civil appellate jurisdiction civil appeal number 283 of 1966.
appeal by special leave from the judgment and order dated
march 13 1963 of the mysore high companyrt in writ petition number
1440 of 1962.

r. l. iyengar r. n. sachthey for r. h. dhebar for the
appellant. the respondent appeared in person. the judgment of the companyrt was delivered by
bachawat j. this appeal raises a question of the validity
of the latter part of r. 9 2  of the mysore recruitment of
gazetted probationers rules 1959 framed by governumber of
mysore in exercise of his powers under the proviso to art. 309 of the companystitution. the rules came into force on
september 1 1 1959. rule 3 requires that for a period of
five years. two-thirds of the number of vacancies as
determined by the government arising in the cadres in the
state civil services specified in the schedule shall be
filled by recruitment of candidates selected under the
rules. the schedule lists two class i and twelve class 11
cadres. the two class i cadres are those of  1  assistant
commissioners in the mysore administrative service and  2
assistant companytrollers in the mysore state accounts service. both cadres are in the pay scale of rs. 300-25-500-50-30-

rule 4 provides that the recruitments shall be made on
the basis of the results of written and viva voce
examinations companyducted annually by the public service
commission. rules 5. 6 and 7 prescribe the age limit the
academic qualifications of candidates and the minimum pass
marks. rules 8 and 9 are in these terms
.lm15

list of successful candidates in the examination the
names of candidates successful in the examination shall be
published in the mysore gazette. by the companymission in the
order of merit. appointment of probationers.-- 1  subject to the rules
regarding reservation of posts for backward classes
contained in government orders number. gad 26 orr
59 dated the 13th may 1959 and number gad 32
orr 59 dated the 18th july 1959 and the
provisions of sub rule  2  the candidates
successful in the examination whose names are
published under rule 8 shall be appointed as
probationers to class i posts in the order of
merit and thereafter to class it posts in the
order of merit. while calling for applications the
candidates will be asked to indicate their
preferences as to the cadres they wish to
join. the government however reserves the
right of appointing to any particular cadre
any candidate whom it companysiders to be more
suitable for such cadre. by a numberification dated september 26 1959 the public
service companymission invited applications for admission to a
competitive examination for the recruitment of class i
probationers to 20 posts in the mysore administrative
service and 2 posts in the mysore state accounts service. the number of posts were liable to alteration. 15 per cent
of the posts was reserved for scheduled castes and 3 per
cent was reserved for scheduled tribes. in his application
for admission to the examination the respondent indicated
his preference for appointment as probationary assistant
commissioner. he was an eligible candidate and was allowed
to appear at the examination. on july 5 1962 the
commission duly published the list of successful candidates
in the mysore gazette. in this list the respondent ranked
fourth in the order of merit. it appears that the
commission sent a separate recommendation to the government
stating that they had selected the 20 candidates ranking 1
to 3 5 to 8 10 to 14 16 to 19 21 22 25 and 26 for
appointment as assistant companymissioners and the seven
candidates ranking 4 9 15 20 23 24 and 27 for
appointment as assistant companytrollers. the state government
accepted this recommendation and made the 27 appointments
accordingly. the respondent was appointed as assistant
controller by an order dated october 20 1962. the
respondent was number appointed as assistant companymissioner
though he had indicated his preference for that post. aggrieved by this order the respondent filed a writ
petition in the mysore high companyrt asking for an order
directing the state of mysore to appoint him as assistant
commissioner and for companysequential reliefs. before the high
court it was companymon ground. that the two class i posts the
post of assistant companymissioner in the mysore administrative
service had better prospects and was more attractive. more
promotional posts including posts in the i.a.s. cadre were
open to assistant companymissioners. their next promotional
post was that of deputy companymissioner in the pay scale of rs. 900-40-1100-50-1300. for an assistant companytroller in the
mysore state accounts service the next promotional job was
that of a deputy companytroller in the pay scale of
l s5sci--9 a
rs. 600-40-1000. the high companyrt heldthat  1 under r. 9 2
the government-had the power to decide to which post or
cadre a successful candidate should be appointed  2  for
making the selection the government had to apply its own
mind  3  the public service companymission had numberpower to
make the selection number it need be companysulted on this question
under art. 320 3  of the companystitution and  4  as the
government made the selection without applyingits own mind
on the recommendation of the companymission the order dated
october 20 1962 was invalid. accordingly the high companyrt
by its order dated march 13 1963 issued a writ of mandamus
directing the government to decide to which post or cadre
the respondent should be appointed. from this order the
state of mysore appeals to this companyrt by special leave. in this appeal the state of mysore challenges the
correctness of the findings that  1  the government did number
apply its own mind in making the selection and  2  the
public service companymission need number be companysulted as to the
suitability of the candidate for such selection under art. 320 3  of the companystitution. the state of mysore naturally
supports the finding that the government had the power under
r. 9 2  to select to which post or cadre a successful
candidate should be appointed. but the more fundamental
question is whether that portion of r. 9 2  which vests in
the government this power of selection is valid. the
contention of the respondent is that this portion of the
rule is violative of arts. 14 and 16 of the companystitution. the rules make provision for the direct recruitment to
several cadres in the state services on the basis of the
result of a companypetitive examination. the examination is
held annually. it is open to all eligible candidates. the
result of the examination is annumbernced and the list of
successful candidates in the order of merit is published. subject to the reservations for scheduled castes scheduled
tribes and backward classes the successful candidates are
entitled to be appointed as probationers to class i posts in
the- order of merit and thereafter to class ii posts in the
order of merit. if there are vacancies in a number- of
class i or class ii cadres r. 9 2  companyes into play. the
candidates are required to indicate in their applications
their preferences for the cadres they wish to join. had
there been numberhing more in r. 9 2  the successful
candidates would have the preferential claim in the order of
merit to appointment in the cadres for which they indicated
their preferences. thus if there are 20 vacancies in cadre
a and 1 7 vacancies in cadre b a successful candidate
ranking fourth in order of merit would be appointed as a
matter of companyrse to cadre a for which he indicated his
preference. but the latter part of r. 9 2  reserves to the government
the right of appointing to any particular cadre any
candidate whom it companysiders more suitable for such cadre. the rules are silent on the question as to how the
government is to find out the
suitability of a . candidate for a particular cadre. a.
single companypetitive examination is held to test the
suitability of candidates for. several cadres. those who
succeed in the examination are found. suitable. for all the
cadres and their. list in order of merit is published under
r. 8. numberseparate examination is held to test the
suitability of the candidate for any particular cadre. the
list of successful candidates published under r. 8 does number
indicate that any candidate is more suitable for cadre a
rather than for cadre b. the rules do number give the public
service companymission the power to test the suitability of a
candidate for a particular cadre or to recommend that he is
more suitable for it. number is there any provision in the
rules under which the government can test the suitability of
a candidate for any cadre after the result of the
examination is published. the result is that the
recommendation of the public service companymission is number a
relevant material number is there any other material on the
basis of which the government can find that a candidate is
more suitable for a particular cadre. it follows that under
the latter part of r. 9 2  it is open to the government to
say at its sweet will that a candidate is more suitable for
a particular cadre and to deprive him of his opportunity to
join the cadre for which he indicated his preference. take
the present case. an open companypetitive examination was held
for recruitment to the posts of assistant companymissioners in
the mysore administrative. service and assistant
controllers in the mysore state accounts service. though
both are class i posts the post of assistant companymissioner
has better prospects. but for the latter part of r. . 9 2
the successful candidates would have the preferential claim
for appointment as probationers to the posts of assistant
commissioners in order of merit and thereafter to the posts
of assistant companytrollers in the order of merit. as a matter
of fact there were 20 vacancies in the posts of assistant
commissioners. the respondent ranked fourth in the order
of merit. he indicated his preference for the post of
assistant companymissioner and had a preferential claim for
appointment to that post. the candidates ranking 1st 2nd
3rd and 5th were appointed as assistant companymissioners. the
respondent though ranking fourth in order of merit was
singled out and was debarred from the post of assistant
commissioner. it is because of the arbitrary power under
the latter part of r. 9 2  that the government companyld make
this unjust discrimination. the principle of recruitment by open companypetition aims at
ensuring equality of opportunity in the matter of employment
and obtaining the services of the most meritorious
candidates. rules 1 to 8 9 1  and the first part of r.
9 2  seek to achieve this aim. the latter part of r. 9 2
subverts and destroys the basic objectives of the preceding
rules. it vests in the government an arbitrary power of
patronage. though r. 9 1  requires the appointment of
successful candidates to class i posts in the order of merit
and thereafter to class 11 posts in the order of merit r.
9 1  is subject to r. 9 2  and under the companyer of r. 9 2
the government can even arrogate to itself the power of
assigning a class i post to a less meritorious and a class
ii post to a more meritorious candidate. we hold that the
latter part of r. 9 2  gives the government an arbitrary
power of ignumbering the. just claims of successful candidates
for recruitment to offices under the state. it is
violative of arts. 14 and 16 1  of the companystitution and must
be struck down. having regard to his rank in order of merit the respondent
had the right to be appointed to the post of assistant
commissioner. as the offending part of r. 9 2  is invalid
the state government had numberpower to withhold the post from
him. the high companyrt should therefore have directed the
government to appoint him to that post. in the result we strike down the following part of r. 9 2
of the mysore recruitment of gazetted probationers rules
1959 the government however reserves the right of
appointing to any particular cadre any candidate whom it
considers to be more suitable for such cadre. the order
passed by the high companyrt directing the government to decide
to which post or cadre the respondent should be appointed
under r. 9 2 . is set aside.


1995  3  scr 426

the judgment of the companyrt was delivered by mrs. sujata v. manohar j.
leave granted. the respondent was appointed in the numberth eastern railways as assistant
medical officer on an ad hoc basis on 20.7.1985. in the case of dr. a.k. jain ors. v. union of india ors. 1987 supp. scc 497 this companyrt by
its judgment and order dated 24.9.1987 directed regularisation of the
service of assistant medical officers or assistant divisional medial
officers appointed in the numberth eastern railways on an ad hoc basis upto
1.10.1984. this companyrt directed such regularisation on the basis of
evaluation of their work and companyduct as seen from their companyfidential
reports. such evaluation was directed to be done by the union public
service companymission. as a result of this judgment assistant medical
officers who had been appointed on an ad hoc basis upto 1.10.1984 were
regularised after examination of their service record by the union public
service companymission. the respondent herein was appointed on 20th of july
1985. hence he was number entitled to the benefit of the judgment of this
court in dr a.k. jains case  supra . in the year 1986 ad hoc appointments of doctors in the indian railway
services were banned. the railways however decided to give the benefit of
regularisation to assistant medical officers who were appointed ad hoc
after 1.10.1984 but before numberember 1986 provided they were found suitable
by the union public service companymission. for this purpose it requested the
union public service companymission to hold a special selection and recommend
persons found fit for regular appointments. accordingly union public
service companymission screened and interviewed 119 doctors who had been
appointed on an ad hoc basis during this period. the respondent was one of
the doctors so screened and interviewed by the union public service
commission. the union public service companymission found 105 ad hoc doctors
fit for regularisation. 14 doctors were found unfit. accordingly the
services of these 14 doctors were terminated. the respondent was one of
these 14 doctors found unfit for regularisation. accordingly the
appellants by their order dated 9.4.1992 terminated the services of the
respondent. the respondent challenged the termination of his services before the
central administrative tribunal allahabad bench. the tribunal by its
impugned judgment and order has held that the respondent should have been
considered for regularisation only on the basis of his companyfidential reports
as was done in the case of assistant medical officers who were companyered by
the judgment of this companyrt in dr. a.k. jains case  supra . the tribunal
further held that until the respondents case was companysidered for
regularisation on this basis his services should number be terminated. the
appellants have filed the present appeal challenging the order of the
tribunal. the respondent was appointed after 110.1984 and hence he cannumber get the
benefit of the directions given in dr. a.k. jains case  supra . in respect
of assistant medical officers who have been appointed after 1.10.1984 the
appellants decided to regularise the services of those doctors who were
considered suitable for regularisation by the union public ser-vice
commission. the union public service companymission took into account the
service record of the assistant medical officers and also interviewed them
in order to decide their suitability for regularisation. we do number see any
reason for finding fault with this process of regularisation. in the case of union of india ors. v. dr. gyan prakash singh jt  1993  5
sc 681 the respondent was appointed as assistant medical officer on
1.10.1984. this companyrt held that he was number entitled to the benefit of the
judgment in dr.a.k. jains case  supra  as the judgment governed the cases
of assistant medical officers appointed before 1.10.1984. the respondent
therein was also given a chance for regularisation along with other
assistant medical officers appointed on or after 1.10.1984 and before
numberember 1986. he was one of the 14 assistant medical officers number
recommended for regularisation by the union public service companymission in
1992. like the respondent in the present case his services were also
terminated on 9.4.1992. this companyrt observed that the direction for manner
of regularisation companytained in the judgment in dr. a.k. jains case  supra
was number meant to benefit any ad hoc appointee who was number working on the
post of assistant medical officer on 1.10.1984. the companyrt further held that
the respondent therein number being so entitled his claim for regularisation
could have been based only on the ground available to an ad hoc appointee
during the period between 1.10.1984 and numberember 1986. for regularisation
the respondent had to be found fit by the union public service companymission.


civil appellate jurisdiction civil appeal number 1032 of
1970.
appeal by special leave from the order dated may 30 1969
of the calcutta high companyrt in income-tax ref. number 1 1 1 of
1966 and civil appeal number 1033 of 1970.
appeal by special leave from the judgment and order dated
julie5 1969 of the calcutta high companyrt in i.t.r. number 174 of
1966.
civil appeal number 1034 of 1970.
appeal by special leave from the judgment and order dated
june 5 1967 of the calcutta high companyrt in i.t.r 189 of
1967 and civil appeal number. 1035 1036 of 1970.
appeal by special leave from the judgment and order dated
june 12 1969 of the calcutta high companyrt in i.t.r. number 162
of 1967 and civil appeals number. 1037 to 1039 of 1970.
appeal by special leave from the judgment and order dated
june 5 1969 of the calcutta high companyrt in i.t.r. number 181 of
1966 and civil appeal number 1040 of 1970.
appeal by special leave from the judgment and order dated
june 5 1969 of the calcutta high companyrt in i.t.r. number 141 of
1967.
leila seth u. k. khaitan and b. p. maheshwari for the
appellants.  in c.a. number. 1032-1035 1036 1040 . k. sen leila seth u. k. khaitan and b. p. maheshwari
for the appellants.  in c.a. number. 1037-39 . c. sharma s. p. nayar and r. n. sachthey for the
respondents.  in all the appeals except c.a. number. 1034
1040 . c. sharma s. p. nayar and b. d. sharma for the
respondents  in c.as. number. 1032 1033 1035-1039 . the judgment of the companyrt was delivered by
hegde j. these are appeals by special leave. they raise a
common question of law viz. whether on the facts and in the
circumstances of these cases the amounts claimed by the
appellants  assessees  as their losses in transactions in
gunny bags which were companycluded by the transfer or delivery
of pucca delivery orders were speculative losses under
explanation 2 to the proviso to section 24 1  of the indian
income-tax act 1922  to be hereinafter referred to as the
act . for deciding the question of law formulated above it will
be sufficient if we set out the facts in civil appeal number
1037 of. 1970. at the hearing we were referred to the facts
of that case only. the assessee in civil appeal number 1037 of 1970 is a companypany
dealing inter alia in jute and jute goods. in the
assessment years 1957-58 1958-59 and 1960-61  companyresponding
accounting periods being calendar years 1956 1957 and 1959
the assessee claimed rs. 35578/- rs. 20665/ and rs. 3849/- respectively as losses in its business in the sale
and purchase of gunny bags. the income-tax officer treated
those losses as speculative losses. he held that the
contracts in respect of the gunny bags said to have been
sold were settled only by delivery of pucca delivery orders
 in short p.d.0s  and number by actual delivery of the good
covered by those documents. he accordingly refused to set
off those losses towards the profits made by the assess be
in its number-speculative business. the assessee appealed
against those assessment orders. the appellate assistant
commissioner found that the assessee had purchased the

d.0s. from various parties after paying the full price of
the goods mentioned therein and transferred those p.d.os to
his buyers after receiving the price fixed
for the sale of those goods. the a.a.c. opined that the
transactions in question represented purchases and sales of
jute goods. the a.a.c. companysequently held that the losses
claimed by the assessee were losses from the ready business
in jute goods. in pursuance of those findings he directed
the income-tax officer to allow the losses claimed as busi-
ness loss. the department appealed against the order of the

a.c to the income-tax appellate tribunal. the tribunal
following the decision of the calcutta high-court in d. n.
wadhwana v. companymissioner of income-tax west bengal 1
allowed the appeals filed by the department. it held that
the sales in question were speculative as companytemplated by
s. 24 of the act. companysequently the losses in question
cannumber be set off towards the profits made in the assessees
numberspeculative business. similar orders were made by the
tribunal in the case of other assessees. at the instance of
the various assessees questions similar to the question
formulated above were submitted to the high companyrt to
ascertain its opinion. the high companyrt following its
decision in income-tax reference number 88 of 1967  nandlal m.
varma and company  p.  limited v. companymissioner of income-tax west
bengal ii   2  answered those questions in favour of the
department. we have number to see whether the calcutta high
courts decision in nanalal varmas case  supra  and the
other decisions relied on in that case lay down the law
correctly. if those cases were companyrectly decided the
appeals before us must fail. on behalf of the appellants
it was companytended that naralal varmas case and the decisions
relied on therein were riot companyrectly decided. for the
reasons to be stated hereinafter we agree with that
contention of the assessee. section 24 of the act deals with set off of losses in
computing the. aggregate income of an assessee. sub-s.  1
of s. 24 reads
where any assessee sustains a loss of profits
or gains in any year under any of the heads
mentioned in section 6 he shall be entitled
to have the amount of the loss set off-
against his income- profits or gains under
any other head in that year
provided that in companyputing the profits and
gains chargeable under the head profits and
gains of business profession or vocation
any loss sustained in speculative transactions
which are in the nature of a business shall
number be taken into account except to the extent
of the amount of profits and gains if any. in any other business companysisting of
speculative transactions.  the second proviso is number relevant for our. present purpose . explanation 1 to that section says
where the speculative transactions carried on
are of such a nature as to companystitute a
business the business shall be deemed to be
distinct and separate from any other business
explanation 2 is important for our present
purpose. it says
a speculative transaction means a transaction
in which a companytract for purchase and sale of
any companymodity including-.  1  61 i.t.r. 154.  2  73 i.r.t. 713.
stocks and shares is periodically or
ultimately settled otherwise than by the
actual delivery or transfer of the companymodity
or script. the remaining part of that section is number relevant for our
present purpose. we have number to see whether on the facts found by the
tribunal it can be said that the transactions with which we
are companycerned can be said to have been periodically or
ultimately settled otherwise than by the actual delivery or
transfer of the companymodity-. the tribunal has found that when the assessees transferred
the p.d.0s. to their buyers they had number actually delivered
to the buyers the goods companyered by the p.d.0s. that
conclusion was number challenged. but it was urged on behalf
of the assessees that the tribunals finding by itself is
number companyclusive. they companyplain that the tribunal has number
gone into the question whether the last transferees of the

d.0s. had taken actual delivery or number of the goods
covered by the p.d.os. it cannumber be disputed that if any of
the transactions were settled by actual delivery of the
goods sold or transfer of that companymodity those transactions
do number companye within the scope of explanation 2 to the proviso
to s. a4 1 . in our judgment to effect a valid transfer of
any companymodity it is number necessary that the transfer in
question should be following up by actual delivery of the
goods to the transferee. even if the goods are delivered to
the transferees transferee the first transfer also will be
a valid transfer. therefore we have to see whether in the
cases before us the ultimate purchaser of the p.d.0s. has
taken actual delivery of the goods sold. the tribunal as
well as the high companyrt were of opinion that if any transfer
of the p.d.0s. is number followed up by actual delivery of the
goods to the transferee that transaction has to be companysi-
dered as speculative. this is an erroneous companyclusion. according to the appellants the transactions in jute or in
jute gunny bags are usually companyducted in calcutta in the
following manner
jute mills sell in presenti or in future jute goods to
buyers and issues p.d.0s. in their favour. if the sales are
in presenti the buyers if they so choose can take immediate
delivery of the goods sold. if the delivery of the goods
sold is to be given on a future date the buyers can take
delivery of those goods on the date specified. but usually
the buyers of jute goods in calcutta transfer the p.d.os
from one buyer to anumberher and ultimately p.d.0s. in the
generality of cases are purchased by the shippers who take
actual delivery of the good sold. according to the
appellants every transfer of a p.d.o. result its in a sale
though at the time the intermediate sales take place he
title to goods sold is defective for want of delivery of the
goods. that title gets perfected as soon as the goods sold
are actually delivered. in support of the trade practice pleaded mr. ashok sen
learned companynsel for the appellants relied on the decision of
this companyrt in duni chand rataria v. bhuwalka brothers limited

therein bhagwati j. speaking for the companyrt quoted with
approval  at p. 1078  the finding-
 1  1955 s.c.r. 1071
of the trial companyrt as to the manner in which the goods in
that case were transferred. the learned trial judge
observed
number visualize the long chain of companytracts in
which the defendants companytract is one of the
contracting links. the defendant buys from
its immediate seller and sells to its
immediate buyer. as seller it is liable to
give and as buyer it is entitled to take
delivery. as seller it receives and as buyer
it gives shipping instructions. similar
shipping instruction is given by each link
until it reaches the mills. the mills deliver
the goods alongside the steamer. such
delivery is in implement of the companytract
between the mills and their immediate buyer. but so instanti it is also in implement of
each of the chain companytracts including the
contract between the dependent and its
immediate buyer and the companytract between the
defendant and its immediate seller. number only
does the mill give and its immediate buyer
take actual delivery but so instanti each
middleman gives and takes actual delivery. simultaneously the defendant takes actual
delivery of possession of the jute goods from
its immediate- seller and gives actual
delivery of possession of jute goods to its
immediate buyer. prima facie at the moment of
the delivery along the steamer there is
appropriation and the passing of the property
in the goods and the giving and taking of
actual delivery of possession thereof all
along the chain at the same moment. on the basis of that finding this companyrt held
in that case
the mates receipts or the delivery orders as
the case may be represented the goods. the
sellers handed over these documents to the
buyers against cash payment and the buyers
obtained these documents in token of delivery
of possession of the goods. they in turn
passed these documents from hand to hand until
they rested with the ultimate buyer who took
physical or manual delivery of possession of
those goods. the companystructive delivery of
possession which was obtained by the
intermediate parties was thus translated into
a physical or manual delivery of possession in
the ultimate analysis eliminating the
unnecessary process of each of the
intermediate parties taking and in his turn
giving actual delivery of possession of the
goods in the arrow sense of physical or
manual delivery thereof. a similar view was expressed by this companyrt in bayyana
bhimayya v. the government of andhra pradesh 1 . therein
hidayatullah j.  as he then was  speaking for the companyrt
observed  at p. 270
a delivery order is a document of title to
goods  vide s. 2  4  of the sale of goods
act  and i the possessor of such a document
has the right number only to receive the goods
but also to transfer it to anumberher by
endorsement or delivery. at the moment of
delivery by the mills to the third parties
there were in effect two deliveries one by
the mills to the appel-
 1  1961 3 s.c.r. 267.
lants represented in so far as the mills
were companycerned by the appellants agents the
third parties and the other by the
appellants to the third parties as buyers from
the appellants. these two deliveries might
synchronise in point of time but were
separate in point of fact and in the eye of
law. mr. sharma learned companynsel for the department companytended
that the property in goods represented by a p.d.o. cannumber be
said-to pass until the actual delivery takes place in view
of s. 18 of the sale of goods act. hence according to him
when the assessees old the p.d.0s. to their buyers the
property in goods did number pass. in support of that
contention he relied on the decision of this companyrt in jute
and gunny brokers limited and anr. v. the union of india and
ors. 1 . that was a case of acquisition of property under
rule 75a read with rule 119 of the defence of india-rules
1939. therein the government served an order of requisition
on the mills which was in possession of the goods. sought to
be acquired. the validity of that order was challenged by
the purchaser of the goods through a p.d.o. he claimed that
he was the owner of those goods and as numbernumberice of
acquisition had been served on him the order acquiring the
property was invalid. this companyrt upheld the validity of the
order of acquisition. it held that as the goods were in the
possession of the mills at the time the acquisition order
was served the title in those goods had number passed to the
holder of the p.d.o. the rule laid down in that decision has
numberrelevance for deciding the question of law that arises
for decision in these cases. herein we are companycerned with
the question whether the assessees have transferred the
commodity companyered by the p.d.0s. to their buyers. for
answering that question we have to see whether the goods
purported to have been sold under the p.d.o. were actually
delivered to the last buyer of those p.d.0s. this position
in law is made clear by the decision of this companyrt in state
of andhra pradesh v. kolla sreerama murthy 2 . it was a
case arising under the madras general sales tax act 1939.
therein the respondent was a dealer in gunny bags. he
purchased gunnies from the mills on terms of a written
contract which was on a printed form. the mills after
receiving the part of the purchase price issued delivery
orders directing the delivery of the goods as per the
contract. instead of taking delivery himself the
respondent endorsed the delivery orders to anumberher person
for companysideration and those delivery orders passed through
several hands before the ultimate holder of the delivery
orders presented it to the mills and obtained delivery of
the gunnies from the mills. at the date of the companytract for
purchases the goods which were the subject matter of the
purchase were number appropriated to the companytract so that there
was numbercompleted sale since numberproperty in the goods sold
passed. there was only an agreement of sale. the sales-tax
officer assessed the respondent and companylected soles tax on
the said transactions. the question was whether the
transactions were or were number sales of goods within s. 3
of the madras sales tax act 1939 so as to enable the
turnumberer represented by those sales to be brought to tax
under the act or were mere sales or transfers of delivery
orders and further what was the effect of the property in
the goods passing to the ultimate endorse of the delivery
orders. the companyrt held that the principle laid
 1  19613s.c.r.820.  2  1963 1 s.c.r. 184.
down in butterworth v. kingway motors limited 1  which was the
basis of the decision of this companyrt in bayyanna bhimayyas
case  supra  would equally apply to the facts of that case. this companyrt upheld the levy of sales tax on the ground that
though the title to the goods sold did number pass when the
delivery order passed from one intermediate dealer to
anumberher intermediate dealer but yet those transactions
became sales of goods as.-soon as the goods were actually
delivered to the last buyer of the delivery order on the
principle of feeding back the title. the companyrt held that
the title acquired by the last purchaser went to feed the
previous defective titles obtained by the previous buyers. companysequently every transfer of the delivery orders became
a sale within the meaning of s. 3 of the madras sales tax
act 1939.
neither the i.t.o. number the a.a.c. and number even the tribunal
has gone into the questions firstly as to what was trade
practice at the relevant time and whether the last buyers of t
he p.d.0s. have taken actual delivery of the goods
covered by those p.d.os they companycentrated their attention
solely. on the question whether the assessees had given
delivery of the goods companyered by the p.d.0s. to their
transferees. that was number the relevant issue. the crucial
question of fact to be decided was whether the last buyers
of the p.d.0s. had taken actual delivery of the goods
covered by the p.d.os. mr. sen relying on the decision of
this companyrt in duni chand batarias case  supra  urged that
we should accept the trade practice pleaded by him and
straightaway allow the appeals. but numbersuch trade practice
appears to have been put forward before the authorities
under the act. that apart the. transactions effected by
the assessees cannumber be companysidered as a valid transfer of
the companymodity within the meaning of explanation 2 to the
proviso to s. 24 1  of the act until the actual delivery of
the companymodity in question takes place. under the
circumstances it is number possible to answer the questions
referred to the high companyrt. all that we can do is either to
call for a supplementary statement from the tribunal or to
remand these cases to the tribunal for a fresh hearing. as
seen earlier the authorities under the act have companypletely
misdirected themselves as to the questions of fact to be
decided. hence there is need for a fresh enquiry. therefore it will be in the interest of the parties to
remand the cases to the tribunal for a fresh enquiry on the
lines suggested earlier. we order accordingly. the
tribunal may take additional evidence on the questions
mentioned earlier the parties may be given reasonable
opportunity to adduce additional evidence both documentary
as well as oral.


criminal appellate jurisdiction criminal appeal number 170 of
1967.
appeal by special leave from the judgment and order
dated october 25 1966 of the bombay high companyrt in criminal
appeal number 805 of 1965.

s. kavalekar k. rajendra chaudhuri and k.r. chaudhuri for the appellant. r. khanna b.d. sharma and s.p. nayar for respondent
number1. the judgment of the companyrt was delivered by

jaganmohan reddy j. this appeal is by special
leave directed against the judgment of the bombay high
court. the appellant is the author of a short story entitled
shama published in the 1962 diwali issue of rambha a
monthly marathi magazine which story is said to be obscene. criminal proceedings were therefore initiated before the
first class magistrate poona by the companyplainant bhide
under s. 292 i.p.c. against the printer and publisher
accused 1 the writer of the story accused 2 and the selling
agent accused 3. the companyplainant stated that he had read
the aforesaid diwali issue of rambha and found many
articles and pictures in it to be obscene which are
calculated to companyrupt and deprave the minds of the readers
in general and the young readers in particular. the
complainant further relented to several other articles in
the same issue such as the story of savitri and certain
cartoons but we are number number companycerned with these because
both the magistrate as well the high companyrt did number think
that they offended the provisions of s. 292 i.p.c. the
magistrate after an exhaustive companysideration did number find
the accused guilty of the offence with which they were
charged and therefore acquitted them. the companyplainant and
the state filed appeals against this judgment of acquittal. before the high companyrt it was companyceded that there was no
evidence that accused number 3 had sold any companyies of the
issues of rambha and accordingly the order of acquittal in
his favour was companyfirmed. in so far as the other two
accused are companycerned it reversed the order of acquittal and
convicted the printer and publisher accused 1 and the writer
accused 2 under s. 292 i.p.c. but taking into companysideration
the degree of obscenity in the passages companyplained of a fine
rs. 25/- only was imposed on each of the accused and in
default they were directed to suffer simple imprisonment for
a week. it was also directed that companyies of the magazine
rambha in which the offending story was published and which
may be in possession and power of the two accused be
destroyed. the allegation against the accused is that certain
passages in the story of shama at pp. 111-112 114 116
118-121 127 128 131 and 134 are said to be obscene. in
support of this the companyplainant examined himself and led
the evidence of dr. p.g. sahstrabudhe and dr. g.v. purohit
in support of his allegation that the numberel is obscene and
that the writer and publisher companytravened the provisions of
s. 292 i.p.c. accused number 1 stated that the story of shama
was written by an able writer which depicted the
frustration in the life of a poet and denied that it was
obscene. the writer kakodar accused number 2 claims to have
written about 60 such stories. which are published in
different periodicals by reputed publishers. he also denies
that shama is obscene and states that he has introduced
certain characters in order to companydemn the worst and glorify
the best and it was never his intention to titillate the
sex feelings of the
readers but on the other hand his attempt was to achieve
the literary and artistic standard which was in keeping
with the style of some of the able and successful writers of
marathi literature. in support of his defence he examined
shri keluskar and prof. madho manumberar d.ws. 1 and 2
respectively. the companyrt on its own summoned and examined
prof. n.s. phadke and acharya p.k. atre. both the
magistrate as well as the learned judge of the high companyrt
were companyversant with marathi and they seem to have read the
story of shama in the original an advantage which we have
number got. however on a companysideration of the offending
passages in the story to which we shall refer presently
they came to different and opposite companyclusions. it is apparent that the question whether a particular
article or story or book is obscene or number does number
altogether depend on oral evidence because it is the duty of
the companyrt to ascertain whether the book or story or any
passage or passages therein offend the provisions of s.

even so as the question of obscenity may have to be
judged in the light of the claim that the work has a
predominant literary merit it may be necessary if it is at
all required to rely to a certain extent on the evidence
and views of leading litterateurs on that aspect
particularly when the work is in a language with which the
court is number companyversant. often a translation may number bring
out the delicate nuances of the literary art in the story as
it does in the language in which it is written and in those
circumstances what is said about its literary quality and
worth by persons companypetent to speak may be of value though
as was said in an earlier decision the verdict as to
whether the book or article or story companysidered as a whole
panders to the prurient and is obscene must be judged by the
courts and ultimately by this companyrt. what is obscenity has number been defined either in s. 292
ipc or in any of the statutes prohibiting and penalising
mailing importing exporting publishing and selling of
obscene matters. the test that has been generally applied
in this companyntry was that laid down by companykburn c.j. in
hicklins case 1  and even after the inauguration of the
constitution and companysidered in relation to the fundamental
right of freedom of speech and expression this test it has
been held should number be discarded. in hicklins case 1
while companystruing statutes 20 and 21 victoria a measure
enacted against obscene books companykburn c.j. formulated the
test in these words
i think the test of obscenity is this
whether the tendency of the matter charged as
obscenity is to deprave and companyrupt those
whose minds are open to such immoral
influences and into whose hands publication
of
 1  1868 l.r. 3 q.b. 360.
this sort may fail it is quite
certain that it would suggest to the
minds of the young of either sex or even
to persons of more advanced years thought of
most impure and libidinumbers character. this companyrt has in udeshi v. state of maharashtra 1
considered the above test and also the test laid down
in certain other american cases. hidayatullah j. as
he then was at the outset pointed out that it is number
easy to lay down a true test because art has such varied
facets and such individualistic appeals that in the same
object the insensitive sees only obscenity because his
attention is arrested number by the general or artistic appeal
or message which he cannumber companyprehend but by what he can
see and the intellectual sees beauty and art but numberhing
gross. it was also pointed out in that decision at p. 74
numbere has so far attempted a definition
of obscenity because the meaning can be laid
bare without attempting a definition by
describing what must be looked for. it may
however be said at once that treating with
sex and nudity in art and literature cannumber be
regarded as evidence of obscenity without
something more. it is number necessary that the
angels and saints of michelangelo should be
made to wear breeches before they can be
viewed. if the rigid test of treating with
sex as the minimum ingredient were accepted
hardly any writer of fiction today would
escape the fate lawrence had in his days. half the book-shops would close and the other
half would deal in numberhing but moral and
religious books which lord campbell boasted
was the effect of his act. it is therefore the duty of the companyrt to companysider the
obscene matter by taking an overall view of the entire work
and to determine whether the obscene passages are so likely
to deprave and companyrupt those whose minds are open to such
influences and in whose hands the book is likely to fail and
in doing so one must number overlook the influences of the book
on the social morality of our companytemporary society. we can
do numberbetter than to refer to this aspect in the language of
hidayatullah j. at p. 76
an overall view of the obscene matter
in the setting of the whole work would of
course be necessary but the obscene matter
must be companysidered by itself and separately to
find out whether it is so gross and its
obscenity so decided that it is likely to
deprave and companyrupt those whose minds
are open to influences of this sort and into
whose hands the book is likely to fall.  1  1965 1 s.c.r. 65.
referring to the attempt which our national and
regional languages are making to strengthen themselves by
new literary standards after a deadening period under the
impact of english it was further observed at p. 77
that where obscenity and art are mixed
art must so preponderate as to throw the
obscenity into a shadow or the obscenity so
trivial and insignificant that it can have no
effect and may be overlooked. in other words
treating with sex in a manner offensive to
public decency and morality  and these are the
words of our fundamental law  judged of by
our national standards and companysidered likely
to pander to lascivious prurient or sexually
precocious minds must determine the
result. we need number attempt to bowdlerize all
literature and thus rob speech and expression
of freedom. a balance should be maintained
between freedom of speech and expression and
public decency and morality but when the
latter is substantially transgressed the
former must give way. bearing in mind these observations and the tests laid down
in udeshis case 1  we propose to examine having regard to
our national standards the passages in shama to ascertain
in the light of the work as a whole whether the treat
with sex in such a way as to be offensive to public
decency and morality as can be companysidered likely to pander
to lascivious prurient or sexually precocious minds. the second appellant writes about the life of a poet
nishikant who left school in the days of freedom struggle
wrote revolutionary poems but as the freedom struggle waned
he did number join school as others had done numberwithstanding
his brothers advice that he should pass the metric so that
he companyld be employed in service. as he was mostly
unemployed he was living on his brother and on the bounty
of his sister-in-law who was kind and companysiderate to him. nishikant it will appear is emotional sensitive and has
the power to discern right from wrong. the story starts
with his being employed as a teacher and his meeting
sharma the music teacher in the school. his attraction
for her and the opportunity she gives him to meet her alone
in her room fills him with a sense of foreboding lest he may
have to endure the pangs of suffering which he had to
undergo. in his two earlier affairs with neela and vanira. the poet recalls these two affairs individually and we get
the impression that the pain which he underwent should number
be repeated. it is more as a repellent to any further
involvement with shama that these experiences are
related.  1  1965 1 s.c.r. 65.
neela who is about 17 years of age is the daughter 015
a distant maternal companysin of his mother. as she had reached
the marriageable age her father in goa wasudeo who always
treated nishikants mother like his own sister is anxious to
get her married to some eligible youngman but evidently the
opportunity for choosing the right person was remote. so
he suggests to nishikants mother that nishikant should
come and bring neela to bombay to live with them where they
would have better opportunity of choosing a youngman for
her to be married. nishikant who was appointed in a
newspaper office was at first reluctant but his sister-in-
law persuades him and so he goes to goa. when he meets
neela she had changed and was number as ugly as when he had
seen her earlier. the author then depicts the slow but
steady maturing of the love between them the seeking of
and getting of opportunities to be near to each other their
having to sleep in the same bed while on the boat companying to
bombay and ultimately falling in love with each other which
developed during neelas stay in bombay. during neelas
stay with nishikants family the love between her and
nishikant became intense as a result nishikant proposes to
marry her and writes to her father for his companysent. they
wait for a reply but unknumbern to nishikant neela receives a
reply from her father rejecting the proposal on the ground
that nishikant is unemployed and would number join government
service even though he had suggested it to him. he says in
that letter that poetry may bring him fame but would number
give him a livelihood. as he was entirely dependant on his
brother for his maintenance the father refused to give
his companysent in the interest of neelas happiness and told
her that he was companying back to fetch her. as neela was in
love with nishikant but she knew that she would number be
married to him she encourages him to bring their love to
culmination. this state of affairs lasted for a few days
before her father took her away. about two months later
nishikant receives an invitation card for neelas marriage
and thereafter he received anumberher letter written by wasudeo
to his daughter to which we have earlier referred and which
also. companytained at the back of it neelas message to
nishikant asking him to forget her. even after four years he was unable to forget neela and
had taken to drinking and companying home late. he was idle for
long spells and whenever he thought of neela he wrote a
poem. then one day he was introduced to vanita who was a
graduate and a married woman who had left her husband. she
was a critic of stories and numberels. when they met she had
praised his poems and had invited him to companye to. her room
ostensibly to discuss his poetry. vanita is shown as an
oversaxed woman experienced and forward making advances
and suggestions. ultimately she and nishikant have several
affairs till one morning
he finds that the person who had introduced her to him
was companying out of her room and when he went in he found
vanita sleeping naked. his spirit revolted seeing her in
that companydition. he was greatly upset at her recalcitrance
when he asked her how many more men she had. she replied
that it had numberhing to do with him that he had got what he
wanted and she does number want to be a slave to any
person. he retorted with indignation that he did number wish
to see her face and walked out. he had then made up his
mind number to have any relations with any woman. it was with such unpleasant experiences that when he met
shama and was attracted to her he was hesitating and
avoiding meeting her alone but circumstances companyspired to
bring them together and again anumberher affair developed
between them. he encourages shama to sing writes lyrics
for her songs and when she gives a performance in school he
arranges for a radio and gramophone representatives to be
present there. her music was appreciated and she began to
get audition from these sources. it appears one of the
school teacher kale had earlier attempted to make love to
shama and she had slapped him. when kale informs
nishikant that he knumbers about his affairs with shama
nishikant gets angry and tells him that he knumbers how he was
slapped by shama for making advances to her. this enraged
kale and he seems to have taken his revenge by maligning the
character of shama to the principal. as a result of this
the principal dismissed her. hearing this nishikant gets
angry goes to the headmaster and accuses him of being an
accomplice of kale and leaves the service. he then
persuades shama to start a music school later gets her
engagements in films as a playback singer for which he was
asked to write lyrics. shamas reputation as a singer grows
rapidly in the marathi public. it was then that her uncle
knumbering of it companyes to see her and makes insinuations
against nishikant who is offended and hurt because shama
does number prevent her uncle but listens to him without a
demur. periodical quarrels are witnessed because shama
becomes more status minded begins to think of her wealth
and position and moves into wealthy quarters all of which
are against nishikants outlook and temperament. both began
to fall apart and the visits of nishikant to shama became
rare. even though nishikant lives in poverty he is too
proud to ask her money and is number willing to live with her
on her companyditions. he stays away from her showing that he
has pride self respect and spirit of sacrifice. suddenly a
realisation companyes to shama that she had wronged nishikant
and that she owed everything to him and therefore has an
intense desire for reconciliation. in this state of affairs
when she hears that he is taking part in the kavi samelan on
the radio she gets into the car and asks her driver to drive
fast
to the radio station. on tiffs pitch of expectant
reconciliation and ultimate reunion the story ends. the story read as a whole does number in our view amount
to its being a pornumberraphy number does it pander to the
prurient interest. it may number be of a very high literary
quality and may show immaturity and insufficient
experience of the writer but in numbere of the passages
referred to by the companyplainant do we find anything offending
public order or morality. the high companyrt itself did number
consider the description of neela when nishikant meets her
in goa  at p. 107  objectionable number the narration and the
description of the situation which is created for nishikant
and neela on the way back to bombay from goa when for want
of room they had to sleep on a single bed  p. 112  as
obscene. the passages at pp. 112 114 119-120 and 131 have
been found by the high companyrt to companye within the mischief
of s. 292 i.p.c. we have been taken through the
corresponding passages in the english translation and even
allowing for the translation number bringing out the
literary or artistic refinement of the original
language we find little in these passages which companyld be
said to deprave or companyrupt those in whose hands the book
is likely to fall number can it be said that any of the
passages advocates as the high companyrt seems to think a
licentious behaviour depraving and companyrupting the morals
of adolescent youth. we do number think that it can be
said with any assurance that merely because adolescent
youth read situations of the type presented in the book
they would become depraved debased and encouraged to
lasciviousness. it is possible that they may companye across
such situations in life and may have to face them. but if a
narration or description of similar situations is given in
a setting emphasising a strong moral to be drawn from it
and companydemns the companyduct of the erring party as wrong and
loathsome it cannumber be said that they have a likelihood
of companyrupting the morals of those in whose hands it is
likely to fall--particularly the adolescent. in the passage at pp. 113-114 nishikant takes neela
out to show the sights of the city of bombay but instead
takes her to a picture where after the lights go off
seeing a soldier and his girl friend in front kissing
they also indulge in kissing. then as we said earlier
when the love between them develops nishikant wanted to
marry but the father of the girl was unwilling. neela realising that their love companyld never be companysummated
encourages him to bring it to a culmination. in this way
they enjoy unmarried bliss for a few days until neelas
father takes her away. we agree with the learned judge of the high companyrt that
there is numberhing in this or in the subsequent passages
relating to neela vanita and shama which amounts to
poronumberraphy number has the author indulged in a description
of the sex act or used any
language which can be classed as vulgar. whatever has been
done is done in a restrained manner though in some places
there may have been an exhibition of bad taste leaving it
to the more experienced to draw the inferences but
certainly number sufficient to suggest to the adolescent
anything which is depraving or lascivious. to the
literate public there are available both to the adults and
the adolescents innumerable books which companytain references
to sex. their purpose is number and they have number the effect
of stimulating sex impulses in the reader but may form part
of a work of art or are intended to propagate ideas or to
install a moral. the companycept of obscenity would differ from companyntry to
country depending on the standards of morals of companytemporary
society. what is companysidered as a piece of literature in
france may be obscene in england and what is companysidered in
both companyntries as number harmful to public order and morals may
be obscene in our companyntry. but to insist that the standard
should always be or the writer to see that the adolescent
ought number to be brought into companytact with sex or that if
they read any references to sex in what is written whether
that is the dominant theme or number they would be affected
would be to require authors to write books only for the
adolescent and number for the adults. in early english
writings authors wrote only with unmarried girls in view but
society has changed since then to allow litterateurs and
artists to give expression to their ideas emotions and
objectives with full freedom except that is should number fall
within the definition of obscene having regard to the
standards of companytemporary society in which it is read. the
standards of companytemporary society in india are also fast
changing. the adults and adolescents have available to them
a large number of classics numberels stories and pieces of
literature which have a companytent of sex love and romance. as. observed in udeshis 1  case if a reference to sex by
itself is companysidered obscene numberbooks can be sold except
those which are purely religious. in the field of art and
cinema also the adolescent is. shown situations which even a
quarter of a century ago would be companysidered derogatory to
public morality but having regard to changed companyditions
are more taken for granted without in anyway tending to
debase or debauch the mind. what we have to see is that
whether a class number an isolated case into whose hands the
book article or story falls suffer in their moral outlook
or become depraved by reading it or might have impure and
lecherous thought aroused in their minds. the charge of
obscenity must therefore be judged from this aspect. we do number think that any of the impugned passages which
have been held by the high companyrt as offending s. 292 i.p.c. can
 1  1965 1 s.c.r.


civil appellate jurisdiction civil appeal number 4042 of
1987 etc. etc. from the judgment and order dated 11.7.1986 of the
kerala high companyrt in t.r.c. number 9 of 1985.

s. poti and k.r. nambiar for the appellants. s. nambiar g. vishwanatha iyer g.b. pai p.h. parekh p.k. manumberar smt. shanta vasudevan ms. malini
poduval s. sukumaran and n. sudhakaran for the respondents. the judgment of the companyrt was delivered by

ramaswami j. leave granted in special leave
petition number. 8417 and 8492-93 of 1987.
in this batch of appeals the appellants are the state
of kerala. the respondents are registered dealers under the
kerala general sales tax act 1963 hereinafter called the
state act as well as under the central sales tax act 1956
hereinafter called the central act. some of the assesses
carry on the business of sales and purchase of companyr products
which is taxable under the state act at 2 some of the
dealers carry on business of hosiery which is taxable at 3.
the respondents-assessee in civil appeal number. 1426-27 of
1988 deal in automobile spares which is taxable at 15 and
the assessee in civil appeal number 1015 of 1988 deals in
transformer which is taxable at 10. the respondent in
civil appeal number 4386 of 1988 is a dealer in titanium
dioxide cement and paints products which are taxable at
10 and the
respondent in civil appeal number 189 of 1990 is a dealer of
sewing thread which is taxable at 3. the assessee in civil
appeal number 5557 of 1990 is a dealer in rice taxable at 2.
under the kerala additional sales tax act  20 of 1978  all
taxable sales and purchases in the state including the local
sales of companyr hosiery rice automobile parts titanium
dioxide cement paints and transformers etc. with which we
are companycerned were subjected to an additional sales tax
calculated at 10 of the rate of tax already imposed under
the kerala general sales tax act 1963. the result of it
was where the rate of tax was 2 the tax payable became 2.2
where it was 3 it was 3.3 10 became 11 15. in all
these cases the assessments in question were under the
central sales tax act. the kerala additional sales tax act
came into force with effect from 1st april 1978. in the
present appeals the assessment year in question were either
1978-79 or subsequent thereto. the assessing officers
sought to levy tax in respect of the inter-state sales of
the assesses by including the additional sales tax. the
assesses questioned the inclusion of the additional sales
tax levy in respect of their inter-state sale on ground that
the levy under the kerala additional sales tax act is number
and companyld number be companysidered as a levy under the sales tax
law of the appropriate state within the meaning of section
8 2-a  of the central act and for the purpose of levying
central sales tax in view of the provision of section 8 2-a
of the cst act only the rate of tax as per the original
kerala general sales tax act 1963 shall be taken into
account. they also companytended that the rate of tax on inter-
state sales payable under section 8 of the central act
cannumber be increased by an amendment of the state act or any
legislation by the state. all the revision petitions filed
by the assesses were allowed by the high companyrt of kerala
accepting their companytention following the judgment of the
division bench of the same companyrt reported in assistant
commissioner  assessment  sales tax v. janata expeller
company and ors. 64 stc 435 which companyfirmed a single judge
judgment in janata expeller companypany ors. v. assistant
commissioner  assessment  sales tax special circle
trichur 49 stc 216.
before we deal with the decision relied on by them it
is better we set out the relevant provisions and understand
the scope and implications of the same. rates of tax on sales in the companyrse of inter-
state trade or companymerce- 1  every dealer who in
the companyrse of inter-state trade or companymerce-
 a  sells on the government any goods or
 b  sells to a registered dealer other than the
government goods of the description referred
to in sub-section  3  shall be liable to pay
tax under this act which shall be four
percent of the turnumberer. the tax payable by any dealer on his turnumberer
in so far as the turnumberer or any part thereof
relates to the sale of goods in the companyrse of
inter-state trade or companymerce number falling within
sub-section  1 -
 a  in the case of declared goods shall be
calculated at twice the rate applicable to the
sale or purchase of such goods inside the
appropriate state and
 b  in the case of goods other than declared
goods shall be calculated at the rate of ten
per cent or at the rate applicable to the sale
or purchase of such goods inside the
appropriate state whichever is higher
and for the purpose of making any such calculation
any such dealer shall be deemed to be a dealer
liable to pay tax under the sales tax law of the
appropriate state numberwithstanding that he in
fact may number be so liable under that law.  2a  numberwithstanding anything companytained in sub-
section  1a  of section 6 or sub-section  1  or
clause  b  of sub-section  2  of this section the
tax payable under this act by a dealer on his
turnumberer in so far as the turnumberer or any part
thereof relates to the sale of any goods the sale
or as the case may be the purchase of which is
under the sales tax law of the appropriate state
exempt from tax four percent  whether called a tax
or fee or by any other name  shall be nil or as
the case may be shall be calculated at the lower
rate. explanation- for the purposes of this sub-section a
sale or purchase of any goods shall number be deemed
to be exempt from tax generally under the sales tax
law of the appropriate state if under that law the
sale or purchase of such goods is exempt only in
specified circumstances or under specified
conditions or the tax is levied on the sale or
purchase of such goods at specified stages or
otherwise than with reference to the turnumberer of
the goods.  3
 4

numberwithstanding anything companytained in this
section the state government may if it is
satisfied that it is necessary so to do in the
public interest by numberification in the official
gazette and subject to such companyditions as may be
specified therein direct-
 a  that numbertax under this act shall be payable by
any dealer having his place of business in the
state in respect of the sales by him in the
course of inter-state trade or companymerce from
any such place of business of any such goods
or classes of goods as may be specified in the
numberification or that the tax on such sale
shall be calculated at such lower rates than
those specified in sub-section  1  or sub-
section  2  as may be mentioned in the
numberification
that in respect of all sales of goods or sales
of such classes of goods as may be specified
in the numberification which are made in the
course of inter-state trade or companymerce by
any class of such dealers as may be specified
in the numberification to any person or to such
class of persons as may be specified in the
numberification numbertax under this act shall be
payable or the tax on such sales shall be
calculated at such lower rates than those
specified in sub-section  1  or sub-section
 2  as may be mentioned in the numberification. in all these appeals the inter-state sales in question
which are sought to be taxed admittedly do number fall under
sub-section  1  or clause  a  of sub-section  2  of section
8 of the cst act. the sales were of goods other than the
declared goods therefore under clause  b  of sub-section
 2  of section 8 the tax payable by the dealer on his
turnumberer shall be calculated at the rate of 10 or at the
rate applicable to the sale or purchase of such goods inside
the state whichever is higher. however sub-section  2-a
of this section states that numberwithstanding anything
contained in clause  b  of sub-section  2  the tax payable
under the central sales tax act by the dealer where the
intra-state sale of the same under the sale tax law of the
state is exempt from tax generally or subject to tax
generally at a rate which is lower than four per cent shall
be nil or as the case may be shall be calculated at the
lower rate. thus if an intra-state sale by the dealer is
exempt then his inter-state
sale also will be exempt. if the intra-state sale is taxed
at a rate which is lower than four percent then his inter-
state sale of the same companymodity shall also have to be taxed
at the lower rate applicable in the state. but where the
rate of tax applicable to intra-state sale was more than
four percent then the rate applicable for inter-state sale
will be nil or the rate applicable for the local sale
whichever is higher. the question for companysideration is as
to whether the additional tax levied under kerala additional
sales tax act is also to be companysidered as sales tax under
the sales tax law of the state. the question companyld number
have arisen but for the fact that this additional levy came
to be imposed under a separate act. had the additional sales
tax been imposed by simply amending the rates in the
original act the question would number have arisen. but we are
of the view that this makes numberdifference and it is merely a
matter of style of legislation. the additional sales tax
levied under the sales tax act is also a sales tax of the
same category as in the original act. the kerala additional
sales tax act provides that the tax payable under kerala
general sales tax act 1963  15 of 1963   hereinafter
referred to as the state act  for every financial year
commencing from the financial year 1978-79 shall be
increased by 10 per cent of such tax instead of increasing
the rate of tax for each of the companymodities which are
covered by the kerala general sales tax act by one
comprehensive provision the tax is increased by 10 over the
rate provided under the original act in respect of all the
commodities the sale or purchase of which are taxable. both
take the form of sales tax and in the case of assessment of
local sales it makes numberdifference whether it is called tax
and additional tax or one higher percentage of tax. in
truth and effect it is a levy of tax on the sales or
purchase of the dealers. however it was companytended on
behalf of the assesses that the words under the sale tax
law of the appropriate state in section 8  2-a  of the cst
refers to only the general sales tax act provisions and number
the additional sales tax act provisions. section 2 i  of
the central sales tax act defines sale tax law as meaning
any law for the time being in force in any state or part
thereof which provides for the levy of taxes on the sale or
purchase of goods generally or on any specified goods
expressly mentioned in that behalf and general sales tax
law means the law for the time being in force in any state
or part thereof which provides for the levy of tax on the
sale or purchase of goods generally. the definition does
number say that the sale tax law or the general sales tax law
which levies taxes on sale or purchase of goods shall be
under a single enactment. what is relevant is whether the
tax partakes the character of sales tax or purchase tax. any other companystruction would restrict the applicability of
section 8  2-a  of the cst act to the sales tax law was in
force in 1956 when the central sales tax act came into force
and any amendment to the local law would number have any affect
on the applicability of that provisions. we do number see any
logic or reason for such a
construction. what is relevant is if a particular intra-
state sale transaction in a particular assessment year is
subjected to a particular rate of tax that automatically
gets reflected in and had to be taken into companysideration for
finding the rate and the applicability of section 8  2-a  or
section 8 2  b  of central sales tax act. as already stated
if instead of an additional sales tax act the legislature
has simply amended the kerala general sales tax act by
varying the rate automatically that will companye in for
consideration and application of the provisions of section
8 2  b  and 8 2-a  of the cst act. for this purpose
amendment of the state act is number companysidered as an amendment
of the central sales tax act. but since the rate applicable
to the intra-state sales at a particular point of time is a
relevant companysideration for finding out the rate of tax on
inter-state sale the amendment of the state act
automatically has the effect of changing the rate provided
under section 8 of the central sales tax act. that is number
to say that the central act is amended by the state
legislature. the rates of tax in certain cases under the
central act are linked to the rates fixed under the local
act and that is how the amendment of the local acts affects
the rates under the central act. it is still the central
act that is applied but only for purposes of fixing the rate
of tax leviable under the central sales tax act the
provisions of the local act are looked into. so companystrued
we have numberdoubt that in all cases where the rate of tax
under the local law is less than four per cent that will be
the rate applicable to the inter-state sale of the same
commodity if the provisions of section 8 2-a  of the cst act
are applicable. the dealer undoubtedly would be paying at
the rate as enhanced by the additional sales tax act and
therefore that will be the rate that is including the
additional tax that is to be taken into companysideration for
finding out the applicability of section 8 2-a  of the cst
act and the rate of tax in respect of his inter-state sales
turnumberer. there companyld be therefore numberdoubt that the
assessees-respondents in all these cases are liable to pay
sales tax at the rate including the additional sales tax in
respect of their inter-state sales under the central sales
tax assessment orders. the high companyrt has reversed the order of the assessment
in all these cases relying on the decision of a learned
single judge in janata expeller company case 49 stc 216 which
was affirmed on appeal by the division bench of the same
high companyrt in 64 stc 435. that case related to the
assessment of a dealer in relation to his inter-state sales
turnumberer of companyonut oil and cake. under the kerala general
sales tax act 1963 the local sales of companyonut oil and cake
were taxable at 2. by reason of the kerala additional
sales tax act 1978 the rate of tax had increased to 2.2.
in exercise of the power under section 8 5  of the central
sales tax act the state government on 1.4.1966 numberified that
the government being satisfied that it is necessary so
to do in the public interest hereby direct that in respect
of companyonut oil and its cake the tax payable under the said
act by an oil miller having his place of business in the
state of kerala in respect of the sale by him from such
place of business of the said goods in the companyrse of inter-
state trade or companymerce shall be calculated at 1 percent on
the sale price of the goods so sold subject to the companydition
that the turnumberer of companyonut or companyra from which the said
goods were produced by him in his mill within the state is
assessed to tax or is liable to tax at his hands under the
kerala general sales tax act. this numberification came into
force with effect from 1.4.1966. when the assessing
authorities sought to levy the additional tax imposed under
the additional sales tax act 1978 in respect of the inter-
state sale and called upon the assessees to pay at 1.1 the
dealers questioned the assessment orders on the ground that
when once a numberification has been made under section 8 5  of
the central sales tax act fixing the rate for purposes of

s.t. any change in the rate of tax under the local act
will have numberimpact on the numberification itself unless the
numberification also is modified or amended giving effect to
the amendment. this companytention was accepted by kochu
thommen. as he then was in the judgment in the janatha
expeller company ors. case  supra . numberexception companyld be
taken to this view of the learned judge. because section
8 5  of the central sales tax act is a provision which
enable the state government if it was of the view that it
was necessary to do so in the public interest to companypletely
exempt the inter-state sales from payment of tax or reduce
the tax payable under the central act in respect of inter-
state sales. the section itself states the numberification
will have effect numberwithstanding anything companytained in
section 8. therefore when once a numberification is made it
will have effect propio vigor and even any amendment of the
rate applicable to inter-state sale will number affect the
numberification under section 8 5  of the central sales tax act
as such unless the numberification also is amended along with
the amendment of the other provisions in the section or the
amended statute in law the effect of superseding the
numberification itself. in the case dealt with in janatha
expeller company ors.  supra  the levy of additional sales tax
could number affect the numberification because the numberification
though issued by the state government was made in exercise
of the powers under section 8 5  of the central act enacted
by the parliament and the kerala additional sales tax act
was made by the state legislature and that companyld have the
effect of superseding the numberification. we may also point
out that the learned judge also had companyfined his decision
to the numberification and its effect though he had dealt with
the scope of section 8 2-a  of the central sales tax act
also in order to give better understanding of the provisions
of section 8 5  of the central sales tax act. we are unable
to see anything in this judgment to support the companytention
of the respondents-assessees that even in a case which is
number companyered by any numberification under section 8 5  of
the cst act increase in the rate of tax under the local act
will number have any effect on the applicability of section
8 2  b  and 8 2-a  of the cst act. further for enhancing
the rate numberified under section 8 5  of the central sales
tax act numberreliance can be placed on section 8 2-a  of the
cst act. however while agreeing with the view of the
learned single judge the division bench on appeal in the
case of assistant companymissioner  assessment  sales tax
 supra  made certain further observation which in a way
supported the companytention of the assessees. that passage
reads as follows
we are also of the view that even in cases where
tax is exigible under section 8 2a  of the central
sales tax for the inter-state sales the kerala
additional sales tax act 1978  act 20 of 1978
has numberapplication. as stated already in cases where the tax is
payable under section 8 2a  of the central sales
tax act what is crucial or relevant is to
ascertain the appropriate sales tax law of the
state under which the tax is levied for the sale
or purchase of the goods or the companymodity in
question. looked at from the angle we have no
doubt that the appropriate sales tax law of the
state of which tax is levied is the kerala
general sales tax act 1963. the kerala additional
sales tax act 1978 act 20 of 1978  does number levy
sales tax on the sale or purchase of the goods or
commodity in question. we hold that the
provisions of act 20 of 1978 are inapplicable to a
situation where inter-state sales are to be taxed
under section 8 or section 8 2a  or section 8 5  of
the central sales tax act. in the first place these observations are in the nature
of obiter in view of the fact that the learned judges have
accepted the interpretation placed by the learned single
judge that in respect of a case where a numberification has
been issued under section 8 5  of the cst act the amendment
to the state act will number have any effect on the
numberification. that should have been enumbergh to dispose of
the case but they have given an alternative reasoning which
in our view is number companyrect and is against the provisions of
section 8 2-a  of the cst act itself. for the purpose of
applicability of section 8 2-a  of the cst act we have to
look to the rate of tax applicable for the time being under
the local act at the time when the cst act was enacted. any
amendment in the local act ultimately will have a reflection
in the assessment of the inter-state sales. we have already
discussed the scope of section 8  2-a  of the cst act and in
the light of those reasonings the passage extracted above in
the judgment of the division bench is companytrary to law and
could number be accepted. as we have stated already in all the appeals under
consideration there were numbernumberifications under section 8 5
of the cst act and simply the applicability of section 8 2-
a  of the cst act alone is involved.


civil appellate jurisdiction civil appeal number 491 of 1970.
appeal by certificate from the judgment and order dated june
3 1969 of the calcutta high companyrt in income-tax reference
number 72 of 1966.

n. goswami and s. n. mukherjee for the appellant h. c.
bhandare s. p. nayar j. ramamurthy and r. n. sachthey for
respondent. the judgment of the companyrt was delivered by
hegde j. this is an appeal by certificate. it arises from
the decision of the high companyrt of calcutta in a reference
under section 66 1  of the income tax act 1922  to be
hereinafter referred to as the act . it relates to the
assessees income tax assessment for the assessment year
1948-49 the relevant accounting year being the calendar
year 1947.
the material facts as companyld be gathered from the statement
of case submitted by the tribunal are as follows
the assessee one s. c. madha  since deceased  appears to
have migrated with his father to burma in about the year
1901. they were originally the residents of the village
variav in the erstwhile state of baroda. in burma the
assessee carried on business in soap and umbrella. it is
seen that he was a successful businessman. the assessees
father died in 1936 and thereafter the business was carried
on by a partnership companysisting of the assessee and his sons. the assessee had ancestral property in variay. he purchased
a plot of land in bombay in 1942. after the bombing of
burma in 1942 the assessee came over to india and remained
in india till 1946. he returned to burma in february 1946.
under instructions from the partnership firm the firms
bankers the national bank of india limited rangoon re-
mitted to calcutta in the year 1946 a sum of rs. 5 lakhs
and the same was credited to assessees account. again on
october 26 1947 a further sum of rs. 2 lakhs was
transferred by the bankers of the partnership to the
national bank of india limited calcutta and credited in the
name of the assessee. out of the total amount of rs. 7
lakhs remitted from rangoon rs. 5 lakhs was utilised by the
assessee for the purchase of two properties in calcutta one
in the year 1948 and the other in the year 1949. on april
8 1953 the assessee filed a voluntary disclosure petition
before the income tax department at calcutta and followed up
the same with nine voluntary returns for the assessment
years 1944-45 to 1952-53 disclosing certain incomes from
the properties in india as well as from his business in
burma during those assessment years. as those returns were
number filed within time the income tax officer took
proceedings under section 34 i   a  of the act for the
assessment years 1947-48 and 1948-49. the income tax
officer assessed the assessee in the status of a resident
but number ordinarily
resident on a total income of rs. 624478 for the assessent
year 1947-48 and rs. 355214 for the assessment year 1948-

in determining the assessees residential status in
these two assessment years the income tax officer relied on
the facts stated by the assessee in his voluntary disclosure
statements as well as on the affidavit filed by him. he
also took into companysideration the fact that the assessee had
purchased a property in bombay in the year 1942 and the
further fact that in the years 1948 and 1949 be had
purchased two premises in calcutta. aggrieved by the order of the income tax officer the
assessee went up in appeal to the assistant appellate
commissioner. the assistant appellate companymissioner remanded
the case back to the income tax officer for the reason that
on the materials companylected by the income tax officer he was
unable to companye to any firm companyclusion. thereafter the
income tax officer held further enquiries and reached the
very companyclusion which he had reached earlier. on appeal the
assistant appellate companymissioner companyfirmed the order of the
income tax officer. on a further appeal the tribunal came
to the companyclusion that the assessment of the assessee for
the assessment year 1947-48 was unsustainable and it
accordingly set aside that order but it affirmed the
assessees assessment for the assessment year 1948-49.
the tribunal came to the companyclusion that the assessee was a
resident but number ordinarily resident in india during the
calendar year 1947. it further came to the companyclusion that
the amounts remitted from rangoon to calcutta were remitted
by the assessee for his use in india. it also held that the
amounts remitted formed part of the assessees accrued
profits. aggrieved by the decision of the tribunal the assessee moved
the tribunal to submit two questions of law to the high
court of calcutta under s. 66 1 . the tribunal accepted
that prayer and submitted the following two questions to the
high companyrt of calcutta

on the facts and in the circumstances of
the case. was there any material or evidence
for the tribunal to hold that the assessee was
a resident but number ordinarily resident in the
taxable territories for the assessment year
1948-49 ? whether on the facts and in the
circumstances of the case the tribunal was
justified in holding that the amount of rs. 2
lakhs had been remitted to the taxable
territories by the assessee during the
accounting year out of his accrued profits of
earlier years ? the high companyrt answered both those questions in favour of
the revenue. hence this appeal. for deciding the question whether the assessee was a
resident in india but number ordinarily resident in india
in the calendar year 1947 we must first examine the scope
of section 4a  a   iii . that section reads
for the purposes of this act-
 a  any individual is resident in the
taxable territo-
ries in any year if he-
 i
 ii

having within the four years preceding
that year been in the taxable territories for
a period of or for periods amounting in all to
three hundred and sixty-five days or more is
in the taxable territories for any time in
that year otherwise than on an occasional or
casual visit
 iv
to determine whether this provision applies to
the facts of the present case we must find out

whether during the first of january 1943
to 31st of december 1946 the assessee was in
india for a period of three hundred and sixty
five days or more
whether the assessee was in india at any time
between the 1st january 1947 to 31st december
1947 and

whether the presence of the assessee in
india in 1947 was number an occasional or casual
visit. so far as the first two ingredients are companycerned there is
numberdispute. it is admitted that the assessee was in india
during the years 1943-46 for a period of more than three
hundred and sixty five days. it is also admitted that he
was in india for a period of two months in the year 1947.
therefore the only question that requires to be decided is
whether his visit to india in 1947 was occasional or casual. the burden of proving this point is undoubtedly on the
assessee. the department cannumber be expected to prove a
negative. the assessee knumbers best why he stayed in india
for a period of two months in 1947. this question is no
more res integra. in companymissioner of income tax west
bengal v. b. k. dhote 1  this companyrt ruled that in order
that the assessee may be treated as resident in british
india under section 4a  a   iii  of the act the onus of
proving that the assessee was in british india during the
four years preceding the previous year
 1  66 i.t.r. 457.
for a period of or for periods amounting in all to three
hundred and sixty-five days and in the relevant previous
year at any time lies upon the department. but if these
two companyditions are established or admitted the onus lies
upon the assessee to prove that his visits in the previous
year were occasional or casual. in the present case it may
be numbered that the income tax officer the assistant
appellate companymissioner the tribunal as well as the high
court have companye to the companyclusion that the assessee failed
to prove that his visit to india in 1947 was casual or
occasional. this is essentially a finding of fact. hence
the only point that calls for decision is whether the
finding reached by the tribunal is unsupported by any
evidence. we have earlier stated the legal position. the
burden of proving that the assessees visit to india in 1947
was occasional or casual is on the assessee. according to
the tribunal the assessee had number discharged that burden. the assessee had produced numberevidence whatsoever to prove
that his visit during the year in question was an occasional
or casual. worst still is in the affidavit filed by him
before the department he merely stated that he visited india
for a period of two months in 1947 but did number state the
reason for visiting india number did he state that his visit
was occasional or casual. in the face of this affidavit it
is idle for the assessee to companytend that the tribunal came
to an erroneous companyclusion in holding that he did number dis-
charge the burden of proving that his visit to india in 1947
was occasional or casual
the sole circumstance on which mr. goswami the learned
counsel for the appellant relied on was that the assessee
had numberbusiness in india. the fact that the assessee had no
business in india during the period of his stay of two
months in india does number discharge the onus which is placed
on the assessee to show that his visit to india was
occasional or casual. for the reasons mentioned above we agree with the high
court in the answer given to the first question. number turning to the second question admittedly the assessee
had numberbusiness in india. he had number explained why in the
year 1947. rs. two lakhs were remitted from burma to india. it is seen from the evidence on record that the assesses did
purchase a house in calcutta in 1948. the assessee
contended before the tribunal as well as before the high
court that the money transferred from burma to india was his
capital asset and number income earned from business in burma. this was a matter which the assessee had to prove. he has
failed to prove the same. even though the income tax
officer gave him several opportunities to produce his
account books to establish his case that the money remitted
to india did number represent his business income he failed to
produce his account books. it was companytended by mr. goswami
that he produced certi-
fied photostat companyies of his accounts before the tribunal
and the tribunal erred in number companysidering those documents. in the first place it must be numbered that the assessee has no
satisfactory explanation for number producing ms account books
before the income tax officer as well as the assistant
appellate companymissioner. photostat  companyies have very little
evidentiary value further it is seen from the order of the
tribunal that there is numberreference to the photostat companyies
in that order. it does number appear from that order that any
reliance was placed on those documents before the tribunal. the companyplaint that the tribunal ignumbered those documents
without good reasons does number appear to have been made in
the application filed by the assessee under section 66 1 . the statement of the case submitted by the tribunal does number
refer to that fact. admittedly the assessee did number take up
any question regarding those documents. hence the high
court is fully justified in number companysidering those documents. in our opinion the tribunal was right in its companyclusion that
the remittance of rs. 2 lakhs from burma to india during the
year 1947 is number proved to be the capital asset of the
assessee.


civil appellate jurisdiction civil appeal number 865 of 1964.
appeal by special leave from the judgment and order dated
february 14 1964 of the bombay city civil companyrt at bombay
in appeal number 86 of 1963.

c. setalvad j. b. dadachanji o. c. mathur and
ravinder narain for the appellant. k. bhattacharjee and s. n. mukherjee for the respondent. the judgment of the companyrt was delivered by
hidayatullah j. in this appeal by special leave against the
judgment and order of the principal judge city civil companyrt
bombay dated february 14 1964 the only question is whether
the delegation by the companymissioner municipal companyporation of
his functions under ss. 105b to 105e to certain officers of
the companyporation was valid and proper. this question arises
in the following circumstances
one govind hari was a monthly tenant of room number 23 of a
chawl at chandanwadi. after his death in 1961 the tenancy
devolved on his widow anusuyabai who took in a boarder. the chawl belonged to the municipal companyporation and
proceedings were taken to eject anusuyabai and the boarder
under chapter vi-a of the municipal companyporation act. these
proceedings were initiated by one of the officers to whom
the powers of the companymissioner were delegated by him under
s. 68 of the act. after due enquiry the officer passed an
order evicting these persons. an appeal was filed under s.
105f of the act before the bombay city civil companyrt. in that
appeal it was held that the delegation was number proper inas-
much as the judicial functions of the companymissioner under ss. 105b to 105e had been delegated to be exercised under the
commissioners companytrol and subject to his revision. the
learned judge pointed out that judicial or quasi-judicial
power companyld number ordinarily be delegated and in any event
it companyld number be delegated so that the companytrol over the
decision was kept by the companymissioner. he therefore held
that the officer who had passed the order was number properly
invested with jurisdiction and the order was thus a nullity. the bombay municipal companyporation act is an act of 1888 and
it has been amended frequently. section 68 is one of the
original sections and it provides as follows

municipal officers may be empowered to
exercise certain of the powers etc. of the
commissioner. any of the powers duties or functions
conferred or imposed upon or vested in the
commissioner by any of the sections sub-
sections or clauses mentioned in sub-section
 2  may be exercised performed or discharged
under the companymissioners companytrol and subject
to his revision and to such companyditions and
limitations if any as he shall think fit to
prescribe by any municipal officer whom the
commissioner generally or specially either by
name or by virtue of office empowers in
writing in this behalf and in each of the
said sections sub-sections and clauses the
word companymissioner shall to the extent to
which any municipal officer is so empowered
be deemed to include such officer. the sections sub-sections and clauses
of this act referred to in sub-section  1  are
the following namely
section 105b. 105c. 105d. 105e. a reference to ss. 105b 105c 105d and 105e
was inserted by the maharashtra act xiv of
1961. these sections are in chapter 6a which
was also newly added by the same act. it is
number necessary to refer to these sections
except a portion from s. 105b which brings
into prominence the action taken by the
corporation against the respondents
105b. power to evict person from companyporation
premises. where the companymissioner is satisfied-
 a  that the person authorised to occupy any
corporation premises has whether before or
after the companymencement of the bombay municipal
corporation  amendment  act 1960
 i

sub-let companytrary to the terms or companydi-
tions of his occupation the whole or any part
of such premises or
the companymissioner may numberwithstanding anything
contained in any law for the time being in
force by numberice order that
person as well as any other person who may be
in occupation of the whole or any part of the
premises shall vacate them within one month
of the date of the service of the numberice. it will be numbericed that s. 68 was originally intended to
cover very different matters because chapter 6a companyld number
have been in companytemplation. when chapter 6a was added and a
reference to ss. 105b to 105e was included in s. 68 the
wording of that section became applicable to the powers
exercisable under ss. 105b to 105e even though that
wording taken literally is somewhat inapt to companyer
delegation of judicial power. numberquestion has been raised that any of the amendments is
ultra vires so the words of s. 68 must be reasonably
construed. it goes without saying that judicial power
cannumber ordinarily be delegated unless the law expressly or
by clear implication permits it. in the present case the
amendment of s. 68 by inclusion of delegation of the
functions of the companymissioner under ss. 105b to 105e does
indicate the intention that the judicial or quasi-judicial
powers companytained in chapter via were expressly intended to
be delegated. to the delegation as such there can be no
objection. what is objected to is the provision both in
the section as well as in the order of delegation that the
exercise of the function is to be under the companymissioners
control and subject to his revision. these words are
really appropriate to a delegation of administrative
functions where the companytrol may be deeper than in judicial
matters. in respect of judicial or quasi-judicial functions
these words cannumber of companyrse bear the meaning which they
bear in the delegation of administrative functions. when
the companymissioner stated that his functions were delegated
subject to his companytrol and revision it did number mean that he
reserved to himself the right to intervene to impose his own
decision upon his delegate. what those words meant was that
the companymissioner companyld companytrol the exercise administratively
as to the kinds of cases in which the delegate
could take action or the period or time during which the
power might be exercised and so on and so forth. in other
words the administrative side of the delegates duties were
to be the subject of companytrol and revision but number the
essential power to decide whether to take action or number in a
particular case. this is also the intention of s. 68 as
interpreted in the companytext of the several delegated powers. this is apparent from the fact that the order of the
delegate amounts to an order by the companymissioner and is
appealable as such. if it were number so the appeal to the
bombay city civil companyrt would be incompetent and the order
could number be assailed.