabdas Wallji(1) and Chimanlal Hargovinddas vs Gulamnabi(2) and dismissed the appeal. A Letters Patent Appeal was filed against this decision of Dixit, J. and it came on for hearing and final disposal before a Division Bench of the High Court constituted by Chagla, C.J. and Shah, J. The Division Bench also were of the opinion that if one were to construe Order XXI, rule 16 strictly there was no assignment of the decree in favour of the respondents. They however were of the opinion that the High Court had consistently taken the view that there could be an equitable assignment of a decree, which would constitute the assignee an assignee for the purpose of Order XXI, rule 16 and that what the Court must consider was not merely a legal assignment but also an assignment which operated in equity. They then considered the two Bombay decisions which had been relied upon by the City Civil Court as well as by Dixit, J. and came to the conclusion that the deed of assignment fell within the principle of those two decisions, that it constituted an equitable assignment of the decree which was ultimately passed in favour of Habib & Sons, that the application for execution was maintainable under Order XXI, rule 16 and dismissed the appeal. The Appellant applied for and obtained the necessary certificate under article 133 (1)(c) of the Constitution. Order XXI, rule 16 provides for an application for execution by transferee of a decree and runs as under: "Where a decree. . . . . . is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree holder: (1) Bom. (2) I.L.R. 1410 Provided that, where the decree I has been transferred by assignment, notice of such application shall be given to the transferor and the judgment debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution The transfer contemplated under this rule is either by assignment in writing or by operation of law. It was not contended by the Appellant at any stage of the proceedings that there was in this case a transfer by operation of law or that the agreement dated the 7th February 1949 was not an assignment of all the rights which Habib & Sons had in connection with the Indian business. The question therefore that falls to be considered is whether the deed of assignment dated the 7th February 1949 operates as a transfer of the decree by assignment in writing within the meaning of Order XXI, rule 16 of the Code of Civil Procedure. A strict and narrow construction has been put upon the words "where a decree is transferred by assignment in writing" by the High Court of Madras in Basroovittil Bhandari vs Ramchandra Kamthi(1) and the decisions following it, particularly Kangati Mahanandi Reddi vs Panikalapati Venkatappa & Another(2) and by the High Court of Calcutta in Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal(1) which is followed in Prabashinee Debi vs Rasiklal Banerji(4). They have held that the words "decree holder" must be construed ' as meaning decree holder in fact and not as including a party who in equity may afterwards become entitled to the rights of the actual decree holder and that the language of Order XXI, rule 16 (old section 232) cannot be construed so as to apply to a case where there was no decree in existence at the time of the assignment and this position was in effect conceded by Dixit, J. and by the Division Bench when they observed that on a strict construc (1) , (2) A.I R. 1942 Madras 21. (3) Calcutta 703. (4) Calcutta 297. 1411 tion of Order XXI, rule 16 there was no assignment of the decree in favour of the Respondents. A contrary view has however been taken by the High Court of Bombay in Purmananddas Jiwandas V. Vallabdas Wallji(1) and Chimanlal Hargovinddas V. Gulamnabi(2). These two decisions have applied the equitable principle enunciated by Sir George Jessel, M. R. in Collyer vs Isaacs(1) as under: "The creditor had a mortgage security on existing chattels and also the benefit of what in form was an assignment of non existing chattels which might be afterwards brought on to the premises. That assignment, in fact, constituted only a contract to give him the after acquired chattels. A man cannot in equity, any more than at law, assign what has no existence. A man can contract to assign property which is to come into existence in the future, and when it has come into existence, equity, treating as done that which ought to be done, fastens upon that property, and the contract to assign thus becomes a complete assignment". The High Court of Calcutta also applied the same principle in Purna Chandra Bhowmik vs Barna Kumari Debi(4) and the High Court of Madras in Kangati Mahanandi Reddi vs Panikalapati Venkatappa and another(5) observed that if the matter were res integra much might perhaps be said for the contention that the assignee under similar circumstances could execute the decree under Order XXI, rule 16. The decision in Purmananddas Jivandas V. Vallabdas Wallji(1) and the equitable principle enunciated therein was brought to the notice of the learned Judges who decided the case of Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal(6) but was negatived by them and they relied upon the observations of the Privy Council in dealing with a somewhat similar provision contained in Section 208 of Act VIII of 1859 in the case of Abedoonissa Khatoon vs Ameeroonissa Khatoon(1): (1) Bom. 506.(2) I.L.R. (3) L.R. 19 Ch. D. 342.(4) I.L.R [1939] 2 Calcutta 341. (5) A.I.R. 1942 Madras 21.(6) Calcutta 703. (7) (1876) L.R. 4 I.A. 66. 1412 "Their Lordships have further to observe, that they agree with the Chief Justice in the view which he expressed, that this was not a section intended to apply to cases where a serious contest arose with respect to the rights of persons to an equitable interest in a decree". Rankin, C.J. laid stress upon this aspect of the question and delivered a similar opinion in Prabhashinee Debi vs Rasiklal Banerji(1) at page 299: "There seem to be two possible views of the rule. One view would be to say that there must be a decree in existence and a transfer in writing of that decree. That is the strict view a view which the courts in India have taken. The only other possible view would be to say that, while other cases are within the rule such as cases where a person claims to be entitled in equity under an agreement to the benefit of the decree it is optional with the courts to give effect to the rule according as the case is a clear one or one which requires investigation of complicated facts or difficult questions of law unsuited for discussion on a mere execution application. In that view, if it were understood that the court had a complete discretion to apply the rule or not, it might be that the rule would be workable; but I do not think that any such discretion as that is intended to be given by the rule" and he fortified himself in his conclusion by relying upon the deletion of the words "if that Court thinks fit the decree may be executed" when the Civil Procedure Code of 1908 was enacted. Order XXI, rule 16 of the Code of Civil Procedure is a statutory provision for execution by the transferee of a decree and unless and until a person applying for execution establishes his title as the transferee of a decree he cannot claim the benefit of that provision. He may establish his title by proving that he is a transferee of a decree by assignment in writing or by operation of law. Section 5 of the Transfer of Property Act defines a "transfer of pro (1) [1931] I.L.R.59 Calcutta 297. 1413 perty" as an act by which the transferor conveys property in present or in future to the transferee or transferees. A transfer of a decree by assignment in writing may be effected by conveying the decree in present or in future to the transferee. But even for the transfer to operate in future the decree which is the subject matter of the transfer must be in existence at the date of the transfer. The words "in present or in future" qualify the word "conveys" and not the word "property" in the section and it has been held that a transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes into existence. As was observed by the Privy Council in Rajah Sahib Perhlad vs Budhoo(1): "But how can there be any transfer, actual or constructive, upon a contract under which the vendor sells that of which he has not possession, and to which he may never establish a title? The bill of sale in such a case can only be evidence of a contract to be performed in future, and upon the happening of a contingency, of which the purchaser may claim a specific performance, if be comes into Court shewing that he has himself done all that he was bound to do". It is only by the operation of the equitable principle that as soon as the property comes into existence and is capable of being identified, equity taking as done that which ought to be done fastens upon the property and the contract to assign thus becomes a complete equitable assignment. In the case of a decree to be passed in the future therefore there could be no assignment of the decree unless and until the decree was passed and the agreement to assign fastened on the decree and thus became a complete equitable assignment. The decree not being in existence at the date of the transfer cannot be said to have been transferred by the assignment in writing and the matter resting merely in a contract to be performed in the future which may be specifically enforced as soon as the decree was passed there would be no transfer (1) 1414 automatically in favour of the "transferee" of the decree when passed. It would require a further act on the part of the "transferor" to completely effectuate the transfer and if he did not do so the only remedy of the "transferee" would be to sue for specific performance of the contract to transfer. There would therefore be no legal transfer or assignment of the decree to be passed in future by virtue of the assignment in writing executed before the decree came into existence and the only way in which the transferee could claim that the decree was transferred to him by assignment in writing would be by the operation of the equitable principle above enunciated and the contract to assign having become a complete equitable assignment of the decree. Is there any warrant for importing this equitable principle while construing the statutory 'Provision enacted in Order XXI, rule 16 of the Code of Civil Procedure? The Code of Civil Procedure does not prescribe any mode in which an assignment in writing has got to be executed in order to effectuate a transfer of a decree. The only other statutory provision in regard to assignments in writing is to be found in Chapter VIII of the Transfer of Property Act which relates to transfers of actionable claims and an actionable claim has been defined in section 3 of the Act as "a claim to any debt. . . or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief. . . . A judgment debt or decree is not an actionable claim for no action is necessary to realise it. It has already been the subject of an action and is secured by the decree. A decree to be passed in future also does not come as such within the definition of an actionable claim and an assignment or transfer thereof need not be effected in the manner prescribed by section 130 of the Transfer of Property Act. If therefore the assignment or transfer of a decree to be passed in the future does not require to be effectuated in the manner prescribed in the statute there would be no objection to the 1415 operation of the equitable principle above enunciated and the contract to assign evidenced by the assignment in writing becoming a complete equitable assignment of the decree when passed. The assignment in writing of the decree to be passed would thus result in a contract to assign which contract to assign would become a complete equitable assignment on the decree being Passed and would fulfill the requirements of Order XXI, rule 16 in so far as the assignment or the transfer of the decree would in that event be effectuated by an assignment in writing which became a complete equitable assignment of the decree when passed. There is nothing in the provisions of the Civil Procedure Code or any other law which prevents the operation of this equitable principle and in working out the rights and liabilities of the transferee of a decree on the one hand and the decree holder and the judgment debtor on the other, there is no warrant for reading the words "where a decree. . . . . is transferred by assignment in writing" in the strict and narrow sense,, in which they have been read by the High Court of Madras in Basroovittil Bhandari vs Ramchandra Kamthi(1) and the High Court of Calcutta in Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal(2) and Prabashinee Debi vs Rasiklal Banerji(3). It is significant to observe that the High Court of Calcutta in Purna Chandra Bhowmik vs Barna Kumari Debi(1) applied this equitable principle and held that the plaintiff in whose favour the defendant had executed a mortgage bond assigning by way of security the decree that would be passed in a suit instituted by him against a third party for recovery of money due on unpaid bills for work done was entitled to a declaration that be was the assignee of the decree passed in favour of the defendants and was as such entitled to realise the decretal debt either amicably or by execution. If the plaintiff was thus declared to be the assignee of the decree subsequently passed in favour of the defendant and entitled to realise the decretal amount by execution he could (1) [1907] 17 MI.L.J. 391. (3) Cal. (2) Cal. (4) I.L.R. 181 1416 apply for execution of the decree and avail himself of the provisions of Order XXI, rule 16 as the assignee of the decree which was passed subsequent to the date of the assignment in writing in his favour. There could be no objection to decide questions involving investigation of complicated facts or difficult questions of law in execution proceedings, as section 47 of the Code of Civil Procedure authorises the Court executing the decree to decide all questions arising therein and relating to execution of the decree and subsection (2) further authorises the executing Court to treat a proceeding under the section as a suit thus obviating the necessity of filing a separate suit for the determination of the same. The line of decisions of the High Court of Bombay beginning with Purmananddas jivandas vs Vallabdas Wallji(1) and ending with Chimanlal Hargovinddas vs Gulamnabi (2) importing the equitable principle above enunciated therefore appears to me to be more in consonance with law and equity than the strict and narrow 'interpretation put on the words "where a decree. . . . is transferred by assignment in writing" by the High Courts of Madras and Calcutta in the decisions above noted. Even if an equitable assignment be thus construed as falling within an "assignment in writing" contemplated by Order XXI, rule 16 of the Code of Civil Procedure it would in terms require an assignment of the decree which was to be passed in the future in favour of the assignor. In the present case, it is impossible to read the deed of assignment dated the 7th February, 1949 as expressly or by necessary implica tion assigning in favour of the Respondent the decree which was going to be passed by the City Civil Court in favour of Habib & Sons. There is however another aspect of the matter which was not urged before the Courts below in the present case nor does it appear to have been considered in most of the judgments above referred to. There is no doubt on the authorities that a mere transfer of property as such does not by itself spell out (1) Bom. (2) I.L R. 1946 Bom.276. 1417 a transfer of a decree which has been passed or may be passed in respect of that property and it would require an assignment of such decree in order to effectuate the transfer (vide Hansraj Pal vs Mukhraji Kunuvar & others(1), Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal(2), and Kangati Mahanandi Reddi vs Panikalapati Venkatappa & another(3). Where however the property which is transferred is an actionable claim within the meaning of its definition in section 3 of the Transfer of Property Act the consequences of such transfer would be different. An actionable claim means a claim to any debt, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, and a transfer of an actionable claim when effected by an instrument in writing signed by the transferor is under section 130 of the Act complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, vest in the transferee, whether such notice of the transfer as is therein provided be given to the debtor or not. If the book debt or the property which is an actionable claim is thus transferred by an assignment in writing all the rights and remedies of the transferor in respect thereof including the right to prosecute the claim to judgment in a Court of law either in a pending litigation or by institution of a suit for recovery of the same vest in the transferee immediately upon the execution of the assignment as a necessary corollary thereof. Not only is the actionable claim thus transferred but all the necessary adjuncts or appurtenances thereto are transferred along with the same to the transferee. Section 8 of the Act provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof These incidents include where the property is (1) All. 28. (2) Cal. (3) A.I.R. 1942 Mlad. 21. 1418 a debt or other actionable claim, the securities there for. . . . . but not arrears of interest accrued before the transfer. In cases of transfer of book debts or property coming within the definition of actionable claim there is therefore necessarily involved also a transfer of the transferor 's right in a decree which may be passed in his favour in a pending litigation and the moment a decree is passed in his favour by the court of law, that decree is also automatically transferred in favour of the transferee by virtue of the assignment in Writing already executed by the transferor. The debt which is the subject matter of the claim is merged in the decree 'and the transferee of the actionable claim becomes entitled by virtue of the assignment in writing in his favour not only to the book debt but also to the decree in which it has merged. The book debt does not lose its character of a debt by its being merged in the decree and the transferee is without anything more entitled to the benefit of the decree passed by the court of law in favour of the transferor. It would have been open to the transferee after the execution of the deed of assignment in his favour to take steps under Order XXXII, rule 10 of the Code of Civil Procedure to have himself substituted in the pending litigation as a plaintiff in place and stead of the transferor and prosecute the claim to judgment; but even if he did not do so he is not deprived of the benefit of the decree ultimately passed by the court of law in favour of the transferor, the only disability attaching to his position being that under section 132. of the Act he would take the actionable claim subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer. The transferee of the actionable claim thus could step into the shoes of the transferor and claim to be the transferee of the decree by virtue of the assignment in writing executed by the transferor in his favour and could therefore claim to execute the decree as transferee under Order XXI, rule 16 of the, Code of Civil Procedure. This aspect could not be considered by the High 1419 Court of Bombay in Purmananddas Jivandas vs Vallabdas Wallji(1) because the assignment there was executed on the 11th May, 1870, i.e. before the enactment of the Transfer of Property Act in 1882. The Court therefore applied the equitable principles and came to the conclusion that the equitable assignment which was completed on the passing of the decree was covered by the old section 232 of the Code of Civil Procedure. It was also not considered by the Full Bench of the High Court of Bombay in Chimanlal Hargovinddas V. Gulamnabi (2) nor by Dixit, J. or by the Division Bench in the present case. The High Court of Patna in Thakuri Gope and Others vs Mokhtar Ahmad & Another(3), went very near it when it observed that all that was transferred was an actionable claim, but did not work out the consequences thereof and its reason in was deflected by the consideration of the equitable principles and the applicability thereof while construing the provisions of Order XXI, rule 16 of the Code of Civil Procedure. The High Court of Calcutta in Purna Chandra Bhowmik vs Barna Kumari Debi(4) definitely adopted this position and observed at p. 344: "In my opinion, what was transferred was the claim to a debt and as such would come within the definition of actionable claim as given in section 3 of the Transfer of Property Act. The mere, fact that the claim was reduced by the Court did not make, in my opinion, any difference". It no doubt applied the equitable principle also and held that the mortgage. must be deemed to have attached itself to the decree which was for a definite amount as soon as the decree was passed, but further observed that the plaintiff was entitled to a declaration that she was an assignee of the decree and if she got that declaration it would be open to her to apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. I am sure that if this aspect of the question had been properly presented to Dixit, J. or the Division Bench in the (1) Bom. (3) A.I.R.[1922] Patna 563, (2) I.L.R.[1946] Bom. (4) I.L.R, , 1420 present case they also would have come to the same conclusion. Mr. Umrigar, learned counsel for the Respondents, further urged that even if the Respondents were not entitled to the benefit of Order XXI, rule 16 of the Code of Civil Procedure they were the true owners of the debt and the decree which was ultimately passed by the City Civil Court in favour of Habib and Sons by virtue of the deed of assignment dated the 7th February 1949 and that under section 146 of the Code of Civil Procedure execution proceedings could be taken and application for execution could be made by them as persons claiming under Habib & Sons. The deed of assignment transferred the debt which was the subject matter of the pending litigation in the City Civil Court between Habib & Sons and the Appellant. Habib & Sons could have taken proceedings in execution and made the application for execu tion of the decree against the Appellant and the Respondents claiming under Habib & Sons by virtue of the deed of assignment were therefore entitled to take the execution proceedings and make the application for execution under Order XXI, rule II of the Code of Civil Procedure. He also urged that Order XXI, rule 16 of the Code of Civil Procedure did not prohibit such execution proceedings at the instance of the Respondents and for this purpose relied upon the observations of the learned Judges of the High Court of Madras in Kangati Mahanandi Reddi vs Panikalapati Venkatappa & another(1) at page 23: "We are unable to hold that merely because rule 16 has been interpreted as applying only to decrees in existence at the time of the transfer, it prohibits an application by a transferee who obtained the transfer of a decree, a transfer which is legally valid and is embodied in a written deed (as rule 16 requires) before the decree was actually passed. To permit execution by such a transferee, in our opinion, in no way violates the principles which are embodied in rule 16 or in Order XXI generally. The appellant here is the (1) A I.R. 1942 Mlad. 1421 true owner of the decree, and he has his written title 'deed, and that is all that the law requires". It was however urged on behalf of the Appellant that section 146 did not apply because Order XXI, rule 16 was a specific provision in the Code of Civil Procedure which applied when a person other than a decree holder wanted to execute the decree and if the Respondents could not avail themselves of Order XXI, rule 16 of the Code of Civil Procedure they could not avail themselves of section 146 also. Reliance was placed in support of this contention on a decision of the High Court of Patna in Thakuri Gope and others vs Mokhtar Ahmad and another(1) and another decision of the High Court of Allahabad in Shib Charan Das vs Ram Chander & others(2). This contention of the Appellant is obviously unsound. Order XXI, rule 16 provides for execution of a decree at the instance of a, transferee by assignment in writing or by operation of law and enables such transferee to apply for execution of the decree to the Court which passed it. If a transferee of a decree can avail himself of that provision by establishing that he is such a transferee he must only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of Order XXI, rule 16 of the Code of Civil Procedure there is nothing in the provisions of Order XXI, rule 16 which prohibits him from availing himself of section 146 if the provisions of that section can be availed of by him. That is the only meaning of the expression "save as otherwise provided by this Code". If a person does not fall within the four corners of the provision of Order XXI, rule 16 of the Code of Civil Procedure that provision certainly does not apply to him and the words "save as otherwise :provided in this Code" contained in section 146 would not come in the way of his availing himself of section ,146 because Order XXI, rule 16 cannot then be construed as an "otherwise provision" contained in the Code. I am therefore of the opinion that if the Respondents could not avail themselves of Order XXI, (1) A.I.R. 1922 Patna 663. (2) A.I.R. 1922 All. 98, 1422 rule 16 of the Code of Civil Procedure they could certainly under the circumstances of the present case take the execution proceedings and make the application for execution of the decree passed by the City Civil Court in favour of Habib & Sons under section 146 of the Civil Procedure Code. An objection was however taken on behalf of the Appellant during the course of the arguments before us though no such objection was taken in the Courts below, that the application for execution made by the Respondents was defective inasmuch as it was not an application in proper form under Order XXI, rule 11 of the Code of Civil Procedure. Order XXI, rule 11(2) (j) prescribes that particulars in regard to the mode in which the assistance of the Court was required should be set out there in. The respondents had in their application for execution filed before the City Civil Court not mentioned any of these particulars but had only stated that the Court should declare them the assignees of the decree as the decretal debt along with other debts were transferred by Habib & Sons to them by the deed of assignment dated the 7th February 1949 which was confirmed by the Custodian of Evacuee Property, Bombay and should order them to be substituted for Habib & Sons. This was no compliance with the provisions of Order XXI, rule 11(2) (j) and therefore there was no proper application for execution before the Court and the same was liable to be dismissed. Reliance was placed in support of this contention on a decision of the High Court of Calcutta in Radha Nath Das vs Produmna Kumar Sarkar(1), where it was held dissenting from a decision of the High Court of Bombay in Baijnath Ramchander vs Binjraj Joowarmal Batia & Co. (2) that under Order XXI, rule 16 of the Code of Civil Procedure the ,assignee of a decree cannot make two applications, one for recording the assignment and another for executing the decree. The assignee of a decree could only make one application for execution under Order XXI, rule 1 1 of the Code of Civil Procedure specifying therein the mode in which the assistance of the Court (1) I.L.R. [1939] 2 Calcutta 325. (2) I.L.R [1937] Bombay 691. 1423 was required and it was only after such application had been made to the Court which passed the decree that the Court would issue notice under Order XXIL rule 16 to the transferor and the judgment debtor and the decree would not be executed until the Court had heard their objections if any to its execution. Sen, J. in that case observed at page 327: "It seems to me to be obvious from the wording of the rule that there can be no notice to the transferor or judgment debtor and no hearing of any objection unless and until there is an application for execution. Tile notice and the entire proceedings under Order XXI, rule 16, originate from an application for execution. If there is no such application the proceedings are without any foundation. Order XXI, rule 16, of the Code nowhere provides for an application to record an assignment or for an application for leave to execute a decree by an assignee or for an application for substitution". This in my opinion correctly sets out the position in law and in so far as the two decisions of the High Court of Bombay in Baijnath Ramchander vs Binjraj Joowarmal Batia & Co.(1) and Krishna Govind Patil vs Moolchand Keshavchand Gujar(2) decide anything to the contrary they are not correct. The position was clarified by a later decision of the High Court of Bombay in Bhagwant Balajirao and Others vs Rajaram Sajnaji & Others(3) where Rajadhyaksha and Macklin, JJ. held, following Radha Nath Das vs Produmna Kumar Sarkar(1) that an application made by an assignee of a decree must under Order XXI, rule 16 be for the execution of the decree and not merely for the recognition of the assignment and for leave to execute the decree. It was urged before the learned Judges that the practice in the High Court of Bombay was to entertain applications of this kind, but they observed that the practice if such a practice prevailed was opposed to the provisions of the Order XXI, rule 16 of the Code of Civil Procedure. The contention therefore urged on behalf of the Appellant that the (1) I.L.R.[1937] Bom. (3) A.I.R.[1947] Bom. (2) A.I.R.[1941] Bom. 302 (F.B.) (4) I.L.R. 182 1424 application for execution in the present case was defective appears to have some foundation. This defect however was not such as to preclude the Respondents from obtaining the necessary relief. The application which was filed by them in the City Civil ' Court was headed "application for execution under Order XXI, rule 11 of the Code of Civil Procedure" and the only defect was in the specification of the mode in which the assistance of the Court was required. The particulars which were required to be filled in column J. were not in accordance with the requirements of Order XXI, rule 11(2) (j) and should have specified one of the modes therein prescribed and certainly a declaration that the respondents were the assignees of the decree and the order for their substitution as the plaintiffs was certainly not one of the prescribed modes which were required to be specified in that column. The practice which prevailed in the High Court of Bombay as recognised in Baijnath Ramchander vs Binjraj Joowarmal Batia & Co(1) and also in Bhagwant Balajirao and others vs Rajaram Sajnaji & others(3) appears to have been the only justification for making the application in the manner which the respondents did. That defect however according to the very same decision in Bhagwant Balajirao and others vs Rajaram Sajnaji & others(3) was purely technical and might be allowed to be cured by amendment of the application. As a matter of fact Order XXI, rule 17 lays down the procedure on receiving applications for execution of a decree and enjoins upon the Court the duty to ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with and if they have not been complied with the Court has to reject the application or allow the defect to be remedied then and there or within a time to be fixed by it. When the application for execution in the present case was received by the City Civil Court, the Court should have scrutinised the application as required by Order XXI, rule 17(1) and if it was found that the (1) I.L.R. (2) A.I.R. 1947 Bom 157. 1425 requirements of rules 11 to 14 as may be applicable were not complied with as is contended for by the Appellant, the Court should have rejected the application or allowed the defect to be remedied then and there or within a time to be fixed by the Court. Nothing of the kind was ever done by the City Civil Court nor was any objection in that behalf taken on behalf of the Appellant at any time until the matter came before this Court. On the 27th March, 1952 however a further application for execution was filed by the Respondents in the City Civil Court specifying in column 'J ' the mode in which the assistance of the Court was required and it was by ordering attachment and sale of the moveable property of the Appellant therein specified. This further application for execution was a sufficient compliance with the provisions of Order XXI, rule I 1 (2) (j) and was sufficient under the circumstances to cure the defect, if any, in the original application for execution made by the Respondents to the City Civil Court on the 25th April, 1951. This objection of the Appellant therefore is devoid of any substance and does not avail him. The appeal accordingly fails and is dismissed with costs. IMAM J. I have had the advantage of perusing the judgments of my learned brethren. I agree that the appeal must be dismissed with costs and in the view expressed by them that the respondent should be permitted under the provisions of section 146 of the Code of Civil Procedure to execute the decree passed in favour of Habib & Sons, as one claiming under the latter. The document under which the respondent claimed to execute the decree was treated as a deed of transfer in the courts below and not merely as an agreement to transfer. By this document there was a transfer of all the book and other debts due to Habib & Sons in connection with the Indian business and the full benefit of all securities for the debts. The document, however, neither in terms, nor by any reasonable inter 1426 pretation of its contents purported to transfer any decree which Habib & Sons may obtain in the future. It seems to me, therefore, that the respondent cannot claim to be a transferee of the decree, which was subsequently obtained by Habib & Sons, by an assignment in writing within the meaning of Order XXI, rule 16 of the Code of Civil Procedure. Order XXI of the Code of Civil Procedure relates to execution of decrees and orders. Rule 1 of that Order relates to payments under a decree which has been passed. Rules 4 to 9 relate to the transfer of an existing decree for execution. The normal rule is that a decree can be executed only by the person in whose name it stands and rule 10 enables him to do so, while rule 16 of Order XXI, enables the transferee of the decree to execute it in the same manner and subject to the same conditions as an application for execution made by the decree holder. It seems to me, therefore, that there must be a decree in existence which is transferred before the transferee can benefit from the provisions of rule 16. The ordinary and natural meaning of the words of rule, 16 can carry no other interpretation and the question of a strict and narrow interpretation of its provisions does not arise. The position of an assignee, before a decree is passed, is amply safeguarded by the provisions of Order XXII, rule 10, which enables him to obtain the leave of the Court to continue the suit. Thereafter the decree, if any, would be in his name which he could execute. I agree with my learned brother Das, J., that the provisions of Order XXI, rule 16 contemplate the actual transfer by an assignment in writing of a decree after it is passed and that while a transfer of or an agree ment to transfer a decree that may be passed in future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. In this respect the decisions of the Madras High Court in Basroovittil Bhandari vs Ramchandra Kamthi(1) (1) (1907] , 1427 and of the Calcutta High Court in Mathurapore Zamindary Co. Ltd. vs Bhasaram Mandal(1) and Prabashinee Debi vs Rasiklal Banerji (2) are correct. As at present advised, I would like to express no opinion as to whether the expression "by operation of law" can be given the interpretation suggested by my learned brother Das, J., as it is unnecessary to do so in the present appeal. Appeal dismissed.

H & S filed a suit against the appellant for recovery of money and during the pendency of the suit a document was executed on the 7th February, 1949, whereby H & S transferred to the respondents all book and other debts due to them together with all securities for the debts and all other property to which they were entitled in connection with their business in Bombay. One of the book debts was the subject matter of the suit, but there was no mention in that document of the suit or the decree to be passed in the suit. The respondents did not take any steps under Order XXII, rule 10, of the Code of Civil Procedure to get themselves substituted as plaintiffs in the place of H & S, but allowed the suit to be continued in the name of the original plaintiffs, and on the 15th December, 1949, a decree was passed in favour of H & S against the appellant. On the 25th April, 1951, the respondents filed in the City Civil Court, Bombay, an application for execution of the decree under Order XXI, rule 11 of the Code, and a notice under Order XXI, rule 16 was issued by the Court calling upon H & S and the appellant to show cause why the decree should not be executed by the transferees, the respondents. The appellant contended inter alia that as the respondents were only the assignees of the debt which was the subject: matter of the suit and not of the decree itself they were not entitled to execute the decree. Held, that the respondents as the transferees of the debt which was the subject matter of the suit were entitled to make an application for execution of the decree under section 146 of the Code of Civil Procedure as persons claiming under the decree holder. The effect of the expression " save as otherwise provided in this Code" contained in section 146 is that a person cannot make an application under section 146 if other provisions of the Code are applicable to it. Per DAs and IMAM JJ., BHAGWATI J. dissenting. Order XXI, rule 16, by the first alternative, contemplates the actual transfer by an assignment in writing of a decree after it is passed and while a transfer of or an agreement to transfer a decree that may be passed in future may, in equity, entitle the transferee to claim the beneficial interest in the decree after it is passed, such 1370 equitable transfer does not render the transferee a transferee of the decree by assignment in writing within the meaning of Order XXI, rule 16. Per DAS J. The transfer in writing of a property which is the subject matter of a suit without in terms transferring the decree passed or to be passed in the suit does not entitle the transferee to apply for execution of the decree under Order XXI, rule 16, as a transferee of the decree by an assignment in writing. If by reason of any provision of law, statutory or otherwise, interest in property passes from one person to another, there is a transfer of the property by operation of law. There is no warrant for confining transfers "by operation of law" to the three cases of death, devolution or succession or to transfers by operation of statutory laws only. If the document in question could be construed to be a transfer of or an agreement to transfer the decree to be passed in future, then on the decree being passed, by operation of equity, the respondents would become the transferees of the decree by operation of law within the meaning of Order XXI, rule 16. Per BHAGWATI J. Section 5 of the Transfer of Property Act defines a "transfer of property" as an act by which the transferor conveys property in present or in future to the transferee or transferees. The words "in present or in future" qualify the word "conveys" and not the word "property" in the section. A transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes into existence. It is only by the operation of this equitable principle that as soon as the property comes into existence and is capable of being identified, equity taking as done that which ought to be done, fastens upon the property and the contract to assign becomes a complete equitable assignment. There is nothing in the provisions of the Code of Civil Procedure or any other law which prevents the operation of this equitable principle, and an assignment in writing of a decree to be passed in future would become a complete equitable assignment on the decree being passed and would fall within the "assignment in writing" contemplated by Order XXI, rule 16 of the Code. A mere transfer of property as such does not by itself spell out a transfer of a decree which has been passed or may be passed in respect of that property and it would require an assignment of such decree in order to effectuate the transfer. But where the property is an actionable claim within the meaning of the definition in section 3 of the Transfer of Property Act and is transferred by means of an instrument in writing, the transferee could by virtue of section 130 of the Transfer of Property Act step into the shoes of the transferor and claim to be the transferee of the decree and apply for execution of the decree under Order XXI, rule 16 of the Code of Civil Procedure. Per IMAM J. There must be a decree in existence which is transferred before the transferee can benefit from the provisions 1371 of rule 16. The ordinary and natural meaning of the words of rule 16 can carry no other interpretation and the question of a strict and narrow interpretation of its provisions does not arise. Case law reviewed.

110 of 1959. Writ Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights. B.R. L. Iyengar and Shankar Anand, for the petitioners. M. C. Setalvad, Attorney General for India, B. Sen,R. Gopalakrishnan R. H. Dhebar and T. M. Sen, for the respondents. March, 7. The Judgment of the Court was delivered by SARKAR, J. The petitioner is a co operative society duly registered and it carries on the business of plying motor buses as stage carriages on the public highways in the State of Bombay. Its case in this petition is that it has been deprived of its right to carry on this business and has also been subjected to discriminatory treatment in the matter of the grant of permits to run its buses. It complains of the infringement of its fundamental rights under articles 19(1)(g) and 14 of the Constitution. The questions raised in this matter turn on some of the provisions of the , as amended by Act 100 of 1956. These provisions have to be examined before proceeding to discuss the questions that arise. We are concerned only with Chapters IV and IVA of the Act. Chapter IV comprises sections 42 to 68 and Chapter IVA, which was in its entirety introduced by the amending Act, consists of sections 68A to 681. Taking Chapter IV first, we find that section 42(1) provides that no owner of a transport vehicle shall use or permit the use of the vehicle in any public place save in accordance with the conditions of a permit granted under the Act. A " transport vehicle " is defined in section 2(33) as a public service vehicle or a goods vehicle. Clause (a) of sub sec. (3) of section 42 as it originally stood 180 provided that sub sec. (1) of that section would not apply to any transport vehicle owned by or on behalf of the Central Government or a State Government other than a vehicle used in connection with the business of a railway. So under it the Government could ply stage carriages on. the public highways without having to obtain permits in respect of them. The amending Act of 1956 substituted a, new clause (a) in section 42(3) for the old clause. The new cl. (a) provides that sub sec. (1) shall not apply to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise. Since the amendment, therefore, the Government cannot run stage carriages on the public highways without a permit, just as a private owner of stage carriages cannot do, because such use of the vehicles will not be for a purpose unconnected with a commercial enterprise. Section 44 authorises a State Government to constitute a State Transport Authority and Regional Trans port Authorities for different areas in that State to carry out the duties specified. Section 45 provides that every application for a permit shall be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle. Section 47 specifies the matters to which a Regional Transport Authority shall have regard in considering an application for the grant of a permit. We now come to Chapter IVA. Section 68A(b) defines a " State transport undertaking " for the purpose of the Chapter to mean an undertaking providing road transport service, carried on, among others, by a State Government. Section 68B provides that the provisions of Chapter IVA shall have effect notwithstanding anything to the contrary contained in Chapter IV. Section 68C is in these terms: 68C. Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service, in relation to any area or route or portion thereof 181 should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State ' transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government May direct. Section 68D provides for the preferring of objections to the scheme published under section 68C, consideration of such objections and final approval of the scheme by the State Government. The terms of section 68F(1) are as follows : S.68F. (1) Where, in pursuance of an approved scheme, any State transport undertaking applies in the manner specified in Chapter IV for a stage carriage permit or a public carrier 's permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State transport under. taking, notwithstanding anything to the contrary contained in Chapter IV. The respondents to this petition are (1) The Regional Transport Authority, Aurangabad, (2) The State Transport Authority, Bombay, (3) The Divisional Controller of State Transport, Marathwada and (4) The State. of Bombay. Aurangabad and Maratliwada are both in the State of Bombay. The first and second respondents are the authorities set up under section 44 of the Act by the Government of Bombay. It is the duty of the first respondent to consider applications for and to grant, permits for stage carriages to be plied in Aurangabad region and the second respondent hears appeals from the decisions of the first respondent. The third respondent is the head of a department of the Government of the State of Bombay and is in charge of public transport work in Marathwada. It appears that the petitioner had permits to run buses on four routes in Aurangabad and that these 182 permits were due to expire on October 1, 1958. The third respondent who really represents the Government of the State of Bombay and who may be conveniently referred to as the State of Bombay, had permits for two of these routes. On May 19, 1958, the State of Bombay applied for permits for all these four routes under Chapter IV of the Act. On May 27, 1958, the petitioner applied for renewal of its existing permits. The first respondent rejected the application of the petitioner and granted those of the State of Bombay. The petitioner appealed to the second respondent but its appeal was rejected. In the meantime on some date which does not appear on the record, the petitioner had been granted temporary permits up to December 31, 1958. On the expire of its temporary permits on December 31, 1958, the petitioner would have been unable to run any of its buses and it therefore moved the High Court at Bombay under article 226 of the Constitution and the High Court quashed the orders of respondents Nos. 1 and 2 and directed the applications of the petitioner and the State of Bombay for the permits to be reconsidered. With the reasons of this order of the High Court we are not concerned. Respondent No. 1, however, without reconsidering the applications as directed by the High Court, granted temporary permits to the State of Bombay. The petitioner again moved the High Court which thereupon quashed the order of respondent No. 1 granting temporary permits to the State of Bombay. Thereafter, on March 20, 1959, the respondent No. 1 granted temporary permits to the petitioner which were later extended to July 20, 1959. On June 1, 1959, the State of Bombay publish 'ed a scheme under section 68C in Chapter IVA of the Act. Various objections were filed against the scheme and nothing further appears to have been done to make the scheme final. On July 18, 1959, respondent No. 1 purporting to carry out the directions of the High Court, reconsidered the petitioner 's applications for renewal and the applications of the State of Bombay for permits and rejected the petitioner 's applications while allowing those of the State of Bombay. On July, 20, 1959, the petitioner 's temporary permits 183 having expired, it ceased to operate its buses. On August 27, 1959, the petitioner filed the present petition in this Court under article 32 of the Constitution for ' appropriate writs quashing the order of respondent No. 1 dated July 18, 1959, restraining the State of Bombay from applying for permits save under the provisions of Chapter IVA and respondent No. 1 from entertaining any application by the State of Bombay under Chapter IV and directing respondent No. 1 to hear the petitioner 's applications for permits according to law. Various grounds have been advanced in support of the petition and these will now be discussed. The petitioner first contends that in view of chapter IV A the State of Bombay bad no right to apply for permits under Chapter IV of the Act as it had done. It says that the order of the first respondent granting permits to the State of Bombay Under chapter IV was therefore illegal and affected its fundamental rights under article 19(1) (g). The first question then is whether the State of Bombay was entitled to apply for permits under Chapter IV. The petitioner says that special provisions having been made in Chapter IVA to enable the Government to run its buses the Government 's right to run buses was restricted to those provisions and the Government was not entitled to resort to the other provisions of the Act. In support of this con tention reference was made to the case of Nazir Ahmad vs King Emperor(1) where it was observed that "where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all." But this principle can apply only where one power is given and has no application where more powers than one are conferred. If a statute contains, provisions giving more than one power, then the rule cannot be applied so as to take away the powers conferred by anyone of these provisions. As pointed out in Taylor vs Taylor(2 ) referred to by the judicial Committee in Nazir Ahmad 's case (1) "When a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted. " 1. (1936) L.R. 63 I.A 372. (2) ((1876) , 431. 184 Now the position here is different. The Government has of course the power to do any business it likes and therefore the business of running stage carriages. We have earlier drawn attention to the change made in cl, (a) of section 42(3) by the amendment of 1956. Previously, it was not necessary for the Government to obtain permits under section 42(1) for buses that it intended to run as stage carriages. Since the amendment the Government can no longer run transport vehicles for commercial purposes without obtaining permits unders.42(1). Now the plying of buses as stage carriages is a commercial enterprise and for such buses, therefore, under the sections as they stand, the Government would require permits as any one else. That being so, the sections clearly contemplate that the Government may apply for and obtain permits for its buses run as stage carriages. The rule applied in Nazir Ahmad 's case (1) does not permit the ordinary meaning of section 42, sub section (1) and sub section (3), cl. ( a) to be cut down because of the provisions of Chapter IVA. The Act lays down two independent sets of provisions in regard to the running of buses by the Government, one, under Chapter IV and the other under Chapter IVA. Chapter IVA was intended to give the Government, a special advantage. When the Government chooses to proceed under that chapter, it becomes entitled as a matter of right under section 68F (1) to the necessary permits. Under Chapter IV the Government does not have any such advantage; it has to compete with other applicants, to secure permits to be able, to run its buses. The powers under the two Chapters are therefore difference To such a case the principle of Nazir Ahmad 's case (1) cannot be applied. The learned counsel for the petitioner also referred to the maxim expression units est exclusio alterius and contended that since the Act by Chapter IVA provided that the Government would be entitled to run buses under a scheme it impliedly prohibited the running of buses by the Government otherwise. It does not seem to us that this maxim carries the matter further. It is a maxim for ascertaining the (1) [1936] L.R. 63 I.A. 372, 381 185 intention of the legislature. Where the statutory language is plain and the meaning clear, there is no scope for applying the rule. Section 42(3) (a) appears to us to be perfectly plain in its terms. It contemplates that the Government has to apply for permits under section 42(1) to run buses as a commercial enterprise. That being so, the maxim cannot, be resorted to for/ ascertaining the intention of the legislature and implying a prohibition against the Government applying for permits under Chapter IV. The learned counsel then referred to the case of Viscounts Rhondda 's claim (1), where it was observed at p. 365 that "The words of the statute are to be construed so as to ascertain the mind of the Legislature from the natural and grammatical meaning of the words which it has used, and in so construing them the existing state of the law, the, mischiefs to be remedied, and the defects to be amended, may legitimately be looked at together with the general scheme of the Act. " His point is that Chapter IVA was introduced by the amendment of 1956 to meet the observations made in Moti Lal vs Government of Uttar Pradesh (2 ) and some other cases that section 42(3)(a) was discriminatory in that it exempted the Government from the requirement of a permit and was hence void as offending article 14 of the Constitution. It is said that Chapter IVA must, therefore, be construed as containing the only provisions enabling the Government to run a stage carriage. It is difficult to appreciate this contention. The observations in the cases referred to, had been made in regard to cl. (a) of section 42(3) as it stood before its amendment in 1956. That section has been amended and as it now stands it is not discriminatory. The evil pointed out no more exists and no question of reading the Act keeping in view that evil of discrimination, arises. We find nothing in Moti Lal 's case (2) or any other case which points to an evil nor has the learned counsel drawn our attention to any, which the Act can be said to have intended to remedy. We, therefore, find no justification for reading Chapter IVA as containing (1) (2) (1951) 1 I.L.R. AU. 24 186 the only provisions under which the Government can ply stage carriages. It is next said section 42 contemplates the owner of a transport vehicle obtaining a permit and a "State transport undertaking" cannot apply for a permit under Chapter IV as it cannot be such,owner. But here we are not concerned with a State transport undertaking for that comes into existence for the purposes of Chapter IVA and that Chapter has not been resorted to by the Government yet. Here the Government applied for the permits under Chapter IV. The Government can of course be the owner of transport vehicles. We have earlier said that in view of cl. (a) of section 42(3) the Government has to apply for permits under section 42(1) as any other owner. Therefore the Act contemplates the Government as owner of transport vehicles. Further, under section 68A a "State transport undertaking " has been defined as an under taking providing road transport service carried on by a state Government. Such an undertaking is really a department of a Government and in order to be able ,to provide transport service, it must be able to own transport vehicles. In fact section 68F(1) requires the State transport undertaking to apply for permits under Chapter IV and therefore contemplates it as an owner of a transport vehicle for the purposes of section 42 which is contained in that Chapter. The learned counsel then referred to the concluding portion of section 47(1) which makes it incumbent on the authority considering applications for permits to take into consideration the representations made by the persons therein mentioned. He said that the persons there mentioned did not include the Government and therefore the intention is clear that applications for permits by the Government were not intended to be considered under section 47 and if Government could not come under s 47, it could not come under Chapter IV at all. But assume that representations by the Government are not contemplated by section 47. That does not show that applications for permits by the Government are also not contemplated by that section. It is also said that the matters to which the authority granting the permits is required to have regard in 187 considering applications for permits under section 47 are such that if the State enters into competition with citizens for the grant of permits the State must necessarily get them. Therefore, it is said that it could not have been intended that the State would compete with the citizens in the matter of obtaining permits under Chapter IV. We are unable to assent to this contention. There is nothing in section 47 which leads to the conclusion that whenever the Government applies along with private citizens for permits, the Government must get them. Indeed, if that were so, then it would not have been necessary to provide by section 68F (1) that when the Government, that is, its State transport undertaking, applied in pursuance of an approved scheme for a permit, the authority concerned would be bound to grant such permit. Section 68F (1) clearly contemplates that without the provision made therein it may so happen that the authority acting under section 47 may think it fit to grant the permit to a private operator in preference to the Government. It also seems to us that there is nothing in our law to prevent the Government from entering a business in competition with private citizens. Indeed, article 19(6) by providing that nothing in article 19(1)(g) shall affect the application of any existing law in so far as it relates to, or prevent the State from making any law relating to the carrying on by the State of any trade, business, industry or service whether to the exclusion, complete or partial, of citizens or otherwise, would seem to indicate that the State may carry on any business either as a monopoly, complete or partial, or in competition with any citizen and that would not have the effect of infringing any fundamental rights of such citizen. Our attention was then drawn to the proviso to section 47(1) under which other thing,; being equal a cooperative society is entitled to preference over individual owners in the matter of grants of permits. It is said that the Government is not an individual owner and therefore it is not contemplated as an applicant for a permit under section 47. It seems to us that if the Government is not an individual owner as to which we are not called upon to say anything it does not 188 follow that section does not contemplate the Government as an applicant for permit. If Government is not an individual owner: then all that will happen in view of the proviso to section 47(1) will be that a co operative society will not be able to claim any preference over the Government. All that the proviso does is to give a co operative society a preference over individual owners. It is not concerned with stating who can apply for permits. It seems to us therefore that the petitioner 's contention that the Government cannot apply for a permit under Chapter IV of the Act is unsustainable. The petitioner cannot complain of the Government having applied under that Chapter. We are not called upon, therefore, to discuss the further question, whether any fundamental right of the petitioner under article 19(1)(g) would have been affected by the Government having applied for and obtained permits under Chapter IV without having the right to do so. This disposes of the contentions concerning the infringement of the peti tioner 's fundamental rights under article 19(1)(g) of the Constitution. We will now consider the question of the violation of article 14 of the Constitution. The first contention in this regard was based on the proviso to section 47(1). It is said that in the circumstances of this case, as a cooperative society the petitioner was entitled to preference over the Government, considered as an individual owner, and had not been given that preference. It is contended that respondent No. 1 relying on various promises made by the State of Bombay to repair roads and to give other facilities to the traveling public had held that the other conditions were not equal while under the proviso, it was entitled to rely only on the existing conditions. It is contended that thereby the provisions of article 14 had been infringed. This contention is in our view clearly untenable. The decision of respondent No. 1 may have been right or wrong and as to that we say nothing, but we are unable to see that decision offends article 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasi judicial body and if it has made any mistake in its decision there are appropriate 189 remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art 14. The other contention of the petitioner is that if Chapter IV permits the State to compete with a private citizen, it offends article 14 because in view of the vast resources of the State a private citizen is bound to lose in such competition. This point is clearly unfounded. Article 19(6) as it now stands, contemplates such a competition as we have earlier pointed out. The petitioner can base no grievance on such competition. For these reasons we think that this petition must fail and hence it is dismissed with costs. Petition dismissed.

A rationalisation scheme in the mills of the appellant com panies was agreed to by the Works Committee and a notice under section 9A of the , was given to the 365 Union of their workmen. The workmen, however, objected to the introduction of the scheme and the dispute was referred by the Government to the Tribunal on December 13, 1957. On December 16, the management of the companies put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme. Later, the same day, the mills declared a lock out. Work was, however, resumed a few days later as a result of a settlement, and a dispute arose as to whether the workmen were entitled to the payment of wages for the period during which the mills were closed: Held, (1) that the workmen 's representatives on the Works Committee represented the workmen only for the purpose of the functions of the Works Committee and that the approval of the scheme of rationalisation by the Works Committee was not binding on the workmen or their Union. Kemp and Company Ltd. vs Their Workmen, , approved. (2) that the introduction of a rationalisation scheme was an alteration of conditions of service to the prejudice of the workmen. (3) that the alteration of conditions of service was made not when notice under section 9A of the was given but on December 16, when the rationalisation scheme was put into operation, and that as it was done when the reference was pending before the Tribunal, it was a contravention of section 33 of the Act. (4) that the closure of the mills in the circumstances of this case by the employer amounted to an illegal lock out and that the workmen unable to work in consequence of the lock out were entitled to wages for the period of absence caused by such lock out.

ivil Appeal No. 3704 of 1989. From the Judgment and Order dated 11.3.1987 of the Bombay High Court in Second Appeal No. 725 of 1980. 437 U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants. D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatin der Sethi for the Respondents. The Judgment of the Court was delivered by SAWANT.J. This is a case where the High Court in second appeal has interfered with a pure finding of fact recorded by the First Appellate Court for no worthwhile reason, and ignoring the mandatory provisions of Section 100 of the Civil Procedure Code. The only question which was involved in the suit was whether the suit properties in which the plaintiff claimed one fifth share, were the ancestral joint family properties or whether they were the self acquired properties of his father, Ramchandra. The relevant facts are: defendant No. 1, Ramchandra had four sons including the plaintiff, and a daughter. The three other sons and the daughter are defend ants Nos. 2 to 5. One of the sons, defendant No. 3 appears to support the plaintiff. During the pendency of the suit, Ramchandra died and his sons including the plaintiff have been brought on record as his heirs and legal representa tives. The suit properties consisted of lands being (i) Survey No. 21/1 admeasuring 14 acres 3 gunthas, (ii) Survey No. 20/2 admeasuring 2 acres 36 gunthas, (iii) Survey No. 20/1 admeasuring 3 acres 30 gunthas and two houses all situated at Nizampur, Taluka Saaki, District Dhuiia. It was the case of the plaintiff in his plaint that a joint family consisting of his father Ramchandra and his brother, Supadu owned several houses, and a land comprised in Survey No. 71 admeasuring about 14 acres. In the partition between Ram chandra and Supadu, two houses and Survey No. 71 came to the share of Ramchandra The said two houses are included in the suit properties and it is not disputed on behalf of the respondent defendants that they are ancestral properties and the plaintiff has one fifth share in the same. However, the case of the plaintiff that Survey No. 71 was the ancestral property was vehemently disputed and that has been the sheet anchor of contention of both the parties while the plaintiff claims that rest of the suit properties were purchased by Ramchandra out of the income and subsequently the sale proceeds, of the said land (since admittedly the said land was sold by Ramchandra in 1953), it is the case of the defendants that the said land was in fact purchased jointly by Ramchandra and his brother, Supadu out of their own earnings, and in the partition between Ramchandra and Supadu that land came to the share of Ramchandra. Hence, according to the defendants, even 438 assuming that the rest of the suit properties were purchased with the help of the income from Survey No. 71, they were the self acquired properties of Ramchandra. In support of his case that Survey No. 71 was the ancestral property, the plaintiff relied upon the fact that the said survey No. had come to the share. of Ramchandra in a general partition between him and his brother, Supadu in 1918. As against this, the defendants contended that Ram chandra 's father Pandu died in 1904 and since the property all along stood in the name of Supadu it showed that it was purchased after Pandu 's death in 1904. They also relied upon the fact that Ramchandra was a skilled goldsmith and was well known for his artisanship and commanded good business. His brother was also a goldsmith and both of them had pur chased the said land with the earning in goldsmithery. It was also their case that Ramchandra 's father, Pandu had only two houses and no other property nor did he carry on any business even of goldsmithery. Hence, there was no question of purchasing Survey No. 71 out of the income from the ancestral property by Ramchandra and Supadu and the purchase was with the help of the income which they had earned from the business which they were carrying on by their own skill. It was also shown by the defendants that when Survey No. 71 was sold in 1953, no objection whatsoever was taken to the sale nor permission of any of the sons including that of the plaintiff was deemed necessary for the same. They further contended that they had hardly any income from Survey No. 71 and the properties which were purchased prior to 1953 could not have been purchased with the help of any such income assuming that it was an ancestral land. According to them, therefore, the suit properties were purchased only from the income from the business of goldsmithery. The three of the properties were purchased prior to 1953 while the rest were purchased long after 1953, i.e. in 1961, 1965 and 1967. Hence, their purchase had no relation to the sale of Survey No. 71 in 1953, again assuming that it was an ancestral property. It is for these reasons, according to them, that the suit properties except the two houses which were admit tedly the ancestral properties were not the joint family properties in which the plaintiff could claim his share. The relevant issues were framed including the issue as to whether defendants proved that the suit properties were self acquired and plaintiff had no share in it. The Trial Court answered the said issue in favour of the plain tiff and decreed the suit against the defendants. Against the said decision, the defendants appealed and the First 439 Appellate Court after reappreciating the evidence and point ing out the infirmities in the conclusions arrived at by the Trial Court, dismissed the suit except to the extent of the plaintiff 's share in the two ancestral houses. It may be mentioned here that although Ramchandra, defendant No. 1 died during the pendency of the suit, he had willed out his properties in favour of the defendants and, therefore, the plaintiff had no share in the self acquired properties of Ramchandra which could have been granted to him otherwise. The First Appellate Court held that the following circumstances showed that the suit properties except the ancestral houses were the self acquired properties of Ram chandra. The first circumstance was that Survey No. 71 was purchased in the name of Supadu which showed that in all probability the property was purchased after the death of Ramchandra 's father, Pandu. Secondly, since there was no record to show that Pandu had any lands or was carrying on any business, Survey No. 71 must have been purchased by Ramchandra and Supadu with the help of their earnings. It was not disputed and in fact it was admitted that Ramchandra was a skilled goldsmith and was carrying on business of goldsmithery along with his brother, Supadu and was earning sufficient income with the help of which he could purchase the properties. Survey No. 71 further was sold in 1953 without obtaining the consent of the other members of the family. Had it been the joint family property the vendee would have insisted upon such consent. The High Court interfered with these findings on grounds which were not even made out by the plaintiff either in the plaint or in his evidence and which were contrary to the admissions of the plaintiff himself. The High Court held that since the property had come to the share of Ramchandra in general partition, it must be held that it was an ances tral property. The High Court further held that Survey No. 71 was yielding sufficient income with the help of which the other properties would have been purchased and further the goldsmithery business was an ancestral business and, there fore, the properties purchased with the help of such income should also be held to be joint family properties. It may be stated here that the learned counsel appearing for the appellant defendants wanted to produce before us documents to show that in fact Survey No. 71 was purchased in the year 1907 by Ramchandra and his brother Supadu after the death of their father, Pandu in 1904, and that in the Revenue records the property always 440 stood in the name of Supadu. We did not permit him to pro duce the said documents since no explanation whatsoever was available as to why the documents were not produced before the courts below. However, it was not disputed at any time that the property had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of Pandu cannot be said to be unreasonable. Secondly, there is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No; 71. In fact, the uncontroverted evidence on record shows that Ramchandra who had entered the witness box had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labour ers who brought their own implements and bullocks. This shows that the family derived less than normal income from the said land. Secondly, it was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his business as goldsmith and earning sufficient income. It was not his case further that the goldsmithery was the ancestral business. However, the High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so. What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71. Thus it is obvious that the conclusions ' which were arrived at by the first Appel late Court were reasonable and legal besides being conclu sions of facts. There was, therefore, no question of law involved in the second appeal. Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved a substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question. We are, therefore, more than satisfied that the High COurt has erred in law in interfering with the decree passed by the First Appellate Court. We, therefore, allow the appeal, set aside the decision of the High Court and restore the decree passed by the First Appellate Court. Since the parties belong to one family we pass no order as to costs. G.N. Appeal al lowed.

Appointments to various posts in School of Budhist Philosophy, Leh, were governed by the Rules framed by the Board of management in the year 1973. According to the said rules, the qualifications prescribed for the post of Princi pal as also for the Administrative Officer were identical. In March 1973, one M.L. Mattoo, Respondent No. 1, who at that time was working as the Administrative Officer of the School was given the additional charge of the post of Prin cipal. Thereafter the Board of management at its meeting held on 22.8.1978, decided that qualifications prescribed for the post of Principal should be revised, so as to make it obligatory for the Principal to have a thorough academic knowledge of Buddhist Philosophy the primary object of the institution being research and propagation of Budhist phi losophy. A selection committee was constituted by the Board of management to appoint a suitable person as Principal of the school and one Tashi Paljor, was appointed as Principal. Being aggrieved by the said appointment, Respondent No. 1, filed a writ petition in the High Court contending that he was removed from the additional charge without affording him an opportunity of being heard and further that he was not considered by the selection committee. The High Court re jected the first contention but allowed the writ petition on the ground that he was not considered for the post of Prin cipal and thus his right under Article 16 was infringed. Thereupon the management advertised the post of Principal to be filed by direct recruitment on the basis of the revised qualifications. Respondent Mattoo challenged the advertise ment by means of a writ petition on the ground that the revised qualifications were not validly prescribed and as such the post of Principal could only be filled in on the basis of the pre revised qualifications. He based his con tention on the concession made by the counsel for the man agement, when his earlier petition was heard, that the petitioner possessed the requisite qualifications. According to him the rules have not been amended. The High Court accepted the contention of Mattoo 516 and allowed the writ petition, quashed the impugned adver tisement and directed the management not to make appointment on the basis of the advertisement in question. Hence this appeal by the Board of management of the school. Allowing the appeal, this Court, HELD: The Board of management is fully competent to alter or amend the rules in any manner and at any time. [521E] The qualifications/experience for the post of Principal were validly revised by amending the rules in August 1978. The advertisement issued on January 5, 1982, was in accord ance with the Rules and the High Court was not justified in quashing the same. [522B] Since respondent No. 1 does not possess the revised qualifications, he is not eligible to be considered for the said post. [521F]

minal Appeal No. 341 of 1960. Appeal by special leave from the judgment and order dated July 20, 1960, of the Bombay High Court in Criminal Appeals Nos. 488, 426 of 1960 with Review Application. 555 and 641 of 1960. G. C. Mathur, for the appellant. B.R.L. Iyengar and D. Gupta, for the respondent. May 4. The Judgment of Kapur, Subba Rao and Shah, JJ. was delivered by Kapur, J., and the judgment of Hidayatullah and Dayal JJ., was delivered by Dayal, J. KAPUR, J. This is an appeal against the judgment and order of the High Court of Bombay imposing the sentence of death in appeal by the State against the order passed by the Sessions Judge, Dhulia. The facts of the appeal are these: The appellant, in about 1950, married Sindhubai the daughter of Chandrabhagabai. Sindhubai who is the deceased had read up to the 7th Standard. The appellant and Sindhubai were residing in a one room tenement in a house belonging to one Tavar pleader in which there 'are in all 12 to 15 tenements. The tenement of the appellant was not very far from ' that of the appellant 's cousin Shantabai who was residing with her husband Pandu Genda and the house of 777 Cliandrabhagabai was about a furlong away from that of the appellant. The relations between the appellant and the deceased were normal for sometime but about two years before the occurrence differences had arisen and there were frequent quarrels between them. A child of the marriage was born about 1 1/2 years before the occurrence. The deceased was a frequent visitor to her mother 's house to which the appellant took objection. The appellant bad stopped giving her the necessities of life including foodgrains etc. About a week before Diwali the appellant gave her a beating. The deceased used to have her meals with her mother and the appellant with his cousin Shantabai and the daughter of the marriage Urmila stayed with the mother of the deceased during the day time. The occurrence was on the Bhaubij day i.e. November 2, 1959 between 1.30 and 3.30 in the afternoon. After having her meals at her mother 's house the deceased returned to her husband 's house and went to sleep in the afternoon. It is stated that while she was sleeping the appellant gave her a beating and after sprinkling Kerosene oil on her clothes, set fire to them. The deceased with her clothes burning went in the direction of the house of Shantabai but fell down in front of it and was almost naked when some body covered her body with a dhoti. Chandrabhagabai received information, it is stated, from her nice Suman about this fact and Chandrabhagabai ran to the spot, and found her body burnt. The cousin, Shantabai and her husband Pandu Genda also arrived and on enquiry by Chandrabhagabai the deceased told her that her husband had set fire to her clothes after sprinkling kerosene oil on her. By this time a police constable informed the Police Station which was nearby and an ambulance car was sent and the deceased was taken to the Civil Hospital, Dhulia at about 4 15 P.m. She was examined by Dr. Javeri who 778 treated her and on his enquiry the deceased told him that her husband had set fire to her clothes after sprinkling kerosene oil on her clothes. Dr. Javeri then informed the police and advised that a dying declaration be recorded. At about 5 30 P.m. a Magistrate Mr. Mhatre recorded the statement of the deceased but she died at 8 15 P. M. on the same day in the hospital. The defence of the appellant was that of alibi, in that he was at work on the house of Mulchand Rajmal at Nehru Nagar which was being built and that he was entirely innocent of the offence. The trial court found that it was the appellant who had set fire to the clothes of the deceased after sprinkling kerosene oil; that the appellant had the intention of causing such bodily injury to the deceased as was likely to cause death and it therefore convicted the appellant of an offence under section 304 Part 1 and sentenced him to three years ' rigorous imprisonment and a fine of Rs. 100/ . The learned judge accepted the testimony of the mother Chandrabhagabai as to the dying declaration and also that of Dr. Javeri and finally he accepted the dying declaration recorded by the Magistrate which was in the form of questions and answers. In all her dying declarations the deceased had accused the appellant of setting fire to her clothes and thus causing her severe bums. The State took an appeal to the High Court which convicted the appellant of an offence under section 302, Indian Penal Code and sentenced him to death. Against that judgment and order the appellant applied for certificate to appeal to this Court under article 134 (1) (a) but the certificate was refused and this Court gave special leave under article 136 of the Constitution. The first question for decision is whether the appellant had a right of appeal to this Court under article 134 (1) (a) and the decision of that must depend 779 upon the construction to be put on the language used in that Article the relevant portion of which is as follows: 134 (1) ""An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court. (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death. " If the High Court reverses an order of acquittal of an accused person and sentences him to death an appeal shall lie as of right to this Court under the Article. The argument raised on behalf of the appellant was that as the appellant was acquitted of the offence of section 302 and was convicted under section 304 Part 1 it was a case of reversing an order of acquittal. The argument on behalf of the State was that the word acquittal meant complete acquittal. The decision of this must depend upon the construction of the word "acquittal". If a person is acquitted of the offence charged and is convicted of a lesser offence, as in the present case, can it be said that he was acquitted and the High Court had on appeal reversed the order of acquittal. " In our opinion the word "acquittal ? does not mean that the trial must have ended in a complete acquittal of the charge but acquittal of the offence charged and conviction for a minor offence (than that for which the accused was tried) is included in the word ", 'acquittal". This view has the support of a judgment of the judicial Committee of the Privy Council in Kishan Singh vs The King Bmperor (1). In that case an accused person was tried by the Sessions Judge under section 302 of the Indian Penal Code on a charge of murder but was convicted under section 304 for culpable homicide not amounting to murder, the Court having power to do that under section 238 (2) of the Criminal Procedure Code. He was sentenced to (1) (1928) L.R. 55 I.A. 390. 780 five years ' rigorous imprisonment. No acquittal of the charge under section 302 was recorded. There was no appeal to the High Court by the then local Government but, it applied for revision under section 439 on the grounds that the appellant should have been convicted of murder and the sentence was inadequate. The High Court convicted the appellant of murder and sentenced him to death. On appeal to the Privy Council it was held that the finding of the trial court was to be regarded as an acquittal on the charge of murder and that under section 439 (4) Criminal Procedure Code the word "acquittal" did not mean complete acquittal. At page 397 Sir Lancelot Sanderson observed: "Their Lordships, however, do think it necessary to shy that if the learned Judges of the High Court of Madras intended to hold that the prohibition in section 439 sub section 4 refers ' only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges or offences, and not to case such as the present, where the accused has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, ' their Lordships are unable to agree with that part of their decision. The words of the sub sec tion are clear and there can be no doubt as to their meaning. There is no justification for the qualification which the learned Judges in the cited case attached. to the sub section. " We are in respectful agreement with the interpretation put on the word "acquittal" by the Judicial Committee of the Privy Council and the word "acquittal" therefore does not mean that the trial must have ended in a complete acquittal but would also include the case where an accused has been acquitted of the charge of murder and has been convicted of a lesser offence. In that view of the matter the appellant was entitled, to a certificate 781 under article 134 (1) (a) as a matter of right and this appeal must be treated as if it is under that provision of the Constitution. The facts of this appeal have been set out above. In support of the prosecution the evidence mainly, if not solely, consists of the dying declarations. The first dying declaration was made to the mother Chandrabhagabai as soon as she came to the place where the deceased was lying and in answer to her question "as to who had done it," the reply was that "it was done by her husband., also that the husband had set fire to her clothes. " In cross examination she stated that at the time when this statement was made by the deceased Shantabai and her husband Pandu Gonda were present. A suggestion was made to her that the deceased implicated the appellant at the instance of Chandrabhagabai but she repudiated this suggestion and both the trial court and the. High Court have accepted the correctness of this dying declaration and also that it was not prompted by the mother Cbandrabhagabai. Beyond a mere suggestion in the cross examination there is no material to support the contention of prompting by the mother. A similar statement accusing the appellant of setting fire to her was made by the deceased to the Doctor (Dr. Javeri) who asked the deceased as to how she got the burns and her reply was that her husband had sprinkled kerosene oil on her and bad applied a match stick to her clothes. This statement was also accepted by the High Court and we find no reason to differ from that conclusion. The third dying declaration was made in the presence of and was recorded by Mr. Mhatre, a Magistrate at about 5 30 P.M. in the presence of Dr. Javeri who certified that the deceased was in a fit state of mind to make the statement. The Magistrate asked her certain questions which are set out in detail and he took down the answers and his evidence is that the deceased understood the questions and replied to them. He 782 made a record of the questions and answers but that record was not signed by her nor her thumb impression taken on it because her hands were badly burnt. This examination took about an hour. This dying declaration was held by the trial Court to have been made without the help or prompting 'of anybody and according to Chandrabhagabai she was not present at the time. The learned Trial Judge held that the dying declaration was "freely given without the influence of anybody. It was not made under influence of any personal feelings. " The High Court Also accepted the correctness of this dying declaration and there is no evidence on the record which would in any way detract from the finding of the trial Court or of the High Court,.in regard to the correctness or the propriety of this dying declaration. The argument raised before us was two fold: (1) that the appellant was not present at the place of occurrence at all and (2) that it was a case of suicide. There are no cogent grounds which would lead to the, conclusion that the deceased wanted to commit suicide nor have any circumstances been shower to us which would lead to any such conclusion. Even though it may be true that the relations between the husband and the wife, were strained so much so that the husband had almost refused to maintain the deceased and was not prepared to give her even food there is no indication that the deceased was so worked up as to have lost her self control so as to commit suicide. Certain other circumstances as to the absence of any kerosene oil on the clothes of the appellant or the absence of kerosene oil on the bedding have been pointed out but in the circumstances of this case those circumstances are of no significance. Both the trial court and the High Court have found that the deceased had died as a result, of burns 'caused by the fire set to her clothes by the appellant who had sprinkled kerosene oil on her, 783 This is supported by the dying declarations against the correctness of which no cogent reasons have been given or suggested and a conviction based on such evidence has been held to be sustainable by this Court in khushal Rao vs The State of Bombay (2). The plea of alibi was sought to be supported by the evidence of Gangaram Sitaram a co worker of the appellant but his testimony was rejected by both the trial Court and the High Court and having gone through it we find no reason to differ from that opinion. In the result this appeal fails and is dismissed. RAGHUBAR DAYAL, J. We agree that the appellant had a right of appeal under article 134 (1) (a) of the Constitution, but regret our inability to agree with the view that the conviction of the appellant under s.302, I. P. C., be maintained. In appeals preferred under article 134 (1) (a) of the Constitution , we are to assess afresh the value of the evidence of record, and do not follow the practice of this Court in appeals, by special leave, under article 136 of the Constitution, that the concurrent findings of the Courts below be not interfered with, ordinarily, but be interfered with only when special circumstances exist. We are of opinion that it is not safe in this case to base the conviction of the appellant solely on the dying declarations made by the deceased, even though in law a conviction can lawfully be based on dying declaration alone if the Court feels fully satisfied about its giving a true version of the incident. The first dying declaration was made to her mother, by the deceased. It was certainly natural for the mother to question her daughter as to how she got burnt. But that does not really mean that (2) ; 784 the daughter did state all what the mother deposes. Two points arise there, and they are : (a) Did the mother speak the truth ? and (b) Did the daughter ,speak the truth ? The mother, P.W. 1, admittedly, has not good relations with her son in law. She made discrepant statements. The Sessions Judge has remarked, in paragraph 12 of his judgment, that there were lot of discrepancies in the statements of this witness. Reference may be made to her stating at one place that when she used to request the accused not to beat the daughter, the result was adverse and denying the correctness of this statement when questioned in cross examination. According to her, only she was sent away from the room when the Magistrate recorded the dying declaration of the deceased in the hospitals indicating that the accused and some others continued to remain in the room. This statement is not borne out by Dr. Javeri or by the Magistrate. She expressed ignorance about the deceased making a statement. to the police. The Sub Inspector and Dr. Javeri deposed about her making such a statement. She could not have been ignorant about it. She deposes that the accused came to the spot where Sindhubai, the deceased, lay injured, about five minutes after her arrival, She knew that he had set fire to Sindhubai 's clothes after pouring kerosene oil on her. She did not question him about it. She did not reprimand him. She did not abuse him. She did nothing which could have, been normally expected of a mother knowing that the, accused bad burnt her daughter The explanation that she was sorrow strike, lacks the ring of truth. Grief striken she must be, but that would not have made her mute. According to her Sindbubai made this dying declaration when Shantabai, cousin of the accused, and her husband Pandu Genda were present. These witnesses have not been examined by the prosecution to corroborate her statement. 785 The other dying declaration relied on by the Courts below was made by the deceased to Dr. Javeri, on his casually questioning the deceased as to how she got injured. It may be natural, but we have our doubts, for the Doctor to put such questions to the patient in agony, which had no real connection with his duties as a medical man, and such questioning cannot be said to have any comforting effect on the patient. Such questioning can be nothing but idle curiosity which a Doctor in that position should not evince. Any way, it would not be a good precedent to rely on such a statement to the Doctor in such circumstances, when the Doctor makes no record about it, even if it be not required to be noted in the medico legal register. We would consider it safe not to rely upon such a statement made to a casual question by the Doctor, the details of which statement are not clear. The dying declaration made to the police has been ignored, the Sessions Judge considering that it was not made at all, or not made at the time the Sub Inspector deposed to have got the dying declaration from the deceased. No significance attaches to this dying declaration in any case when it was recorded after the deceased had made a formal dying declaration to the Magistrate. The dying declaration to the Magistrate has certainly been recorded with care. The relevant statements made in this dying declaration are the following "I am suffering injuries of burning. My husband is my enemy. My husband has burnt me. Kerosene was poured over my body and a match stick was lighted. I was sleeping in the house. He, i.e., my husband, beat me and then burnt me. I shouted, but nobody came. He was ill treating me. He was harassing me and was causing me starvation for 786 the last 8 days. I had complained about it to Pandu Genda and Shanta Pandu. I did not send any information to my parents about the starvation. The High Court has stated several times in its judgment that Sindhubai was sleeping when the accused set fire to her clothes. The panchnama Exhibit No. 14. prepared about the room, does not show that the bedding had any oil sprinkled over it or that it got burnt. Quite a number of other clothes were burnt, which need not have caught fire. Absence of oil on the bedding is not consistent with her statement that she was sleeping in the house when the thing happened. This statement is also not consistent with the next statement made by her that her husband beat her and then burnt her. Her statement that nobody came on her shouts because the door of the house was shut, does not fit in with her statement to the police in Exhibit 19 that the accused ran away on his work after he had set fire. The probability too is that if the accused had set fire to her clothes he would run away just after setting fire as he could expect that the victim would shout and that her shouts would attract neighbours and persons passing by. Even if the door was latched for some time while the accused remained there because he did go subsequently, that does not explain the non arrival of any person. The persons could have come and could have knocked at the door. It is really remarkable that in this case not a single witness of the neighbourbood has come to depose anything in support of the prosecution case. There is no evidence at all from an outside source. The investigation seemed to have revealed nothing whatever. , There is nothing inthe case to lend assurance to any circumstance. Surely, this cannot be the result of the accused 'sinfluence on the witnesses or the result of a general inclination not to speak the truth in the interests of justice, even when the 787 accused committed the dastardly act of setting fire to his own wife. Their absence from the witness box may be due to their not standing what they knew to be untrue or did not consider to be true. It is always a difficult question to speculate why deceased accused a certain person of committing the crime, or why a witness deposes against a person with whom he has no ostensible cause of enmity or why the police. in the discharge of its public duty should influence persons to make inaccurate statements, when Courts come to the conclusion that the accusation or the evidence does not appear to be true and that there are reasons to suppose that the. police had influenced the testimony of witnesses. Anyway, the same difficulty occurs in the present case. But it is clear that the relations between the wife and the husband were strained to such an extent that, according to the prosecution, the accused not only starved her, but also set fire to her clothes with the intention to cause her death. Such a conduct of the husband cannot be on account of ordinary domestic unpleasantness, but must be the result of a very acute feeling of desperation and a desire not to live any more with his wife. If such were the relations which one is inclined to infer from what the prosecution wants the Court to believe, it should not be difficult to imagine that the wife 's motives in charging the husband falsely may be equally strong. She too must have been fed up with the misery of her life and might have committed suicide and put an end to her life, but when, as often happens, she was questioned, she accused her husband of setting fire to her clothes, not with a view to save herself from a conviction for attempting to commit suicide, but either on account of her feeling that her husband was responsible for all her troubles and that her disparate action was also due to the same cause or out of malice. Any way, a dying declaration is not to be believed merely because no possible reason 788 can be given for accusing the accused falsely. It, can only be believed if there are no grounds for doubting it at all. Apart from the above considerations indicating that implicit reliance cannot be placed on the dying declaration, there are other circumstances which add to the feeling of uncertainty about the truth of the accusation made in the dying declaration. The panchnama of the room shows that a few shirts and old trousers and pieces of two sarees lay near the southern wall of the room in a wet and half burnt condition There is no explanation why such clothes should have been burnt. There was no point in the accused pouring kerosene oil on these clothes even if they just lay huddled near the wall. If Sindhubai fell on the clothes lying there, that may burn some of them, but will not explain their getting wet. There is no suggestion that anybody had poured water over the 'burnt clothes in order to extinguish the fire, because none came there at all. In fact, Ranganath Sitaram, P.W. 6, one of the Panchs, states that the burnt clothes were also giving smell of rock oil. The panchnama further notes : "On the eastern wall, two feet height from the ground there is a black spot caused due to the burning of the clothes and the same is recent one. " There is no explanation why such a mark should be there. Sindhubai could not have stood opposite the wall and, even if she did, there should have been marks of burning along the length of her body beside the wall and not at a certain spot only. These two observations can be consistent only with somebody deliberately setting fire to the clothes and keeping some burning clothes beside the wall for a, little time, The appellant, or whoever 789 set fire to her clothes, would not have done this as he would have made a very quick exit after drenching Sindhubai with kerosene oil and setting fire to her clothes. Sindhubai does not make any statement about such a conductor the accused in her dying declaration. The only inference then possible is that she herself (lid all this, in accordance with her own inclinations. Why she did this, one cannot say. Sindhubai returned to her house with her daughter after taking her mid day meal at her mother 's house and sent back the daughter with Usha. This is according to the statement of her mother. She brought the child, when, according to her mother 's statement, she expected her husband to come to the house after taking his meal at his cousin 's place. The conduct is unusual, as, ordinarily, the child used to remain with her maternal grand mother during the day time, as for some reason the accused probably felt aversion to her. The conduct can 'be consistent with her intention to commit suicide. She brought the child to her place to fondle with her for the last time and then sent her back to her mother. Sindhubai 's running towards the house of Shantabai, her husband 's cousin, and not running towards her mother 's place, also appears to be unnatural. It may be that in such troubles moments one need not be absolutely logical, but it is expected to be instinctive that when in trouble one thinks of one 's relations who are expected to be sympathetic, and helpful, on the occasion. It is in the statement of her mother that the route to her house is different from the passage to the house of Shantabai. It may be that the accused did not go to the house as expected, and went away to his job from his cousin 's place. It was a day of festival. Sindhubai might have felt this conduct badly set fire to her clothes, and then run towards 790 Shantabai 's house where she might have expected her husband to be present. The time of the incident though said to be between 1 30 and 3 30 P.m., appears to have been near about 3 O ' clock. The mother states to have got information about that time. Tile police got information at about 3 45 P.m., and the ambulance took Sindhubai to the hospital at 4 15 P.M. The accused was not expected to be at his house at 3 P.m. The learned Judges of the High Court did not believe the defence evidence about the accused working at the house of Mulchand Rajmal from about 2 P.m. and to have gone to his house on receiving information from one Daga because Daga was. not examined, the Munim of the house owner was not examined and the register of workers was not produced. It is however the case for the prosecution that the accused used to go to work at 7 A.M., to return at 12 O 'clock and again go for work at 2 P.m., and then return at 6 P.m. Chandrabhaga, the mother of the deceased, deposes so. There is therefore no good reason 'to think that the accused did not go to his duty at 2 P.M., that day as deposed to by D.W. I. Sindhubai herself stated in her statement to the police that the accused, after setting her on fire, ran away to his work. If the time of the incident be calculated from the time the police was informed, i. e., from 3 45 P.m., the incident would have taken place some time between 3 and 3 30 P.m., and the accused would not have been at his house at that time. In fact, it appears to us that it is to avoid this difficulty that at Rome stage an attempt was made to time the incident at about 1 30 P.m. The incident could not have taken place before 2 P.m., as, in that case, information to the police would be very belated and in the normal course of events, it is not expected that Sindhubai would have tarried in the room for long or that the persons who must 791 have collected after her running towards Shantabai 's place and falling down there, Would not have taken steps to inform the police without any undue delay. The mother 's statement that Sindhubai used to tell her that if the ill treatment continued, she would sever her connection with the accused and would earn her own living would support the view that she had really got tried of her living with the accused and that this could have prompted her to attempt suicide. If Sindhubai was not actually asleep when the kerosene oil was poured on her, it does not stand to reason that she would not have made any attempt to run away and the possibility of the accused successfully setting fire to her clothes in the course of the struggle, would be remote, and even if he succeeded, it is a moot point whether he too would not have been singed, if not burnt. Those are the various considerations which make us feel doubtful about the truth of the dying declaration and take the view that the appellant 's conviction on the basis of the dying declaration should not be maintained. It appears from the High Court judgment that the case put before it was "sometime after 1.30 P.m., the accused latched the room from inside and while Sindhubai was sleeping he poured a large quantity of kerosene oil on her person. Her clothes became wet with that kerosene oil and before she could struggle and get up he searched for a match stick, lighted it and set Sindhu 's clothes on fire '. Such a case could not be made out from the dying declaration recorded by the Magistrate. Sindhubai had said at first she was sleeping when it happened, but, in answer to the very next question, she said that her husband beat her and then burnt her. If the burning followed the beating, there could be no question of throwing kerosene oil on 792 her while asleep. No reason for this conduct was stated. The, Magistrate who cleared the doubt full points failed to elicit why this deed was perpetrated. Further, the searching for a match box is very improbable thing. If the accused had decided to set fire to his wife, he would have got, a match box handy and if he did forget about it and had to search for it, that would give sufficient time to Sindhubai to make good her escape. The aversion of Sindhubai to tell the name of her husband could not have been on account of any tender feeling for her husband, but was the natural act of a Hindu married woman not to tell her husband 's name. This aversion to tell the name of her husband is no guarantee of the truth of her subsequent statement accusing her husband of the crime. We do not find any justification for the following observation of the High Court, when considering the defence evidence : "The accused has led evidence and his case is that he was not responsible for this murder at all. But in fact he was in the house when the incident took place. " The High Court had made the latter statement as a statement of fact, though there was no evidence to support it. Of course, on the basis of a dying declaration, the High Court had already held before discussing the defence evidence, that the accused was responsible for the murder of his wife. If the defence evidence is to be adjudged on the basis of the final finding of the Court, there is no use for defence evidence. It has to be taken into consideration before arriving at a final finding. The conduct of the accused in travelling in the same ambulance car and in remaining in the 793 hospital is in his favour and is against the prosecution. The accused stated in his examination that he paid the charges for the ambulance car. We would like to remark that the learned Judges who heard the appeal should not have heard it when they, at the, time of admitting it, felt so strongly about the accused being wrongly acquitted 'of the offence of murder that they asked the Government Pleader to look into the papers to find out whether it was a case where the Government would like to file an appeal against the acquittal, under section 302, I.P.C. Government did file an appeal against that acquittal. We do not know whether it was at the suggestion of the Government Pleader or not. But, in these circumstances, it would have beep better exercise of discretion if this appeal against the acquittal had not been heard by the same Bench which, in a way, suggested the filing of the Government appeal. In fact, to make such a suggestion, appears to be very abnormal. We are therefore of opinion that it is not satisfactorily proved that the appellant committed the murder of his wife by setting fire to her clothes. We would therefore allow the appeal. , set aside the order of the Court below and acquit the appellant of this offence. By COURT. In accordance with the opinion of the majority, this appeal fails and is dismissed.

The Supply and Prices of Goods Act, 1950, made provisions for the control of prices, supply and distribution of certain goods essential to the national economy. Section 4(1)(c) empowers the Central Government to fix the maximum quantity of such goods which may be sold to any person in one transaction. Sect ion 4(2)(a) provides that the maximum quantities may be fixed for the same goods differently in different localities or for different classes of dealers or producers. Section 5(1)(c) provides that no dealer or producer shall sell or agree to sell or offer for sale goods exceeding the maximum fixed under section 4. The Central Government issued a notification prohibiting dealers and producers from selling any non ferrous metal exceeding one ton except upon a declaration by the purchaser that the quantity did not exceed his requirements for three months. The appellant entered into an agreement to sell to the respondent 300 tons of zinc. The respondent did not take the entire quantity and the appellant filed a suit for damages for breach of contract. The respondent resisted the suit on the ground that the agreement was void as it offended section 5(1)(c) of the Act. The appellant contended that the notification was invalid as only an immutable arithmetical maximum could have been fixed for each non fer rous metal but the notification did not do so and also as it did not fix the maximum by reference to difference classes of dealers and producers according to section 4(2)(a). It was further contended that the notification applied only to a sale and not to an agreement to sell and as such the agreement did not off end section 52(1)(c). Held, that the notification was perfectly valid and that agreement was void as it offended section 5(1)(c) of the Act. Section 4(1)(c) did not require the fixing of an immutable arithmetical maximum as a large number of goods were intended to be covered by the Act which would be required by different classes of persons under a variety of circumstances. Section 4(2)(a) was merely an enabling provision and did not oblige the Government to fix the maximum differently for different classes of dealers and producers; section 4(z)(a) was not a proviso to section 4(1)(c). Once the maximum was fixed, then by the combined operation of section 4(1)(c) and section 5(1)(c) an agreement to sell or an offer to sell such goods in excess of the maximum was immediately hit, 627

ivil Appeal Nos. 1909 10 of 1989. From the Judgment and Order dated 2.4.1987 of the Del hi High Court in C.C.P. Nos. 82 and 176 of 1986. WITH CIVIL APPEAL NO. 19 11 OF 1989. From the Judgment and Order dated 2.4.1987 of the Del hi High Court in C.C.P. No. 82 of 1986 in C.W. No. 44 of 1975 . K. Parasaran, Attorney General, K.K. Venugopal, F. section Nariman, Gopal Subramaniam, C.V.S. Rao, P. Parmeshwara n, C.S. Vaidyanathan, S.R. Bhat, S.R. Setia, G.D. Gupta, Ash ok K. Mahajan and section Ravinder Bhat for the appearing parties. The Judgment of the Court was delivered by DUTT, J. Special leave granted in all these matter section Heard learned Counsel for the parties. The dispute between the direct recruits and the Emergency 16 Commissioned Officers (ECOs) in the Central Reserve Poli ce Force (CRPF) over the question of seniority has been goi ng on for a long time. The Delhi High Court has, ultimatel y, held in favour of the ECOs and by the impugned judgment, t he High Court has directed the implementation of its decisi on regarding seniority and grant of consequential benefits to the ECOs. As per the judgment of the High Court, the 37 dire ct recruits, who are now holding the posts of Commandants, th at is to say, 22 as Commandants (Selection Grade) and 15 as Commandants (NonSelection Grade), by virtue of the upgrad a tion of 88 posts of Commandants (Non Selection Grade), wi ll have to be reverted. The direct recruits feel aggrieved by the impugned judgment of the High Court and it is contend ed on their behalf that as they were not parties in the co n tempt proceedings in which the impugned judgment of the Hi gh Court has been passed, it is not binding on them, and th at the matter should be remanded to the High Court so as to give them an opportunity of being heard. If these conte n tions of the direct recruits are accepted, there will be further delay. It may be mentioned that this is the second time th at the matter has come to this Court. It is the desire of t he parties that the dispute should be amicably settled an d, pursuant to that desire, the parties including the Union of India had, from time to time, given their respective sugge s tions regarding the terms of settlement. Unfortunately, t he suggestions or the proposed terms of settlement were n ot accepted by one party or the other. The terms that we re suggested by the Union of India were not acceptable to t he ECOs and those of the ECOs were not acceptable to the dire ct recruits. It is gratifying to state that at the last heating, bo th the direct recruits and the ECOs came with an agreed ter ms of settlement. The hearing was adjourned so as to enable t he Union of India to consider the terms of settlement as agre ed to by the direct recruits and the ECOs. Mr. Gopal Subramaniam, the learned Counsel appearing on behalf of the Union of India, states that although the Uni on of India is also of the view that the dispute between t he parties should be resolved amicably, yet the said agre ed terms of settlement were not acceptable to it and it has, in lieu of the same made two alternative suggestions for se t tlement. Copies of the alternative suggestions have be en produced before us by Mr. Subramaniam. Neither of the alte r na 17 tive suggestions is, however, acceptable to the ECOs. We have considered the respective terms of settlement as put forward by the parties including the said two altern a tive suggestions. CRPF is a sensitive police force and the re should not be any dispute and differences among the membe rs of such force. It is the duty of the Government to mainta in peace and harmony in the force by trying to resolve a ny dispute among the members of the force in public interest. After considering the facts and circumstances of t he case including the impugned judgment of the High Court a nd the terms of settlement, as agreed to by the direct recrui ts and the ECOs, and also the alternative suggestions of t he Union of India, we are of the view that the terms of settl e ment, as agreed to by the direct recruits and the ECO s, appear to be fair and reasonable and do not involve a ny additional financial liability of the Union of India f or placing the 35 ECOs in the posts of Commandants (Selecti on Grade) with effect from the date they were promoted as Commandants (Non Selection Grade), as provided in the agre ed terms of settlement. On an examination of the two altern a tive suggestions made on behalf of the Union of India, we are of the view that they do not redress the grievances of the ECOs. In our opinion, while it may be desirable that t he present position of the direct recruits should be protecte d, the giving of such protection should not be to the prejudi ce of the ECOs. In the circumstances, in order to establish peace a nd amity between the contending parties and for ends of ju s tice, we direct that, in modification of the impugned jud g ment of the High Court, the appeals be disposed of in a c cordance with the terms of settlement, as agreed to by t he direct recruits and the ECOs, as follows: 1. The Union of India shall withdraw the order viz. ord er No. F.2/1O/86 Estt (CRPF) PP IV dated 18.6.1986 with immed i ate effect. The order providing for upgradation of 88 pos ts of Assistant Commandant (2nd in command) to the post of Commandants (Non Selection Grade) shall thus stand rescin d ed. The D.P.C. 1986 and all consequential orders regardi ng promotion against upgraded posts shall also stand revoked. To protect the 37 direct recruits who were holdi ng posts of Commandants, the Union of India shall create 37 supernumerary posts of Commandants (22 as Commandant Selec 18 tion Grade and 15 as Commandant Non Selection Grade), whi ch shall be held by the 37 direct recruits who were holding t he said posts on the date of judgment dated 2.9.1985 passed by the High Court of Delhi. The vacancies of 13 posts occurring in the year 19 86 of Commandant (Non Selection Grade) shall be filled afre sh by means of a D.P.C. The D.P.C. shall make promotions in accordance with rules and shall operate upon the revis ed seniority list prepared by the Department pursuant to t he judgment of the High Court dated 2.9.1985 affirmed by th is Court on 21.1.1986. The subsequent vacancies in the years 1987 and 19 88 for the posts of Commandants (Non Selection Grade) shall be filled in accordance with rules and the promotions shall be made through D.P.C. in accordance with law/Rules. The Union of India shall review the D.P.C. of 1985 f or the posts of Commandants and such review shall be complet ed as early as possible. Further, 35 ECOs who have already been promoted as Commandant (Non Selection Grade) till today will hold t he posts of Commandant (Selection Grade), from the date th ey were promoted as Commandant (Non Selection Grade) with t he condition that they will not be paid any salary for the po st of Commandant (Selection Grade) till their turn comes f or promotion to Commandant (Selection Grade) against regul ar vacancies, as per the seniority list. Each party to bear his/its own costs. Y.L. Appeals di s posed of.

The services of the respondent, an employee of the appellant company, were terminated in accordance with the Standing Orders of the company, approved by the appropriate authorities under the provisions of the , and the Central Provinces and Berar Industrial Disputes Settlement Act, 1947. Standing Order NO. 2(a) defined " employees " as " all persons . employed in the Office or Mains Department or Stores or Power House or Receiving Station of the Company . whose names and ticket numbers are included in the departmental musters ". The Standing Orders also defined the term " workman " and provided that every workman should have a ticket. No ticket had been issued to the respondent by the company, and consequently his ticket number was not included in the departmental muster. The respondent challenged the validity of the order terminating his services by an application made before the High Court under article 226 of the Constitution on the grounds, inter alia, that the Standing Orders in question were confined to those employees only to whom tickets were issued, and that as no ticket was issued to him he was not an employee within the meaning of the Standing Orders which did not therefore apply to him and, consequently, the termination of his services under Standing Order No. 16(1) was illegal: Held, (1) that the words " whose names and ticket numbers are included in the departmental musters " occurring in Standing Order NO. 2 (a) should be read as " whose names and ticket numbers, if any, are included in the departmental musters "; Cortis vs The Kent Water Works Company ; ; ; and Perumal Goundan vs The Thirumalarayapuram jananukoola Dhanasekhara Sangha Nidhi, Mad. 624, applied. (2)that under the Standing Orders, in which a distinction is made between 'employees ' and 'workmen ', while every workman must have a ticket, there may be employees who may have no tickets the possession of which is not an essential characteristic of an employee; and, (3)that the Standing Orders apply to all employees for whose benefit they have been made. 464 Accordingly, the Standing Orders were applicable to the respondent and the termination of his service in accordance with Standing Order No. 16(1) was valid and, therefore, the application made by him to the High Court must fail.

ivil Appeal No. 41 of 1979. (From the Judgment and Order dated 23rd August, 1978 of Allahabad High Court in Writ Petition No, 1483 of 78) WITH Civil Appeal No. 379 of 1980. From the Judgment and order dated 28th March, 1979 of the Allahabad High Court in civil Misc Writ No. 1287 of 1977 G.L. Saghi, V.A. Bobde & H.K. Puri for the appellant in C.A. No. 41/79. R.K. Jain for the appellant in C.A. No. 379/80. K.P. Gupta for the respondents in C.A. No. 41/79. Shanti Bhushan and R.B. Mehrotra for the respondent in C.A. No. 379/80. The Judgment of the Court was delivered by FAZAL ALI J. We would first take up Civil appeal No. 379 of 1980 which is directed against an Order dated March 28, 1979 passed by the Allahabad High Court dismissing the writ petition of the appellant and arises in the following circumstances. The appellant owns a house bearing No. 113, Amroha Gate, Fruit Market, Moradabad, in a portion of which he had inducted respondent No.3 (Vishwa Nath Kapoor) as a tenant while retaining some portion for himself, when he (appellant) was serving as a Judicial Officer in the State of Uttar Pradesh. In the year 1968, the appellant retired as a District Judge as a result of which he had to vacate his official residence, which necessitated the present eviction proceedings against respondent No.3. The application for eviction was filed on 2.1.1973 under s.21(1) (b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the '1972 Act ') in which the appellant prayed that the portion occupied by respondent No.3 may be released on the ground of personal requirement as after retirement he wanted to occupy the entire house. The appellant further claimed that due to shortage of accommodation he had to stay with his son elsewhere. The eviction proceedings were contested by the respondent on the following grounds: (a) that since the appellant was already living with his son there was no particular urgency or personal necessity for him to occupy the rented portion also, 318 (b) that the appellant had in his occupation a part of the house which was retained by him even after inducting him (respondent) as a tenant and which was sufficient for his needs, and (c) that the appellant after keeping his household effects in the portion retained by him had locked up the same and was, therefore, not in actual occupation of the house as required by Explanation (iv) to section 21 (1) (b). In the same token, it was submitted as a point of law that the essential ingredient of Explanation (iv) to s.21(1) (b) was that the building must have been in occupation of the landlord for residential purposes which alone would be a conclusive proof of personal necessity. It was also contended as a question of fact that as the appellant landlord was not in actual occupation of the premises, Explanation (iv) would not be attracted in the instant case. To buttress this argument it was submitted that the landlord never occupied or possessed the premises but had locked up the same and was residing elsewhere. This plea of the respondent tenant did not find favour with the Prescribed Authority or the High Court. The dominant question, therefore, turns upon the import and interpretation of Explanation (iv) to s.21(1) (b), particularly the nature and meaning of the word 'occupation ' as used in Explanation (iv). The crux of the matter, therefore, was as to whether or not the case of the appellant squarely fell within the four corners of Explanation (iv) and whether the word 'occupation ' included actual residence of the landlord even though he may not have been residing there. We might mention that while the eviction proceedings were pending before the Prescribed Authority the 1972 Act was amended by U.P. Act No.28 of 1976 (for short to be referred to as the '1976 Act ') which came into force with effect from 5th July 1976 and which deleted Explanation (iv). The Prescribed Authority, relying on Explanation (iv), held that the need of the landlord was fully made out and accordingly passed an order of eviction against the tenant, partly releasing some portion in appellant 's favour. The appellant then filed an appeal before the District Judge which was heard by an Additional District Judge who accepted the offer of the tenant and modified the Order of the Prescribed Authority by further releasing some other portion in his favour. The appellant then filed a writ 319 petition before the High Court which upheld the decision of the District Judge and dismissed the writ petition. Before we approach the question of law raised before us it may be necessary to give a detailed picture of the position of the premises retained by the landlord and that rented out to the tenant. The house in question is a double storeyed one containing some rooms on the first floor and some on the ground floor which were retained by the landlord at the time of the lease and the rest of the portion was let out to the tenant. The learned counsel for the appellant contended that in view of the requirements of the landlord he had a real and bona fide need for occupying the entire house and therefore, the entire portion occupied by the tenant should have been released in favour of the appellant. This argument was countered by Mr. Shanti Bhushan, counsel for the respondent, who put forward the following legal submission: In the first place, he contended that Explanation. (iv) would not in terms apply to the facts of the present case because on the findings of fact arrived at by the courts below it was not shown that the appellant was in actual occupation of the portion retained by him, which is a prerequisite for the application of Explanation (iv) to s.21 (1) (b). In this connection, it was submitted that the admitted position being that the application was previously employed as a District Judge and was living elsewhere, he could not be deemed to be in occupation of the portion retained by him. In order to appreciate this argument, it may be necessary to examine closely the language of Explanation (iv) which may be extracted thus: "(iv) the fact that the building under tenancy is a part of a building, the remaining part thereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona fide required by the landlord. " The pivotal argument of the counsel for the respondent turns upon the interpretation of the word 'occupation '. This, however, does not present any difficulty because in a recent decision in the case of Babu Singh Chauhan vs Rajkumari Jain & Ors.(1) this Court while 320 construing a similar term in the same Act observed as follows: "We have gone through the judgment of the High Court in the light of the arguments of the parties and we are inclined to agree with the view taken by the High Court that the mere fact that the lady did not actually reside in the premises which were locked and contained her household effects, it cannot be said that she was not in possession of the premises so as to make section 17 (2) inapplicable. Possession by a landlord of his property may assume various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it in charge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye of law. " It is true that the court used the word 'possession ' but in Explanation (iv) to s.21(1) (b) the word used is 'occupation ' and not 'possession ' but this Court treated the word 'possession ' as being a synonym of 'occupation '. In Webster 's Third New International Dictionary the word 'occupation ' has been defined at page 1560 thus: "Occupation to take possession of, occupy, employ" The Black 's Law Dictionary (5th Edn.) defines 'occupation ' at page 82 thus: "occupation possession; control; tenure; use." In Corpus Juris Secundum (vol.67) at page 74 'occupation ' has been mentioned thus: "The word may be employed as referring to the act or process of occupying, the state of being occupied, occupancy, or tenure." This Court in the observations, extracted above, has clearly pointed out that 'possession ' or 'occupation ' may take various forms and it was expressly held that even keeping the household effects by the owner is an act of occupation. It is, therefore, manifestly clear that even if a landlord is serving outside or living with his near relations but makes casual 321 visits to his house and thus retains control over the entire or a portion of the property, he would in law be deemed to be in occupation of the same. Therefore, we are unable to accept the argument of Mr. Shanti Bhushan that the essential ingredient of Explanation (iv) has not been made out, there being no actual physical occupation by the landlord of the portion retained by him. Indeed, if the broad argument put forward by the counsel is to be accepted then that would destroy the very concept of constructive or actual possession or occupation. For, instance, even if a house is not let out to anybody but is locked up, can it be said that the owner who is not living there but has kept his household effects, would not be deemed to be in occupation of the same? The answer must necessarily be in the negative. It seems to us that the policy of the law was to give a facility to the landlord so as to secure the entire building where he is in occupation of a part of the same and wants to occupy the whole house. Mr. Shanti Bhushan then argued that Explanation (iv) does not confer any substantive right but merely raises a presumption that if a landlord is in occupation of a part of the premises, his need would be deemed to be bona fide. We are, however unable to agree with this argument. We must remember that all the Rent Control Acts try to deprive and curtail the legal right of an owner to his property and have put constraints and restraints on his right by giving substantial protection to the tenants in public interest, otherwise if the Rent Acts were to be abolished or were not there, the landlord could get a tenant evicted only by a notice after expiry of the tenancy in accordance with the provisions of the Transfer of Property Act. The words "shall be conclusive to prove" in Explanation (iv) clearly indicate that it is a substantive right which belongs to the landlord and which has been affirmed and recognised if a part of an accommodation is retained by the landlord. We are unable to agree with Mr. Shanti Bhushan that the words "conclusive to prove that the building is bona fide required by the landlord" constitute a rule of evidence. In fact, this argument was put forward before us because the learned counsel wanted to submit that in view of the 1976 Amendment Act, deleting Explanation (iv) to s.21(1) (b) of the 1972 Act, it would be deemed to be retrospective and therefore the relief given by Explanation (iv) would disappear. We cannot agree with this somewhat far fetched submis 322 sion because Explanation (iv) deals not merely with a particular procedure but with the substantive rights of the parties. The said Explanation has asserted and affirmed the substantive right of a landlord to get a portion of a building vacated where he is in occupation of a part of it. Such a substantive right cannot be taken away merely by a procedural amendment nor does the language of the amendment introduced by the 1976 Act envisage or contemplate such a position. Section 14 of the 1976 Act merely recites that Explanations (ii) and (iv) of s.21(1) (b) shall be omitted. There is nothing to show that the legislature intended to give any retrospective effect to the deletion of Explanation (iv). In these circumstances, therefore, the right to ejectment having accrued to the appellant under Explanation (iv) was a vested right as an owner and could not be affected by the 1976 amendment unless it was couched in a language which was either expressly or by necessary intendment meant to be operative retrospectively. Lastly, it was argued by Mr. Shanti Bhushan that the fact remains that the appellant, even after retirement, was not in actual possession of the portion retained by him and was living with his son or other relations most of the time exception casual visits to the premises in dispute. A further argument was raised in an additional Note supplied by the counsel for the respondent that as the bathroom and the latrine were in occupation of the tenant, the landlord could not possibly have occupied the premises retained by him and could not have lived there in the absence of these facilities. The High Court rightly rejected these arguments by observing thus: "The last argument was that the view of the Prescribed Authority that since the petitioner did not occupy the portion retained by him and lived with his son and, therefore, his need was not bona fide has no merits in as much as the petitioner did not have either a latrine or a bathroom and that he could not possibly occupy the house in the position in which it had been retained. There may be some truth in the submission made by the learned counsel for the petitioner. But, as neither the Prescribed Authority nor the Appellate Authority based their judgment on this feature of the case and they examined the merits of the claim of the respective parties, it is not possible to interfere with the judgments of the courts below." 323 An attempt was made by the parties to come to a settlement but, unfortunately, the efforts failed. The argument of Mr. Shanti Bhushan that merely because the landlord was living with his son or his relation after retirement and, therefore, was not in occupation of the house cannot be accepted because it was not for the tenant to dictate to the landlord as to how he should use his own premises. A tenant has got no right nor any business to interfere with the mode or manner in which a landlord may choose to use his property or live therein. In these circumstances, therefore, we are satisfied that the case of the appellant is clearly covered by the provisions of Explanation (iv) to s.21(1) (b) and a decree for release of the entire premises should have been passed by the District Judge against the respondent. We, therefore, allow this appeal, set aside the judgments of all the courts below and order release of the entire premises in possession of the respondent to the appellant. Time is granted to the respondent to vacate the premises on or before 31st December 1984, subject to the usual undertaking to be given and filed by him in the Court within four weeks from today, failing which the grant of time shall stand revoked without further reference to the Bench and the appellant would be entitled to be put in possession forthwith. Civil Appeal No. 41 of 1979 This appeal was heard alongwith civil appeal No. 379 of 1980 which we have decided by our judgment. The main point involved in this appeal was as to whether the portion of the premises sought to be vacated by the landlady was one single unit or two separate units. This Court remanded the matter to the trial court for examining this point and the trial court has returned a finding, basing its decision on the report of the Commissioner appointed for the Purpose, that the entire building constituted one single unit. It is, therefore, manifest that if the entire building was one unit and the appellant being in occupation of a portion of the same, she is entitled to get release of the other portion also. In view of our decision in civil appeal No. 379 of 1980, the appeal is allowed and we order release of the entire portion in favour of the appellant. Time is granted to the respondent to vacate the premises on or before 31st October 1984, subject to the usual undertaking being given and filed within four weeks from today, failing which the grant of time 324 shall stand revoked without further reference to the Bench. There will be no order as to costs. Let a certified copy of this judgment be placed on the file of civil appeal No.41 of 1979. S.R. Appeals allowed.

The appellant was employed as a Librarian under the Ist respondent. His services were terminated for misconduct. He laid a complaint before the Industrial Tribunal under section 33A of the . The Tribunal came to the conclusion that though the charge of misconduct against the appellant was established, the punishment of termination of service was not warranted, ordered reinstatement with half of his back wages and other benefits from the date of termination. The respondent employer applied to the High Court under Article 227 to quash the direction of reinstatement contending that as the Tribunal had found misconduct on the pa t of the workman, it was obligatory for the Tribunal to impose some punishment which it had railed to do. It was further contended that as there was loss of confidence, reinstatement was not appropriate. The High Court held that with holding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment,. held that reinstatement was not called for, vacated the order of reinstatement, directed payment . Of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15,000. Allowing the appeal. 224 ^ HELD: 1. The order of the High Court is set aside and the award of the Industrial Tribunal is restored. The High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation at Rs. 150000 it acted without any legitimate basis. '[228D, 227H, 228A] 2. Section IIA of the vests wide discretion in the Tribunal. and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. [226G, '227A] 3. The High Court under Article 227 of the Constitution does not enjoy the wide discretion vested in the Tribunal under section IIA, though as a superior court, it is vested with the right of superintendence. The High Court is in disputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and it could in an appropriate case quash the award of the Tribunal aud thereupon remit the matter to it for fresh disposal in accordance with law and directions if any. The High Court is not entitled to exercise . the powers of the Tribunal and substitute an award in peace of the one made by the Tribunal as in the case of an appeal where it lies to it. [227D]

ION: Civil Appeal No. 4096 of 1987. From the Judgment and order dated 2.6.1987 of the Calcutta High Court in Appeal NQ. 344 of 1980. 332 A.K. Sen, S.k. Gambhir and Vivek Gambhir for the Appellant. Dr. Shankar Ghosh and Rathin Das for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. The respondent was appointed a transport and handling contractor by the appellant subject to the terms and conditions mentioned in three successive agreements in writing entered into by both the parties. After disputes arose between the parties, as per the terrns of arbitration clause an arbitrator was appointed to adjudicate upon the disputes. Both the respondent and the appellant filed their respective claims and counter claims before the arbitrator. After considering the documents and evidence filed before the arbitrator, he made and published an award which was a speaking one. The arbitrator did not allow the appellant 's claim for demurrage and wharfage charges paid to Railways amounting to Rs.15,63,863.02 by reason of the alleged wrongful conduct of respondent but the arbitrator awarded only 55% of the claim. The arbitrator also did not allow the appellant 's claim for shortage in transit but reduced the claim by 40% and allowed only 60% of it amounting to Rs.52,971.99. By the award the arbitrator awarded to the respondent Rs.12,64,175.97 and pendente lite interest at 6% per annum. The appellant filed objections in the High Court of Calcutta under sections 30 and 33 of the (hereinafter called 'the Act ') for setting aside the award. On 18th September, 19.80, the learned single judge of the High Court by his judgment and order set aside the award. There was an appeal to the Division Bench of the High Court. On 2nd June, 1987 the Division Bench of the High Court allowed the respondent 's appeal by its judgment and order and set aside the judgment of the learned single judge and upheld the award. Being aggrieved thereby the appellant has come up before this Court by special leave under Article 136 of the Constitution. While issuing notice on the application under Article 136 of the Constitution it was indicated that only three questions will be adjudicated upon in this appeal viz. Rs.13,94,982.46 which was the amount allowed on account of demurrage and wharfage charges mentioned in the award and secondly, the sum of Rs.2,35,769.46 and lastly on the question of interest. So far as the second question of the matter is concerned Sree A.K. Sen, counsel appearing for the appellant has not made any sub 333 mission before us. We also cannot find any substance in this aspect. Therefore, it is not necessary for us to deal with this aspect of the matter. So far as the amount of Rs. 13,94,982.46 on account of demurrage and wharfage is concerned, which was allowed, the award dealt with the question as set out in the paper book. It appears that the total demurrage and wharfage charges paid by the Corporation to the Railways, in respect of the wagons cleared by the claimant firm, respondent herein, after obtaining such waiver as the Railways were persuaded to make was for Rs.15,63,863.21. The charges were alleged to have been paid under Credit Notes which were produced before the arbitrator. There was no dispute about the actual payment of the charges. The appellant 's case was that it was entitled to recover the entire amount it had to pay on account of the demurrage and wharfage charges from the respondent under clause 9(a) of the agreement. Clauses 9, 9(a) and 9(b) of the agreement are as follows: 9. The Agent shall commence to load and/or unload all the wagons and trucks as well as all streamers, flats, barges and boats or any other conveyance on the day of these arrival and shall carry out the orders and directions of the Manager with all possible despatch and shall be responsible for and make good all demurrage or other waiting charges and expenses that may accrue and all other charges that may in the opinion of the Manager be payable because of or through any reasonable detention or delay." "9(a) The Agent shall be responsible for unloading/loading the wagons within the free period allowed by the Railways and also for loading/unloading for trucks/carts or any other transport vehicles expeditiously. The Agent shall be liable to make good any compensation/demurrage/wharfage as per Railway rules in force during the period of contract other charges or expenses that may be incurred by the Corporation on account of delay in loading/unloading of truck/carts and unloading/loading of Wagons unless the delay is for reason beyond the Agents ' control. The decision of the manager in this respect shall be final and binding on the Agent." "9(b) The Agent be present himself or send his duly 334 authorised representative to be present at all weighments A with which the Agent is concerned under this Agreement and in case he fails or chooses not to do so, no claim what soever shall lie against the Corporation in this regard. " Under clause 9(a), according to the appellant, the Agent was liable to make good any compensation/demurrage/wharfage as per Railway rates in force during the period of contract, other charges or expenses that might be incurred by the Corporation on account of delay in loading/unloading of trucks/carts and unloading/loading or wagons unless the delay was for reasons beyond the Agent 's control. It appears that the appellant and periodically served notices upon the respondent firm calling upon it to pay demurrage and wharfage charges with liberty to prefer objections. Such objections as the respondent firm preferred were heard and disposed of by the District Manager. This procedure continued till the end of November, 1975. Then the respondent firm went to the Civil Court and obtained discontinuance of all proceedings for recovery of demurrage and wharfage charges. The arbitrator noted that as a result of the hearings by the Corporation upto November, 1975 relief to the tune of Rs.1,21,884.55 was granted to the respondent firm and recovery of Rs.46,996.20 was made from the respondent firm 's bills. The Corporation, therefore, claimed before the arbitrator recovery of remaining of the claim of Rs.13,94,982.46. The respondent on the other hand claimed refund of the amount already deducted from the bills on the ground that it was not liable for any part of the demurrage and wharfage charges. The claim of the respondent was that the demurrage and wharfage charges accrued invariably in circumstances beyond its control and accordingly under clause 9(a) of the agreement it could not be made liable for such charges. The arbitrator noted that the respondent firm had impressive documentary evidence in support of its case. It had produced numerous letters in which it fully explained to the authorities concerned the difficulties it was experiencing in timely clearance of goods from railway wagons and sheds. It was claimed that it had produced month wise report of its work accounting for nearly all cases of demurrage and wharfage. On 9th of October, 1975 the respondent had informed the Corporation by a letter Exhibit 128 which inadvertently was not marked exhibit that it was resuming work (there had been a break in his contract) on the condition that it would not be required to clear more than 10 c.c. Or 4 box wagons, i.e. 200 m.t. approximately daily. This is a belated and rather grudging acceptance of this condition by the letter, Exhibit 44 dated 3rd of August, 1976. 335 The Arbitrator noted that from the letters and reports it appeared that timely clearance was hampered, and often made impossible by arrival of too many wagons at a time, congestion at the sidings and at the weighbridges with consequent detention of lorries, labour unrest and chronic want of space in the Corporation 's godowns and by others. The arbitrator noted that there was insistent complaint about this want of space in the Corporation 's godown, which led to the goods being left in railways sheds for days together incurring unusually heavy wharfage charges. The Corporation sometimes prepared over ambitious programmes of work for the contractors, as if unaware. Of the existing situation. The arbitrator noted that the appellant had examined several witnesses from the sidings. But they did not according to the Arbitrator, prove anything beyond the procedure of work generally adopted at the sidings. The arbitrator further noted about the foregoing explanations that the very often the objection of the railway shed staff to the claimant regarding not clearing of the wagons timely from the railway shed because of non space there owing to heavy stock kept therein remaining uncleared, and further that the claimant under the direction and order of the respondent being given limited programme because of non space in the receiving depots/ godowns were causes of delay. The arbitrator noted that it would be fair to make the claimant firm liable for only 25% of the demurrage and wharfage charges sought to be recovered by the Corporation, leaving the remaining 75% to be borne by the Corporation itself. Therefore, out of Rs.13,94,982.46 the Corporation, according to the arbitrator, could recover only Rs.3,48,745.61. The appellant felt aggrieved thereby and challenges this grant of 25%. So far as respondent 's claim for refund of Rs.46.996.20 already recovered, the arbitrator felt that there was no ground for interference. The arbitrator noted that after hearing the claimant firm 's objections the deductions had been made. The claimant firm had been granted relief in respect of Rs.1,21,884.55. The arbitrator had not been able to ascertain precisely the total claim of the appellant till the end of November, 1975 but he noted that the sum of Rs.46,996.20 represented not much more than 25% of the total claim. Therefore, the arbitrator noted that the claimant, namely, the respondent was not entitled to any refund and that the appellant could recover only Rs.3,48,745.61 on account of demurrage and wharfage charges. As mentioned hereinbefore that is the main contention in this challenge before this Court. The appellant claimed that it should have been entitled to the benefit of Rs.13,94,982.46 and not to 25% of the same. Sree Sen, counsel for the appellant drew out attention to clauses 336 9(a) and (b) as set out hereinbefore and submitted that the respondent was only entitled to the amount as determined by the Manager which was described as final. Sree Sen submitted that according to clause 9(a) aforesaid the adjudication made by the manager was final and there was no dispute thereafter and therefore, there could be no determination beyond 25%. He drew our attention to that part of the 13 clause 9(a) to the following effect "the decision of the manager in this respect shall be final and binding on the Agent." So according to Sree Sen apart from what had been granted by the Manager for determination on account of demurrage and wharfage charges, no further deduction was possible nor was it arbitrable because it was final. He drew our attention to certain observation in Wadsworth vs Smith, L.R. Vol. Vl Q.B. 332. There by a written agreement the plaintiff therein had agreed to build four houses on land of defendant and the defendant to grant plaintiff a lease when the houses were completed; the architects of the defendant for the time being were to certify as to the progress of the work, and if there should be any unnecessary delay or unsatisfactory conduct on the part of the plaintiff with regard to the erection of the buildings, on any matter or thing connected therewith "the fact of such delay or unsatisfactory conduct to be ascertained and decided in writing by the architects, against whose decision there shall be no appeal", then it should be lawful for defendant to employ other persons to execute the works, and to sell the buildings and lease the land to other persons. On an application to make the agreement a rule of court under section 17 of the Common Law Procedure Act, 1854 of England, it was held by Cockburn, C.J., Blackburn and Mellor, JJ. that assuming the agreement to be "an agreement or submission to arbitration" within the section, the clause that there was to be no appeal against the decision of the architects amounted to "words purporting that the parties intended that it should not be made a rule of court. " The question was raised whether the agreement was not a submission to arbitration. Cockburn, C.J. Observed that this clause was certainly more like a submission to arbitration ' it was on the confines of the two classes ' but on the whole it seems to His Lordship to savour more of a mere architect 's certificate than of a judicial proceeding. Moreover, even if this were a submission within section 17, the Chief Justice thought that it could not be made a rule of court, because it was clear that the parties intended that the matter should be left to the decision of the architects without appeal; but to make it a rule of court would be to submit the decision to the jurisdiction of the Court. Blackburn, J. agreed. His Lordship observed that where by an agreement the right of one of the parties to have or to do a particular thing was made to depend on the determination of a third person, that 337 was not a submission to arbitration, nor was the determination an award; but where there was an agreement that any dispute about a particular thin shall be enquired into and determined by a person named, that might amount to a submission to arbitration, and the determination though in the form of a certificate, be an award. Hannen, J. was of the view that this is not an agreement or submission to arbitration; the clause in question appeared to be no more than an extension of the ordinary clause in building contracts, that the certificate of the architect should be conclusive as to work done and the mode of doing it. If we proceed on this basis then the logical conclusion of this would be that where there is a decision by the manager as in the instant case that would be final. Where a dispute has been adjudicated by the manager in this aspect there was nothing for the arbitrator to decide. It appears to us on the facts as recorded by the arbitrator in his award that there was adjudication really by the Manager of the claims upto November, 1975. Thereafter there could be no adjudication as a result of injunction obtained from the court. Therefore, it appears to us that there was really, in fact, no adjudication of all the disputes. The remaining points were arbitrable because of the amplitude of the arbitration clause. The relevant arbitration clause in this case contained, inter alia, as follows: . "In the event of any question or dispute arising under this Agreement regarding the construction thereof or any clause herein or in respect of any act, matter or thing relating to this agreement the same shall be referred to the Sole Arbitration of any person appointed by the Managing Director of the Food Corporation of India . . . The Award of such Arbitrator shall be final and binding on the parties to this Agreement . ." The point there having been decision before the Manager, that disallowance of the claim beyond 25% was beyond the jurisdiction of arbitration was not agitated before the High Court. Prabir Kumar Majumdar, J. speaking for the Division Bench of the High Court of Calcutta observed at page 24 of the paper book as follows: "It has not been brought to our notice whether there has been any such decision by the Manager. Further, taking all the relevant materials into consideration, the learned arbitrator has made a finding in respect of the appellant 's 338 claim and respondent 's counter claim in respect of demur rage and wharfage charges. " It has not been brought to our notice that there has been any such decision by the Manager beyond the claim for the period of November, 1975 as mentioned hereinbefore. Therefore, in our opinion, the arbitrator was not in error in proceeding in the manner as he did. There was no other aspect of law on this aspect of the matter to which our attention was drawn. The submission on this aspect is, therefore, negatived. The challenge to the award on this aspect must, therefore, fail. So far as the grant of interest pendente lite in the award is concerned, reliance was placed on various decisions of this Court. Reliance was placed on State of Orissa and others vs Construction India, (J.T. where the award of interest from the commencement of the proceedings before the Arbitrator to the date of the award was disallowed in consonance with the views expressed by this Court in the case of Executive Engineer Irrigation Galimala & Ors. vs Abaaduta Jena,) J.T. Our attention was drawn by Dr. Ghosh counsel for the respondent firstly, to the decision in the case of Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore, ; There the respondent had filed a suit against the appellant claiming two sums as losses in respect of two items and interest on the same. The disputes were referred to an arbitrator, before whom the respondent did not press for interest prior to the institution of the suit, but pressed its claim for the two sums and interests from the date of the institution of the suit till recovery. Bachawat, J. speaking for the three learned Judges of this Court held that though in terms, section 34 of the Code of Civil Procedure did not apply to arbitrations, it was an implied term of the reference in the suit that the arbitrator would decide the dispute according to law and would give such relief with regard to pendente lite interest as the Court could give if it decided the dispute. This power of the arbitrator, it was held, was not fettered either by the arbitration agreement or by the . Our attention was also drawn to the decision in the case of State of Madhya Pradesh vs M/s. Saith & Skelton (P) Ltd., ; There disputes had arisen between the appellant and the respondent with reference to the performance of a contract which provided for arbitration. Steps were taken to appoint arbitrators and an umpire. 339 The appellant filed a petition in the District Judge 's Court, having jurisdiction over the matter for Setting aside the nominations. When the matter came up to this Court in appeal, this Court appointed a sole arbitrator with consent of the parties. Thereafter in the presence of counsel for both the parties, this Court gave directions in the appeal that the arbitration records be sent to the sole arbitrator and later extended the time for making the award and gave directions regarding the venue. The arbitrator gave his award, directing the payment of a certain sum by the appellant to the respondent with simple interest at 9% from the date anterior to the reference and filed the award in the Court the next day. One of the question that arose before this Court was whether the arbitrator had any jurisdiction to award the interest from a date anterior to the date of award or reference. This Court held that the claim for the payment of interest had been referred to the arbitrator. The contract did not provide that no interest was payable on the amount that might be found due. Therefore, the respondent was entitled under section 61(2) of the , to claim interest from the date on which the price became due and payable. The arbitrator had found that the price had become payable from a date anterior to the date of the award. Therefore, the award of interest from the anterior date was justified. The Court further held that the award of interest at 9% was also not exorbitant because the parties themselves claimed interest at 12%. Our attention was also drawn to M/s. Ashok Construction Company vs Union of lndia, where a bench of three learned Judges at page 68 of the report held that the terms of the arbitration agreement did not exclude the jurisdiction of the arbitrator to entertain a claim for interest, on the amount due under the contract and on this ground this Court upheld the grant of interest. Our attention was drawn by Dr. Ghosh to the observations in the case of M/s. Alopi Parshad & Sons, Ltd. vs The Union of India; , This Court reiterated the well settled principle that an award was liable to be set aside because of an error apparent on the face of the award. An arbitration award may be set aside on the ground of an error on the face of it when the reasons given for the C, decision, either in the award or in any document incorporated with it, are based upon any legal proposition which is erroneous. In a recent decision, Chinnappa Reddy, J. speaking for a bench of three learned Judges in Executive Engineer Irrigation Galimala 's case (supra) at paragraph 15 of the judgment considered the ques ll 340 tion of award of interest by an arbitrator. The learned Judge noted the decisions in Firm Madanlal Roshanlal Mahajan vs Hukamchand Hills Ltd. (supra) Ashok Construction Company vs Union of India, (supra. and the State of Madhya Pradesh vs M/s. Saith & Skelton Private Limited, (supra) and expressed the view that these were cases in which the references to arbitration were made by the court or in court proceedings of the disputes in the suit. It was held that the arbitrator must be assumed in these cases to have the same power to award interest as the court. Therefore, the grant of pendente lite interest on the analogy of section 34 of the Civil Procedure Code was permissible. In regard to interest prior to the suit, it was held in most of these cases that since the Interest Act, 1839 was not applicable, interest could be awarded if there was an agreement to pay interest or a usage of trade having the force of law. This Court held in the last mentioned case that they are not entitled to claim interest for the period prior to the commencement of the arbitration proceedings for the reason that the Interest Act did not apply to their case and there was no agreement to pay interest or any usage of trade. It was further held that the claimants were not entitled to claim pendente lite interest as the arbitrator was not a court nor were the references to arbitration made in suits. In deference to the latest pronouncement of this Court which is a pronouncement of three learned Judges, we must hold that the grant of pendente lite interest in this case was not justified. Though the award in this case is a speaking award, it was not made clear on what basis the interest was awarded. We are of the opinion that the arbitrator was in error in granting the interest in the manner he did. It is true that in specific term there was no denial of this right to grant interest but there was denial as to get it in accordance with law. In the aforesaid view of the matter so far as the interest of the award is concerned we are of the opinion that in awarding the interest the arbitrator committed an error of law. With this modification the judgment and order of the High Court are confirmed. The appeal is disposed of in these terms without any order as to costs. S.L. Appeal disposed of.

% In the year 1974, the then landlords of the property in dispute, Bhonri Lal and others, filed a suit for eviction against the tenants appellants on the ground of bona fide need, material alterations in the premises and default in payment of the rent. During the pendency of the suit, the present respondents purchased the property in 1979 and v continued with the suit for eviction. The trial Court passed a decree for eviction on the ground of material alterations construction of a wooden balcony (Dochhatti) made in the premises by the appellants under section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The decree of the trial Court was affirmed in Second Appeal by the High Court. Aggrieved by the decision of the High Court, the appellants appealed to this Court by special leave. Allowing the Appeal, the Court, ^ HELD: The first notice in the case given to the tenants/appellants on behalf of the then landlord Bhonri Lal was through an Advocate and there was no mention of the objection about any construction or material alteration at all. Another notice dated 13.8.1974, given just a little before the filing of the suit for eviction, also did not contain any mention of any material alteration or construction of the balcony (Dochatti). There was a reference to some damage to the floor of the property in dispute in that notice, but the same was given up and not pressed. It was, therefore, plain that if the balcony/Dochatti, which was a wooden structure, was a construction without the permission and consent of the landlord, he would have made it a ground for termination of the lease or a ground of eviction mentioned in any one of the two notices above said, if not both. It was a significant factor that in the two notices, that construction was not mentioned as a ground. In his cross examination, Bhonri Lal admit 125 ted that no notice about the balcony had been given, and explained away the reasons therefor. [131A D] The present respondents purchased the property in dispute during the pendency of the suit. The statement of Bhonri Lal in cross examination, showed that he had given up his objection to the balcony, and it was also clear from his evidence that the cost of a window, constructed in the year 1964 to give light and air to the balcony, had been borne by the landlord himself. In the context of that evidence, it was significant that even in the plaint it had not been clearly stated that the balcony had been constructed in the year 1972 as was now alleged. It was also significant that what was now alleged that the balcony was supported on beams fixed in the walls and pillars fixed in the floor was also not alleged in the plaint at all. It was also not alleged in the plaint as to how the structure in question which was a wooden structure, easily removable according to the appellants, could be said to be a material alteration or how the same had impaired or damaged or lowered the value of the property involved. It is true that section 13(1)(c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as it stands, does not require that in addition to the material alteration being there, it should be to lower or reduce the value of the property, but it was significant that all the three Courts below had not considered the omission of that allegation in the notices and the statement of Bhonri Lal and other discrepancies in the pleadings, and had come to the conclusion which could not be reached. The only possible conclusion from these facts could be that either the balcony had been constructed with the implied consent of the landlord or that after seeing it the landlord had decided to waive his objection to it on an assurance given by the tenant, and, therefore, had not made it a ground for termination of the lease in his notices given before the suit; the landlord had waived his right to file a suit on that ground. All the three Courts had failed to look into these conclusions appearing in evidence and appreciate the matter in this light. If a party gives up the advantage he could take of a position of law, it is not open to him to change and say that he can avail of that position. [131F H; 132A D; H] In the context of the conclusion that the Court had reached in the facts and circumstances that it could not be held that the tenants had constructed the wooden balcony or Dochhatti without the consent express or implied of the landlord, it was not necessary for the Court to dilate on the question of waiver any further. [133C] 126 If the Courts below have, while coming to a conclusion of fact, omitted to consider material pieces of evidence and have drawn inferences without looking into that evidence which proves circumstances on the basis of which a contrary inference could be drawn, then, such findings are not binding on this Court and in this view of the matter, the conclusions reached by the Courts below could not be accepted. [133E] In the light of the test laid down by this Court in Om Prakash vs Amar Singh and another, A.I.R. 1987 S.C. 617, it was clear that the construction of the balcony (Dochhatti), which was a wooden structure, did not amount to a material alteration which could give a cause of action to the respondents landord for filing a suit for eviction. The judgments and decrees passed by the Courts below set aside and suit filed by the respondents dismissed. [137C E ] Om Prakash vs Amar Singh and another, A.I.R. 1987 S.C. 617; Dawsons Bank Ltd. vs Nippon Menkwa Kabushihi Kaish (Japan Cotton Trading Co. Ltd.) A.I.R. 1935 Privy Council 78 and Babu Manmohan Das Shah and Ors., vs Bishun Das, ; , relied upon. Venkatlal G. Pittle & Anr. vs M/s. Bright Bros. Pvt. Ltd., (3) S.C. 139, referred to.

ed Case No.7 of 1987 In Transfer Petition No. 390 of 1986. Dr. Y.S Chitale, T .U. Mehta and R.P. Kapur for the Petitioners N.N. Keshwani, R.N. Keshwani, Ms. Madhu Moolchandani and K. Rajendra Chodhary for the Respondents. The Judgment of the Court was delivered by SEN, J. The principal question in controversy in this petition under article 226 of the Constitution filed by the Hindustan Petroleum Corporation Ltd., a Government of India undertaking, which has been transferred from the High Court of Bombay to this Court under article 139A Of the Constitution, is whether the petitioner is entitled to the protection of PG NO 48 section 15A of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947, introduced by Maharashtra Act No. 17 of 1973 read with section 5 of the Esso (Acquisition of Undertakings in India) Act, 1974. Put very briefly, the essential facts are these. The Esso Eastern Inc., a company organised and existing under the laws of the State of Belaware, U.S.A., was carrying on, in India the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India Ltd., and Lube India Ltd. and had, for that purpose, established places of business in India. The company had taken several fiats in the Metropolitan City of Greater Bombay and elsewhere for accommodating their employees including Flat No.35 in Block No.8 in the housing colony known as Shyam Niwas situate at Warden Road, now called Bhulabhai Desai Road, Bombay on leave and licence basis for a period of one year in terms of an agreement in writing dated 26th November, 1968 from Smt. Nanki M. Malkani. respondent No. 2 herein. On 4th December. 1968 respondent No 1 Shyam Co operative Housing Society Ltd. passed a Resolution admitting petitioner No. 2 T.J. Nansukhani, and employee of the company as a nominal member of the society though he was not the licensee The company on 16th January, 1970 exercised the option of renewal of the licence for another year i.e. till 30th November 1970. On 29th November, 1971, respondent No. 2 Smt. Nanki M. Malkani addressed a letter to the company intimating that the agreement for leave and licence was due to expire on that date and accordingly the period of the said licence was renewed, yearly, from time to time to time years on the expiry of each term of licence i.e. on 30th November, 1972 and 30th November, 1972 and 30th November, 1973. In the meanwhile, the State Legislature of Maharashtra enacted Act No. 17 of 1973. The amendment Act also made consequential changes to which we shall presently refer. Undoubtedly, the Esso Standard Inc. was in occupation of the flat in question as on 1st February, 1973 and thus acquired the status of a tenant under section 15A of the Act. On 13th March. the Esso (Acquisition of Undertakings in India) Act, 1974 was brought into force. As from that date. the Central Government by virtue of sub section (1) of section 5 of the Act was deemed to be the tenant of the flat in question. On 9th April. 1975, respondent No. 2 Smt. Nanki M. Malkani sent a communication to the petitioner affirming the terms and conditions of the licence. Again, on 24th March 1975, she addressed a letter confirming that she had given the aforesaid flat to Esso Eastern Inc. in December 1968 on leave and licence basis and the petitoner PG NO 49 being the successor in tittle of that company had been occupying the flat as licensee on the same terms and conditions. On 11th September, 1980, the society passed a resolution calling upon the petitioner Corporation to vacate the said premises and directing that respondent No. 2 Smt. Nanki M. Malkani should herself occupy the flat. Upon failure of the Corporation to vacate the premises, the society on 15th September, 1980 filed an application under section 9I(I) of the Maharashtra Co operative Societies Act, 1960 before the 3rd Co operative Court, Bombay for eviction of the petitioner and its employee. On 7th January, 1981, petitioner No. I permitted another employee to occupy the flat. The 3rd Co operative Court, Bombay after consideration of the evidence adduced by the parties, by its well reasoned judgment dated 6th June, 1983 dismissed the claims of the society holding inter alia that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as on 1st February, 1973 and thus got the protection available to a licensee under section I5A of the Bombay Rent Act and the said protection could not be taken away merely by the society making a claim for eviction under section 91(I) of the Act. Aggrieved, the society went up in appeal to the Maharashtra State Co operative Appellate Court which by its judgment dated 17th March, 19X4 allowed the appeal and decreed the claim of the society requiring petitioner No. 1 Hindustan Petroleum Corporation Ltd. to vacate Flat No. 35 in Block No. 8 of the society building with a further direction that respondent No. 2 Smt. Nanki M. Malkani should occupy the flat in question herself. I hereupon, the petitioner moved the High Court under article 226 of the Constitution for an appropriate writ, direction or order for quashing the impugned judgment and order passed by the Maharashtra State Co operative Appellate Court. This petition mainly raises three questions. They are [1] Whether the Hindustan Petroleum Corporation Limited being a successor in interest of the Esso Eastern Inc. the licensee, was entitled to the protection of section 15A of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, introduced by the Maharashtra Act No. 17 of 1973, having regard to the fact that the Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence as existing on 1st February 1973 (2) Whether the Maharashtra State operative Appellate Court was justified in holding that a licence being purely personal. upOn acquisitiOn of the Esso Eastern Inc. by the Central Government under the Esso (Acquisition of Undertakings in India) Act, 1974, the agreement for leave and licence as existing on the appointed day i.e. 13th March, 1974 under section 2 (a) of that Act, stood extinguished and therefore the right acquired by Esso PG NO 50 Eastern Inc. under section 15A of the Bombay Rent Act of being a protected tenant in relation to the flat in question, could not stand transferred to, or be vested in, the Central Government under section 3 of the Acquisition Act. Was it also justified in holding that although the Esso Eastern Inc. was deemed to be a tenant of the disputed flat under section 15A of the Bombay Rent Act, the Central Government could not be deemed to have become the tenant thereof under sub section (I) of section 5 of the Acquisition Act merely because prior to the enactment of section ISA of the Bombay Rent Act the premises were held by Esso Eastern Inc. on an agreement for leave and licence? (3) Whether a claim for ejectment of an occupant of a flat in a cooperative housing society having been let into possession of the premises under an agreement for leave and licence executed between it and a member of the society, by virtue of its employee having become a nominal member thereof, is a 'dispute touching the business of the society ' within the meaning of section 9 (1) of the Act. In the view that we take on the first two questions, there is no need to answer the third which is already covered by the decision of this Court in O N. Bhatnagar vs Smt. Rukibai Narsindas & Ors. [ ; The statutory provisions bearing on these questions are set out below. The relevant provision in sub section [I] of section 91 of the Act, prior to its amendment, provided: "91 (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the parties to the dispute . .to the Registrar if both the parties thereto are one or other of the following: (a) a society (b) a member, past member or a person claiming through a member . . The definition of the term 'landlord ' as contained in section 5(3) of the Bombay Rent Act was amended to include in respect of a licensee deemed to be tenant by section 15A, the licenser who has given such licence '. The expression licensee ' as defined in sub section (4A) thereof introduced by the Amending Act, insofar as material, reads as follows: "(4A) 'licensee ', in respect of any premises or any part thereof, means the person who is in occupation of the pre PG NO 51 mises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge ' and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a cooperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor etc; . and the expressions "licence", "licenser" and "premises given on licence ' shall be construed accordingly. " Sub section (1) of section 15A of the Bombay Rent, as introduced by the Maharashtra Act No. 17 of 1973 provides: '15A(1). Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on February 1. 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation. " Sec. 28(1) of the Act insofar as material reads. "28 (1). Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but. for this provision be within its jurisdiction. (a) in Greater Bombay, the Court of Small Causes Bombay, [aa] [b] shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply . .and to decide any application made under this Act and to deal with any claim PG NO 52 or question arising out of this Act or any of its provisions and . no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. " We must then refer to the relevant provisions of the Esso Eastern Inc. The avowed object and purpose of the Esso (Acquisition of Undertakings in India) Act, 1974, as reflected in the long title is to provide for the acquisition and transfer of the right, title and interest of Esso Eastern Inc., the foreign company, in relation to its undertakings in India with a view to ensuring co ordinated distribution and utilisation of petroleum products distributed and marketed in India by Esso Eastern Inc. and for matters connected therewith or incidental thereto. The preamble to the Act is in these terms: "Whereas Esso Eastern Inc. a foreign company, is carrying on, in India, the business of distributing and marketing petroleum products manufactured by Esso Standard Refining Company of India Limited and Lube India Limited, and has, for that purpose, established places of business at Bombay and other places in India; And whereas it is expedient in the public interest that the undertakings, in India, of Esso Eastern Inc. should he acquired in order to ensure that the ownership and control of the petroleum products distributed and marketed in India by the said company are vested in the State and thereby so distributed as best to subserve the common good;" Section 3 of the Act provides: "3. Transfer and vesting in the Central Government of the undertakings of Esso in India On the appointed day, the right, title and interest of Esso, in relation to its undertakings in India, shall stand transferred to and shall stand in, the Central Government. The Act received the assent of the President on the 13th March, 1974 and published on that day became the appointed day, as defined in section 2(a) of the Act. Sub section ( 1) of section 5 provides: "5. Central Government to be lessee or tenant under certain circumstances (l) Where any property is held in India by Esso under any lease or under any right of tenancy PG NO 53 the Central Government shall on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and vested in the Central Government." Section 7(1) provides that, notwithstanding anything contained in sections 3 4 and 6, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of continuing to vest in the Central Government, vest in the Government company either on the date of the notification or on such earlier or later date (not being a date earlier than the appointed day) as may be specified in the notification. The Act makes provision that if there was any dispute with regard to what is vested in the Central Government, the proper forum was the Central Government for taking a decision. 19 of the Act reads as under: "19. Power to remove difficulties If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, not inconsistent with the provisions of this Act. remove the difficulty; Provided that no such order shall be made after the expiry of a period of two years from the appointed day. " In exercise of the powers conferred by sub s.(l) of section 7 of the Act, the Central Government, in the Ministry of Petroleum & Chemicals issued a notification No. GSR 131(F.) dated 14th March 1974. that on being satisfied that Esso Standard Refining Company of India Limited? a Government company, is willing to comply with the terms and India imposed by the Central Government, hereby directs that the right, title and interest and the liabilities of Esso Eastern Inc., in relation to its undertakings in l ndia, shall, instead of continuing to vest in the Central Government. vest, w.e.f. the 15th day of March, 1974, in Esso Standard Refining Company of India Limited. Indubitably. as on the appointed day i.e. 13th March, 1974 PG NO 54 under section 2(a) of the Acquisition Act, the Esso Eastern Inc. had acquired the status of a protected tenant under section 15A of the Bombay Rent Act and the tenancy rights so acquired in relation to the flat in question stood transferred to, and became vested in, the Central Government. By virtue of the aforesaid notification issued under section 7(1) of the Act, the rights of tenancy in the 13 flat in question instead of continuing to vest in the Central Government became vested in Esso Standard Refining Company of India Limited, a Government of India undertaking, w.e.f. 15th March, 1974. It is also necessary to mention that the Central Government held, in the name of the President, 74% of the equity share capital of the Esso Standard Refining Company of India Limited, which therefore became a Government company as defined by section 617 of the . On 12th July, 1974 the Company Law Board, in exercise of the powers conferred by sub sections (1) and (2) of section 396 of the , read with the notification of the Government of India in the Department of Company Affairs No. GSR 443(E) dated 18th October, 1972, made Lube India Limited a Esso Standard Refining company of India Limited (Amalgamation) Order, 1974. (3) of the said Order provided that as from the appointed day, the undertaking of Lube India Limited shall stand transferred to, and vest in, Esso Standard Refining Company of India Limited. As a result of the amalgamation of the two companies, the name of Esso Standard Refining Company of India Limited was changed to Hindustan Petroleum Corporation Limited. It is therefore evident that petition No. 1 Hindustan Petroleum Corporation Limited, a Government of India undertaking, is a successor in interest of Esso Eastern Inc. which acquired the status of a deemed tenant under section ISA of the Bombay Rent Act, which right devolved on the Central Government under section 6(1) of the Acquisition Act. Upon these facts and the statutory provisions, the 3rd Cooperative Court rightly concluded as under: "Thus, it is clear that there was a subsisting licence in favour of opponent No. 3 as on 1.2.73. The definition 'Licensee ' as given in Section 5(4A) of the Rent Act includes inter alia a person in occupation of premises of a co operative housing society. PG NO 55 My findings on this issue are that the opponent No. 3 has a right to the premises against opponent No. 1 as protected tenant under Section 15A of the Rent Act. " In dealing with the question, it observed: "The Supreme Court has clearly observed that the protection given to a licensee under a valid licence as on 1.2.73 under Act 17 of the amended Rent Act is available to a licensee of any premises or any part thereof in a building vesting in or leased to a co operative housing society. This protection given to a licensee in the position mentioned above cannot be taken away merely by the society filing the case against the member and occupant for reliefs to the opponent member. The provisions of the two legislations are to be harmoniously interpreted and such harmonious interpretation is possible. In case the occupant of a premises gets protection under section 15A of the Rent Act against the member, the society can implement the provisions of section 2( l6) of the Maharashtra Co operative Societies Act, 1960 by determining the rights of the member and admitting a new member for the premises. Hence, my finding on the second part of the issue are that the rights of opponent No. 3 cannot be determined without determining the rights of opponent No. I i.e. Nanki M. Malkani, a co partner member in the suit premises. " In view of these findings, the 3rd Co operative Court held in favour of the petitioner corporation and dismissed the claim for eviction filed by the society under section 9( l) of the Act. Curiously enough, while allowing the appeal, the State Appellate Court has observed as follows: "One thing is clear that Hindustan Petroleum took over the rights and liabilities of Esso Standard Eastern Co. We would like to point out that leave and licence agreement confers only a personal right to occupy . that right cannot be transferred nor it can be inherited by Hindustan Petroleum Corporation by virtue of the merger of Esso Company with Hindustan Petroleum Corporation. Under these circumstances it has to be noted that as soon as the Esso PG NO 56 Standard Eastern Co. was taken over by Hindustan Petroleum Corporation, the rights under the leave and license agreement came to an end . . it cannot be said that it (Hindustan Petroleum Corporation) also took over the rights of Esso Standard Eastern Co. to occupy the flat under the leave and licence agreement. Again it observed: " At P. 299 of the record there is a letter dated 24.3.80 written by respondent No. 1 to the personal adviser of Hindustan Petroleum Corporation Ltd. In the first para of the said letter it is stated by respondent No. 1 that he has given the suit that to Esso Standard Eastern Inc. in December 1968 on leave and licence basis and that Hindustan Petroleum Corporation is the successor in title of the Esso Company and that Hindustan Petroleum Corporation is occupying the said flat: Probably in ignorance of this legal position, the respondent No. I wrote the above mentioned letter dated 24. 3.80 to Hindustan Petroleum Corporation . Even supposing that respondent No. I intended that respondent No. 3 should continue as a licensee after Esso Standard Eastern Co. was taken over by respondent No. 3 it has to be noted that there was no separate leave and licence agreement with Hindustan Petroleum Corporation namely. respondent No. 3. Even assuming for the sake of argument that respondent No. I intended that the flat should be occupied on leave and licence basis by respondent No. 3 that leave and licence agreement was terminated by respondent No. I by the above mentioned letter. " Further, it observed: "However there is absolutely no evidence to show the licence was renewed, at any time. The evidence of the witness examined on behalf of respondent No. 2 clearly shows that there was no renewal of the leave and licence agreement respondent No. 3 the leave and licence agreement automatically came to an end . .under these circumstances we feel that the rights that were given under PG NO 57 the leave and licence agreement were not available to respondent No. 3" Dr. Y.S. Chitale, learned counsel appearing for the petitioners rightly contends that the findings reached by the Appellate Court are manifestly erroneous and have caused a grave miscarriage of justice. The finding that there was no subsisting licence existing as on 1st February, 1973 to attract the provisions of section 15A of the Bombay Rent Act in the case of the petitioner Corporation is vitiated by its failure to give effect to the admission contained in the letter dated 24th March, 1980 written by respondent No. 2, Smt. Nanki M. Malkani which is to the effect: "I had given the above flat to the then Esso Standard Inc. in December 1968 on leave and licence basis. You as a successor in title of that company have been occupying the flat as licensee on the same terms and conditions. As you and your predecessors in title are reputed organisation I had given the flat for your officers use in the expectation that you will return the flat. when l require it for my own use. " Besides this letter, the learned counsel for the petitioners drew our attention to a sheaf of letters exchanged between respondent No. 2 Smt. Nanki M. Malkani and the Hindustan Petroleum Corporation Ltd. showing that she accepted that there was subsisting agreement of leave and licence as late as 24th March, 1980 which must be necessary implication, give rise to the inference as to the existence of such a licence between its predecessor Esso Eastern Inc. as on 1st February, 1973 which conferred on it the status of a protected tenant under section 15A of the Act. Indeed, the correspondence shows that it was at the behest of respondent No. 2 that every time on the expiry of a term of licence it came to be renewed from year to year till section 15A of the Bombay Rent Act was brought into force. Thereafter, the predecessor in interest of the petitioner, corporation was deemed to be her tenant under section I5A of the Bombay Rent Act. For instance, by letter dated 9th April, 1975 she wrote to the Hindustan Petroleum Corporation Ltd. that the above flat had been in its possession since December 1, 1968. Again, by letter dated 15th November, 1976, she wrote to the Corporation forwarding the original bill of the society in support of her demand for payment of enhanced taxes and PG NO 58 charges. In view of these admissions made in these letters and more particularly in the letter dated 29th November, 1971 to Esso Eastern Inc. which reads as under: "As the present agreement of leave and licence in regard to above flat is due to expire on 30th November, 1973 that is two years from hence, you would like me to give you an undertaking of renewal of this agreement to justify the expenditure being incurred by you now," the findings of the Appellate Court are clearly erroneous. On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected licensee under section 15A of the Bombay Rent Act as on 1st February, 1973. The findings of the Appellate Court to the contrary are therefore clearly erroneous. We are unable to sustain the view taken by the Appellate ' Court in not giving effect to sub section [1] of section 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day. While it is true that a licence being personal is not capable of being transferred; there was no warrant for the assumption by the Appellate Court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under section 3 of the Acquisition Act. That Act came into force on 15th March, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under section 15A of the Bombay Rent Act admittedly, there was a subsisting licence as on 1st February, 1973. The Appellate Court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. by a Certificate of Amendment dated/22nd December, 1970 vide a Resolution passed by the Board of Directors of the Corporation on 15th December, 1970. In view of all this, the finding of the Appellate Court that the Hindustan Petroleum Corporation Ltd. was entitled to the protection of section 15A of the Bombay Rent Act clearly borders on traversity and can hardly be swtained. The Appellate Court was clearly in error in not appreciating that section by 4. 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from 13th March. Under sub section (I) of section 5 thereof, the Central Government became the lessee or tenant, as the case may be. By sub section (2) thereof, on the expiry of the term of any or tenancy refereed to in sub section (1), such lease or tenancy shall, if PG NO 59 so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a Government company, w.e.f. 15th March, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under section 396 [1] & (2) of the , the undertaking of Lube lndia Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer, the name of Esso Standard Refining Company of lndia Ltd., stood changed to Hindustan Petroleum Corporation Ltd. In the premises, petitioner No. 1 Hindustan Petroleum Corporation Ltd. is clearly protected under section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act. In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of section 91 of the Maharashtra Cooperative Societies Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under section 91(1) of the Act have already been considered by this Court on O.N. Bhatnagar 's case and we reiterate the principles laid down therein. In the result, the petition under article 226 of the Constitution succeeds and is allowed. I he judgment and order passed by the Maharashtra State Co operative Appellate Court dated June 6, 1983 allowing the claim of respondent No. 1 Shyam Co operative Housing Society for eviction of the petitioners as also the proceedings initiated by it under section 91 of the Maharashtra Co operative Societies Act. 1960 are quashed. Y. Lal Petition allowed.

Respondents are running Private Schools. In pursuance of the State of Kerala publishing in the Gazette a final list of areas where new unaided recognised high schools/upper primary schools/lower primary schools were to be opened or existing unaided lower primary schools/ upper primary schools were to be upgraded in the year 1986 87 the Respondents educational agencies submitted applications for grant of sanction to open the unaided recognised schools or for upgrading the schools already run by them. These applications were duly inquired and considered by the District Educational Officer as also by the Director of Education as per the Rules & procedure laid down therefor, particularly Rules 24(3) and (4) and thereafter the Government considered the applications in accordance with Rule 2A(5) and took a final decision for grant of necessary sanction for opening/upgrading of 36 lower primary schools, 36 upper primary schools and 19 high schools, totalling in all 91 schools in the list of areas selected. On 4.2.87, the State Government issued an Order under exhibit P 4, granting sanction to the Respondents to open new unaided schools or to upgrade their existing schools subject to the conditions set out therein. However, by an Order exhibit P 5, dated 20.2.87, the Government directed that the earlier order under Ex P 4 be kept in abeyance. The Respondents challenged the Order of the Government by means of a Writ Petition. During the pendency of the Writ Petition general elections were held to the Kerala Legislative Assembly as a result whereof a new Ministry assumed office. The Government under the new Ministry passed an order dated 19.5.87 under Ex P 7 cancelling in toto the order under Ex P 4 granting sanction to the Respondents to open the school or to upgrade the existing schools. PG NO 94 PG NO 95 The Respondents thereupon amended their Petition suitably and challenged the validity of the order of cancellation passed under Ex. The Singie Judge of the High Court before whom the Writ Petition first came up for hearing took the view that while it was obligatory for the Government to follow the procedure prescribed in Rules 2 & 2A, Chapter V, if it was to permit the opening of new unaided recognised schools or upgradation of existing schools, the converse result would not follow i.e. wherever the Government had gone through the procedure under the Rules the Government could not retrace its steps and was bound to proceed further in the matter and that the Government had no option to reverse its decision. On the question of revocation of the order of sanction, however, the learned Judge held that the power to sanction new schools carried with it the inherent power of cancellation of an order passed under Rule 2A(5). Accordingly the learned Singie Judge dismissed the petitions. The respondents thereafter preferred appeals before the Division Bench. The Division Bench allowed the appeals, reversed the order passed by the Single Judge but granted only limited reliefs to the Respondents in that it quashed the order under exhibit P 7 dated 19.5.87 and issued a mandamus to the State Government to consider the applications of the Respondents on their merits on the basis of the earlier order passed in their favour under exhibit P 4 dated 4.2.87. The Division Bench further held that the Respondents have locus standi to challenge the order of cancellation and that the Government did not have the power or jurisdiction to revoke the cancellation order. It also held that the cancellation order violated the principle of natural justice. Being aggrieved by the decision of the Division Bench of the High Court, the State filed these appeals after obtaining special leave. Dismissing the appeals this Court, HELD: The importance of securing recognition lies in the fact that without recognition the students studying in the unaided schools will neither be permitted to appear as candidates in the examinations conducted by the State nor be eligible to avail of the opportunities for higher education or to enter public service examination. The obtainment of recognition from the Government is therefore a vital factor for the educational agencies starting new schools or newly upgrading their existing schools. [ 107B C] Rule 2A(1) makes it imperative for the Director to call for applications from interested parties for opening new schools or upgrading existing schools in the selected areas. The mandate contained therein goes to show that the PG NO 95 idenffication and selection of inadequately served areas under Rule 2(4) is not an idle or meaningless exercise. [111A C] When even an unsuccessful applicant is conferred a right to represent to Government against the non approval of the application, can it be said that an approved applicant has no right whatever to complain when the sanction granted to him is revoked all of a sudden without he being given any opportunity to show cause against such cancellation. [111D E] The further scrutiny of the application of the approved applicant under Rule 9 and the confirmation of approval under Rule 11 would not, however, mean that the earlier sanction granted under Rule 2A(S) does not create "legitimate expectation right" in the approved applicant. [111G H: 12A] The Rules do not provide for the Government reviewing suo moto any order of sanction passed under Rule 2A(5) in favour of any applicant for opening of a new school or upgrading an existing school and its power of revision under Rule ] 2 is confined to the reconsideration of the case of any applicant whose name did not find a place in the final list of approved applications published by the Government. [116D E ] Though the sanction granted to the respondents under exhibit P 4 would not by itself entitle them to open new schools or upgrade the existing schools, it did confer on them a right to seek the continuance of the statutory procedural stream in order to have their applications considered under Rule 9 and dealt with them under Rule 11 [122C] It was not open to the Government, either under the Act or Rules or under Section 20 of the Kerala General Clauses Act to cancel the approval granted to the respondents under Rule 2A(5), for opening new schools or upgrading existing schools in the selected areas on the basis of a revised policy. [122D] The impugned order under exhibit P 7, irrespective of the question whether the government had the requisite power of cancellation or not, is vitiated by reason of non observance of the principles of natural justice and the vice of extraneous factors. [ 122E]

ivil Appeal Nos. 1350 51 (NT) of 1974 From the Judgment and order dated 19th October. 1973 of the Delhi High Court in Income Tax Reference Nos 46 and 52 of 1970 Dr. V. Gauri Shankar and Miss A. Subhashini for the Appellant. Bishambar Lal, R.P. Gupta, S.K. Gupta and V.K. Jain for the Respondent. 153 The Judgment of the Court was delivered by PATHAK, J. These appeals by certificate granted by the Delhi High Court are directed against a common judgment of that High Court disposing of two income tax references relating to the assessment years 1956 57 and 1957 58 on the question whether the assessee 's dividend income from a Pakistan company was deductible against its business loss in India. The assessee is a public limited company carrying on the business of manufacturing and selling sugar. During the relevant period it also held some shares in the Premier Sugar Mills & Distillery Co. Ltd Mardan, West Pakistan. The Pakistan company also carried on the business of manufacturing and selling sugar. In the previous year relevant to the assessment year 1956 57 the assessee earned a dividend income of Rs.2,30,832 from its holdings in the Pakistan company. It sustained a loss of Rs.20,30,006 from the business in India. Likewise, in the previous year relevant to the assessment year 1957 58 the asses see received a dividend income of Rs.3,30,868 from the holdings in the Pakistan company, but sustained a loss of Rs.9,11,728 from the business in India. The assessee claimed that the entire loss sustained by it in India in each year should be carried forward and set off against its business profits in India in future years. It contended that the dividend income derived by it from the Pakistan company was not liable to tax in India as it was wholly taxed in Pakistan, and therefore, it could not be set off against the business loss in India. The Income tax officer rejected the contention and deducted the dividend income received from the Pakistan company from the business loss in India disclosed by the assessee and after making certain other adjustments he determined the total loss of the assessee for the assessment year 1956 57 at p Rs.16,51,129 and for the assessment year 1957 58 at Rs.3,78,661. The assessee appealed to the Appellate Assistant Commissioner of Income tax in respect of each assessment year, but the appeals failed, except that in the case for the assessment year 1957 58 the Appellate Assistant Commissioner determined the dividend income from the Pakistan company at Rs.2,27,472 and reduced the net loss accordingly. In second appeal the Income tax Appellate Tribunal confirmed the orders of the Appellate Assistant Commissioner. Thereafter, at the instance of the assessee the Appellate Tribunal referred the following questions in the two cases to the Delhi High Court for its opinion: 154 "1. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the net dividend income of Rs.2,30,832 received from a Pakistan Company and the capital gains of Rs.5,120 were not deductible in arriving at the total world loss under section 24(1)?" 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the net dividend income of Rs.2,27,472 received from a Pakistan company and the capital gains of Rs.50,829 were not deductible in arriving at the total world loss under section 24(1)?" The High Court answered the questions relating to the Pakistan dividend in favour of the assessee and against the revenue. So far as the question in each case refers to the deduction of capital gains against the total world loss for the year, learned counsel for the parties jointly state that it is not subject matter of these appeals. It is necessary to mention at the outset that the Dominion of India and the Dominion of Pakistan concluded an Agreement for the Avoidance of Double Taxation of Income chargeable in the two Dominions in accordance with their respective laws, and in exercise of the powers conferred by section 49AA of the Indian Income tax Act 1922 and the corresponding provisions of the Excess Profits Tax Act, 1940 and the the Government of India directed by Notification No. 28 dated December 10, 1947 that the provisions of the Agreement would be given effect to in the Dominion of India. As the scope and effect of the Agreement is intimately involved in the resolution of the controversy between the parties, the material provisions may be set forth immediately: "Article IV Each Dominion shall make assessment in the ordinary way under its own laws; and, where either Dominion under the operation of its laws charges any income from the sources or categories of transaction specified in column I of the Schedule of this Agreement (hereinafter referred to as the Schedule) in excess of the amount calculated according to the percentage specified in columns 2 155 and 3 thereof, that Dominion shall allow an abatement equal to the lower amount of tax payable on such excess in their Dominion as provided for in Article VI. Article V Where any income accruing or arising without the territories of the Dominions is chargeable to tax in both the Dominions, each Dominion shall allow an abatement equal to one half of the lower amount of tax payable in either Dominion on such doubly taxed income. Article VI(a) For the purposes of the abatement to be allowed under Article IV or V, the tax payable in each Dominion on the excess or the doubly taxed income, as the case may be, shall be such proportion of the tax payable in each Dominion as the excess or the doubly taxed income bears to the total income of the assessee in each Dominion. (b) Where at the time of assessment in one Dominion, the n tax payable on the total income in the other Dominion is not known, the first Dominion shall make a demand without allowing the abatement, but shall hold in abeyance for a period of one year (or such longer period as may be allowed by the Income tax officer in his descretion) the collection of a portion of the demand equal to the estimated abatement. If the assessee produces a certificate of assessment in the other Dominion within the period of one year or any longer period allowed by the Income tax officer, the uncollected portion of the demand will be adjusted against the abatement allowable under this Agreement; if no such certificate is produced the abatement shall cease to be operative and the outstanding demand shall be collected forthwith. Article VII(a) Nothing in this Agreement shall be construed as modifying or interpreting in any manner the provisions of relevant taxation laws in force in either Dominion (b) If any question arises as to whether any income falls within any one of the items specified in the Schedule and if so under which item, the question shall be decided without 156 any reference to the treatment of such income in assessment made by the other Dominion. xxx xxx xxx The Schedule (See Article IV) ____________________________________________________________ Source of Income Percentage of Remarks or nature of Income which each transaction from Dominion is en which income is titled to charge derived. under the Agreement. (1) (2) (3) (4) ____________________________________________________________ xxxx xxxx xxxx xxxx section Dividends By each (As in Relief in respect of Dominion preceding any excess income tax in pro column) deemed to be paid by portion to the shareholder shall the profits be allowed by each of the Dominion in proportion company to the profits of the chargeable company chargeable by by each each under this Dominion Agreement. under this Agreement. xxx xxxx xxx xxx" ___________________________________________________________ It is apparent that in the case of dividend income the percentage of income which each Dominion is entitled to charge under Agreement is in proportion to the profits of the company chargeable by each Dominion under that Agreement. The relevant entry in the Schedule indicates that as the factory is situated in Pakistan the Dominion of Pakistan is entitled to charge 100 per cent of the income and that the Dominion of India is not entitled to charge any percentage of the Income. Therefore, the dividend income derived from the Pakistan Company by the assessee is, by virtue of the Agreement, liable to charge wholly by the Dominion of Pakistan, and the Dominion of India is not entitled to charge the dividend income at all. But this, it must be noted, is the position obtaining pursuant to the Agreement. If regard be had to the provisions of the Indian Income tax Act, without reference to the Agreement, the dividend income, even though accruing or arising abroad, is liable to tax under the Indian law. 157 The High Court held that because of the operation of the aforesaid Agreement dividend income derived by the assessee in Pakistan was not assessable under the Income tax Act in India and, therefore, could not be set off under sub section (1) of section 24 of the Indian Income tax Act 1922 against the business loss suffered by the assessee. Now there can be no doubt that under sub section (1) of section 24 an assessee who has sustained a loss of profits or gains in any year under any of the heads mentioned in section 6 is entitled to have the amount of the loss set off against his income, profits or gains under any other head in that year, and that the income, profits or gains against which the loss is set off must be such income, profits or gains as is assessable under the Indian Income tax Act. The statute does not contemplate a setting off of loss against income which is not assessable at all under the Act. But in order to determine whether the income in question is assessable under the Act regard must be had to the provisions of the Act itself. The High Court erred in taking into consideration the circumstance that the Agreement between the two Dominions prohibited the Dominion of India from charging income tax on dividend income earned in Pakistan and treating it as exempt from the process of assessment to tax under the Act. It will be apparent from Article IV of the Agreement that each Dominion is entitled to make assessments in the ordinary way under its own laws. The process of determining the assessable income of the assessee is not effected by the Agreement. What the Agreement does is to give relief against double taxation, and as is clear, from Article lV, V and VI it is the charge levied by a Dominion on the income of an assessee that is involved in the relief. For Article IV goes on to say that where either Dominion under the operation of its laws charges any income from the sources or categories of transactions specified in column 1 of the Schedule to the Agreement in excess of the amount calculated according to the percentage specified in columns 2 and 3 thereof, that Dominion shall allow an abatement equal to the lower amount of tax payable on such excess in the Dominion as provided for in Article VI. The Agreement was considered by this Court in Ramesh R. Saraiya vs Commissioner of Income tax Bombay City I, [1965] 55 lTR 699 and the position was summed up clearly as follows. "It seems to us that the opening sentence of Article IV of the Agreement that each Dominion is entitled to make assessment in the ordinary way under its own laws clearly shows that each Dominion can make an assessment regardless of the Agreement. But a restriction is imposed on 158 each Dominion and the restriction is not on the power of assessment but on the liberty to retain the tax assessed Article IV directs each Dominion to allow abatement on the amount in excess of the amount mentioned in the Schedule. The scheme of the Schedule is to apportion income from various sources among the two Dominions In the case of dividends each Dominion is entitled to charge "in proportion to the profits of the company charge able by each Dominion under this agreement. " This refers us back to the other items For instance, in respect of goods manufactured by the assessee partly in one Dominion and partly in the other, each Dominion is entitled to charge on 50% of the profits But the Schedule does not limit the power of each Dominion to assesss in the normal way all the income that is liable to taxation under its laws. The Schedule has been inserted only for the purpose of calculating the abatement to be allowed Article VI also leads to the same conclusion For if no assessment could be made on the amount on which abatement is to be allowed, there could be no question of making a demand without allowing the abatement and holding in abeyance for a period the collection of a portion of the demand equal to the estimated abatement. " On the basis of Agreement the High Court came to the conclusion that the dividend income was not liable to charge by the Dominion of India The High Court omitted to note that the Agreement functions on a different plane altogether. It enjoys no role in the application of the Indian law for the purpose of determining the total income of an assessee and the tax liability consequent upon such assessment. On the contrary, the provisions of the Agreement clearly envisage that full effect must be given to the operation of the tax law of each Dominion All that the Agreement does is to permit a Dominion to retain the tax recovered by it pursuant to an assessment under its law to the extent that an abatement is not allowed under the provisions of the Agreement Article IV, it may be reiterated, specifically provides that each Dominion shall make assessment in the ordinary way under its own laws. Such assessment includes the determination of the consequential tax liability. Thereafter, the Agreement takes over the Dominion must allow an abatement in the degree mentioned in Article IV. It will also be noticed that clause (b) of Article VI permits the 159 Dominion to make a demand without allowing the abatement if the tax payable on the total income in the other Dominion is not known, but the collection of the tax has to be held in abeyance for a period of one year at least to the extent of the estimated abatement. If the assessee produces the certificate of assessment in the other Dominion within the period of one year or any longer period allowed by the Income tax officer, the uncollected portion of the demand has to be adjusted against the abatement allowable under the Agreement. But if no such certificate is produced, the abatement ceases to be operative and the outstanding demand can be collected forthwith. Clause (a) of Article VII makes absolutely clear that nothing in the Agreement can be considered as modifying or incorporating in any manner the provisions of the relevant tax laws in force in either Dominion. Therefore, having regard to what is expressly stated in Article IV of the Agreement, and re emphasised in cl. (a) of Article VII, there can be no escape from the conclusion that for the purposes of the assessment under the Indian Income tax Act, the income of the assessee must be determined in the ordinary way under the Indian law, and in no way can the Agreement be construed as modifying or superseding in any manner the provisions of the Indian law in that regard. The High Court has proceeded on the basis that for the purpose of giving abatement of tax in India the dividend income from the Pakistan Company can be excluded from the taxable income of the assessee. It has reasoned that by requiring the dividend profits accruing or arising in Pakistan to be set off against the business loss of the assessee in India there is, in the result, a taxing of the dividend income from the Pakistan company. The High Court has fallen into the fallacy of treating the setting off of the dividend income against the business loss as an infringement of the Agreement. It has lost sight of the provisions of the Agreement itself which provide that the Indian Income tax Act must be applied without regard to the Agreement for the purpose of determining the total income and the consequential tax liability of the assessee. Once it is accepted that the Agreement preserves the right of each Dominion to determine the assessable income in accordance with the operation of its own laws and it is concerned only with the question of the degree of retention of the tax charged by it consequent upon such assessment, it becomes abundantly clear that the dividend income, inasmuch as it is taxable under the Indian Income tax Act, by virtue of sub cl. (ii) of d. (b) of sub. section (1) of section 4, must be brought into the net 160 of income for assessment under the Indian law. It has not been shown to us by learned counsel for the assessee that it constitutes the subject of exemption under any provision of the Indian Income tax Act Subs. (3) of section 4 sets forth the cases in which income is not includible in the total income of the person receiving it. And sections 14 to 16 detail the cases where the statute grants exemption from tax. No provision in the Act has been pointed out from which we may infer that the dividend income in question is not liable to inclusion in determining the total income of the assessee. Learned counsel for the assessee has placed a number of cases before us which deal with the application of the Indian Income tax Act, and where it has been held that for the purpose of sub section (t) of section 24 of that Act income which does not fall within the purview of the Act at all cannot be set off against a loss arising under the Act. These are cases which are wholly inapposite, and have no bearing, at all upon the role played by the Agreement. It is also urged that it is open to the assessee to claim or not to claim the benefit of section 24 of the Act, and that if he does not do so no question arises of applying section 24. In the first place, a perusal of the assessment orders for the two years shows clearly that the assessee did claim a set off of the Pakistan dividend against the losses of the Indian business. In the second place there is a duty cast on the Income tax officer to apply the relevant provisions of the Indian Income tax Act for the purpose of determining the true figure of the assessee 's taxable income and the consequential tax liability. Merely because the assessee fails to claim the benefit of a set off cannot relieve the Income tax officer of his duty to apply section 24 in an appropriate case. In the result the appeals are allowed, the judgment of the High Court is set aside and the questions referred by the Income tax Appellate Tribunal to the High Court are answered in favour of the Revenue and against the assessee in so far that we hold that the dividend income received from the Pakistan company is deductible in arriving at the total world loss of the assessee under sub s (1) of section 24 of the Indian Income tax Act, 1922. The Revenue is entitled to its costs. S.R. Appeals allowed.

Section 11( 1) of the U. P. Agricultural Income tax Act, 1948, provided: "Where any person holds land, from which agricultural income is derived, as a common manager appointed under any law for the time being in force or under any agreement or as receiver, administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom, the aggregate of the sums payable as agricultural income tax by each person on the agricultural income derived from such land and received by him, shall be assessed on such common manager, receiver, administrator or the like, and he shall be deemed to be the assessee in respect of the agricultural income tax so payable by each such person and shall be liable to pay the same. " The appellants were the trustees of an estate settled on trust under a will which inter alia provided that the trustees were to take possession of the trust properties and to manage the same with all the powers of absolute owners and to pay the annuities to certain persons. The assessing authority assessed the appellants to agricultural income tax upon the total agricultural income received by them, overruling their contention that the tax should be computed in accordance with the method of computation laid down in section 11(1) of the Act and that they should be called upon to pay the aggregate of the sums payable as agricultural income tax by each of the annuitants. Held: (1) that the trustees who were the legal owners of the trust property did not hold the land from which agricultural income was derived, on behalf of the annuitants and that each of the annuitants was separately or individually interested in the agricultural income derived from the land comprised in the trust estate to the extent of the annuity payable to him. (2) that section 11(1) of the Act was not applicable to the case and that the appellants were liable to pay agricultural income tax upon the total agricultural income received by them

Appeal No. 1693 of 1967. 14 Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated September 21, 1967 of the Madhya Pradesh High Court in Election Petition No. 10 of 1967. G. N. Dikshit and R. N. Dikshit, for the appellant. C. B. Agarwala Uma Mehta, section K. Bagga and Shureshta Bagga, for respondent No. 1. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal against the, judgment of the High Court of Madhya Pradesh at Jabalpur, dated September 21, 1967. dismissing the election petition filed by the appellant on the preliminary ground that a proper copy of the election petition was not served upon the answering parties. The facts of the case are as follows The appellant was a candidate for election to the Sagar Lok Sabha Scheduled Castes constituency No. 24. The election took place on February 20, 1967. There were three other contesting candidates of whom the first respondent secured the largest number of votes and was declared elected. The appellant secured the second largest number of votes, her votes being less by just under 300 than the successful candidate 's votes. An election petition was thereafter filed by the appellant on April 5, 1967. In this ,election petition the appellant challenged the election of the first respondent on four grounds. They were (a) wrongful acceptance . ,of his nomination paper, (b) corrupt practice inasmuch as .he appealed to religion through a pamphlet marked Annexure (c) undue influence, and (d) breaches of the. Act and Rules. The pamphlet to which reference is made was styled Bhayankar Vajraghat and was published by Sarvadaliya Goraksha Mahabhiyan Samiti, Deori Kalan Branch. It charged the party of the appellant namely the Congress with encouraging cow slaughter and ,offending. the Hindu Sentiment. Details were given in it of the number of animals slaughtered every day in Madhya Pradesh land elsewhere and blamed the Congress with being a party to the practice. In the body of the election petition a translation in English of the Hindi pamphlet was incorporated. The original pamphlet was attached to the election petition and was marked Annexure 'A '. The election petitioner proceeded to say in her petition "it forms part of the petition". When parties appeared the first respondent filed his written statement in great. detail. He dealt with this pamphlet and answered the allegations of the election petitioner in relation thereto paragraph by paragraph. As a result of these pleas a number of issues were raised on July 18, 1967. No issue was raised in 15 regard to the service of a defective copy of the election petition upon the respondents in general and the first respondent in particular. However, on August 3, 1967, a special objection was made by the first respondent claiming that the copy of the pamphlet had not been annexed to the copy of the election petition served upon him and therefore the election petition was liable to be dismissed in accordance with the provisions of section 86 of the Representation of the People Act. A detailed reply to this objection was given by the election petitioner. She stated that this was an after thought inasmuch as the translation of the pamphlet was incorporated in the election petition and the allegations regarding the pamphlet had been answered in detail by the answering respondent. The Court thereupon framed an additional issue on August 4, 1967. The issue ran as follows "Whether the election petition is liable to be dismissed for contravention of section 81 (3) of the Representation of the People Act, 1951 as copy of Annexure A to the petition was not given along with the petition for being served on the respondents". Parties first filed a number of affidavits pro and con. Later the Court ordered attendance of the deponents for crossexamination. In this way the appellant and her counsel who had filed affidavits earlier were examined. Their. case was that the copies of the election petition had been properly, put together including in each copy an original pamphlet for service on the respondents. On the other side the first respondent and two others filed affidavits stating that when the copy of the election petition was received it was not accompanied by the pamphlet. In their examination in Court all maintained the same position, and were cross examined. The learned Judge trying the case also ordered the attendance of the Reader of the Deputy Registrar of the High Court who had dealt with the election, petition and he ' was examined as Court witness No. 1. He stated that the copies of the petition were complete except that the pamphlet was not annexed to each copy. He stated that he had noted at the time this fact but had treated the pamphlet as a document and not as an Annexure to the election petition. The learned Judge, on an appraisal of this material held that the copies of the election petition served upon the respondents were not accompanied by the pamphlet which was an Annexure to the election petition. After examining the law on the subject the learned Judge came to the conclusion that the election petition should be dismissed under section 86 of the Representation of the People Act and he accordingly dismissed it with costs. No other 16 issue which was struck between the parties was gone into because the election petition failed at the very threshold. In this appeal it is contended that the learned Judge was in error in thinking that the pamphlet ought to have accompanied the copies of the election petition or that the law required that it should have been annexed to the copy of the election petition served on the respondents. In this connection our attention was drawn to the provisions of the Representation of the People Act to which we shall refer presently. On the other side it was contended that whatever the meaning of the expressions "the election petition", "annexures" or "schedules" in the Act, the election petitioner by her own conduct had made this document a part Of the election petition and therefore it was incumbent upon her to have served the whole of the election petition and not only a part of it as she did and therefore the order now appealed against was correct. Before we come to these rival contentions we find it necessary to refer first to the relevant provisions on the subject Section 81 of the Representation of the People Act occurs in Chapter 11 which is headed "Presentation of Election Petitions to Election Commission". It provides as follows: "Presentation of Petitions (1) An election petition calling in question any election may be presented on one or more of the , rounds specified in sub section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Explanation : In this subsection, 'elector ' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereto as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." 17 The first respondent draws pointed attention to the third sub section which says that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The dispute therefore is whether the pamphlet could be described in this case as, a part of the election petition. The answering respondent says that it is so and was considered to be so by the election petitioner herself when she stated that it was to be read as a part of the election petition. The matter, in our opinion, is not to be resolved on how the election petitioner viewed the matter but from the point of view of the requirement of the law on the subject. For this purpose we have to turn to section 83 of the Representation of the People Act which provides what the contents of the election petition shall be. It reads as follows (1) An election petition (a) shall contain a concise statement of the material facts on which,the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings. Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the The answering respondent herein again draws pointed attention to the fact that the schedules and the annexures to the petition are mentioned and they have to be signed and verified in the same manner as the petition meaning thereby that as the election petitioner had made the pamphlet a part of the election petition she was required to sign and verify the pamphlet and also to serve a 18 copy of it as required by sub section (3) of section 81 when the election petition was served. 'He then relies upon section 86 which provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117. An argument was raised in this case as to whether section 86(1) is mandatory or merely directory. We need not go into this aspect of the case. In our opinion the present matter can be resolved on an examination of the relevant facts and the contents of the election petition as detailed in section 83 reproduced above. It may be pointed out here that the trial of election petition has to follow as. far as may be ,the provisions of the Code of Civil Procedure. We are therefore of opinion that it is permissible to look into the Code of Civil Procedure to see what exactly would have been the case if this was a suit and not a trial of an election petition. Under the Code of Civil Procedure, a suit is commenced by a plaint. This is provided by O.IV, r. 1 which says that every suit shall be instituted by presenting a plaint to the Court. After the plaint, is received O.V provides the summoning of the defendants in the case and r. 2 of that order says that every summons shall be accompanied by a copy of the plaint, and if so permitted, by a concise. statement. We then turn to the provisions of O.VII Which. deals with the contents of a plaint. The first rule mentions the particulars which must be in a plaint. It is not necessary to refer to them '. The plaint has to be signed and verified. Rule 9 then provides that the plaintiff shall endorse on the plaint and annex thereto a list of documents, if any, which he has produced along with it and, if the plaint is admitted, shall present as many .copies on plain paper of the plaint as there are defendants unless the Court by reason of the length of the plaint or the number of defendants, or for any other sufficient reason, permits him to present a like number of concise statements of the nature of the claims made,. It will be noticed here that what is required to be provided are copies of the plaint itself or the concise statement according to the number of defendants. There is no mention here of any, other documents of which a copy is needed to be presented to the Court for service to the defendants. Then we come to r. 14 which states that where a plaintiff sues upon a document in his possession or power he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to. be filed with the plaint. It will be noticed that he is required to file only one copy of the document and not as many copies as there are defendants in the case. It would therefore follow that a copy of the document is not expected to be delivered with the copy of the plaint to the answering defendants when summons is served on them. In the schedules to the Code of Civil Procedure we have got Appendix B which 19 prescribes the forms for summons to the defendants. There is only one form of summons in Appendix B, (Form No. 4) in which the copy of the negotiable instrument is to accompany the copy of The plaint. That is so, because of the special law applying to the negotiable instruments and the time limit within which pleas to that document have to be raised and this is only in summary suits. No other form makes any mention of any document accompanying the summons with the, copy. of the plaint. We need not go into more details,. It is clear that the documents which are filed with the plaint have to be accompanied by one copy of those documents. This is because the copy is compared with the original and the copy is endorsed by the clerk of court and the document is sometimes returned to the party to be produced into Court later. 'the copy takes the place of the document concerned and is not to be sent out to the parties with the plaint. We may now see whether the election law provides anything different. The only provision to which our attention has been drawn is sub section (3) of section 81 and sub section (2) of section 83. The first .provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the ;petition and that every such copy shall be an authenticated true copy. The words. used here are only "the election petition". There is no mention of any document accompanying the election petition. If the matter stood with only this sub section there would ;be no doubt that what was intended to be served is only a copy of the election petition proper. Assistance is however taken from the provisions of sub section (2) of section 83 which provides that. any schedule or any annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition it is contended that since the pamphlet was an annexure to the petition it was not only necessary to sign and verify it, but that it should have been treated as a part of the election petition itself and a copy served upon the respondents. in this way, non compliance with the provisions of section 86(1) is made Out. In our opinion, this is too strict a reading of the provisions. We have already pointed. out that section 81(3) speaks only of the election petition. Pausing here, we would say that since the election petition itself reproduced the whole of the pamphlet in a translation in English, it could be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet was served upon the respondents although in a translation and not in original. Even if this be not the case, we are quite clear that subs. (2) of section 83 has reference not to. a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put, not in the election petition but in he accompanying schedules or annexures. We can 20 give quite a number of examples from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures. For example, the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may, in some cases, be so done even after the amendment of the present law. Similarly, details of the averments too compendious for being included in the election petition may be set. out in the schedules or annexures to the election petition. The law then requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with. But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity ,and to lend force to the petition are not kept back but produced or filed with the election petitions. They are in no, sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefor must be treated as a document and not as a part of the election petition in so far as averments are concerned. When ,the election petitioner said that it was to be treated as part of her election petition she was merely indicating that it was not to be thought that she had not produced the document in time. She was insisting upon the document remaining with the petition so that it could be available whenever the question of the election petition or its contents arose. It would be stretching the words of sub section (2) of section 83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper. In this particular case we do not think that the pamphlet could be so treated. We are, therefore, of the opinion that whether or not section 86(1) is mandatory or directory there was no breach of the provisions of the Representation of the People Act in regard to the filing of the election or the service of the copies thereof and the order under appeal was therefore erroneous. We accordingly set aside the order and remand the case for trial from this stage. The costs of the appellant will be costs in the cause. The respondent will bear his own costs. Y. P. Appeal allowed and case remanded.

On the allegation that the appellant Havaldar and the second appellant a Subedar in the Rajasthan Armed Constabulary. were demanding certain amount from a person accusing him of indulging in blackmarketing and constantly visiting Pakistan and unless he paid the amount demanded he would be beaten and prosecuted, a police trap was successfully laid, and the appellants convicted under sections 161 and 120B I.P.C. and under section 5(2) read with section 5(1)(a) and section 5(1)(d) of the Prevention of Corruption Act. In appeal, this Court. HELD : The conviction of the appellants under section 120B and 161 as well as under section 5 (2) read with section 5 (1) (a) of the Prevention of Corruption Act must be set aside. The second appellant 's conviction under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act must be sustained. The first appellant 's conviction be altered to one under section 5(2) of the Prevention of Corruption Act read with section 114 I.P.C. The first appellant was a subordinate of 'second appellant. From the evidence it is clear that both the appellants were acting together. It is ' obvious that the second appellant was mainly responsible for the extortions complained of and the first appellant was aiding him in his activities. Hence there was no need to charge the appellants under section 120 B. I.P.C. The evidence clearly showed that neither the appellants intended to show any official favour to the Persons from whom they extorted money nor those persons expected any official favour from them. The amounts in question were paid solely with a view to avoid being ill treated or haras sed. Therefore, it is dffficult to hold that the acts complained can be held to constitute offences under section 161 I.P.C. State of Ajmer vs Shivji Lal, [1959] Supp. 2 S.C.R. 739 and State of Uttar Pradesh vs Kuljas Rai. A. No. 177 of. 1960 dated 22 8 62, referred to. Before an offence can be held to come within section 5(1)(a) Of the Prevention of Corruption Act, the requirements of section 161 I.P.C., have to be satisfied. If an offence does not fall under section 161 I.P.C. it cannot come. within section 5(1)(a) of the Prevention of Corruption Act. [196 C] But so far as section 5(1) (d) of the Prevention of Corruption Act is concerned, that stands on a different footing. To bring home an offence under section 5(1) (d), it is not necessary to prove that the acts complained of were done by the appellants in the discharge of their official duties. Clause 5(1)(d) is much wider in scope than cl. 5(1)(a). [196 D 197 B] 190 State of Uttar Pradesh vs Kuljas Rai, Cr. A. No. 177 of 1960 dated 22 8 62 and Dhaneshwar Narain Saxena vs The Delhi Administration, ; , referred to.

ivil Appeal No. 2116 of 1972. From the Judgment and Order dated 1.2.1971 of the Madhya Pradesh High Court at Jabalpur in S.A. 517 of 1969. S.P. Singh for the Appellants. Uday U. Lalit and A.G. Ratnaparkhi for the Respondents. The Order of the Court was delivered by OZA, J. This appeal arises out of the Judgment dated 1.2.1971 of the High Court of Madhya Pradesh in Second Appeal No. 5 17/69, wherein the learned Judge of the High Court dismissed the Second Appeal filed by the present appellant. 146 The present appellant filed a suit for injunction and possession on the basis of a registered sale deed dated 28.4.66 executed by Smt. Yashoda Bai in his favour with respect to immovable property including agricultural lands and houses. The property originally belonged to her husband and after his death she got it as a limited owner and by influx of time and by coming into force of the , she acquired the rights of an absolute owner. On 28.4.63, she adopted respondent Nain Singh as her son and executed a document said to be the Deed of Adoption. This document is not a registered document and the trial court admitted it in evidence in proof of adoption. This document, in addition to recital of the factum of adoption in presence of Panchayat in accordance with the custom of the Community also contained a covenant wherein she had stated that after this deed of adoption her adopted son will be entitled (Hakdar) to the whole property including movable and immova ble and she will have no right to alienate any part of the property after this deed of adoption. The trial court decreed the suit. The first appellate court dismissed the suit setting aside the decree passed by the trial court. The learned judge of the High Court consid ering the impact of section 12 of the Hindu Adoptions and Mainte nance Act rightly held that the adopted son, in view of the proviso (C) to section 12, will only be entitled to property after the death of the adoptive mother but the learned judge felt that the further covenant in the adoption deed deprived her of that right and conferred that right on the adopted son, on this basis the learned judge of the High Court came to the conclusion that the widow after executing this deed of adoption had no right left in the property and therefore a transfer executed by her will not confer any title on the plaintiff. It is on this basis that the High Court main tained the Judgment of the lower appellate court dismissing the suit of the plaintiffappellant. Against this, by Special leave, this appeal has come to this Court. Learned counsel for the appellant contended that the document which is described as a deed of adoption, in sub stance, is in two parts. One recites the facturn of adoption and the second contains the covenant wherein she has relin quished her rights in the property and conferred rights on adopted son. According to the learned Counsel, so far as it refers to adoption, the courts below were right in admitting the document as an evidence of adoption but so far as it refers to a deed of relinquishment or conferment of right on the adopted son, will be hit 147 by section 17(1)(b) read with section 49 of the Indian and, therefore, the High Court was not right in relying on this clause to come to the conclusion that the widow Smt. Yashoda Bai had no right to transfer the property in favour of plaintiff appellant. Section 12 of the reads as follows: "12. Effects of adoption: An adopted child shall be deemed to be the child of his or her adoptive father of mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served and replaced by those created by the adoption in the adoptive family: Provided that: (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth: (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obliga tions, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth: (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. " Proviso (C) of this Section departs from the Hindu General Law and makes it clear that the adopted child shall not divest any person of any estate which has vested in him on her before the adoption. It is clear that in the present case, Smt. Yashoda Bai who was the limited owner of the property after the death of her husband and after came into force, has become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be de prived of any of her rights in the property. The adoption would come into play and the adopted child could get the rights for which he is entitled after her 148 death as is clear from the Scheme of section 12 proviso (C). section 13 of the Hindu Adoption and Maintenance Act reads: 13. Right of adoptive parents to dispose of their properties: Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. This Section enacts that when the parties intend to limit the operation of proviso (C) to section 12, it is open to them by an agreement and it appears that what she included in the present deed of adoption was an agreement to the contrary as contemplated in section 13 of the Hindu Additions and Maintenance Act. Section 17(1)(b) of the clearly pro vides that such a document where any right in movable property is either assigned or extinguished will require registration. It could not be disputed that this part of the deed which refers to creation of an immediate right in the adopted son and the divesting of the right of the adoptive mother in the property will squarely fall within the ambit of section 17(1)(b) and therefore under section 49 of the , this could not be admitted if it is not a registered document. Unfortunately, the Hon 'ble Judge of the High Court did not notice this aspect of the matter and felt that what could not be done because of the proviso (c) to section 12 has been specifically provided in the document itself but this part of the document could not be read in evidence as it could not be admitted. In view of this, the appeal is al lowed. The Judgments of the High Court and that of the lower appellate Court are set aside and that of the trial court is restored. In view of these special circumstances, there is no order as to costs. N.P.V. Appeal allowed.

In a suit for injunction and possession of the suit property, on the basis of a registered sale deed executed by the widow of the owner of the property, filed by the appel lants, the question of admissibility of an unregistered document, said to be Deed of Adoption, by which the widow conferred on the adopted son rights in her property and relinquished her right to alienate any part of the property, came up for consideration. The trial court accepted the document only in proof of adoption, and decreed the suit. The first appellate court set aside the decree. On appeal. the High Court maintained lower appellate court 's judgment and held that after execut ing the deed of adoption, the widow had no right left in the property and, therefore, a transfer executed by her would not confer any title on the appellants. Aggrieved, the appellants filed an appeal, by special leave, in this Court contending that as the deed 'would be hit by section 17(1)(b) read with section 49 of the Indian , regarding relinquishment or conferment of right on the adopted son, the High Court was not right in relying on this clause to come to the conclusion that the widow had no right to transfer the property in favour of the appellants. Allowing the appeal, the Court, HELD: 1. Proviso (c) Section 12 of the , departs from the Hindu General Law and 145 makes it clear, that the adopted child shall not divest any person of any estate which has vested in him or her before the adoption. Section 13 enacts that when the parties intend to limit the operation of proviso (c) to Section 12, it is open to them by an agreement to the contrary. [148C] In the instant case, the widow was the limited owner of the property after the death of her husband. But after , came into force, she has become an absolute owner. Therefore, the property of her husband vested in her. Merely by adopting a child, she could not be deprived of any of her rights in the property. The adoption would come into play and the adopted child could get the rights for which he is entitled, after her death. [147G H] 2. Section 17(1)(b) of the clear ly provides that a document, where any right in movable property is either assigned or extinguished, will require registration. [148D] In the instant case, that part of the deed which refers to creation of an immediate right in the adopted son and divesting of the right of the adoptive mother in the proper ty will squarely fail within the ambit of Section 17(1)(b) and, therefore, under Section 49 of the , this could not be admitted if it is not a registered docu ment. [148E]