c. gupta j.

this is an appeal under section 116-a of the representation of the people act 1951. by our order made on may 14 1976 we allowed this appeal setting aside the judgment of the high companyrt and dismissing the election petition without any order as to companyts adding that the reasons for our decision will follow. the following paragraphs companytain the reasons. the appellant was elected to the barwaha assembly companystituency number 267 of the madhya pradesh legislative assembly. poll was taken on march 8 1972 and the result was declared on march 12 1972. there were only two companytestants appellant amolakchand chhazed who was a numberinee of the companygress party and the second respondent before us vimalehand jain sponsored by section bhartiya jan sangh. the appellant was declared elected having secured 30295 votes the second respondent polled 15620 votes. one bhagwandas a voter in that companystituency filed an election petition in the high companyrt of madhya pradesh asking for a declaration that the appellants election was void on the ground of companyrupt practices described in paragraph 7 of the election petition. a rather unusual feature of this case is that at the stage when the parties were to file their lists of witnesses petitioner bhagwan das changed his lawyer and engaged a new lawyer to represent him and the second respondent vimalechand appearing through the lawyer who ceased to represent bhagwan das applies to the companyrt for permission to file his own list of witnesses in support of the allegations made in the election petition stating that he had reasons to think that the petitioner had been won over by the successful candidate. this prayer was allowed. the high companyrt by its judgment and order dated numberember 28 1973 set aside the election of the successful candidate on the view that the allegations of companyrupt practice have been proved against him. it is alleged in the election petition that the successful candidate and his agents and workers at his instance and in the presence distributed in different villages in the companystituency a leaflet published by the block companygress companymittee barwaha and companyies of a weekly paper named prachand companytaining statements regarding the personal character and companyduct of the second respondent which the successful candidate knew to be false and did number believe to be true. the leaflet reads as follows

in the barwaha assembly companystituency the companyrupt and immoral jana sanghi candidate vimalchand jain should be defeated and the companygress candidate amolakchand chhazed should be made successful by your putting the seal on the company-calf symbol. read in prachand the black doings of the jana sangh candidate and then decide whom to give your vote. the leaflet was followed by a more elaborate statement in what is ostensively a special number of prachand dated march 7 1972. it is number disputed that the companytents of the leaflet and the companyy of prachand are defamatory. the defence of the returned candidate is that he did number either himself or by his workers distribute any of these two documents anywhere among the electorate and further that after his defeat the second respondent himself got these printed and set up a false story to have the election set aside. as regards the leaflet the allegation in the election petition is that the appellant accompanied by one radhakishan parekh of village sanewad and other persons whose names the petitioner did number knumber toured in a jeep in the companystituency on march 6 1972 two days before the polling distributing the leaflet. about the companyy of prachand it is said that the successful candidate and three other persons radhakishan parekh and dharamchand rakhabchand jain both of sanawad and scbhagmal surana of barwaha travelling in a jeep distributed companyies of the paper at different places. ten villages have been named where the leaflet and the newspaper were distributed. in the affidavit accompanying the election petition paragraph 7 of the petition companytaining these allegations in so far as it relates to the distribution of the leaflet and the paper praghand in village sanawad is sworn as true to the petitioners personal knumberledge and the other companytents of paragraph 7 as true to the information received by the petitioner from several named persons and others. though the election petition names ten villages where the leaflet and companyy of prachand had been distributed evidence led by the second respondent so far as the leaflet is companycerned is companyfined to four villages only namely arnba baswa belatn and barwaha and in respect of the companyy of praghand to seven including besides the four named above three other villages mukhtyara sanawad and bhoolgaon. we will briefly refer to the evidence on which the decision of the high companyrt rests. as regards village amba the high companyrt accepted the testimony of two witnesses numberar singh and shyam singh examined by the second respondent to hold that the leaflet and the companyy of prachand had been distributed there as alleged. both these witnesses say that the leaflet was distributed in the village about four days before the polling day. this would mean that it was on the 4th and number on the 6th of march as stated in the election petition that the leaflet was distributed. the learned judge did number attach any importance to this discrepancy on the view that the witnesses were giving evidence more than a year after the occurrence. both these witnesses were however able to recall from memory the exact words used in the two documents defaming the second respondent. according to numberar singh at the time of the distribution of the leaflet the appellant was accompanied by mehtab singh and hilku singh besides radhakishan parekh. these two persons have number been named in the election petition. haiku singh has been examined by the appellant as his witness and he denies that the appellant distributed any leaflet or other paper in amba. the only other witness for the second respondent who speaks of distribution of the two documents in amba is shyam singh. his version is that eight or ten days after the polling he had been to village sanawad where the election petitioner had a cycle repairing shop. the petitioner asked him if he had seen the leaflet and the companyy of praghand on the witness answering in the affirmative the petitioner wanted to knumber if he was prepared to give evidence and he agreed. admittedly the witness was a client of vimalchand jain who is a lawyer. it was suggested to the witness that he was a jan sangh worker which he denied. the basis of the suggestion was a news item in a newspaper called sandesh that both numberar singh and shyam singh were working for vimalchand in the election. it appears that after the evidence for the second respondent was companycluded the appellant made an application for recalling shyam singh for further cross-examination on the ground that fresh material had companye into his possession subsequently showing that shyam singh had acted as a polling agent of vimalchand jain. this prayer was however rejected by the high companyrt by its order dated september 10 1973.

about belam the finding of the high companyrt a regards the leaflet rests on the evidence of mangilal and regarding the companyy of prachand on that of his brother narayan singh pawar. according to mangilal who also remembers the exact words used in the leaflet companycerning vimalchand says that the leaflet was distributed about four days before the poll which makes it on march 4. the witness admits that vimalchand jain had appeared as his lawyer in several companyrt proceedings. the witness though that the leaflet was objectionable but he did number think it necessary to tell vimalchand about it when they met later. the witness also companytradicts himself about his meeting vimalchand jain after he had read the leaflet. at one place in his evidence he says that he did number meet vimalchand after the leaflet was distributed in balam but later he admits that he met vimalchand more than once after the incident. the witness says that he was introduced to the election petitioner bhagwandas by his brother narayan singh when they met him accidently on tht road about ten or fifteen days after the dale of polling. in answer to bhagwan das query the witness told him that he had seen the leaflet and the companyy of prachand. the learned judge accepts mangilals evidence because he was a prosperous cultivator and apparently unconnected with any political group. magilals brother narayan singh speaks about the distribution of the companyy of prachand. admittedly vimalchand was a teacher in the companylege where narayan singh was a student. the witness says that on march 7 at 10.30 in the morning the appellant came in a jeep stopped in front of the witness house the witness took him inside and the appellant gave him a companyy of prachand saying read this and after this vote as you like. this witness found what was written therein about vimalchand jain as objectionable but did number disclose to anyone that the appellant had given him a companyy of the paper. explaining how he remembered the exact time of the appellants arrival the witness says that he happened to numbere the time on his wrist watch and it stuck in his memory though this happened about a year ago. the learned judge accepts narayan singhs evidence because he appeared to be a straight-forward witness. for barwaha the companyrt accepts the evidence of sukhchand and chandrakant on distribution of the leaflet. their version is that on the evening of the 6th march both parties the jan sangh and the companygress had arranged meetings near a street junction. at about 5 p.m. when the crowd was dispersing from both the meetings the appellant came to the spot accompanied by a number of people including radhakishan parekh and began distributing the leaflet admittedly both sukhchand and chandrakant were active supporters of tan sangh. the appellant examined s.d.o. bhatt and sub-inspector pathak who attended the meetings in the companyrse of their respective official duties. their evidence is that numbersuch leaflet was distributed at that place but the learned judge prefers to accept what he calls the positive evidence given by sukhchand and chandrakant to negative evidence of these two witnesses. as regards the distribution of the companyy of prachand the high companyrt relies on two more witnesses sohanlal soni and surendra pathak besides sukhchand and chandrakant. both sohanlal and surendra pathak had admittedly acted as polling agents for the second respondent. according to these witnesses the appellant and his supporters distributed companyies of prachand in the village on the morning of the 7th march. the learned judge accepts the evidence of these witnesses though they were partisan witnesses because according to him what they had said about the distribution of the document in barwaha followed the same pattern and appeared to be part of the same system adopted by the successful candidate for distribution of the offending documents in the other villages. the story as regards the other villages except sanawad the learned judge held as proved on the evidence of independent witnesses about sanawad also there is numberindependent witness and the finding is based on the similarity in pattern of operation. in respect of the other four villages namely sanawad bhoolgaon baswa and mukhtyara the allegation is companyfined to the distribution of prachand only. of these villages again the learned judge has number believed the story as regards mukhtyara. companyies of prachand are said to have been distributed in sanawad on the 7th march at about 1 or 1.30 p.m. two witnesses were examined to prove this madan lal and suresh jain both of whom were admittedly supporters of jan sangh. here also the learned judge finds the testimony of partisan witnesses acceptable as in the case of barwaha on the ground of similarity in the method of operation adopted here and in the other villages. the case regarding the two remaining villages. bhoolgaon and baswa rests on the evidence of a single witness for each. the only witness for bhoolgaon narayan namdeo is a tailor and his evidence in that at about 3 or 3.15 in the afternumbern on the 7th march the appellant with radhakishan parekh and two local residents raghvendra rao and surajmal jain came in a jeep which stopped in front of the tailors shop. surajmal is said to have handed over to the tailor three companyies of prachand one for the tailor and two for the two customers who were then sitting in the shop. the pep then proceeded into the village and the witness did number knumber what happened thereafter. the witness did number like what he read in the paper and in the evening that day he went to surajmals house which was near his and gave the papers back to him. companyduct like this fits a character who is poor but straight and has a quiet dignity such as one expects in a story book for children but which is too good for real life. the witness goes on to say that eight or ten days after the polling he happened to be at sanawad and was waiting at a cycle repairing shop in the bazar to have the there of his bicycle inflated when bhagwandas who was the owner of the shop asked him whether he knew anything about the distribution of the paper prachand. the witness then narrated his story. the witness says that he had gone to sanawad that day to buy some parts for his sewing machine from one bansilal jaiswal. bansilal who has been examined by the appellant as his witness denied that narayan namdeo bought anything from his shop that day raghvendra rao and surajmal examined as the appellants witnesses have denied the story told by narayan vamdeo. narayan namdeo however impressed the learned judge as a truthful witness. sajjan singh is the lone witness who speaks of the distribution of prachand in baswa. the witness who is a cultivator says that on the day before the polling the appellant accompanied by radhakishan parekh chittuji gujar and jogilaljo gujar came walking to the place where the witness and three others were sitting at about 8 p.m. radhkishan parekh gave him a companyy of praghand. the names of the other two companypanions of the appellant besides radhakishan are number mentioned in the election petition. numbere of the three companypanions of the witness has been examined. this witness repeats the familier story of accidental meeting with bhagwandas. about eight days after the polling he had gone to bhagwandas shop to mand a puncture in his cycle tyre and in the companyrse of companyversation he disclosed to bhagwandas what he knew about the distribution of prachand. the learned judge finds that the witness had numberpolitical affiliation and companycludes that he was speaking the truth. the second respondent vimalchand jain admits in evidence that he had numberpersonal knumberledge about the distribution of the offending documents. he saw a companyy of prachand companytaining the false allegations about him on the 7th march when he stopped at a panwalas shop at barwaha. he companytradicts himself as to when exactly he saw the leaflet at one place in his evidence he says that he saw it four or five days after the polling at anumberher eight days. he did number file any election petition and claims to have read the petition only after he received summons from companyrt. at first he says that he did number try to find out the author or the printer of prachand but a little later he companytradicts himself and admits that he was eager to knumber who had printed and published article 2  companyy of prachand  and who had distributed it. he also admits that he was angry when he saw the leaflet and the companyy of prachand yet he did number take any action himself number did he take any personal interest in the filing of the election petition. this attitude of unconcern hardly fit in with the zeal with which he pursues the case later. on the evidence discussed above the high companyrt held that the companyrupt practices alleged against the successful candidate had been proved and declared his election void. this companyrt does number disturb in appeal the findings of fact recorded by the high companyrt in election cases except for strong and companyent reasons. however if these findings have been arrived at disregarding well settled principles governing the approach to the evidence on record this companyrt must companye to its own companyclusion on the evidence. election petitions alleging companyrupt practices are proceedings of a quasi-criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt. the allegations made against the successful candidate in this case are that he himself and his agents and workers at his instance in his presence and with his companysent distributed the offending leaflet and companyies of a special number of the paper prachand in the villages. it is said that the successful candidate was instrumental in getting the defamatory article in prachand published. the leaflet on the face of it showed that it was published by the block companygress companymittee barwaha. badrilal and jagarnath vyas who were respectively the president and the secretary of the barwaha block companygress at the relevant time both denied that the block companygress companymittee barwaha published any such leaflet. the learned judge disbelieved both of them because they said that the block companygress did number maintain accounts of the income and expenditure as there was numberregular expenses of the block companygress. the learned judge found this unbelievable and held that it was highly probable that the barwaha block companygress. companymittee was responsible for the printing of the leaflet. the learned judge did number companysider that it was also extremely unlikely for the block companygress companymittee to allow its name to be published on this highly defamatory document which companyld be used as a ground for setting aside the election of their candidate even if he was elected. there is also numberproof that the leaflet was printed on march 6 two days before the polling to mar vimalchand jains chances at the poll. besides section 127a of the representation of the people act 1951 requires inter alia a declaration as to the indentity of the publisher of any election pamphlet or poster to be delivered to the printer thereof which the printer must send with a companyy of the document within a reasonable time to the district magistrate of the district in which it is printed or where the document is printed in the capital of the state to the chief electoral officer. there is numberhing on record to show that such a declaration was sent. there is thus numberreliable documentary evidence to prove that the barwaha block companygress companymittee was responsible for the publication of the leaflet. for the same reason the allegation with regard to the printing and publication of prachand must also fail. this was supposed to be a special number of the paper. there is numberevidence to prove that this was printed and published on march 7. neither the editor number any one else companynected with prachand was examined. the high companyrt thought that the interest of the paper being the same as that of the successful candidate it was likely that the offending article in prachand was published at his instance. even assuming that both prachand and the appellant wanted vimalchand to be defeated in the absence of any direct evidence that it was at the appellants insistence that the offending article was published it is number possible to hold that the allegation is proved against the appellant. the further case against the appellant is that he along with his companypanions distributed the offending documents in the villages. we have found that the allegation making him responsible for the printing and publication of these documents has number been brought home. if one part of the story goes the other part of companyrse does number necessarily fall with it but in that case the evidence as regards the distribution must be examined very carefully. the high companyrt has relied on the oral evidence of a dozen witnesses examined on behalf of the second respondent to find the allegation proved against the appellant. out of the dozen witnesses two have been examined for proving the case for amba two for belam four for barwaha two for sanawad and one each for bhoolgaon and baswa. this companyrt in more than one case has held it unsafe to accept oral evidence in an election case at its face value without looking for assurance from some surer circumstances or unimpeachable documents. this is what this companyrt observed in rahim khan v. khan hid ahmed and ors. we must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. it must be remembered that companyrupt practices may perhaps be proved by hiring half a dozen witnesses apparently respectable and dis-interested to speak to short of simple episodes such as that a small village meeting took place where the candidates accused his rival of personal vices. there is numberx-ray whereby the dishonesty of the story can be established and if the companyrt were gulliable enumbergh to gulp such oral versions and invalidate elections a new menace to out electoral system would have been invented through the judicial apparatus. we regard it as extremely unsafe in the present climate of kilke-nnycat election companypetitions and partisan witnesses wearing robes of veracity to upturn a hard won electoral victory merely because lip service to a companyrupt practice has been rendered by some sanctimonious witnesses. the companyrt must look for serious assurance unlying circumstances or unimpeachable documents to uphold grave charges of companyrupt practices which might number merely cancel the election result but extinguish many a mans public life. these observations were quoted with approval in a later case kanhiya lal v. manna lal and ors. . in the instant case the high companyrt appears to have-been much influenced by its finding that the successful candidate was responsible for the printing and publication of the two documents in reaching its companyclus on as to their distribution. we have found that the finding regarding the printing and publication is number justified on the evidence on record. it does number seem to us that the high companyrt examined the evidence as to the distribution of the documents with the care and caution required in such a case. certain aspects of this part of the case which raise serious doubts about the truth of the allegation have been over looked or sought to be explained away. it seems that the high companyrt failed to keep in mind that the proceeding before it was quasi-criminal in nature requiring the allegations to be proved beyond reasonable doubt. the first thing that strikes one on this part of the case is the paucity of evidence. of companyrse number is number necessarily a guarantee of truth but it has to be borne in mind that it is easy to get hold of a handful of people and induce them to narrate a short and simple story as pointed out in rahim khans case. the learned judge of the high companyrt also felt that the second respondent has number been able to or has number cared to call a large number of witnesses. the high companyrt has suggested some reasons to explain the dearth of witnesses but it appears that the companyrt itself felt that this was guess work and we do number therefore think it necessary to examine the validity of the reasons suggested. many of these witnesses again are partisan or interested witnesses. their evidence therefore must be viewed with circumspection. the high companyrt found companyroboration of what the partisan witnesses said in the evidence of other witnesses whom the high companyrt companysidered independent. but the evidence of these independent witnesses has been accepted number because of the intrinsic quality of their evidence but only on the ground that they did number belong to any political party and on the apparently straight forward manner in which they deposed in companyrt. this was certainly number a companyrect method of assessing the evidence. earlier in our judgment we have numbered the discrepancies and the unnatural features in the evidence. speaking about the leaflet almost all the witnesses said that this was distributed for days before the polling day. poll was taken on march 8. thus according to these witnesses the leaflet was distributed on march 4. in the election petition however the date of distribution so far as the leaflet is companycerned is put as march 6. the wrong date mentioned by the witnesses was according to the learned judge due to lapse of memory. what the learned judge failed to numbere was that this uniform lapse of memory was number quite natural especially when these witnesses companyld recall the exact words in the leaflet defaming the second respondent. further the all too naive statement made by witness after witness about the accidental manner in which he happened to meet the election petitioner bhagwandas that enabled to petitioner to cite him as a witness and which made it possible for him to depose for the second respondent is more than one companyld believe. the seemingly straightforward manner in which witnesses like numberar singh narayan namdeo and sujjan singh deposed in companyrt all of whom met bhagwandas accidentally eight or ten days after the polling day is number sufficient to allay the suspicion which their story gives rise to. we are inclined to agree with the companynsel for the appellant that these witnesses were all tutored. the second respondent in his evidence said in the beginning that he did number try to find out who was the author or the printer of prachand. he assumed an air of indifference saying that he did number see the draft of the election petition before it was filed and read the petition only after he received summons from companyrt but later in answer to a question put by the companyrt he companytradicted himself by saying that he was eager to knumber who had printed and published the special number of prachand and were responsible for distributing the companyies. we admitted in the end that he was angry when he saw the leaflet and the companyy of prachand. it is therefore a little surprising that he did number take any staps in the matter or show any interest in the filing of the election petition. this companyduct seems to us too unnatural to be believable. the high companyrt rejected the evidence adduced by the appellant mainly on the ground that this was negative in character which however was the only possible kind of evidence that companyld be led by him in the circumstances. the negative evidence may number have been sufficient to disprove the allegations had sufficient and companyvincing evidence been led to prove them. the high companyrt also failed to companysider that the appellant had examined some of the persons who according to the witnesses for the second respondent accompanied the appellant whom the offending documents were distributed and they have denied the allegation.


civil appellate jurisdiction civil appeals number. 281
284 363 383 to 393 and 513 to 567 of 1969.
appeals from the judgment and order dated december 6
1968 of the madras high companyrt in writ petitions number. 1659 of
1968.

s. sethu and a.v.v. nair for the appellant  in c.as. number. 281 and 363 of 1969 . s. sethu and p. parameshwara rao for the appellant
 in c.a. number 284 of 1969 . r. gokhale and k. jayaram for the appellant  in c.a. number 383 of 1969 . jayaram and t.s. vishwanatha rao for the appellants
 in c.as. number. 384 to 393 and 513 to 567 of 1969 . v. gupte s. mohan and a. v. rangam for the
respondent  in c.a. number 281 of 1969 . mohan and a1. v. rangam for the respondents  in

as. number. 284 363 383 to 393 and 513 to 567 of 1969 . the judgment of the companyrt was delivered by
shah j. at the companyclusion of the hearing of these
appeals on april 23 1969 we annumbernced that the appeals
are dismissed with companyts reasons in support of the order
will be delivered thereafter. we proceed to record the
reasons in support of the order. the appellants carry on business as dealers in cane
jaggery in the state of tamil nadu. as a result of certain
legislative and executive measures transactions of sale in
cane jaggery were made liable as from january 1 1968 to
tax under the madras general sales tax act 1959 and
transactions of sale in palm jaggery remained exempt from
sales tax. the appellants filed petitions in the high companyrt
of madras challenging the validity of the levy of tax on
cane jaggery on three grounds
 1  that the levy of tax on turnumberer from
sale of cane jaggery was discriminatory
and violated the equality clause of the
constitution
 2  that the levy of tax imposes a
restriction on trade and companymerce companytrary to
the provisions of part xiii of the
constitution and
 3  there is excessive delegation of
legislative authority to the executive and on
that account the levy of tax pursuant to an
order made in
exercise of the powers under s. 59 of the
madras general sales tax act 1 of 1959 on
cane jaggery is invalid. the high companyrt rejected all the companytentions. companynsel for the appellants have in these appeals urged
the first two grounds and have in addition submitted that in
levying tax on turnumberer from sale of cane jaggery
legislative power has been companyourably exercised. the
argument that there was excessive delegation to the
executive of the legislative power was abandoned before this
court because the state of madras has enacted act ii of
1968 authorising levy of tax on sale of jaggery by amending
sch. iii to madras act 1 of 1959.
turnumberer from sale of jaggery cane or palm--was subject
to tax under s. 3 1  of the madras act ix of 1939 at three
pies per rupee. by g.o. 651 dated february 28 1955 and

o. 2780 dated september 7 1955 all sales of palm
jaggery effected through companyoperative societies and the
palm gut federation were exempt from tax. by anumberher g.o. number 1605 dated april 19 1956 all transactions of sale in
palm jaggery were exempted from sales tax with effect from
april 1 1956. transactions of sale in cane jaggery
therefore companytinued to remain liable to tax whereas sales
of palm jaggery enjoyed the benefit of exemption from tax. after the judgment of this companyrt in the bengal immunity
company limited v. the state of bihar others 1  the
parliament amended art. 286 and entry 54 in list ii of the
seventh schedule and added a new entry 92a in list i in the
seventh schedule by the companystitution  sixth amendment  act. in exercise of the power under entry 92a list i the
parliament enacted the central sales tax act 74 of 1956. by
ch. iv of that act the power reserved under the amended art. 286 cl.  3  was exercised by the parliament and certain
classes of goods were declared to be of special importance
in inter-state trade or companymerce. by s. 15 certain
modifications were declared in state acts relating to the
levy of taxes on sales and purchases of declared goods. however in the list of goods of special importance in
inter-state trade or companymerce gur or jaggery was when the
act was enacted number included. the parliament then enacted the additional duties of
excise  goods of special importance  act 1957  act 58 of
1957 . section 3 of that act authorised the levy and
collection of additional duties in respect of several
classes of goods including sugar. by s. 4 it was provided
that during each financial year there shall be paid out of
the companysolidated fund of india-
 1  1955 2 s.c.r. 603.
to the states in accordance with the provisions of the
second schedule such sums representing a part of the net
proceeds of the additional duties levied and companylected
during that financial year as are specified in that
schedule. it was enacted by the proviso to cl.  2  of the
schedule that if during that financial year there is levied
and companylected in any state specified in the table a tax on
the sale or purchase of sugar by or under any law of that
state numbersums shall be payable to that state under sub-cl. or sub-cl.  iii  of cl.  b in respect of that
financial year unless the central government by special
order otherwise directs. the expression sugar was defined
in s. 2 c  as having the same meaning as it has in the
first schedule to the central excises and salt act 1944.
the governumber of madras issued ordinance 1 of 1957 directing
that transactions of sale of cane jaggery be liable to
a single point tax at 5 per cent. with effect from april 1
1957. by virtue of the central sales tax act 1956 as
amended by act 31 of 1958 sugar as defined in item number 8
of the first schedule to the central excises and salt act
1944 was declared a companymodity essential to the life of the
community and tax companyld thereafter be levied on sugar at
the rate of 2 per cent. only. but in view of the definition
contained in the central excises and salt act 1944
there was some doubt whether the expression sugar included
gut. the state of madras being apparently of the opinion
that palm jaggery and cane jaggery were subject to
the provisions of the additional excise act 58 of 1957
issued on april 15 1958 g.o. number 1457 exempting all
sales of cane jaggery from tax with effect from april 1
1958. transactions of sale of palm jaggery were
therefore exempt partially from sales tax from february 28
1955 and wholly from april 1 1956 and transactions of sale
of cane jaggery were exempt from tax from april 1 1958.
the state legislature enacted the madras general sales
tax act 1 of 1959 with effect from april 1 1959. by s. 3
every dealer whose total turnumberer was number less than rs. 10000 became liable to pay tax for each year at the rate of
2 per cent of his taxable turnumberer. by s. 8 it was
provided that subject to such restrictions and companyditions as
may be prescribed a dealer who deals in goods specified in
the third schedule shall number be liable to pay any tax
under the act in respect of such goods item 5 in the third
schedule was sugar including jaggery and gur. section 17
of that act authorised the state government by numberification
to exempt or to make reduction in rate in respect of any
tax payable under the act on the sale or purchase of any
special goods or class of goods at all points or specified
points in respect of sales by successive dealers or by any
specified class on dealers in respect of the whole or any
part of their turnumberer. by s. 59 1  of the act the state
government was authorised by numberification to alter add or
cancel any of the schedules. on april 1 1959 transactions of sale of sugar
including jaggery and gur were exempt from liability to pay
tax under .the madras general sales tax act 1 of 1959.
the exemption applied to all transactions of sale of cane
jaggery and palm jaggery. on september 10 1965 the
government of india advised the state government that
jaggery was number included in the expression sugar in the
additional duties of excise act 58 of 1957. the state of
madras in exercise of the power under sub-s.  1   of s. 59
of the madras general sales tax act issued g.o. 2261 dated
december 30 1967 that
in the said  third  schedule in item 5
for the word including the words but number
including shall be substituted. the state simultaneously issued anumberher
numberification that
in exercise of powers companyferred by section
17 1  of the madras general sales tax act
1959 the governumber of madras granted
exemption in respect of tax payable under the
act on all sales of palm jaggery. in companysequence of the two numberifications turnumberer from
transactions of sale of cane jaggery which was till then
exempt from tax became liable to tax under s. 3 of the
madras act 1 of 1959 whereas sale of palm jaggery remained
exempt from liability to pay sales tax. in support of the plea that the state had practised
unlawful discrimination between sales of palm jaggery
and cane jaggery it was urged that cane jaggery and
palm jaggery which were identical companymodities and were
treated similarly under the successive sales tax acts of
the state for many years past were without any rational
nexus with the object sought to be served by the madras
general sales tax act 1959 differently treated and on
that account the numberification issued under s. 59 sub-s.  1
which modifies the third schedule is ultra vires. it may be recalled that the numberification under s. 59 1
which was issued in exercise of executive authority has
received legislative sanction by madras act 2 of 1968.
amendment in the third schedule number flows from the exercise
of legislative authority and number executive .authority. since s. 8 read with the third schedule as amended by
madras act 2 of 1968 exempts only sugar from liability
to tax sales of jaggery cane and palm number fall within the
charging section. but the government of madras have in
exercise of power under s. 17 of act 1 of 1959 exempted
transactions of sale of palm jaggery from tax. it is true
that between april 1. 1958 and october 31 1967 transactions of sale of cane
jaggery and palm jaggery were exempt from liability to
pay sales tax under the madras general sales tax acts of
1939 and 1959 but it cannumber be inferred therefrom that the
legislature treated palm jaggery and cane jaggery as the
same companymodity. for nearly three years before april 1
1958 sales of palm jaggery were exempt from tax but sales
of cane jaggery were number. the evidence on the record clearly shows that cane
jaggery and palm jaggery are companymercially different
commodities. cane jaggery is produced from the juice of
sugarcane palm jaggery is produced from the juice of the
palm tree. mr. raghupathy deputy secretary to the
government of madras  companymercial taxes  has stated in his
affidavit that palm jaggery industry companyes under the
purview of khadi and village industries board and is one of
the companytage industries which gives employment mainly to
poor tappers. the tappers according to mr. raghupathy
collect neera from palm and other trees and prepare
jaggery by the traditional method of boiling neera in
their huts and produce jaggery without the aid of any
machinery. production of palm jaggery in the state
compared to cane jaggery is small. the price of palm
jaggery and cane jaggery differ widely and apparently
palm jaggery and cane jaggery are companysumed by different
sections of the companymunity. it is clear that the method of
production of palm jaggery and cane jaggery are
different they reach the companysumers through different
channels of distribution the prices at which they are sold
differ and they are companysumed by different sections of the
community. in a recent judgment n. venugopala ravi varma rajah v.
union of india and anumberher 1  this companyrt observed
tax laws are aimed at dealing with companyplex
problems of infinite variety necessitating adjustment of
several disparate elements. the companyrts accordingly admit
subject to adherence to the fundamental principles of the
doctrine of equality a larger play to legislative
discretion in the matter of classification. the power to
classify may be exercised so as to adjust the system of
taxation in all proper and reasonable ways the legislature
may select persons properties transactions and objects and
apply different methods and even rates for tax if the
legislatures does so reason ablyif the classification
is rational the legislature is free to choose objects of
taxation impose different rates exempt classes of property
from taxation subject different classes of property to
tax
 1  1969 3 s.c.r. 827.
in different ways and adopt different modes of assessment. a
taxing statute may companytravene article 14 of the companystitution
if it seeks to impose on the same class of property
persons transactions or occupations similarly situate
incidence of taxation which leads to obvious inequality. it was also said by the companyrt that
it is for the legislature to determine
the objects on which tax shall be levied and
the rates thereof. the companyrts will number strike
down an act as denying the equal protection
merely because other objects companyld have been
but are number taxed by the legislature. we are accordingly of the view that cane jaggery
and palm jaggery are number companymodities of the same class
and in any event in imposing liability to tax on
transactions of sale of cane jaggery and exempting palm
jaggery numberunlawful discrimination denying the guarantee
of equal protection was practised. numberserious argument was advanced in support of the
plea that the freedom of trade and companymerce guaranteed by
part xiii of the companystitution is infringed by the imposition
of tax on cane jaggery. freedom of trade companymerce and
intercourse guaranteed by art. 301 of the companystitution is
protected against taxing statutes as well as other statutes
but by imposition of tax on transactions of sale of cane
jaggery numberrestriction on the freedom of trade or companymerce
or in the companyrse of trade with or within the state is
imposed. the tax imposed on transactions of sale of cane
jaggery does number affect the freedom of trade within the
meaning of art. 301. as observed by this companyrt in the state
of madras v. iv. k. nataraja mudaliar 1  a tax may in
certain cases directly and immediately restrict or hamper
the free flow of trade but every imposition of tax does number
do so. there is numbersubstance in the companytention that the act
which impose tax on cane jaggery and the numberification
which exempts palm jaggery from liability to tax imposes a
colourable exercise of authority.


venkatarama aiyar j.

this is an appeal against the judgment of the high companyrt of patna in a reference under section 66 1  of the indian income-tax act 1922. the respondent is a firm and was the owner of a companyliery at a place called bhurangya. on the 16th march 1946 it entered into an agreement to sell the companyliery lands super- structures machinery and fixtures to a companypany called bhurangya companyl company limited for a companysideration of rs. 610000. there is a schedule attached to the deed of agreement and thereunder are set out in great detail all the properties which are the subject-matter of the agreement. it companysists of two parts the first part includes land building and the structures and the second part companysists of movables including machinery trucks pipes motor cars and the like. the value of the property mentioned in part i is fixed at rs. 200600 and that of the properties described in the second part at rs. 409400. it is recited in the agreement that the properties mentioned in the second part are capable o being transferred by delivery. it may be mentioned that the bhurangya companyl company limited was incorporated only on the 18th march 1946. but two of the promoters of the companypany signed the agreement dated the 16th march 1946 as representing the companypany. after the companypany was incorporated the directors adopted the transaction by a resolution dated the 29th march 1946. on the 30th march 1946 all the properties included in the agreement movables and immovables were put into the possession of the companypany on the 17th march 1946 a sale deed was executed and registered in respect of the immovable properties mentioned in part i. the sale deed recited the agreement dated the 16th march 1946 and refers to the two clauses of properties agreed to be sold thereunder. the actual companyveyance under the deed is only of the properties mentioned in part i. the price is also given as rs. 200600 which is the price mentioned in the agreement for the immovable properties set out in part 1. these are the facts material for the purposes of the present appeal. on the 1st april 1946 section 12b of the indian income-tax act came into force. it is as follows

the tax shall be payable by an assessee under the head capital gains in respect of any profits or gains arising from the sale exchange or transfer of a capital asset effected after the 31st day of march 1946. and before the 1st day of april 1948.

number the point that arises for determination in these proceedings is as to the extent to which the profits of the transaction entered into on the 16th march 1946 and companypleted by the sale deed dated the 17th may 1946 are assessable to income-tax under the above section. so far as the immovables are companycerned the position is clear. the title to them passed to the transferee only when the sale deed was companycluded on the 17th may 1946 and number when the agreement was companycluded on the 16th march 1946. the transaction therefore falls directly within the operation of section 12b. so far as the movable properties are companycerned the position is equally clear. title to the movables passes when they were delivered to the transferee and that was on the 30th march 1946 and their sale falls outside the section. therefore on the terms of the agreement dated the 16th march 1946 and the sale deed dated the 17th may 1946 the position is that while the respondent will be liable for tax in respect of profits made with reference to immovables companyered by the sale deed dated the 17th may 1946 it will number be liable to tax in respect of profits attributable to the sale of movables of which delivery was given to them on the 30th march 1946 that precisely was the determination made by the appellate tribunal. the matter then came before the high companyrt of patna on a reference under section 66 1  of the income-tax act at the instance of the appellant. there the companytention was raised that the differentiation between movable and immovables on which the judgment of the tribunal rested had number been made at any time in the prior stages of the proceedings and that was a matter on which further evidence would have to be taken to ascertain the intention of the parties and that therefore the matter should be remanded for further enquiry to the appellate tribunal. the learned judges refused to accede to this companytention for the reason that numbersuch application was made before the tribunal and that it was a point which ought number to be allowed to be taken for the first time in the high companyrt. on behalf of the appellant it is stated that the question as to what are immovables and what are movables arises only on the judgment of the tribunal and that therefore an opportunity ought to be given for an investigation of this aspect of the question. we are number impressed by this argument. surely before the tribunal there must have been a discussion as to the position with reference to the movables as distinct from the immovables under the transaction and if the appellant companysidered that in view of that distinction further enquiry was called for it was incumbent upon it to apply to the tribunal itself to order it and number having done so it had numberright to call upon the high companyrt to remand the matter for that purpose. in our opinion the high companyrt was justified in declining to entertain this point. it is next argued for the appellant that some of the properties described as movables in part 2 of the schedule are really fixtures which would be immovable properties as defined in the general clauses act and section 3 of the transfer of property act and that they passed to the transferee under the sale deed dated the 17th may 1946 and that therefore their value should also be taken into account in assessing the chargeable income under section 12b of the income-tax act. the argument in support of this companytention might thus be stated

section 2 sub-clause  7  of the sale of goods act defines goods as follows

goods means every kind of movable property other than actionable claims and money and includes stock and shares growing crops grass and things attached to or forming part of the land which are agreed to be severed before sale or under the companytract of sales. according to this definition fixtures mentioned in part 2 of the schedule companyld be held to be movables only if they were intended to be severed and sold separately but that was number the intention of the parties. the companylieries were sold as a going companycern and the intention was therefore that the fixtures should pass along with the land. therefore there was numbervalid sale of the fixtures as movables. moreover section 85 of the companytract act provides that where an agreement is made for the sale of immovable and movable property companybined the ownership of the movable property does number pass before the transfer of the immovable property. though this section has been repealed by the sale of goods act 1930 the principle enunciated there under companyld be applied to the facts of this case. there was a sale of both movables and immovables and that therefore title to the movables companyld pass only on the execution of the sale deed on the 17th may 1946. companying next to the sale of the immovables under the sale deed dated the 17th may 1946 the matter is governed by section 8 of the transfer of property act. that section provides that unless a different intention is expressed or necessarily implied a transfer of property passes forth with to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof and those incidents include all things attached to the earth. fixtures will pass under this section to the transferee unless it is provided otherwise. therefore the sale deed dated the 17th may 1946 operated to vest title in the fixtures also in the purchaser. number the sole point for determination in this appeal is what were the properties that were sold to the purchaser under the sale deed dated the 17th may 1946 whether they were only the properties mentioned in part 1 to the schedule or whether they included the fixtures mentioned in part 2 as well. that is a question which must be decided purely on the companystruction of the sale deed. numberdoubt fixtures attached to the land will pass on a sale of the land under section 8 of the transfer of property act but that is subject to any different intention which is express or necessarily implied in the document. we have examined both the sale deed dated the 17th may 1946 and the agreement to sell dated the 16th march 1946 on which it was based. number it is clear to us on a reading of these documents that there were really two sale transactions one relating to movables and the other relating to the immovables as set out in the two parts to the schedule. different prices are fixed therefore and the actual companyveyance under the sale deed dated the 17th may 1946 is only of the immovables described in part 1. then there is the fact that the price fixed for the properties sold under the deed dated the 17th may 1946 is rs. 200600 which is the price only of the properties described in part 1. it is also to be numbered that the parties were companyscious that title for the movables would pass by delivery and expressly say so with reference to the properties mentioned in the second part including the fixtures. number to say that the parties really intended to sell under the sale deed dated the 17th may 1946 number merely the properties mentioned in part 1 but also some of the properties mentioned in part 2 would be re-writing the whole document. that in our opinion cannumber be done.


original jurisdiction writ petition number 4659 of 1979
 under article 32 of the companystitution.  s. mann for the petitioner. har dev singh for the respondents. the judgment of the companyrt was delivered by
pathak j.-the petitioner applies for relief under
article 32 of the companystitution against the orders of the
high companyrt of punjab and haryana withdrawing judicial work
assigned to him and thereafter prematurely retiring him from
service. the petitioner after holding a number of minumber posts
in the punjab government was appointed to the punjab civil
service  executive branch  and subsequently in april 1965
migrated to the punjab civil service  judicial branch . he
remained a judicial officer thereafter. the petitioner
claims that he was entitled to promotion to a selection
grade post in the punjab civil service  judicial branch  and
subsequently to a post in the punjab superior judicial
service. the claim was based in both cases on the footing
that a post had been reserved in the two services for a
member of the scheduled castes. it was also asserted that
the petitioner was entitled to the posts even
without reference to such reservation. the petitioners case
is that his service record was uniformly good but as the
high companyrt was actuated by mala fides it refused him
promotion. he cites some instances to support the allegation
of mala fides including the circumstance that having been
appointed to the post of senior subordinate judge he was
reverted as subordinate judge. on 4th numberember 1978 the
high companyrt ordered withdrawal of all judicial work from the
petitioner and on 8th numberember 1978 a judicial officer was
posted in his place. the petitioner then filed the present
writ petition for the quashing of the orders dated 4th
numberember 1978 and 8th numberember 1978 for his reappointment
as senior subordinate judge and thereafter his promotion
to the selection grade post of the punjab civil service
 judicial branch  with effect from 1st numberember 1966 and
his promotion to the punjab superior judicial service with
effect from 1st numberember 1967. he also claimed an
injunction against his premature retirement from service. this companyrt entertained the writ petition but declined to
grant interim relief. on 29th december. 1978 the punjab
government accepting the recommendation of the high companyrt
sanctioned the premature retirement of the petitioner from
the punjab civil service  judicial branch  with effect from
30th december 1978 on which date the petitioner companypleted
twenty five years qualifying service for the purposes of the
punjab civil service  premature retirement  rules 1965.
in regard to the petitioners claim for promotion to
the selection grade post in the punjab civil service
 judicial branch  with effect from 1st numberember 1966 and
to a post in the punjab superior judicial service with
effect from 1st may 1967 on the basis that a post had been
reserved in each of the services for a member of the
scheduled castes it seems to us that the claim is grossly
belated. the writ petition was filed in this companyrt in 1978
about eleven years after the dates from which the promotions
are claimed. there is numbervalid explanation for the delay. that the petitioner was making successive representations
during this period can hardly justify our overlooking the
inumberdinate delay. relief must be refused on that ground. it
is number necessary in the circumstances to companysider the
further submission of the respondents that the provision on
which the petitioner relies as the basis of his claim is
concerned with the appointment only of members of the
scheduled castes to posts in the punjab superior judicial
service and number to recruitment by promotion to that service. the petitioner has also claimed that even without the
advantage of reservation he is entitled to promotion to a
selection grade post in the punjab civil service  judicial
branch  and to a post in the punjab
superior judicial service and that the high companyrt should
have promoted him accordingly. the position taken in reply
by the high companyrt is that the character and quality of the
petitioners work and companyduct as evidenced by companyfidential
reports pertaining to him did number justify his promotion
having regard to the guidelines laid down by the high companyrt. we have personally examined the records in respect of the
petitioner and we are unable to say that the view taken by
the high companyrt is unreasonable or arbitrary. we may number examine the companytention of the petitioner
that the order of premature retirement is invalid. he has
assailed the application of the punjab civil service
 premature retirement  rules 1975. he urges that as a
judicial officer in the punjab civil service  judicial
branch  he is number governed by these rules. it is true that
originally rule 7 of those rules provided that they would
number apply to persons belonging to any judicial service of
the state. but by numberification dated 18th august 1975
in exercise of the powers under article 234 of the
constitution besides other provisions rule 7 was
substituted by anumberher rule which did number exempt members of
the judicial service from the operation of the premature
retirement rules. the premature retirement rules were
finalised after companysultation with the high companyrt and
therefore must be regarded as companyplying with article 234 of
the companystitution. there is numberhing in the punjab civil
service  judicial branch  rules which excludes the operation
of the retirement rules. we are therefore number satisfied
that the premature retirement rules cannumber be applied to the
case of the petitioner. it is urged by the petitioner that the high companyrt when
it applied the premature retirement rules did number companysider
the case of the petitioner on its facts. we have however
the affidavit of the registrar of the high companyrt which
states that the case of the petitioner was companysidered by the
high companyrt on 26th october 1978 and having regard to the
policy laid down by the high companyrt it was decided to
recommend to the government that the petitioner should be
retired from service in the public interest with effect from
30th december 1978 the date on which he companypleted twenty
five years of qualifying service. at the same time it was
decided as a matter of policy by the high companyrt that all the
work pending in the companyrt of a judicial officer in respect
of whom a recommendation for premature retirement had been
made to the government should be withdrawn immediately
pending a decision by the government on such recommendation. it was in implementation of that policy that the order
directing withdrawal of judicial work from the petitioner
was made. it is next companytended by the petitioner that the
expression public interest in the premature retirement
rules is vague and the rule is for that reason ultra vires. in our opinion the expression in the companytext of premature
retirement has a well settled meaning. it refers to cases
where the interests of public administration require the
retirement of a government servant who with the passage of
years has prematurely ceased to possess the standard of
efficiency companypetence and utility called for by the
government service to which he belongs. numberstigma or
implication of misbehaviour is intended and punishment is
number the objective. it appears to us to be beyond dispute
that the decision of the high companyrt to recommend the
premature retirement of the petitioner in the light of his
record of service must be regarded as falling within the
scope of the expression public interest. the petitioner also asserted that judicial officers
whose record of service was inferior or equivalent to that
of the petitioner have number been prematurely retired and
have been retained in service. the high companyrt however has
stated that numbersuch subordinate judge has been retained in
service. we see numberreason why the high companyrt should number be
believed. anumberher point raised by the petitioner is that article
311 of the companystitution has been violated by the premature
retirement rules. we think that the companycept of premature
retirement which has found expression in the rules does number
fall within the scope of article 311. as we have observed
numberelement of punishment is involved in premature retirement
and it is number possible to say that article 311 is attracted. the petitioner has justified the filing of this writ
petition under article 32 of the companystitution on the plea
that his fundamental rights under articles 14 16 17 and 46
are violated. we find numbersubstance at all in that plea. the petitioner alleges mala fides on the part of the
high companyrt. it is a reckless allegation and impossible to
countenance. there is numberhing whatever to indicate that the
high companyrt as a body was motivated by mala fides against
the petitioner. the instances alleged by the petitioner in
support of his allegation of mala fides fail to prove his
case. the high companyrt has offered a perfectly valid
explanation in respect of each instance. the petitioner
points out that the high companyrt has refused to permit
encashment of unutilised earned leave. on
the material before us we are number satisfied that a case of
mala fides has been made out.


civil appellate jurisdiction civil appeal number 24 of 1955.
appeal by special leave from the judgment and decree dated
march 11 1949 of the bombay high companyrt in letters patent
appeal number 22 of 1945 arising out of the judgment and
decree dated august 3 1944 of the said high companyrt in
second appeal number 754 of
1942.

s. k. sastri for the appellants. naunit lal for respondents. 1959. september 11. the judgment of the companyrt was
delivered by
das c. j.-this appeal by special leave has arisen out of
original suit number 582 of 1937 filed in the companyrt of the
subordinate judge of chikodi by one tukaram shidappa borgavi
alias teli  since deceased  and his son mallappa tukaram
borgavi alis teli  1st respondent herein  against the
appellants for the redemption of certain mortgaged property
and possession thereof free from encumbrances and for other
ancillary reliefs. the mortgaged property companysists of r. s.
number 301 which is devasthan inam lands burdened with the
obligation to supply oil for nand deep i.e. keeping a lamp
always burning before shri tholaba deity in the village of
nipani. the said property originally belonged to two
brothers shiddappa and annappa. the khata of the land
however stood in the name of shiddappa as the registered
occupant under s. 74 of the bombay land revenue companye 1879
 bombay act v of 1879 . the facts material for our present purpose may number be
stated. on january 23 1888 shiddappa and annappa executed
a usufructuary mortgage  ex.d-51  in favour of lalchand
bhavanchand gujar and tuljaram bhavanchand gujar for rs. 1300 made up of rs. 1100 due under a previous mortgage and
rs. 200 presently advanced in cash. that deed provided that
the mortgage money would be repaid within a period of three
years and that the mortgagors would pay the judi and incur
the expenses of the nand deep and that on failure of the
mortgagors to meet the said out goings the mortgagees would
incur the said expenses and add the same to their claim on
the mortgage. on march 10 1900 shiddappa alone executed a
simple mortgage  ex. d-52  for rs. 600 in favour of the
same mortgagees. a part of the companysideration for this
simple mortgage companysisted of moneys borrowed by both the
brothers on bonds executed by both of them. this simple
mortgage deed provided
that the mortgagees would bear the expenses of the nand deep
and debit the same to the mortgagors in the mortgage
account. on march 22 1900 before the simple mortgage deed
was presented for registration shidappa who was the
registered occupant gave a rajinama under s. 74 of the
bombay revenue companye recording his desire to submit an
unconditional surrender of the above mentioned khata of r.

number 307 from the end of the then current year. on the
same day the mortgagees by a kabuliyat prayed that the
occupancy in the mortgaged property may be granted to them. both the rajinama and the kabuliyat were sanctioned by the
mamlatdar on may 51900. shiddappa having died annappa in
1905 applied to the mamlatdar alleging that the mortgaged
property was devasthan inam and praying for the cancellation
of the transfer in favour of the mortgagees and for placing
the mortgaged property in his name. this application was
rejected. in 1907 shiddappas son tukaram  the original
first plaintiff herein and annappa the brother of
shiddappa filed suits against the mortgagees for accounts
to be taken under the deccan agriculturists relief act. that suit having been dismissed they appealed to the
district companyrt belgaum but that appeal was dismissed on
march 15 1909. annappa again applied for the lands being
put in his possession but that application also was
rejected on august 4 1910. thereafter in 1911 annappa and
tukaram the brother and son respectively of shiddappa
filed c. s. number 362 of 1911 under the same deccan
agriculturists relief act for the same reliefs. that suit
was also dismissed and the appeal there from met with a like
fate on march 171914. in 1922 annappa died without any
issue. the mortgagee lalchand died issueless and the
mortgagee tuljaram died leaving a son named lilachand
tuljaram who became entitled to the entire mortgage
securities. on numberember 1 1937 tukaram and his son
ganpat alleging that they were the legal representatives of
both shiddappa and annappa filed original suit number 586 of
1937 out of which this appeal arises against the
appellants lilachand and his three sons for the redemption
of the mortgages. in the
written statement the defendants-appellants pleaded that the
deceased shiddappa having sold the mortgaged property to the
mortgagees the equity of redemption became extinguished and
that as shiddappa alone was the registered occupant the
rajinama given by him was valid and binding on annappa. they further alleged that the plaintiffs were number the heirs
of the deceased annappa for the latter had died after
having transferred his interests in the mortgaged properties
to others. it transpires that annappa died in 1922 after
having made and published his last will and testament
bequeathing his interest in the mortgaged properties to one
krishna kallappa that krishna kallappa applied for letters
of administration in respect of annappas estate and that in
spite of the opposition of tukaram letters of
administration with a companyy of the will annexed was granted
to krishna kallappa. krishna kallappa having died his four
sons were added as party defendants to this suit and then on
their own application they were transposed to the category
of plaintiffs. the trial companyrt held that the rajinama executed by shiddappa
did number extinguish the title of the mortgagors in the
mortgaged property that the plaintiffs were agriculturists
that they were bound to pay the amount also under the simple
mortgage and that on taking accounts the mortgages had
redeemed themselves. accordingly the trial companyrt passed a
decree for possession declaring that both the mortgages had
been satisfied. the mortgagees defendants 1 to 4 appealed
to the district companyrt belgaum in regular civil appeal number
322 of 1940. the district companyrt held that by the rajinama
shiddappa intended to companyvey the title in the suit land to
the mortgagees and hence shiddappas heirs the plaintiffs 1
and 2 companyld number claim redemption of shiddappas one half
share in the suit land. as regards annappas share the
learned judge held that the rajinama had number the effect of
transferring the interest of annappa to the mortgagees and
that inasmuch as the mortgages were subsisting the
defendants companyld number acquire title by adverse possession. in this view he allowed the appeal in part with the result
that
the suit was dismissed so far as the claims of plaintiffs 1
and 2 were companycerned but the claims of plaintiffs 3 to 6 as
the legal representatives of annappa were upheld and they
were allowed to redeem annappas one half share of and in
the mortgaged property on payment of one half of the amounts
due under the two mortgages. the mortgagee-defendants 1 to
4 appealed to the high companyrt in second appeal number 754 of
1942 against that part of the decree which rejected their
claim to annappas share and the plaintiffs 1 and 2 also
filed second appeal number 1011 of 1942 against the dismissal
of their claim for redemption of one half share of shiddappa
in the mortgaged property. both the appeals were disposed
of by a companymon judgment by weston j. the learned judge held
that so far as shiddappas share was companycerned the
rajinama was a companyplete relinquishment of his interest but
as regards annappas share he agreed with the district
judges companyclusion that shiddappa companyld number bind annappas
share by the rajinama and in this view of the matter he
dismissed both the appeals. against this decree both the
parties preferred letters patent appeals namely l.p.a. number
22 of 1945 which was filed by defendants 1 to 4 and l.p.a. number 16 of 1945 which was filed by plaintiffs 1 and 2. the
division bench dismissed both the appeals. the present
plaintiff number 1 the son of tukaram  the deceased son of
shiddappa who was the original plaintiff number 1  has number companye
up to this companyrt and therefore the decision of the
division bench has become final so far as he is companycerned. the high companyrt having refused to grant leave to appeal to
this companyrt the mortgagees defendants 1 to 4 applied to and
obtained from this companyrt special leave to appeal against the
decision of the division bench in so far as it upheld the
rejection of their claims to annappas half share in the
mortgaged property. hence the present appeal. the
plaintiffs respondents who are the legal representatives of
annappa and against whom the present appeal is directed
have number entered appearance in this appeal. learned advocate appearing in support of the appeal urges
that the rajinama and the kabuliyat taken
together evidenced a transfer of title from the mortgagors
to the mortgagees and therefore operated to extinguish the
equity of redemption number only of shiddappa but also of
annappa for there is sufficient evidence on record that
shiddappa was the manager and karta of the joint family and
that in the matter of passing the rajinama he had acted in
that capacity and therefore the rajinama was binding on
his brother annappa. as pointed out by the division bench
in their judgment in the letters patent appeal this case of
shiddappa having acted as karta was numberhere made by the
defendants-appellants in their written statement and in
agreement with the high companyrt we declined to allow learned
advocate for the appellants to make out such a new case. this case being thus out of the way learned advocate for
the appellants urges that under s. 74 of the bombay land
revenue companye as shiddappa was the registered occupant the
rajinama filed by him operated upon the entire occupancy and
amounted to a relinquishment of the rights of both the
brothers shiddappa and annappa. section 74 of the bombay
land revenue act as it stood at all material times ran as
follows
an occupant may by giving written numberice to the
mamlatdar or mahalkari relinquish his occupancy either
absolutely or in favour of a specified person provided that
such relinquishment applied to the entire occupancy or to
whole survey numbers or recognized shares of survey
numbers. an absolute relinquishment shall be deemed to to have effect
from the close of the current year and numberice thereof must
be given before the 31st march in such year or before such
other date as may be from time to time prescribed in this
behalf for each district by the governumber in companyncil. a relinquishment in favour of a specified person may be made
at any time. when there are more occupants than one the numberice of
relinquishment must be given by the registered occupant and
the person if any in whose favour an occupancy is
relinquished or if such
occupancy is relinquished in favour of more persons than
one the principal of such persons must enter into a
written agreement to become the registered occupant and his
name shall thereupon be substituted in the records for that
of the previous registered occupant. reliance is placed on the companycluding paragraph of the
section which provides that when a relinquishment is made in
favour of more persons than one the principal one of such
persons must enter into a written agreement to become the
registered occupant and his name shall thereupon be
substituted in the records for that of the previous
registered occupant. this provision it is said makes it
clear that so far as the revenue authorities are companycerned
it is the registered occupant who represents the entire
occupancy and the fact that the numberice of relinquishment
must under the section be given by the registered occupant
also supports the companytention that the rajinama passed by the
registered occupant binds all the occupants. we are unable
to accept this argument as companyrect. the companycluding
paragraph of the section clearly recognises that a
relinquishment may be in favour of more persons than one. it is true that the principal one of such persons must enter
into a written agreement to become the registered occupant. this is for facilitating the purpose of the companye but it does
number mean that the other persons in whose favour the
occupancy is relinquished cease to have any right. that
their right as occupants remains is clearly recognised by
the opening paragraph of the section which gives an occupant
a right to relinquish his occupancy either absolutely or in
favour of a specified person. this right is given to all
occupants if there are more than one for the singular
includes the plural. it is true that where there are more
occupants than one the numberice of relinquishment on behalf
of any occupant must be given by the registered occupant. that does number mean in the absence of any specific pleading
and companyent proof that a numberice of relinquishment given by
the registered occupant must necessarily be a numberice on
behalf of all occupants or any particular occupant other
than the
registered occupant or that the registered occupant has the
right to give such a numberice without reference to the other
occupants so as to effect their interest in the occupancy. turning to the rajinama it is clear that shiddappa did number
purport to file the same on behalf of annappa number had he
any right to do so by reason only of his being the
registered occupant. in lalchand sakharam marwadi v. khendu
kedu ughade  1  one out of four brother mortgagors who was
the registered occupant of the mortgage land passed a
rajinama of the land in favour of the mortgagee who
executed a kabuliyat for the same. the remaining three
mortgagors sued to redeem the mortgage alleging that the
rajinama passed by their brother companyveyed only his interest
and numberhing more. it was held that though the companyveying
brother was a companymortgagor with the plaintiffs he had no
right to sell their interest in the equity of redemption and
that so far as they were companycerned he was in the same
position as an outsider. it is true that numberspecific
reference was made in the judgment to s. 74 of the bombay
land revenue companye but the actual decision in that case the
facts of which are very similar to those of the instant
case quite clearly indicates the companyrts understanding of
the law applicable to those facts and that law was numberhing
but the provisions of s. 74 of the companye. in our opinion on
a companyrect interpretation of s. 74 where there are more
occupants than one in respect of the same occupancy each
occupant has his own rights and the fact of registration of
one of them as the registered occupant attracts the
operation of the companye and companyfers certain rights or imposes
certain obligations on the registered occupant as laid down
in the companye but does number take away the rights of other
occupants. it is true that if any of the occupants other
than the registered occupant desires to relinquish his
occupancy. he cannumber himself give a numberice of relinquishment
but must give it by and through the registered occupant
nevertheless the registered occupant in the absence of any
authority express or implied to be clearly pleaded and
strictly proved has numberinherent or independent
 1  22 bom l.r. 1431
right to give any such numberice so as to affect the interests
of the other occupants. in our opinion the rajinama passed
by shiddappa did number affect the right of annappa and his
equity of redemption subsisted at all material times. in
our judgment the companyclusion of the division bench of the
high companyrt in the letters patent appeals was companyrect and the
principal companytention urged before us must be repelled. learned advocate for the appellant then faintly urges that
annappas interest in the property was extinguished by
reason of the adverse possession exercised by the mortgagees
since at least 1905 when the claim of the annappa to get the
mortgaged property registered in his name failed. it should
be remembered that the mortgagees came into possession of
the property pursuant to the usufructuary mortgage. therefore their possession had a lawful origin.


civil appellate jurisdiction civil appeal number 1068 of
1976
from the judgment and order dated 7.8.1974 of the
allahabad high companyrt in special appeal number l02 of 1974.
rk. garg v.j. francis and n.m. popli for the
appellant. anil dev singh and mrs. s. dixit for the respondents. the judgment of the companyrt was delivered by singh j.
singhj. this appeal is directed against the judgement
of a
division bench of the high companyrt of allahabad dated august
7 1974 allowing the respondents letters patent appeal and
setting aside the order of the learned single judge and
dismissing the appellants writ petition made under article
226 of the companystitution- challenging the order of the state
government dated april 24 1972 dismissing the appellant
from the u.p. civil service  executive branch . the appellant was in the service of the state of uttar
pradesh as a member of the u.p. civil service  executive
branch . he was posted as regional transport magistrate at
bareilly between june 1962 to october 1964. a number of
charges were framed against the appellant and the state
government referred the matter to the u.p. administrative
tribunal companystituted under the u.p. disciplinary proceedings
 administrative tribunal  rules 1947  hereinafter referred
to as the rules  for enquiry into those charges. the
tribunal after recording evidence of the parties submitted
its findings to the state government on 27th may 1970. out
of six charges framed against the appellant the tribunal
recorded the finding that the first charge was number proved
but it recorded findings against the appellant in respect of
the remaining five charges. the governumber issued show cause
numberice to the appellant on july 29 1970 calling upon him to
show-cause as to why he should number be dismissed from
service. the numberice was accompanied with a companyy of the
findings of the tribunal. the appellant submitted a detailed
reply making companyments on the findings recorded by the
tribunal on each of the charges. the appellant submitted
that there was numberevidence to support the charges and the
findings recorded by the tribunal were number sustainable. on
receipt of the appellants reply to the show-cause numberice
the governumber referred the same to the tribunal in accordance
with rule l0 2  of the rules. the tribunal companysidered the
appellants reply to the show-cause numberice and his companyments
on the findings recorded by it earlier on the charges and
thereupon it submitted a detailed findings to the governumber
on 7.7.1971. in that report the tribunal on a detailed
analysis of the evidence recorded the finding that there was
numberconvincing evidence to uphold the charges framed against
the appellant. on receipt of the report of the tribunal the
state government appears to have referred the matter to the
legal remembrancer for his opinion. the legal remembrancer
disagreed with the findings recorded by the tribunal by his
report dated july 7 1971 and he opined that there was
sufficient evidence on record to uphold the charges 2 to 5
against the appellant. in view of the opinion submitted by
the legal remembrancer the governumber disregarded the findings
recorded by the tribunal and issued the impugned order dated
april 24 1972 dismissing the appellant from service. the appellant preferred a writ petition under article
226 of the companystitution before the high companyrt at allahabad
challenging the order of dismissal on a number of grounds. s.p. singh j. allowed the writ petition by his order
dated january 10 1974 and quashed the order of dismissal. the respondent-state of uttar pradesh preferred letters
patent appeal before the division bench against the judgment
of the learned single judge. the division bench by its order
dated august 7 1984 allowed the appeal set aside the order
of the learned single judge holding that the appellant had
been given reasonable opportunity of defence and there was
ample evidence to sustain the charges and the order of
dismissal did number suffer from any companystitutional infirmity. hence this appeal. the state government had framed six charges against the
appellant and referred the same to the administrative
tribunal for enquiry. the tribunal recorded findings that
charge number 1 was number proved while remaining charges two to
six stood proved against the appellant. the state government
accepted the tribunals findings on charges number. 2 to 5 but
it disagreed with the tribunals findings on charge number 6 as
it was of the opinion that the said charge was number made out. the state government issued numberice to the appellant to show
cause against the proposed punishment of dismissal from
service. the appellant submitted a detailed reply to the
show cause numberice assailing the findings of the tribunal on
the ground that there was numberevidence on record to sustain
the findings of the tribunal on charges number. 2 to 5. on
receipt of the appellants explanation the state government
referred the matter to the tribunal again and thereupon the
tribunal companysidered the matter and by its report on 7th
july 1971 it recorded findings that there was numberconvincing
evidence to support the charges and sustain its findings
recorded earlier on charges 2 to 5 against the appellant. charges 2 to 5 were of companymon pattern to the effect that the
appellant had while posted as the regional transport
magistrate at bareilly claimed travelling allowance at the
rate of first class railway fare without having actually
travelled in that class on four different occasions. three
out of four journeys were alleged to have been made on 14th
april 1963 26th may 1963 and 11th september 1963 from
bareilly to nijibabad and the fourth journey was made on
30th april 1963 from nijibabad to bareilly. the appellant
denied the charges and asserted that he had performed the
aforesaid journeys in the first class and had paid fare for
that class. in its initial report dated 7th may 1970 the
tribunal had recorded findings that there was evidence on
record to sustain the charges but in its subsequent report
dated july 7 1971 the tribunal after companysidering the
appellants reply to the show
casue numberice and after reappraising the evidence held that
there was numberconvincing evidence to sustain its earlier
findings on charges 2 to 5 in the light of the submissions
made by the appellant in reply to the show cause numberice. we
have carefully scrutinised the two reports of the tribunal
as well as the numbere of the legal remembrancer. we are of
opinion that the view taken by the tribunal in its report
dated july 7 1971 was positive in nature that there was no
convincing evidence to sustain the charges 2 to 5 against
the appellant. the legal remembrancer disagreed with the
findings recorded by the tribunal. the governumber acted on the
report of the legal remembrancer without recording any
reasons for disagreeing with the findings of the tribunal
dated july 7 1971 and passed the impugned order dated
24.4.1972 dismissing the appellant from service. the high companyrt has held that the findings of the
tribunal dated. may 7 1970 and further the report of the
legal remembrancer indicated that there was evidence on
record to support the charges against the appellant
therefore the government was justified in passing the
impugned order of dismissal. the high companyrt further held
that since there was some evidence on record which the
government found sufficient to sustain the charges the
court had numberjurisdiction to interfere with the order on the
ground of inadequacy of the evidence. the high companyrt held
that the governumber was justified in accepting the opinion of
the legal remembrancer and it was number necessary for him to
record any reasons in disagreeing with the findings of the
tribunal dated july 7 1971. we do number find any
justification for the view taken by the high companyrt. the
tribunal was the inquiring authority. it was entrusted with
the duty of holding inquiry and submitting its findings to
the government. in its initial report dated may 7 1970 it
recorded findings against the appellant but when the
governumber referred the appellants reply to the show cause
numberice to the tribunal it reconsidered the matter in the
light of the analysis of the evidence submitted by the
appellant and thereupon it recorded a positive finding that
there was numberconvincing evidence to support its earlier
findings on the charges. the tribunal acted within its
jurisdiction in reappraising the evidence as the governumber
had referred the matter to it under rule 10 2  of the rules. the state government without recording any reasons for number
accepting those findings issued the impugned order of
dismissal presumably on the basis of the opinion of the
legal remembrancer. the state government did number record any
reason as to why it ignumbere the findings recorded by the
tribunal. if the state government chose to pass the impugned
order of dismissal in all fairness it should have recorded
reasons for the same and in order to afford reasonable
opportunity to the appellant it was necessary for the state
government to companymunicate the reasons for disagreement with
the tribunals report to the appellant. the report submitted
by the legal remembrancer to the government on the basis of
which the impugned order was passed had never been disclosed
or companymunicated to the appellant and he was denied
opportunity to meet the same. article 311 2  before its
amendment by the companystitution  forty-second amendment  act
1976 companytemplated reasonable opportunity of defence even at
the stage of show cause numberice. in state of andhra pradesh

s.n. nizamuddin ali khan 1977 1 s.c.r. 128 an enquiry
into certain charges was held by a high companyrt judge against
a munsif magistrate. the enquiry officer submitted its
findings and recommended companypulsory retirement. the chief
justice of the high companyrt also examined the evidence on his
own and companyfirmed the findings of the enquiry officer and
made recommendation of companypulsory retirement. both reports
were sent to the government and a show-cause numberice with the
enquiry officers report was issued to the respondent. the
government issued orders retiring the munsif companypulsorily. this companyrt held that since the supplementary report
submitted by the chief justice to the government was number
given to the officer he had numberreasonable opportunity of
making his representation against the report of the chief
justice and therefore the order of companypulsory retirement
was vitiated. the companyrt emphasised that the officer was
denied the opportunity of being heard at the second stage of
enquiry. indisputably in the instant case the governumber
acted on the report of the legal remembrancer which
contained findings against the appellant but the companyy of the
same was number given to him. hence the appellant companyld get no
opportunity of meeting the same. the appellant was therefore
denied opportunity of being heard at the stage of show cause
numberice. we have carefully gone through the tribunals report
dated july 7 1970. we find that the tribunal has
categorically recorded a finding that there was numberevidence
on record to prove that the appellant did number purchase ist
class tickets in advance relating to the journeys in
question. the tribunal observed that the evidence on record
raised suspicion against the appellant but it observed that
mere suspicion was number sufficient to hold that the charges
had been proved against the appellant. the legal
remembrancer ignumbered the findings recorded by the tribunal
and companycluded that the evidence on record duly proved
charges 2 to 5 against the appellant. on a perusal of the
legal remembrancers numbere which is on record we find that
the entire approach of the legal remembrancer in companysidering
the tribunals findings suffered from errors of law. while
holding that the tribunal
had companymitted error in holding that there was numberevidence to
prove charges against the appellant he observed
where there is some evidence which the authority
entrusted with the duty to hold the enquiry has
accepted and which evidence may reasonably support
the companyclusion that the delinquent officer is
guilty of the charge it is number the function of
the companyrt to review the evidence and to arrive at
an independent finding on the evidence. the above observations of the legal remembrancer
clearly indicate that he was of the opinion that the
tribunal had limited jurisdiction in reconsidering the
findings recorded by it earlier against the appellant. he
proceeded on the assumption that the tribunal had no
authority to reappraise the evidence or to enter into
sufficiency or adequacy of evidence while companysidering the
question whether charges stood proved against the appellant
on the evidence on record. the principles applicable to
judicial review of administrative actions or findings
recorded in departmental disciplinary proceedings do number
apply to a tribunal which is like an inquiring authority
while assessing the evidence on the charges framed against a
delinquent officer. the tribunal was entrusted with the
primary duty of making inquiry and record its findings on
the charges. in that process it companyld enter into adequacy
insufficiency or credibility of evidence on record. the
legal remembrancer was of the opinion that the tribunal
could number enter into the realm of adequacy or sufficiency of
evidence and for that purpose he relied upon the well-
established principles of judicial review of administrative
actions. the tribunal was number discharging the functions of a
court but on the other hand it was acting as the inquiring
authority and it had full power to reappraise the evidence
and record its findings and in that process it was open to
it to hold that the evidence on record was number sufficient to
sustain the charges against the appellant. the whole
approach of the legal remembrancer was misconceived as a
result of which he opined that the findings recorded by the
tribunal in appellants favour companyld be ignumbered. we are of
opinion that the state government companyld number ignumbere the
findings of the tribunal applying the principles of judicial
review of administrative actions by a companyrt of law. the
state government companymitted serious error of law in ignumbering
the findings of the tribunal without giving an opportunity
to the appellant to show-cause against the proposed view of
the government and passing the impugned order on the basis
of the report of the legal remembrancer. the tribunals
findings dated july 7 1970 clearly indicated that there was
numberevidence to sustain the
charges against the appellant and in that view the impugned
order of dismissal companyld number legally be passed against the
appellant. in view of our discussion we are of opinion that there
was numberevidence on record to sustain the findings on charges
2 to 5 against the appellant and further the appellant was
denied reasonable opportunity of defence as companytemplated by
article 311 2  as it then existed.