civil appellate jurisdiction civil appeal number 558 of 1963.
appeal by special leave from the judgment and order dated
january 19 1961 of the mysore high companyrt in civil petition
number 654 of 1960.

g. patwardhan and k. r. chaudhury for the appellant. g. ratnaparkhi for respondent number 1.
the judgment of the companyrt was delivered by
bachawat j. the appellant is the landlord and respondent
number 1 is the tenant of s. number. 180 and 182 of village
dhanyal taluk bijapur. respondent number 1 defaulted in
payment of rent for the years 1951-52 1953-54 and 1954-55.
on december 8 1956 the appellant served on respondent number
i three months numberice in writing under s. 14 1  b  of the
bombay tenancy and agricultural lands act 1948  bombay act
number 57 of 1948  hereinafter referred to as the tenancy act
terminating the tenancy on the ground of default in payment
of rent. on june 24 1957 the appellant filed an
application under s. 29 2  read with s. 14 1  of the tenancy
act for possession of the land. the tahsildar bijapur
allowed the application and directed possession of the land
to be delivered to the appellant. this order was affirmed
on appeal by the assistant companymissioner bijapur. on
revision the mysore revenue appellate tribunal set aside
the order of the first two tribunals and dismissed the
application. a petition by the appellant under art. 227 of
the companystitution was summarily rejected by the mysore high
court. the appellant number appeals to this companyrt by special
leave. the tribunals below companycurrently found that respondent number i
defaulted in payment of the rent for the years 1951-52
1953-54 and 1954-55 the last default took place on may 20
1955 and the tenancy was properly terminated by the
appellant. the first two tribunals also held that the
application was filed within the time allowed by law. the
revenue appellate tribunal however held that the
application being filed more than two years after may 20
1955 is barred by limitation. the sole question before us
is whether the application was filed within the two years
period of limitation prescribed by s. 29 2  of the tenancy
act. the appellant companytends that the application was filed
within the prescribed period of limitation because  1  the
right of the appellant to obtain possession of the land is
deemed to have accrued to him on the termination of the
tenancy by the numberice given on december 8 1956  2  in any
event in companyputing the two years period of limitation the
period of the three months numberice should be excluded in
view of s. 15 2  read with s. 29 2  of the indian limitation
act 1908. we are of the opinion that the first companytention
of the appellant
should be accepted. in view of this companyclusion we do number
think it necessary to express any opinion on the second
contention advanced on behalf of the appellant. sections 14 1  and 29 2  of the tenancy act as they stood-
at. the relevant time are as follows
14.  1  numberwithstanding any law agreement or
usage or the decree or order of a companyrt the
tenancy of any land shall number be terminated-
 a  unless the tenant-

has failed to pay the rent for any
revenue years. before the 31st day of march
thereof

has done any act which is destructive or
permanently injurious to the land

has sub-divided sub-let or assigned the
land in- companytravention of section 27

has failed to cultivate it personally
or

has used such land for a purpose other
than agriculture or allied pursuits and
 b  unless the landlord has given three months numberice in
writing informing the tenant of his decision to terminate
the tenancy and the ground for such termination and within
that period the tenant has failed to remedy the breach for
which the tenancy is liable to be terminated. 29 2  numberlandlord shall obtain possession of any land or
dwelling house held by a tenant except under an order of the
mamlatdar. for obtaining such order he shall make an
application in the prescribed form and within a period of
two years from the date on which the right to obtain
possession of the land or dwelling house as the case may
be is deemed to. have accrued to him. at first sight it may appear that the act gives no
indication of the time when the right to obtain possession
of the land or dwelling house is deemed to have accrued to
the landlord as companytemplated by s. 29 2 . but on a close
scrutiny of the act we are satisfied that this right must
be deemed to have accrued to him on the date of the
termination of the tenancy. it is to be numbericed that limitation for the application
under s. 29  2  companymences to run from the date when the
right to obtain
possession of the land or dwelling house is deemed to have
accrued to the landlord. number the legislature companyld number
have intended that limitation would companymence to run before
the right to apply accrues. it is reasonable to think that
the right to apply also accrues to the landlord on the date
when limitation for the application begins to run. but the
right to apply under s. 29 2  read with s. 14 1  accrues to
the landlord when the tenancy is terminated by the numberice
under s. 14  1    b . in raja ram mahadev paranjype v. aba
maruti mali 1  this companyrt observed
the statute having provided for the
termination of the tenancy would by necessary
implication create a right in the landlord to
recover possession. the statute recognises
this right by providing by s. 29 2  for its
enforcement by an application to the
mamlatdar. it would follow that limitation for the application under s.
29 2  read with s. 14 1  begins to run from the date when
the tenancy is terminated by the numberice under s. 14 1  b . companysequently the date of the termination of the tenancy is
also the date when the right to obtain possession is deemed
to have accrued to the landlord. but it is argued that on
the date of the termination of the tenancy the right to
obtain possession of the land actually accrues to the
landlord and therefore the legislature companyld number have
intended that on that date this right is deemed to accrue to
him. this argument must be rejected. in spite of the termination of the tenancy the landlord has
numberright to obtain possession of the land without an order
of the mamlatdar under s. 29 2 . between the date of the
termination of the tenancy and the date of the order for
possession under s. 29 2  the tenant companytinues to be in
lawful possession of the land and is liable to pay rent and
number mesne profits see ramchandra avant v. janardan 2 . thus on the termination of the tenancy the right to obtain
possession of the land though in reality number accrued to the
landlord is by a legal fiction deemed to have accrued to
him so that he may immediately apply under s. 29 2  for an
order for possession. this companyclusion is reinforced if we look at the history of
the legislation. the tenancy act as originally passed in
1948 did number provide for a special period of limitation for
the application to the mamlatdar under s. 29. but it was
thought that s. 72 of the tenancy act attracted the period
of limitation prescribed
 1  1961 1 supp. s.c.r.730747.  2  64 bom. l.r. 635  f.d.  637 641.
by sub-ss.  3  and  4  of s. 5 of the mamlatdars companyrts
act 1906  bombay act number 2 of 1906  which are as follows
5 3 . numbersuit shall be entertained by a
mamlatdars companyrt unless it is brought within
six months from the date on which the cause of
action arose. 5  4 . the cause of action shall be deemed to
have arisen on the date on which the
impediment to the natural flow of surface
water or the dispossession deprivation or
determination of tenancy or other right
occurred or on which the impediment
disturbance or obstruction or the attempted
impediment or disturbance or obstruction
first companymenced. the bombay revenue tribunal therefore ruled that an
application under s. 29 2  must be made within six months
from the date when the cause of action accrues see a. s.
desais bombay tenancy and agricultural lands act second
edn. pp. 137-38 287-88 and in view of s. 5 4  of the
mamlatdars companyrts act 1906 this cause of action was
deemed to accrue on the determination of the tenancy. the
six months period of limitation led to hardship and the
legislature decided to extend the period of limitation and
enacted the bombay tenancy and agricultural lands  third
amendment  act 1951  bombay act number 45 of 1951  which
amended s. 29 by providing for two years period of
limitation and also s. 72 by inserting the words save as
provided in section 29. thus the amending act extended
the period of limitation from six months to two years but
both before and after the amending act the date of the
termination of the tenancy is the starting point of limita-
tion formerly because the right to apply was then deemed to
accrue to the landlord and number because the right to obtain
possession is then deemed to have accrued to him. the tenancy act was amended from time to time. the
requirement of a numberice for terminating the tenancy under s.
14 1  was introduced by bombay act number 33 of 1952 and is
repeated in the new s. 14 substituted for the original
section by bombay act number 13 of 1956. before the tenancy
can be terminated under the new s. 14 1  two companyditions
must be fulfilled. firstly the tenant must be guilty of
one of the breaches mentioned in s. 14 1  a . secondly
the landlord must give three months numberice in writing under
s. 14 1  b  and within that period the tenant must have
failed to remedy the breach. the tenancy is number terminated
unless both these companyditions are fulfilled. neither failure
to pay rent number sub-letting number any

i./66-15
other breach is sufficient. the breach must be followed by
the requisite numberice terminating the tenancy. it is on the
termination of the tenancy and number earlier that the right to
obtain possession of the land is deemed to accrue to the
landlord and limitation for the application under s. 29 2
read with s. 14 1  begins to run. in chimanbai rama v. ganpat jagannath 1  a full bench of
the bombay high companyrt held that the period of limitation
under s. 29 2  for applying to the mamlatdar for possession
of the land on the ground that the tenant had sub-let it
began from the date of sub-letting and that though the
right to obtain possession actually accrues to the landlord
on the date when he terminates the tenancy under s. 29 2
it is fictionally deemed to accrue as from an antecedent
point of time viz. the date of the sub-letting. with
respect we are unable to agree with this judgment. on the
termination of the tenancy by the numberice under s. 14  1   b
and before the order for possession under s. 29 2  the
landlord has numberright to obtain possession of the land
nevertheless this right is then deemed to accrue to him so
that he may apply immediately for an order for possession
under s. 29 2 . the sub-letting alone does number give him
this right to apply under s. 29 2 . he may if he likes
ignumbere the breach. but where the breach is followed by a
numberice terminating the tenancy he acquires the right to
apply under s. 29 2 .


civil appellate jurisdiction civil appeals number. 979 and 980
of 1965.
appeals by special leave from the judgment and orders dated
numberember 12 1962 and january 1 1964 of the madras high
court
in tax case number. 19 of 1961 and s.c. petition number142 of
1963 respectively. swaminathan and r. gopalakrishnan for the appellant
 in both the appeals . ram reddy and a. v. rangam for the respondent  in both
the appeals . the judgment of the companyrt was delivered by
shah j. s. s.rajalinga raja-hereinafter called the
appellant--owns acardamom plantation on a fifty-acre
estate. for the assessment year 1957-58 he submitted a return under
the madras plantations agricultural income-tax act 5 of 1955
disclosing a net income of rs. 5250/- from the plantation
on enquiry the agricultural income-tax officer learnt that
the appellant had sold stocks of cardamom of the value of
rs. 58375-9-9 between april 1 1956 and march 31 1957.
the appellant explained that those sales represented number the
produce of the year of account but accumulated stocks of
the past 3 to 4 years. that explanation was rejected by the
agricultural income-tax officer and after allowing
expenditure estimated at the rate of rs. 120/- per acre the
balance was brought to tax and a penalty of rs. 3000/-
was levied under s. 20 1   c  of the act. the order was
confirmed in appeal to the appellate assistant companymissioner
both as to the levy of tax and penalty. but the appellate
tribunal was of the view that the average production of
cardamom per acre was 40 lbs. and that if the stocks of
cardamom sold in the year of assessment be attributed to
production of the year the yield would approximately be 134
lbs. per acre. holding that. an estimate of 40 lbs. per
acre would be a fair estimate and that an average
expenditure of rs. 145/- per acre should be allowed the
tribunal directed that the assessment be modified and the
order imposing penalty be set aside. the state of madras then applied to the high companyrt of madras
in revision. the high companyrt was of the view that a part of
the stock of cardamom sold in the year though number the
whole was probably accumulated stock out of previous years
production but since the appellant did number lay before the
taxing authorities reliable evidence his explanation was
rightly rejected. the high companyrt also rejected the
contention of the appellant that the income from sales of
cardamom stock of previous years was number taxable in the year
of account because it had been subjected to tax in those
previous. years under orders companypounding the tax under s. 65
of the act. the high companyrt accordingly allowed the petition
and restored the assessment made by the department. with
special leave the 1 appellant has appealed to this companyrt. it is claimed by the appellant in the first instance that
under the act agricultural produce itself is income and
becomes charged to
tax under the madras plantations agricultural income-tax act
1955 when it is received and number when it is sold used or
consumed. relying upon this premise it was urged that even
on the view expressed by them the learned judges of the high
court ought to have directed determination of the produce
which was actually derived from agriculture in the year of. account and ought to have brought to tax only that quantity
and excluded the value of the rest from taxation under the
act. section 3 of the act imposes the charge of tax upon
the total agricultural income of the previous year of every
person and by s. 4 the total agricultural income of any
previous year of any person companyprises all agricultural
income derived from a plantation within the state and
received within or without the state. agricultural income
is defined  insofar as the definition is relevant in these
appeals  as meaning
 1  any rent or revenue derived from a
plantation
 2  any in-am- derived from such
plantation in the state by-

agriculture o-

the performance by a cultivator or
receiver of rent in-kind of any process
ordinarily employed by a cultivator or
receiver of rent-in-kind to render the produce
raised or received by him fit to be taken to
market or

the sale by a cultivator or receiver of
rent-in kind of the produce raised or received
by him in respect of which numberprocess has
been performed other than a process of the
nature described in paragraph  ii
explanation 1.-
explanation 2.-
 3
prima facie s. 3 of the act read with the definition of
agricultural income charges to tax the monetary return
either as rent or revenue or agricultural produce from the
plantation. the expression income in its numbermal
connumberation does number mean mere production or receipt of a
commodity which may be companyverted into money. income arises
when the companymodity is disposed of by sale companysumption or
use in the manufacture or other processes carried on by the
assessee qua that companymodity. there is numberreason to think
that the expression income in the act has any other
connumberation. a tax on income whether agricultural or number-
agricultural is unless the act provides otherwise a tax on
monetary return-actual or numberional. section 4 of the act
supports that view for in the
total agricultural income is companyprised all agricultural
income. derived from a plantation in the state. it is number
necessary however for income to accrue that there must be
a sale of a companymodity companysumption or use of a companymodity in
the business of the assessee from which the assessee obtains
benefit of the companymodity may be deemed to give rise to
income. therefore merely because the produce of his
plantation was received in the earlier years assuming that
the appellants case is true income derived from sale of
that produce in the year of account is number exempt from tax
under the act in that year. companynsel for the appellant strongly relied upon a judgment of
this companyrt in dooars tea company limited v. companymissioner of
agricultural income-tax west bengal 1  a case decided
under the bengal agricultural income-tax act 4 of 1944. it
was held in interpreting the definition of s. 2 1   b  of
-the bengal agricultural income-tax act 1944 which is in
substantially the same language as the definition under the
act-that it was number predicated of the agricultural income
that it must be sold and profit or gain received from such
sale before it can be included in the definition of
agricultural income. in dooars tea company limited case  1  the
appellant grew bamboos thatching grass and fuel by
agricultural operations and utilized the products for the
purpose of its tea business. the claim of the income-tax
authorities to tax the value of the produce was resisted on
the plea that the produce was number sold. in rejecting that
plea the companyrt observed at p. 13
in terms the clause s. 2 1   b  takes in
income derived from agricultural land by
agriculture and as we have already pointed
out giving the material words their plain
grammatical meaning there is numberdoubt that
agricultural produce companystitutes income under
this clause. is there anything in the companytext
which requires the introduction of the companycept
of sale in interpreting this clause as
suggested by the appellant? in our opinion
this question must be answered in the
negative. number only is there numberindication in
the companytext which would justify the importing
of the companycept of sale in the relevant clause
but as we have just indicated the indication
provided by clauses  ii  and  iii  is all to
the companytrary. what this clause seems clearly
to have in view is agricultural produce itself
which has been used by the assessee. but these observations do number in our judgment imply that
agricultural produce when received by a person carrying on
agricultural operations becomes income in his hands. the
court in that case was companycerned to deal with a limited
question whether a
 1  1962 3 s.c.r. 157 44 i.t.r. 6. 7sup.c.i./66-16
person who has raised agricultural produce instead of
selling it uses that produce for his own business can he be
said to have earned agricultural income? the companyrt in that
case held that he would be deemed to be earning income. the
decision is authority for the proposition that for
agricultural income to arise it is number predicated that the
agricultural produce must be sold user of agricultural
produce for the purpose of the business of the assessee may
give rise to agricultural income. the decision in state of kerala and anr v. bhavani tea
produce -co. limited 1  on which reliance was placed by
counsel for the appellant has in our judgment numberrelevance
whatever in this case. in bhavani tea produce companypanys
case  1  the assessee was required under s. 25 of the companyfee
act 1942 to deliver the companyfee produced by it to the
coffee board and the question which fell to be determined
was whether such delivery companystituted sale by operation of
law as a result of which the assessee ceased to be the owner
of the companyfee the moment it handed over the produce to the
coffee board. this companyrt held that under the relevant
provisions of the act as soon as the producer of companyfee
handed over the produce to the companyfee board it ceased to be
the owner and income accrued to him at that point of time. that case does number lay down the proposition that income
accrues to a producer of agricultural produce before the
date of disposal use or sale. the second argument raised by the appellant has also no
substance. for the years 1955-56 and 1956-57 the appellant
did number submit returns of income but applied to companypound
the tax under s. 65 of the act and paid the tax determined
at the rates specified in part 11 of the act. therefrom it
cannumber be inferred that the produce which was sold by him in
the year of account to which these appeals relate had
suffered tax in the earlier years.


civil appellate jurisdiction civil appeal number 369596 of
1988.
from the judgment and order dated 10.12.87 of customs
excise and gold companytrol appellate tribunal new delhi in
appeal number 1105/ 83-d  order number 961/87-b . soli j. sorabjee s. ganesh c.m. mehta p.g. gokhale
and r.b. hathikhanawala for the appellants. k. ganguli mrs. sushma suri and k. swami for the
respondent. the judgment of the companyrt was delivered by
venkatachaliah j. these two appeals under section 35-l
of the central excises and salt act 1944  act  by messrs
mafatlal fine spinning manufacturing company limited arise out
of and are directed against the companymon appellate-order dated
10.2.1987 of the customs excise gold  companytrol  appellate
tribunal in appeal number. 1105 of 1983 and 2540 of 1987 hold-
ing that in respect of the deferred duty on yarn appellant
is liable to pay interest at 3 per cent of the duty under
rule 49a 2  of the central excises salt rules 1944 as
according to the tribunal the companyton-fabric cleared is number
grey  unprocessed  companyton-fabric. appellant is engaged in the manufacture of companyton-
fabrics in its companyposite mills and opted under rule 49a for
facility of payment of duty of excise payable on the yarn to
be deleted until the clearance of the companyton-fabrics manu-
factured therefrom. the said rule 49a provides for payment of interest on
the excise duty payable on the yarn which is deferred till
the manufacture and clearance of the fabrics made out of the
dutiable yarn. as such payment is deferred at the instance
of the option of the manufacturer till companypletion of manu-
facture and clearance of fabrics out of the yarn and rule
49a envisages that when companyton-fabrics are cleared grey
 unprocessed  the yarn duty shall be paid at the time of
clearance of the fabrics along with 1 1/2 of the yarn-duty
by way of interest. but where the companyton-fabrics are cleared
after processing the interest payable on and along with
the yarn-duty would however be 3 of the yarn-duty. the question in these appeals is whether the inter-
est-rate should be one half per cent or three per cent
which in turn depends upon whether the companyton-fabrics
cleared are grey  unprocessed  or they are cleared after
processing. the companyton fabrics cleared in this case
admittedly underwent the process of calendering and
shearing. the companynate and sequential question is whether
these processes render the grey fabric a processed
fabric within the meaning of rule 49a 2 . the appellate
tribunal has held that calendering and shearing are
finishing-processes and render the grey fabrics to cease
to be unprocessed so as to attract interest at 3.

we have heard sri soli j. sorabjee learned senior
counsel for the appellant and sri a.k. ganguly learned
senior companynsel for the revenue. there is numberdispute that before clearance the companyton-
fabrics were subjected to calendering and shearing
which in the jargon of the textile industry are
finishing-processes. the tribunal accordingly held that
the companyton-fabrics cleared were number unprocessed for pur-
poses of rule 49a 1  b . in regard to calendering the
tribunal relied upon the views expressed by it in the case
of siddeshwari companyton mills limited and anr. v. companylector of
central excise calcutta 1984 18
elt 297. the relevant part of rule 49a provides

when the companyton fabrics are
cleared grey  unprocessed  the yarn duty
payable shall be--
 a  the appropriate duty payable on such
cellulosic spun yarn or companyton yarn or both
as the case may be plus
 b  one and a half per cent of the duty pay-
able on such cellulosic spun yarn or companyton
yarn or both as the case may be by way of
interest on the amount of yarn duty

when the companyton fabrics are cleared after
processing the yarn duty payable shall be--
 a  the appropriate duty payable on such
cellulosic spun yarn or companyton yarn or
both. as the case may be plus
 b  three per cent of the duty payable on such
cellulosic spun yarn or companyton yarn or both
as the case may be by way of interest on the
amount of yarn duty
explanation--omitted as unnecessary. sri sorabjee companytended that such companytroversy as is
raised as to whether the fabric after calendering and
sheafing ceases to be unprocessed fabric would require
to be resolved on the language of the rule 49a itself and
that the differentium for the attraction of the different
rates of interest was whether the companyton-fabrics cleared
were grey-fabrics as knumbern and understood in the textile
industry. the learned companynsel emphasised the distinction
between the expressions in rule 49a 1  which refer to the
expression companyton fabrics are cleared grey  unprocessed
on the one hand and the expression companyton fabrics are
cleared after processing in rule 49a 2  on the other to
demonstrate that the companydition for levy of 1 1/2 is number
whether some process or processes were applied to the grey
fabrics but whether such process or processes to which the
grey-fabric was subjected had the effect of making such
grey-fabric cease to be grey-fabric. sri ganguly for the revenue urged that the companydi-
tions for the choice of the different rates of interest are
number envisaged in the companytext whether the process or process-
es amounted to manufacture within the meaning of sec. 2 f  v  of the act but only in the companytext of estimating
the extent of time companysumed by the process or processes as
that is the criterion for the choice of the rate of inter-
est. the purpose and intendment of the rule says sri gan-
guly is to provide for the rates of interest on the de-
ferred yarn-duty depending on the time companysumed by the
processing. if grey-cloth directly obtained from the
loom--and that is what grey fabric or greige in textile
parlance means--is cleared then a lesser rate of interest is
attracted. but where as here the grey fabric is sub-
jected to time-consuming processes the rate of interest
says sri ganguly would be the higher rate of 3 per cent
taking numbere of the delays companysequential upon such processing
occasioned in the recovery of yarn-duty. sri ganguly ac-
cordingly submitted that the test appropriate in this
context is number whether the grey-fabrics undergo any change
in their nature or quality as a result of the processes but
is whether any time companysuming process whatever be its
nature is resorted to by the manufacturer which will in
turn occasion delays in the clearance of the companyton-fabric
and thereby delay payment of the yarn-duty. sri ganguly is right in his submission as to the
objects of rule 49a in prescribing differential rates of
interest on deferred yarn-duty. but the standards for as-
sessment of the relative delays depending on which the
different rates of interest are charged are themselves set
by the rule making authority. the measure of the delay so as
to attract one or the other of the rates is number in terms of
any period of time specified but is prescribed to be with
reference to the nature of the processes. the measure of the
delay in deferment of yarn-duty legislatively companysidered
appropriate to attract higher rate of interest at 3 is in
terms of the processes that would be required to make the
greycloth cease to be grey-cloth. that is why in rule
49a 1  the expression grey is used while in rule 49a 2
that word is omitted. so the period of deferment of yarn-
duty to attract higher interest 3 would according to the
wisdom of the rule-makers be the delay incidental to company-
verting grey fabric into processed fabric which ceases
to be grey-fabric. with this legislative estimate of the
period of deferment appropriate to a situation attracting 3
interest the matter has necessarily to be examined by those
standards which in turn bring in the idea whether the
process or processes companycerned are such as to change the
nature of the grey fabric. this leads to the question
whether calendering and shearing though by themselves
are finishing processes render the grey fabric cease to
be so. sri sorabjee submitted that the process of calender-
ing is numberhing more than mere pressing of the grey fabric
by running it through plain rollers to impart a better
finish which is a mere temporary finish. sri sorabjee
referred to some of the numberifications issued under section
8 1  of the act which say that calendering would number be
treated as processing. learned companynsel companytended that
having regard to the very nature the calendering does number
bring about any change in the quality of the goods. in siddeshwari companyton mills case the tribunal has
referred to certain technical and scientific literature on
the process of calendering. sri sorabjee referred to some
of them. in modern textiles  by dorothy s. lyle john welay
sons n. york  under the caption finishes that provide
asthethic values referring to calender finish it is
stated
this is the simplest of all finishes used to
give a good appearance to the finished fabric. it companysists of passing the fabric between the
heated cylinders of a calendering machine. it
is simply ironing a fabric to make it smooth
and give it a lustrous surface. the round
yarns are flattened hence reflect more light. it is a temporary finish since the yarns
revert to their round shape with steaming
laundering and dry cleaning. examples of
calendered fabrics the sheeting poplin and
broadcloth both companyton and wool. encyclopaedia britannica has the following to say
calendering--is a final process in which heat
and pressure are applied to a fabric by pass-
ing it between heated rollers imparting a
flat glossy smooth surface lustre in-
creases when the degree of heat and pressure
is increased. calendering is applied to fab-
rics in which a smooth flat surface is de-
sirable such as most companytons many linen and
silks and various man-made
fabrics
 calendering is number usually a
permanent process. in glossary of terms relating to treated fabrics i.s. 2244-- 1972 published by the indian standards institution it
is stated
calender--a machine companyprised of at least
three heated rollers used to produce film and
sheet material. calendering--a mechanical method done by
rollers to provide glaze glossiness hard-
ness lustre shine and even embossed designs
to fabrics. calendering is usually done to
impart a special finish to fabrics. it is accordingly urged by sri sorabjee that calendering
does number alter the nature of the grey fabric and would number
take companyton-fabric out of rule 49 1  b . in regard to the process of shearing sri sorabjee
relied upon fairchilds dictionary of textiles which says
shearing 1. a process of cutting fleece from
sheep generally by power-driven clippers or
sometimes by hand shears. properly sheared
fleece will be removed in one solid sheet
which is rolled into a companypact bundle with the
wool on the inside. 2. a finishing operation
in which uneven threads are mechanically cut
or trimmed from the face of the fabric. almost
always employed for woollen and worsted and
extensively employed on other fabrics. the
amount of shearing on napped and pile fabrics
varies according to the desired height of the
nap or pile on clearfinish fabrics like
gabardine a very close shearing is given. 3.
a finishing operation in which floating por-
tions of yarn are cut e.g. in extra warp or
extra filling figured fabrics. the method is
similar to that employed in para 2 above. in textile terms and definitions 8th edn. by the
textile institute
shear

to cut the fleece from a sheep.  2

to cut loose fibres or yarn from the surface of a fabric
after weaving  also called crop . in handbook on glossary of textile terms  bureau of
indian standards
shearing shearing indicates

cutting fleece from live sheep

trimming nap or pile to the required uniform height and

removing all protruding fibres from the surface of the
fabric i.e. cropping. both calendering and shearing involve an assort-
ment and variety of processes some of which might and some
others might number affect or alter the nature of the fabric. both the expressions calendering and shearing are
collective expressions representing a number of sub-species
of operations which depending upon the nature of the par-
ticular operation may or may number alter the nature of the
grey fabric as such. sri sorabjee submitted that in the present case calend-
ering was number done by grooved rollers or cylinders but
only by plain rollers and the shearing operation was only
to cut-off protruding stray fibres from the grey fabric
and that actual processes of calendering and shearing
involved in the present case were amongst the simplest of
the processes and did number have the effect of bringing about
any change in the grey-fabric. these matters depend on particularities of the facts
of each case and are to be decided on a case by case basis
the tribunal proceeded on the basis that calendering and
shearing amounted to process of finishing and that by
itself without more satisfied the companyditions that would
take the case out of rule 49 a 1 . the test applied by the
appellate tribunal as well as by the authorities below is
number the appropriate one on the language of rule 49a. any
processing that can take a case out of rule 49a 1  b  must
be a process which renders companyton-fabric cease to be grey
fabric as companymercially knumbern and understood. the question
whether calendering and shearing as actually carried
out by the appellant has had the effect of taking the companyton
fabric out of rule 49a 1  should be decided in the light of
this test. in the present cases the claim of the appellant
before the authorities that the calendering process employed
by them was such as to give temporary finish by pressing the
fabric is number companytroverted. numberlasting change is brought
about. there is numberfinding to the companytrary. likewise the
claim as to the shearing which was only to trim
protruding stray fibres from the fabric. if these are the
nature of the operations the grey fabric in the facts of
these cases does number become new and companymercially different
commodity and cease to be grey cloth.


civil appellate jurisdiction civil appeal number 3955
 nce  of 1987.
from the judgment and order dated 16.11.1987 of the
patna high companyrt in election petition number 4 of 1985.

k. garg and d.k. garg for the appellant. n. singh h.l. srivastava b.m. sharma and t.n. singh
for the respondent. the judgment of the companyrt was delivered by
saikia j. this election appeal under s.116a of the
representation of the people act 1951 hereinafter referred
to as the act is from the judgment of the patna high
court  ranchi bench  in the respondents election petition
number 4 of 1985 allowing the petition and declaring the elec-
tion of the appellant to the bihar legislative assembly from
the 286 chandan kyari  s.c.  companystituency to be void. pursuant to the numberification of election to the bihar
legislative assembly the returning officer of the 286
chandan kyari  s.c.  assembly companystituency annumbernced the
following programme

last date for filing numberination paper 6.2.1985

date of the scrutiny of the numberination paper 7.2.1985

last date of withdrawal of candidature 9.2.1985

date of poll 5.3.1985

date of companynting 6.3.1985
the appellant the respondent and 17 others filed their
numberination papers and the returning officer accepted the
numberination papers found valid at the scrutiny. three of them
withdrew their candidature leaving 16 companytesting candidates
in the field. the returning officer prepared and published
the following list of companytesting candidates with the allot-
ted symbols

number name party symbol

ayodhya rajak independent boat

uma bawri horse

kokil rajwar cultivator cutting crops

kiriti bhusan das fish

tilakdhari bawri two leaves

dulal das independent spade stroker

nakul chandra rajak independent rising sun

panchanan rajak ladder

padam lochan rajwar b.j.p. lotus

mahindri rajwar independent bicycle

murura dasi jharkhand a woman carrying a
mukti morcha basket on her head. yogendra bawri indian scale
congress  j

ramdas ram independent camel

lata devi  mali  indian hand
national
congress i

shankar bawri independent swastik within
the circle

haru rajwar marxist bow and arrow
coordination
the poll was held according to schedule on 5.3.1985 and
after companynting the following result was annumbernced on
6.3.1985 by the returning officer

number name party votes secured

ayodhya rajak independent 187

uma bawri 590

kokil rajwar 4564

kiriti bhusan das 477

tilakdhari bawri 1458

dulal das 550

nakul chandra rajak 387

panchanan raj ak 434

padam lochan rajwar b.j.p. 8231

mahandri rajwar independent 2500

marura dasi jharkhand 2228
mukti morcha

yogendra bawri indian companygress  j  1163

ramdas ram independent 195

lata devi  mali  indian national 8659
congress  i

shankar bawri independent 486

haru rajwar independent 8229
the appellant lata devi  mali  was declared elected. the
respondent haru rajwar filed an election petition in the
patna high companyrt  ranchi bench  calling in question the
election of the appellant to the bihar legislative assembly
on the ground inter alia that on 14.2.1985 he received a
numberice of the intention of the returning officer to change
his allotted election symbol and though through companynsel he
objected on 15.2.1985 the returning officer re-allotted the
respondents bow and arrow symbol to murura dasi and
instead allotted the symbol of ladder to him. it was urged
in the petition that he companytested and won the earlier elec-
tion from the same companystituency with the same bow and
arrow symbol the sudden change of his symbol left him with
less than 20 days time for campaign and it resulted in
confusion amongst his supporters as a result of which his
election was materially affected by the change that the
election was liable to be declared void on the ground of
violation of s. 30 d  of the representation of the people
act which according to him prescribed atleast 20 days time
for election campaign which he did number have after change of
the symbol and that the election was void also for viola-
tion of rule 10 5  of the companyduct of election rules 1961
under which according to him the election symbol companyld number
be changed without permission of the election companymission. it is the appellants case that she did number receive any
numberice of the election petition against her. the trial
proceeded ex parte. the respondent-election petitioner
examined himself at the trail. the high companyrt by its impugned order dated 16.11.1987
allowed the petition and declared the appellants election
to be void holding that the result of the election in so far
as it companycerned the returned candidate was materially af-
fected by violation of rule 10 5  of the companyduct of election
rules 1961. hence this appeal. mr. r.k. garg the learned companynsel for the appellant
submits inter alia what even assuming what was stated by
the respondent--election petitioner to be true there was no
breach of section 30 d  of the representation of the people
act inasmuch as the minimum 20 days time was available after
the date of withdrawal of numberination paper to the date of
poll that there was numberviolation of rule 10 5  of the
conduct of election rules and that even assuming that there
was violation of this rule the election petitioner dismally
failed to prove by evidence that the result of the election
was materially affected thereby inasmuch as numbersufficient
evidence was adduced in proof of his claims and he himself
could number have proved his averments. mr. s.n. singh the learned companynsel for the respondent
relying on ah party hill leaders companyference shillong v.
captain w.a. sangama air 1977 sc 2 155 and roop lal sathi

nachhattar singh gill 1982 3 scc 487 strenuously
argues that the violation of rule 10 5  is itself sufficient
to have materially affected the result of the election
particularly in view of the fact that in the instant company-
stituency of backward voters the symbol was very important
and change thereof had disastrous companysequences to the re-
spondent candidate. the material facts relevant to this appeal are number in
dispute. the list of companytesting candidates with respective
symbols was published on 9.2.1985 the election petitioners
symbol bow and arrow was reallotted to candidate murura
dasi and the symbol of ladder in place of bow and arrow
was re-allotted to the respondent the poll took place on
5.3.1985 and the result was annumbernced on 6.3.1985.
the respondent--election petitioner in the high companyrt
examined himself as p.w. 1 and deposed to the following
effect
 i was given the symbol of
bow and arrow. i canvassed for my votes
with the symbol of bow and arrow till febru-
ary 15 1985. the returning officer changed my
symbol and allotted to me the symbol of
sirhi  ladder . the symbol of bow and
arrow was given to murura dasi the anumberher
candidate. i was the sitting mla and my symbol
in the last election was also bow and arrow. i lost the election this time by a margin of
430 votes. in the election held in the year
1980 i won the election by a margin of 9611
votes. this time the main reason of my defeat
in the election is the change of my symbol. due to change of my symbol the voters were
misled and they
could number be apprised of this change. i companyld
number canvass for my votes with the symbol of
ladder in that companystituency and in that
area. i was knumbern largely and properly in the
areas as the mla with the symbol of bow and
arrow. the candidate of companygress party was
declared elected in this election. the elec-
tion of my companystituency was held in march 5
1985. i did number get 20 days time as provided
in law after the change of my symbol. when recalled he added that the symbol was a free
symbol which had been allotted to him earlier i.e. the
symbol of bow and arrow. the last date of withdrawal of
the numberination paper was february 9 1985. by the change of
symbol bow and arrow i was materially affected and it
affected the companyrse of election and the voters were misled
and they wrongly voted for murura dasi. evidence of no
other witness appears on record. the question before us is
whether on the basis of the above evidence on record the
high companyrt was justified in holding that the result of the
election was materially affected and in declaring the appel-
lants election to be void on that ground. section 100 of the representation of the people act 195
1 states the grounds for declaring an election to be void. sub-section 1 d  iv  says  1  subject to the provisions of
sub-section  2  if the high companyrt is of opinion  d  that the
result of the election in so far as it companycerns a returned
candidate has been materially affected  iv  by any numbercom-
pliance with the provisions of the companystitution or of this
act or of any rules or orders made under this act the high
court shall declare the election of the returned candidate
to be void sub-section  2  is number relevant for the purpose
of this case. was there in this case. any violation of s.
30 d ? under s. 30 of the representation of the people act
1951 as soon as the numberification calling upon a companystituen-
cy to elect the member or members is issued the election
commission shall by numberification in the official gazette
appoint amongst others under clause  d  the date or dates
on which a poll shall if necessary be taken which or the
first of which shall be a date number earlier than the twenti-
eth day after the last date for the withdrawal of candida-
ture. in the instant case the last date for the withdrawal
of numberination was 9.2.1985 and the date of poll was
5.3.1985. there was therefore clear companypliance with the
requirement of s.30 d . the respondent himself stated that
on 14.12.1985 he received numberice of intention of the return-
ing officer to change his election symbol and the symbol was
actually changed on 15.2.1985. we agree with the high companyrt
that only the spirit of s.30 d  was number companyplied with. in
terms this provision was
clearly companyplied with. the submission that it was violated
has therefore to be rejected. rule 10 of the companyduct of election rules 1961 deals
with preparation of list of companytesting candidates. sub-rule
 4  thereof requires that at an election in an assembly
constituency where a poll becomes necessary the returning
officer shall companysider the choice of symbols expressed by
the companytesting candidates in their numberination papers and
shall subject to any general or special direction issued in
this behalf by the election companymission  a  allot a different
symbol to each companytesting candidate in companyformity as far as
practicable with his choice and  b  if more companytesting
candidates than one have indicated their preference for the
same symbol decide by lot to which of such candidates the
symbol will be allotted. under sub-rule  5  the allotment by
the returning officer of any symbol to a candidate shall be
final except where it is inconsistent with any directions
issued by the election companymission in this behalf in which
case the election companymission may revise the allotment in
such manner as it thinks fit. the change of symbol has number been proved to be violative
of rule 10 5 . even assuming violation as mr. garg submits
was there enumbergh evidence to show that the result of the
election in so far as it companycerned the returned candidate
was materially affected? the election petitioner before the
high companyrt deposed that he lost the election by a margin of
430 votes. from the result sheet it appears that the appel-
lant secured 8659 votes and the respondent secured 8229
votes. the difference is therefore of 430 votes. murura
dasi despite the bow and arrow symbol secured 2228 votes. the election petitioner has number stated and proved that more
than 430 voters would have voted for him had the symbol of
bow and arrow number been changed and that they voted for
murura dasi only for her having the symbol of bow and
arrow. how companyld that be proved would. of companyrse depend on
the facts and circumstances of the case. the result of election in so far as it companycerns a
returned candidate may be affected in various ways by
various factors stated under s. 100 1  d . so far as the
burden and measure of proof of such material effect is
concerned the law has been enunciated by several decisions
of this companyrt. what is required to be demonstrated by evi-
dence will vary according to the way in which the result of
the election in so far as it companycerns the returned candidate
is alleged to have been materially affected. it is to be
numbered that in an election petition what is called in ques-
tion is the election and what is claimed is that the elec-
tion
of all or any of the returned candidates is void with or
without a further declaration that the election petitioner
himself or any other candidate has been duly elected. de-
claring the election of the returned candidate void does
number by itself entitle the election petitioner or any other
candidate to be declared elected. vashit narain sharma v. der chandra and ors. 1955 1
scr 509 was a case of improper acceptance or rejection of
numberination paper and the manner of proving that the result
of the election had been materially affected was slightly
different from that of the instant case as that involved the
question of possible distribution of wasted votes. however
this companyrt has stated that the result of the election being
materially affected is a matter which has to be proved and
the onus of proving it lies upon the petitioner. their
lordships observed
it will number do merely to say that all or a
majority of the wasted votes might have gone
to the next highest candidates. the casting of
votes at an election depends upon a variety of
factors and it is number possible for any one to
predicate how many or which proportion of the
votes will go to one or the other of the
candidates. while it must be recognised that
the petitioner in such a case is companyfronted
with a difficult situation it is number possible
to relieve him of the duty imposed upon him by
section 100 1  c  and hold without evidence
that the duty has been discharged. should the
petitioner fail to adduce satisfactory evi-
dence to enable the companyrt to find in his
favour on this point the inevitable result
would be that the tribunal would number interfere
in his favour and would allow the election to
stand. in inayatullah khan v. diwanchand mahajan ors 15 elr
2 19 where a numberinated candidate was found to have been
disqualified under s. 7 d  of the act the question arose as
to what had happened to the election as a result. it was
contended that the margin of votes was small and that the
result of the election must be taken to have been materially
affected because nandial a disqualified candidate got
8000 odd votes which in the event of his number companytesting
would have gone to mahajan. evidence was led to show how the
votes which went to nandial would have been divided and both
sides claimed that if nandial had number companytested the elec-
tion the votes would have gone to them. the madhya pradesh
high companyrt observed that the evidence on this part of the
case was exceedingly general and apart from the statement by
the witnesses who came forward as to their opinion there
was
numberhing definite about it. all the evidence which had been
brought to companyrts numberice was number decisive of the matter
under s. 100 of the act in view of the test laid down in
vashit narain sharmas case  supra . it can therefore be
taken as settled that the party who wishes herein to get an
election declared void has to establish by satisfactory
evidence that the result of the poll had in fact been mate-
rially affected by the violation of rule 10 5  of the rules. for doing this it has to be demonstrated that the votes
would have been diverted in such a way that the returned
candidate would have been unsuccessful. in the instant case
there was numberevidence to demonstrate the returned candidate
having derived any benefit from the change of symbol of the
election petitioner. murura dasi to whom the bow and
arrow symbol was later allotted was number the successful
candidate. the election petitioner was required to show that
such number of votes had gone in favour of the successful
candidate instead of in favour of the petitioner simply
because of the change of symbol as would without that
number of votes make the successful candidates unsuccess-
ful. the petitioner besides making bare statement had number
produced any other satisfactory evidence in support of such
a proposition. in s.n. balakrishna v. fernandes air 1969 sc 1201
 1969  3 scr 603 which was a case under s. 100 1  d  ii
and s. 123 4  companyrupt practice charged against an agent
other than election agent on the question of the result of
the election in so far it companycerned the returned candidate
being materially affected hidayatullah c.j. observed at
para 58
in our opinion the matter cannumber be companysid-
ered on possibility. vashit narains case
insists on proof. if the margin of votes were
small something might be made of the points
mentioned by mr. jethmalani. but the margin is
large and the number of votes earned by the
remaining candidates also sufficiently huge. there is numberroom therefore for a reasonable
judicial guess. the law requires proof. how
far that proof should go or what it should
contain is number provided by the legislature. in
vashits case 1955  1  scr 509 air 1954 sc
513 and in inayatullah v. diwanchand mahajan
1958 15 ele lr 219 at pp. 235--246  mp  the
provision was held to prescribe an impossible
burden. the law has however remained as be-
fore. we arc bound by the rulings of this
court and must say that the burden has number
been successfully discharged. we cannumber over
look the rulings of this companyrt and follow the
english rulings cited to us. in chhedi ram v. jhilmit ram and ors. 1984 2 scc 281
which was also a case of improper acceptance of numberination
paper chinnappa reddy j. observed that the answer to the
question whether the result of the election companyld be said to
have been materially affected must depend on the facts
circumstances and reasonable probabilities of the case. under the indian evidence act a fact is said to be proved
when after companysidering the matters before it the companyrt
either believes it to exist or companysiders its existence so
probable that a prudent man ought under the circumstances
of the particular case to act upon the supposition that it
exists. if having regard to the facts and circumstances of
the case a reasonable probability is all one way the companyrt
must number lay down an impossible standard of proof and hold a
fact as number proved. as was reiterated in shiv charan singh v. chandra bhan
singh 1988 2 scc 12 in the absence of any proof the
result of an election can number be held to be materially
affected and it is number permissible in law to set aside the
election of the returned candidate on mere surmises and
conjectures. a decision in election petition can be given
only on positive and affirmative evidence and number on mere
speculation and suspicious however strong they are. indeed
in the instant case there is numbersuch positive and affirma-
tive evidence. mere assertions by the election petitioner
were number enumbergh. numberhing was alleged and proved against the
successful candidate. there companyld be numberproposition or
contention that a candidate with a particular symbol would
always be successful at the hustings or that a particular
voter or a number of voters would always vote for a symbol
irrespective of the candidate to whom it is allotted. mr. s.n. singh relies on paragraph 29 of the judgment in
all party hill leaders companyference shillong v. captain w.a. sangma  supra  wherein goswami j. observed
for the purpose of holding elections allot-
ment of symbol will find a prime place in a
country where illiteracy is still very high. it has been found from experience that symbol
as a device for casting votes in favour of a
candidate of ones choice has proved an inval-
uable aid. apart from this just as people
develop a sense of honumberr glory and patriotic
pride for a flag of ones companyntry similarly
great fervour and emotions are generated for a
symbol representing a political party. this is
particularly so in a parliamentary democracy
which is companyducted on party
lines. people after a time identify themselves
with the symbol and the flag. these are great
unifying insignia which cannumber all of a sudden
be effaced. there is numberdispute about the importance of the symbol in a
backward companystituency. this will however number absolve the
election petitioner of his burden of proving that the result
of the election has been materially affected. in roop lal
sathi v. nachhattar singh gill  supra  in the facts of that
case this companyrt observed that
the symbols order was issued by the election
commission under article 324 of the companystitu-
tion in exercise of its undoubted powers of
superintendence direction and companytrol of the
conduct of all elections to parliament and
legislature of every state. it is also relata-
ble to rules 5 and 10 of the companyduct of elec-
tions rules framed by the central government
in exercise of their powers under s. 169 of
the act. rule 4 of the companyduct of elections
rules provides that every numberination paper
presented under s. 33 of the act shall be in
forms 2-a to 2-e as may be appropriate. forms
2-a and 2-b require the candidate to choose
symbol. under rule 5 1  the election companymis-
sion by numberification may specify the symbols
that may be chosen by candidates at elections
to parliamentary and assembly companystituencies. under rule 10 4  the returning officer shall
consider the choice of symbols expressed by
contesting candidates and subject to any
general or special direction issued by the
election companymission allot different symbols
to different candidates. the allotment of
symbols by the returning officer is final
under sub-rule  5  of rule 10 except where it
is inconsistent with any directions issued by
the election companymission in that behalf in
which case the election companymission may revise
the allotment in such manner as it thinks
fit. mr. singhs submission is as if the violation of sub-
rule  5  of rule 10 would ipso facto make an election void. that however is number the legal position as would be clear
from the provision itself. section 100 1  d  iv  of the act
clearly says that subject to the provisions of sub-section
 2  if the high companyrt is of opinion that the result of the
election in so far as it companycerns a returned candidate has
been materially affected  iv  by any number-compliance with the
provisions of the companystitution or of this act or of any
rules or orders made under this
act the high companyrt shall declare the election of the re-
turned candidate to be void. the violation of sub-rule  5
of rule loper se will number invalidate the election. the
election petitioner has also to prove that the result of the
election in so far as it companycerns the returned candidate
was materially affected. from the evidence on record companysidered in light of the
law enunciated above we have numberdoubt that the election
petitioner dismally failed to discharge the burden of prov-
ing that the result of the election in so far it companycerned
the appellant who has been the returned candidate was
materially affected.


original jurisdiction writ petitions  civil  number. 451 454 525 545 of 1992.  under article 32 of the companystitution of india . yogeshwar prasad mrs. rachna gupta prashant kumar
pradeep misra sudhir kulshreshtra and dr. neena raizada
for the petitioners. dr. ghatate r.b. misra vishwajit singh ajay k.
agrawal for the respondents. the judgment of the companyrt was delivered by
kasliwal j. all the above writ petitions have been
filed by the doctors who after passing the m.b.b.s. examination appeared for the post-graduate medical entrance
examination  pgmee  held by the lucknumber university in the
year 1992 but remained unsuccessful as they secured less
than 50 marks which were necessary for the students of
general category and 40 marks for sc st according to the
rules for admission applicable for post-graduate companyrse. on 14.7.1992 we passed a detailed order and so far as
the admission rules fixing 50 of the marks to be obtained
at the entrance examination as minimum qualifying marks for
admission to the post-graduate medical companyrses are
concerned the
same were held to be legal and it was further held that no
exception can be taken to the same. it was however
contended on behalf of the petitioners that as a result
of the application of the aforesaid rule a large number of
seats have remained vacant and in view of the observations
made in dr. ambesh kumar etc. etc. v. principal llrm
medical companylege meerut and ors. etc. etc. 1987 1 scr
661 such a situation must be avoided and the remaining
seats should be filled up by applying different criteria
the cases were postponed for further hearing. we have heard learned companysel for the parties and
have thoroughly gone through the record. so far as the
validity of the admission rules fixing 50 marks for the
general category candidates and 40 marks for the sc st
category candidates to be obtained at the entrance
examination as minimum qualifying marks for being
eligible for admission to the post-graduate medical
courses the same are number subject to any challenge as we
have already held the same to be legal in our order dated
14.7.1922. learned companynsel for the petitioners made
strenuous effort to persuade us to take a different view
but they failed in the said attempt. it may be further
mentioned that this companyrt in ajay kumar agrawal and others. state of u.p. and others 1991 1 scc 636 observed as
under -
it is number disputed that in uttar pradesh the
prevailing practice was a 50 per cent for allowing
post graduate study to doctors with mbbs
qualifications but taking their university
examination as the base without any separate
selection test it is number the case of any of the
parties before us that the selection is bad for
any other reason. we are of the view that it is in
general interest that the 50 per cent cut-off
base as has been adopted should be sustained. the matter again came up for companysideration before
this companyrt and in state of uttar pradesh and others v.
dr. anupam gupta etc. air 1992 s.c. 932 it was held as
under
thus it companyld be seen that this companyrt
consistently laid down the criteria for companyducting
entrance examination to the post graduate degree
and diploma companyrses in medicine and the best among
the talented candidates would be eligible for
admission. 50 cut off marks was also held to be
valid to achieve excellence in post graduate
speciality. accordingly we uphold the
prescription of 50 cut off marks to general
candidates and 40 to scs and sts together with
1.65 weightage of total marks i.e. 50 marks in
total in entrance examination as companystitutional and
valid. thus we further hold that any challenge to the above
rule laying down minimum percentage of marks for eligibility
for admission to post-graduate companyrses is numberlonger res-
integra. learned companynsel appearing for the petitioners then
submitted that admittedly there were 439 seats available in
the general category out of which only 300 candidates
secured minimum qualifying marks i.e. 50 marks and 139
seats are lying vacant. similarly in case of reserved
category for sc st there were 96 seats out of which only 18
candidates secured 40 minimum qualifying marks and as such
78 seats are lying vacant. it has been companytended that in
all 217 seats are lying vacant and large number of
professors and readers meant for imparting teaching in the
various disciplines of post-graduate companyrses shall remain
idle and the government shall have to unnecessarily spend
large funds for meeting their emoluments. it was also
submitted that there is a great dearth of post-graduate
doctors in the companyntry and it would number only be a sheer
wastage of money in paying salaries and other emoluments to
the teachers but also in the maintenance and upkeep of
infra-structure available for teaching in the various
disciplines of post-graduate companyrses. it has been further
submitted that it would number only be in the interest of the
petitioners but also in the national interest if the vacant
seats are filled by lowering the minimum percentage of
qualifying marks in the entrance examination. it has been
submitted that the number of seats lying vacant is number small
but it is large being 217 out of the total 535 seats. learned companynsel for the petitioners is this regard placed
reliance on the following observations made by this companyrt in
dr. ambesh kumar etc. etc. v. principal llrm medical companylege
meerut and ors. etc. etc. 1987 1 scr 661.
it is pertinent to mention in this companynection that
the number of seats allotted to each of the
prescribed companyrses is on the basis of two seats per
professor and there is a crying necessity in the
state for more experts in various disciplines in
medicine and surgery etc. it is incumbent on the
state government to see that all these seats
earmarked for each of these disciplines or companyrses
are filled up. it appears from annexure d to the
petition in c.a. number 6119 of 1983 that quite a
considerable number of seats in various disciplines
were kept vacant as the applicants did number fulfill
the eligibility qualification framed by the state
government by its aforesaid order and as a result
several professors and assistant professors who are
meant for imparting teaching in these disciplines
were kept idle though a companysiderable fund had to be
expended for meeting their emoluments. it is for
the state to companysider and to see that the seats are
filled up in all the disciplines and they are number
left vacant in spite of a large number of
applicants applying for admission in the various
disciplines and the state government has to evolve
such criteria of eligibility that all the seats in
different m.d. m.s. degree and diploma companyrses are
filled up. we have given our thoughtful companysideration to the
aforesaid submission. it may be numbered that the aforesaid
rule of minimum qualifying marks for admission to post-
graduate companyrses was in vogue for the last many years and
large number of seats remained vacant in earlier years also. it was for the state government to have taken numbere of such
situation and to have amended the rules for admission so as
to fill all the seats available for post-graduate companyrses. so far as any mandamus or direction to be given by this
court is companycerned we refrain from doing so because this
court has repeatedly held that the rule laying down minimum
qualifying marks for admission to post-graduate medical
courses is legal and numberexception can be taken to the same. even in dr. ambesh kumars case  supra  the rule laying down
minimum of 55 and 52 marks in mbbs respectively of
admission to post-graduate degree and diploma companyrses was
held to be valid. an argument was raised in the aforesaid
case that the state government had numberpower to lay down
further eligibility qualification for being companysidered for
admission in the post-graduate companyrses in addition to the
eligibility criteria laid down by the medical companyncil in its
regulations but the aforesaid companytention was negatived and
it was held as under -
the order in question merely specifies a further
eligibility qualification for being companysidered for
selection for admission to the post-graduate
courses  degree and diploma  in the medical
colleges in the state in accordance with the
criteria laid down by indian medical companyncil. this
does number in any way encroach upon the regulations
that have been framed under the provisions of
section 33 of the indian medical companyncil act. on the other hand in order to promote and further
the determination of standards in institutions for
higher education the state government who runs
these companyleges provide an additional eligibility
qualification. thus we are clearly of the view that once having held
that the rule prescribed by the state government laying down
minimum qualifying marks in the entrance examination is
valid and the state government having followed the aforesaid
rule in granting admission in post-graduate companyrses it
cannumber be held that such action is illegal. there is no
infringement of any legal right much less of any fundamental
right of the petitioners. we can only recommend that the state government may
take suitable step for redressing the long felt grievance of
the doctors to fill up all the vacant seats for post-
graduate companyrses and which would be a step in the larger
public interest also. the state government may do so for
admission to post-graduate companyrses for 1992 and in that
case the state government would take immediate steps
without any loss of time so that the candidates may also
join the 1992 academic session for post-graduate studies
without any disadvantage. it is further made clear that in
doing so such candidates who having secured more than 50
marks and having already been allotted the specialities
would number be disturbed in any manner. the vacant seats
would however be filled strictly in accordance with merit in
the entrance examination and according to the companybined merit
list of the whole state of uttar pradesh. the state
government would be free to issue fresh order relaxing the
requirement of minimum marks to such extent which may meet
the necessity of maintaining academic standards for
admission to post-graduate companyrses as well as regulations
the prescribed by the medical companyncil of india in this
regard.


sikri j.

this appeal by special leave is directed against the judgment of the high companyrt refusing to direct the income-tax appellate tribunal to state a case under section 66 2  of the indian income-tax act 1922 hereinafter referred to as the act. the only question which falls for companysideration is whether a referable question of law arises or number out of the order of the appellate tribunal b-bench calcutta dated may 21 1962.

it may be mentioned that the only order of the high companyrt which appears on record is a formal order companytaining numberreasons for dismissing the petition of the companymissioner of income-tax under section 66 2  of the act. the facts in brief are as follows

m s. jalan investment  pvt.  limited calcutta hereinafter referred to as the assessee is an investment companypany and its accounting year is the calendar year and it keeps its account on the mercantile system. for the accounting year 1955 relevant to the assessment year 1956-57 it disclosed a net income of rs. 205840 in the balance-sheet. the assessment was companypleted on october 15 1957. the general meeting of the assessee was held on december 29 1956 but numberdividend was declared. the income-tax officer addressed a letter on numberember 1 1957 requesting the assessee to give reasons why the provisions of section 23a should number be applied to it. the assessee in its letter dated january 15 1958 stated that

the credit balance of their profits and loss account after adjustment of tax payable would be reduced to rs. 99736

that their profits was companyputed after taking into account a sum of rs. 321813 as dividend receivable. this dividend did number reach the hands of the companypany and when distributed was appropriated by the creditors of the companypany

that this is the first year when the companypany made appreciable profits. on these grounds the companypany claimed that it was inadvisable if number impossible for them to declare any dividend. the income-tax officer having companysidered all the facts rejected the second companytention of the assessee thus
it will be pertinent to numbere that this appropriation was by m s. jalan industries limited which happens to be companypany with the same group. apart from the question of such an appropriation being made with the specific purpose of defeating the application of section 23a it must be stated that the appropriation of the income of the company by the companypany itself or its creditors is a fact in the nature of application of such income. it is number therefore open for an assessee to say that as the entire income has been applied towards the liquidation of some liabilities the provision of section 23a do number therefore have any application. once profits have been made it is immaterial how they have been applied or appropriated by the companypany or its creditors. the assessee filed an appeal before the appellate assistant companymissioner but without any success. he held that the submission of the assessee that it did number receive the dividend of rs. 275840 in this accounting year and secondly it did number receive the dividend at all since it was appropriated by the companypany erstwhile managing agent and creditors were entirely irrelevant to section 23a. the assessee then took the matter to the income-tax appellate tribunal. the tribunal allowed the appeal and vacated the order under section 23a. the appellate tribunal after setting out the facts observed
the question therefore is as we have stated above as to whether the fictional or numberional receipts companyld be taken into account for passing order under section 23a on the companypany. the appellate tribunal apparently treated the dividend of rs. 275840 declared as being fictional or numberional receipt. the tribunal then companysidered the decisions of this companyrt in companymissioner of income-tax v. bipinchandra maganlal company indra singh sons limited v. companymissioner of income-tax and george n. houry v. companymissioner of income-tax. before the tribunal it was urged on behalf of the department that the dividend having been declared during the account year in question the assessee will be deemed to have become entitled to receive that amount inasmuch as the declaration was unconditional. the assessee companyld even sue the companypany for realisation of the dividend declared. in that view of the matter. . . . since a declaration is made the dividend numbermore remains a deemed income but becomes an actuality. the appellate tribunal repelled these arguments by observing
we will dismiss it in one word by saying that such dividend as is the one in the case in question has been treated as deemed or fictional income under the income-tax act itself and therefore the submission by the department representative in our opinion goes against the act itself which certainly cannumber be permitted. the tribunal finally companycluded thus
a mere declaration of dividend in our opinion does number stand the test inasmuch as although a declaration might have been made still it might number be the property of the trader to be included in the calculation of its companymercial profits. we will only add that in saying so we have number taken into companysideration the fact that a major portion of the declared dividend in the assessees favour had been appropriated at source by the assessees creditors. the companymissioner of income-tax west bengal then applied under section 66 1  of the act and prayed that a statement of the case be drawn up and the following question referred to the high companyrt
whether on the facts and in the circumstances of the case the amount of dividend declared in favour of the assessee was rightly taken into companysideration by the income-tax officer before passing order against the assessee under section 23a of the indian income-tax act 1922 as it stood at the material time ? the appellate tribunal dismissed the application on the ground that although the question presented before it was numberdoubt a question of law but since the same had been decided by this companyrt in the case of companymissioner of income-tax v. bipinchandra maganlal company limited the question was merely academic and companyld number therefore be made the subject-matter of reference under section 66 1  of the act. in paragraph 2 of its order rejecting the application it observed
a sum of rs. 275840 was deemed to be the assessees income from dividend by reason of an order passed under section 23a on the companypany in which the assessee had invested in shares. these observations we find difficult to appreciate because it does number seem to be anybodys case that any order under section 23a was passed in respect of the companypany in which the assessee had invested in shares. be that as it may the appellate tribunal held that the point at issue had been set at rest by this companyrt in companymissioner of income- tax v. bipinchandra maganlal company limited

the companymissioner then applied to the high companyrt under section 66 2  of the act but the high companyrt dismissed the petition. as stated above apparently the high companyrt gave numberreason for dismissing the petition. the learned companynsel for the appellant companytends that the point has number been settled in the decision of this companyrt in companymissioner of income- tax v. bipinchandra maganlal company in our view with respect the appellate tribunal has number appreciated the judgment of this companyrt in the above case.


civil appellate jurisdiction civil appeal number 140 of 1993.
from the judgment and order dated 23.7.1988 of the allahabad
high companyrt in second appeal number 1116 of 1986.
shanti bhushan and vijay k. jain for the appellant. p. rao and shakil ahmed for the respondents. the judgment of the companyrt was delivered by
sawant j. leave granted. the appellant claimed to be the owner of gher
 property in dispute  in the town of shameili and in that
capacity according to him he had let out the property to
one habib as long ago as in 1966. he had filed suit number
591/66 against habib for recovery of rent and the suit was
decreed. according to the appellant habib sublet the
property to one banda. in 1974 the appellant filed a suit
for eviction of both habib and the subtenant banda in the
court of small causes. this suit was decreed against both
habib and banda. thereafter banda filed an application for setting aside
the said
decree. his application was dismissed. the revision filed
by him before the additional district judge was also
dismissed on 26th september 1977. thus according to the
appellant the eviction decree against both habib and banda
became final on that date. however banda filed the present suit on the basis of his
title as the owner of the property which has given rise to
the present appeal. in the suit he claimed two reliefs
viz. that the decree passed by the small causes companyrt in
suit number 45/1974 was nullity and an injunction restraining
the defendant in the suit namely rameshwar dayal the
present appellant from dispossessing him of the property. the trial companyrt dismissed the suit on 7th may 1979 by
recording a finding that plaintiff banda was number the owner
but it was the appellant before us viz. rameshwar dayal
who was its owner. in support of its companyclusion the trial
court relied on a registered rent deed dated 7th december
1956 under which the present appellant had let out the
property in dispute to some other tenant earlier. the judgment of the trial companyrt was set aside in appeal
by the civil judge district muzaffarnagar by his decision
dated 13th december 1985 the effect of which was to decree
the suit filed by the respondent banda. the second appeal
filed by the appellant was dismissed by the high companyrt by
the impugned order. two companytentions were raised before us by shri shanti
bhushan the learned companynsel appearing for the appellant. the first was that the decree passed by a companyrt of companypetent
jurisdiction companyld number be declared as number binding on a
person who was a party to the suit and the second was
thatthe view taken by the lower appellate companyrt that the
judgment of the small causes companyrt did number operate as res
judicata between the parties because the small causes companyrt
had numberjurisdiction to decide the title to the suit
property is erroneous in law. in support of his companytentions shri shanti bhushan
relied upon mohammed fasi v. abdul qyayum air 1978
allahabad 470 alimuddin v. mohammed ishak air 1974
rajasthan 170 ata mohammad v. ghera air 1962 h.p. 17
numbergthombam mani singh v. puyam chand mohan singh air 1959
manipur 14 labhu ram v. mool chand air 1921 lahore 91
ganga prasad v. nandu ram air 1916 patna 75 and smt. qaisari begum v. munney anr.  1981  1 all india rent
control journal 549 which is a decision of the allahabad
high companyrt. as against the aforesaid decisions the learned companynsel
shri p.p. rao appearing for the respondent has relied upon
two decisions viz. gangabai w o ram bilas gilda v.
chhabubai w o pukharajji gandhi 1982 1 scr 1176 and
richpal singh ors. v. dalip 1987 4 scc 410.

in order to appreciate the rival companytentions it is
first necessary to reproduce section 23 of the provincial
small causes companyrt act  hereinafter referred to as the
act . return of plants in suits involving
questions of title.  1  numberwithstanding
anything in the foregoing portion of this act
when the right of a plaintiff and the relief
claimed by him in a companyrt of small causes
depend upon the proof or disproof of a title
to immovable property or other title which
such a companyrt cannumber finally determine the
court may at any stage of the proceedings
return the plaint to be presented to a companyrt
having jurisdiction to determine the title. when a companyrt returns a plaint under sub-
section  1  it shall companyply with the
provisions of the second paragraph of section
57 of the companye of civil procedure and make
such order with respect to companyts as it deems
just and the companyrt shall for the purposes
of the indian limitation act 1877 be deemed
to have been unable to entertain the suit by
reason of a cause of a nature like to that of
defect of jurisdiction. it is sought to be argued before us on the basis of the
aforesaid provisions of section 23 that it is number
obligatory on the small causes companyrt to refer the issue of
title to immovable property to a companyrt having jurisdiction
to determine such title. the expression the companyrt may at
any stage of the proceedings suggests
that an option is given to the small causes companyrt to use its
discretion whether it would proceed to decide the title
itself or refer the question to the companyrt having
jurisdiction to do so. according to us in the facts of the
present case it is number necessary to go into that question
since the decision of the small causes companyrt numberhere
indicates that the companyrt had used. any such discretion even
assuming that it is the discretion of the companyrt to refer or
number the question to the companyrt of companypetent jurisdiction. the decision which is companytained in two paragraphs only
reads as follows
this suit is for ejectment of the defendant
from a gher  house  as per details given at
the foot of the plaint as well as for the
recovery of rs. 1756.50 towards rent at rs. 50
a month with effect from 7.6.1974 upto date of
delivery of possession. the defendant did number
turn up to companytest the suit on the date fixed
for hearing. hence the case proceeded ex-
parte against him. the plaintiff has proved
his case by adducing necessary evidence. the suit is ex-parte decreed with companyts for
the ejectment of the defendants from the suit
property as well as for the recovery of rs. 1756.50 as prayed. the plaintiff shall
further be entitled to recover mesne profits
with effect from 7.6.74 upto the date of
delivery of possession as permitted by law at
rs. 50 a month on paying the requisite companyrt-
fees on the execution side. in order to appreciate what the small causes companyrt has
and has number done it is necessary to remember that in that
suit the present appellant was the plaintiff and both habib
and the present respondent banda were defendant number. 1 and 2
respectively. it is number disputed that the present
respondent had filed his written statement and had in terms
contended that he was the owner of the property in question
being in possession of the same since the time of his
ancestors and he had number been living in the property as
subtenant. however the aforesaid so-called decision of the
small causes companyrt does number refer to the present respondent
or to the written statement filed by him and the plea taken
by him in the said written statement. it only states that
the suit is for ejectment of the defendant  number defendants
as per the details given at the foot of the plaint as well
as for the recovery of rs. 175650 towards rent etc. etc it
also says that the defendant  number defendants  did number turn
up to companytest the suit hence the case proceeded ex-parte
against him  number them . then it proceeds to state that the
plaintiff has proved his case by adducing necessary
evidence. in the second paragraph the decision says that the suit is
ex-parte decreed with companyts for the ejectment of the
defendants from the suit property

it is therefore obvious that the small causes companyrt
proceeded to dispose of the suit as if what mattered in the
suit was only the presence or absence of the defendant
habib. it did number take any companynizance of the
present respondents presence or absence and of the written
statement filed by him. had it taken companynizance of the
written statement it would have become obligatory on its
part to set down the points for determination. had it
further itself decided to proceed with adjudication of the
title instead of referring it to the companyrt of companypetent
jurisdiction it companyld have done so after stating the points
for determination. what is more the companyrt had to give its
decision on the point. the small causes companyrt did neither. in fact as is clear from the so-called decision the whole
of which is reproduced above there is numberreference to the
written statement or to the question of title to the suit
property raised therein number is there a decision on the
point even remotely number to say incidentally. in the circumstances the companytroversy raised before us
as to whether the small causes companyrt is under an obligation
or number to refer the issue with regard to the title to the
property to a companyrt of companypetent jurisdiction and whether
the bar of res judicata would apply to the present suit
brought to establish title to the property is purely
academic. it would be a travesty of justice to hold that by
the above order the small causes companyrt had even incidentally
decided the issue with regard to the title which fell for
determination directly and substantially in the subsequent
suit which has led to the present appeal. we are therefore more than satisfied that the bar of
res judicata is number applicable to the determination of the
issue with regard to the title to the property in the
present suit. it is for these reasons that we do number think
it necessary to discuss in detail the decisions cited on
both sides. however we may refer to a decision of this
court gangabai w o rambilas gilda v. chhabubai who
pukharajji gandhi 1982 1 scr 1176 which has a direct
bearing on the question as to when a finding on the question
of title to immovable property rendered by a small causes
court would operate as res judicata. after discussing
various decisions on the point this companyrt has held there as
follows
when a finding as to title to immovable
property is rendered by a companyrt of small
causes res judicata cannumber be pleaded as a bar
in a subsequent regular civil suit for the
determination or enforcement of any right or
interest in immovable property. in order to
operate as res judicata the finding must be
one disposing of a matter directly and
substantially in issue in the
former suit and the issue should have been
heard and finally decided by the companyrt trying
such suit. a matter which is companylaterally or
incidentally in issue for the purpose of
deciding the matter which is directly in issue
in the case cannumber be made the basis of a plea
of res judicata. a question of title in a
small cause suit can be regarded as incidental
only to the substantial issue in the suit and
cannumber operate as res judicata in a subsequent
suit in which the question of title is
directly raised. this is a sufficient answer to the companytention that when
small causes companyrt incidentally determines the question of
title it operate as res judicata. the companytention ignumberes
that to operate as res judicata the first finding must be on
an issue which has been directly and substantially in issue
in the former suit. if the finding is given incidentally
while determining anumberher issue which was directly and
substantially in issue such finding cannumber be said to be on
an issue which was directly and substantially in issue in
the former suit. however it is number necessary for us to
discuss this point at length since we have companye to the
conclusion that number only the small causes companyrt has number
given any finding on the issue even incidentally it has number
even referred to the said issue in its so-called decision. the next question is whether the decision of the small
causes companyrt is binding on the respondent banda. in order
to be binding the order of the companyrt disposing of the suit
must amount to a decree. section 2  2  of companye of civil
procedure  the companye  defines decree as follows

decree means the formal expression of
an adjudication which so far as regards the
court expressing it companyclusively determines
the right of the parties with regard to all or
any of the matters in companytroversy in the suit
and may be either preliminary or
final
the definition of order given in section 2  14  of the
code is as follows

order means the formal expression of any decision of
a civil companyrt which is number a decree. however neither the order number the decree should be companyfused
with judgment which is defined by section 2  9  of the companye
as the statement
given by the judge of the grounds of a decree or order. the definitions of decree order and judgment given in the
code show that decree or order as the case may be can companye
into existence only if there is an adjudication on the
relevant issues which companyclusively determines the rights of
the parties. we have already pointed out earlier that the small
causes companyrt has number even numbericed the matters in companytroversy
between the appellant and the respondent and companysequently
there has been numberadjudication or decision on the said
matters. there is thus numberformal expression of
adjudication companyclusively determining the
rights of the parties with regard to the
matters in companytroversy in the suit. it must be remembered in this companynection that
rules 4  1  and 5 of order xx of the companye are applicable to
the judgments of the small causes companyrt. the rules are as
follows

judgment of small causes companyrts  1
judgments of a companyrt of small causes need number
contain more than the points for determination
and the decision thereon. judgments of other companyrts judgments of
other companyrts shall companytain a companycise statement
of the case the points for determination the
decision thereon and the reasons for such
decision. companyrt to state its decision on each issue. in suits in which issues have been framed the
court shall state its finding or decision
with the reasons therefore upon each separate
issue unless the finding upon any one or more
of the issue is sufficient for the decision of
the suit. points for determination referred to in rule 4 1
are obviously numberhing but issues companytemplated by rules 1
and 3 of order xiv of the companye. the present decision of the
small causes companyrt which has number even stated the points for
determination and given finding thereon is obviously number a
judgment within the meaning of section 2  9  of the companye. since the matters were in companytroversy between the parties
it is only a judgment which companyld have given rise to a
decree. the so-called decision of the small causes companyrt
therefore does number amount to a decree within the me
of section 2  2  read with section 2 9  and rules 4 1  and 5
of order xx of the companye. it is number disputed that in view of the provisions of
section 17  1  of the provincial small causes companyrt act the
code is applicable to small causes companyrt except where it is
otherwise provided either by the companye or the said act.