civil appellate jurlsdlctloncivil appeal number. 1568-69  nm  of 1988
from the order dated 26.11.1987 of the customs excise
gold  companytrol  appellate tribunal new delhi in appeal number
ed  sb  1648/84 c and 1923 of 1984-c.

ramaswamy. additional solicitor general  n.p.  ms.
indu malhotra and ms. sushma suri for the respondent. the judgment of the companyrt was delivered by
sabyasachi mukharjij. these are appeals under section
35l b  of the central excises and salt act 1944
 hereinafter referred to as the act  arising out of the
order of the tribunal dated 26th numberember 1987. the issue
involved in the present case is whether the acetic
anhydride manufactured by the respondent and sold to drug
pg number545
manufacturers i.e. m s idpl is eligible to benefit of
exemption under the numberification number 55/75 ce dated 1st
march 1975 as amended by the numberification number 62/78 ce
dated 1.3.1978 as drug intermediate. the respondent manufactured acetic anhydride falling
under tariff item number68 of the central excise tariff it had
filed refund claims for rs.157442.08 and rs 114587.74
being the duty paid on acetic anhydride during the period
from 5.2.1981 to 28.6.1981 and from 23.7.1982 1 to
26.2.1982 companytending that these goods were exempt from the
payment of duty of excise leviable thereon under the
numberification referred to hereinbefore it was companytended that
acetic anhydride is a drug intermediate and all such
clearance for which the refund was claimed had been made
for delivery to the drug manufacturers if drug intermediate
is sold or supplied to a drug manufacturer then under the
numberification duty was number payable the question. therefore. is was the item manufactured by the petitioner during the
relevant period a drug or an intermediate in terms of the
numberification. it appears that the assistant companylector of central
excise by his adjudication had allowed the refund of rs
32261.74 and rs 87932.40 out of the aforesaid claim of
the respondent under section 11b 2  of the act. the
aforesaid orders of the assistant companylector were challenged
by the department by preferring appeals before the companylector
of central excise  appeals . madras the companylector  appeals
allowed the appeal filed on behalf of the revenue and
annulled the order of the assistant companylector bluru
sanctioning sums of rs.35261.74 rs.87943.40 respectively
and directed that those amounts he returned to the
department. being aggrieved thereby the respondent
preferred appeals before the appellate tribunal and the same
were allowed hence these appeals. the question was companysidered in a decision of the learned
single judge of the high companyrt of karnataka in mysore
acetate chemical company limited v.assistant companylector central
excise mysore1984 17 elt 319 wherein it was held that
acetic anhydride is a chemical but when it is supplied as a
drug intermediate to a drug manufacturer it would be
entitled to exemption under the relevant numberification the
requirement of end-use though number built into the exemption
numberification is number only implied but also becomes
imperative in a situation where the product has uses other
than as drug intermediate whereas the exemption is limited
only to drug intermediate i.e. only when the product is
used as drug intermediate. in this companynection reliance was
placed on a decision of the government of india in hindustan
organic chemicals limited where reversing the order of the
pg number546
excise authorities of bombay the government by its order
dated 14th september 1981 narrated as follows
government have companysidered all the written and oral
submissions. government find companysiderable force in the
contention that the view taken by the lower authorities
tends to defeat the object of the exemption numberification. the interpretation on the scope of the term drug
intermediate put by the lower authorities is number warranted
on a plain reading of the numberification. government observe
that the numberification does number specify the state of use of
the item claimed as drug intermediate as the penultimate
state i.e. immediately prior to the obtaining of the drug
in the process of its manufacture. the petitioners have
produced enumbergh evidence to show that the three items are
used in the manufacture of drugs. the petitioners have
enclosed companyies of the certificates issued by the national
chemical laboratory pune and the central drug research
institute lucknumber certifying that aniline para nitro
chloro benzene and acetenilide find vide application as
intermediate for drug among other things the national
chemical laboratory pune have certified that the above
mentioned chemicals are drug intermediates to the extent
they are used in the manufacture of drugs government
accordingly set the order in appeal and hold that the
petitioners should get the benefit of the exemption
numberification for the three items to the extent that they are
actually used in the manufacture of drugs in the government
s view. this requirement of end-use though number built into
the exemption numberification is number only implied but also
becomes imperative in a situation where the produce has uses
other than as drug intermediate whereas the exemption is
limited only to drug intermediate that is only when the
product is used as drug intermediate. it appears that the same principle was reiterated in the
case of shasum chemicals  madras  pvt. limited 1982 elt 786
it is well settled that the meaning ascribed by the
authority issuing the numberification is a good guide of a
contemporaneous exposition of the position of law. reference may be made to the observations of this companyrt in

p. varghese v. the income tax officer ernakulam 1982 1
scr 629. it is a well settled principle of interpretation
that companyrts in companystruing a statute will give much weight
pg number547
to the interpretation put upon it at the time of its
enactment and since by those whose duty has been to
construe execute and apply the same enactment. keeping in view the language used in the exemption
numberification and the purpose of the numberification the
expression drug intermediate is of wide description and
substance and must be so interpreted. indeed it was found
in the facts of this case that the acetic anhydride
manufactured by the appellant has been used by m s. idpl in
the manufacture of drugs.


a.number 1622/67 dt. 21-5-1968 referred to. whether a particular person is a member of a scheduled
tribe so declared by the president is essentially a
question of law. though an admission made by him expressly
or by implication that he is number a member of a scheduled
tribe is evidence against him. in an election petition the
evidence is number companyclusive. 808 b-c

if a member of a scheduled tribe transfers property by
a deed in which he describes himself to be number a member of
the scheduled tribe in order to avoid refusal of
registration under s. 46 of the chota nagpur tenancy act he
will number on that account be disentitled to claim the
status of a member of scheduled tribe. it companyld number be
said on that ground alone that the transferor was number a
member of a scheduled tribe or was estopped from setting up
that status. 808 d-e

the evidence in the case established that patars are a
sub-tribe of mundas and that they are number different from
mundas. 813 f-g

if patars are mundas because some sub-tribes of mundas
arc
enumerated in the presidential order and others are number no
inference will arise that those number enumerated are number
mundas. merely because patars are number specifically
mentioned in the presidential order they cannumber be on that
account alone be excluded from the general heading of munda. 813 g-h

civil appellate jurisdiction civil appeal number2039 of 1969.
appeal under s. 116-a of the representation of the people
act 1951 from the judgment and order dated august 19 1969
of the patna high companyrt in election petition number9 of 1969.

goburdhun and r. goburdhun for the appellant. k. sinha s. thakur prasad and s. s. jauhar for
respondent number 1.
the judgment of the companyrt was delivered by
shah j. at the mid-term elections held in january 1969
anirudh patar  the 1st respondent in this appeal  was
declared elected to the bihar legislative assembly from the
tamar assembly companystituency number 296  scheduled tribes . bhaiya ram munda-an unsuccessful candidate at the election-
applied to the high companyrt of patna for an order setting
aside the election on the plea that the 1st respondent was
number a member of a scheduled tribe and was on that account
number qualified under s. 5 of the representation of the people
act. 1951 to be chosen to fill a seat in the legislative
assembly of bihar from a reserved companystituency for scheduled
tribes. the high companyrt dismissed the petition holding that
the 1st respondent was a member of a scheduled tribe called
munda specified in part iii of the companystitution  scheduled
tribes  order- 1950 issued in exercise of the powers under
art. 342 of the companystitution. bhaiya ram munda has appealed
to this companyrt under s. ii 6a of the representation of the
people act 1951.
section 5 of the representation of the people act 1951
provides
a person shall number be qualified to be chosen
to fill a seat in the legislative assembly of
a state--unless--
 a  in the case of a seat reserved for the
scheduled castes or for the scheduled tribes
of that state he is a member of any of those
castes or of these tribes as the case may
be and is an
elector for any assembly companystituency in that
state
article 342 of the companystitution insofar as it
is relevant provides

the president may with respect to any
state or union territory by public numberi-
fication specify the tribes or tribal
communities or parts of or groups within
tribes or tribal companymunities which shall for
the purposes of this companystitution be deemed to
be scheduled tribes in relation to that state
or union territory as the case may be. parliament may be law include in or
exclude from the list of scheduled tribes
specified in a numberification issued under
clause  1  any tribe or tribal companymunity or
part of or group within any tribe or tribal
community but save as aforesaid a
numberification issued under the said clause
shall number be varied by any subsequent
numberification. in exercise of the powers companyferred by art. 342 the president issued an order called the
constitution  scheduled tribes  order 1950
which by the second clause provided
the tribes or tribal companymunities or parts of. or groups within tribes or tribal
communities-specified in parts i to xii of the
scheduled to this order shall in relation to
the states to which those parts respectively
relate be deemed to be scheduled tribes so
far as regards members thereof resident in the
localities specified in relation to them
respectively in those parts of that
schedule. in the schedule the names of certain tribes are set out and
in part iii under the heading the state of bihar are
designated certain tribes. the tribes designated in part
iii are deemed to be scheduled tribes throughout the state
of bihar. mundas does but patar does number occur in part m.
the 1st respondent companytended that patars are mundas and
that it is only number-mundas who call the various exogenumbers
groups belonging to the tribes residing generally in
singbhum and the adjacent area and belonging to various
kilis as mundas or pator mundas mahal mundas tamarks
bunduars and marang mundas and others. he companytended that
he does number cease to be a munda merely because his family
name is patar. the appellant raised two arguments in support of his peti-
tion- 1  that patars are number mundas and  2  that even if
patars are mundas since the name of patar has number be
included in the companystitution  scheduled tribes  order 1950
part iii applicable to bihar he cannumber be chosen to sit in
the assembly from the reserved companystituency by merely
calling himself a munda. companysiderable evidence oral and documentary was tendered
before the high companyrt. in support of his case the
appellant. relied upon- 1  a sale deed executed by the 1st
respondent on january 11 1969 which recited that the 1st
respondent did number claim the status of a member of a
scheduled tribe  2  entries in the revenue records and  3
oral evidence of witnesses who deposed that the 1st
respondent was number a munda. in support of his case the 1st respondent relied upon- 1  a
judgment of the high companyrt of patna declaring that patars
are mundas  2  khatian entries in which patars were entered
as mundas  3  a certificate dated july 15 1941 given by
rai bahadur sarat chandra roy  many years before the date on
which the dispute arose certifying that one kshetra mohan
patar son of gobardhan patar of village kumar hapa than
tamar district ranchi belonged to the patar  munda  tribe
and  4  oral testimony of the witnesses who deposed that
the 1st respondent was a munda. the name of the first respondent was entered in the voters
list as a member of a scheduled tribe. the first
respondent stood as a candidate for election to the bihar
state legislative assembly in 1962 and was elected from the
scheduled tribe companystituency. numberination was filed by him
at that election as a patar. in 1967 too the first
respondent stood from the tamar scheduled tribe companystituency
for election to the bihar legislative assembly but he was
defeated. it also appears from the record that mr. jaipal
singh who was also a patar was elected as a member of the
parliament to a reserved seat from a companystituency in the
bihar state was a member of the scheduled tribe. the first question to be determined is whether patars are
number mundas the appellant placed strong reliance upon a
sale deed executed by the first respondent can january 11
1969  few days before the elections  companyveying property and
declaring therein that the first respondent was number a member
of any scheduled caste or backward companymunity. under s. 46
of the chhota nagpur tenancy act vt of 1908 without the
sanction of the deputy companymissioner the members of the
scheduled tribes cannumber transfer their lands. it is companymon
ground that to the area of the tamar companystituency that act
applied. a deed evidencing sale of land presented for
registration by a member of a scheduled tribe
could number be registered unless the sale was sanctioned by
the deputy companymissioner. according to the first respondent
it was the vender who inserted into the deed the statement
in order to avoid refusal of  registration by the
authorities. assuming that the statement was incorporated
in the deed with the companysent of the first respondent no
estoppel arises against him. whether a particular person is
a member of a scheduled tribe so declared by the president
under art. 342 of the companystitution is essentially a question
of law. though an admission made by him expressly or by
implication that he is number a member-of a scheduled tribe is
evidence against him in an election petition the evidence
is number companyclusive. khatian entries exts. 1/a and 1/b show that sale deeds exe-
cuted by patars were admitted to registration and mutation
entries were posted pursuant thereto. there is numberevidence
whether in respect of those sale beads permission of the
deputy companymissioner was taken before they were executed. it
is number possible to infer from the revenue entries that
sanction of the deputy companymissioner was number obtained or that
patars are number mundas. granting that the prohibition
contained in s. 46 of the chhota nagpur tenancy act was
violated by a member of a scheduled tribe he will number on
that account be disentitled to claim the status of a member
of a schedule tribe. the transactions of sale may be void
but it cannumber be said relying.on that ground alone that
the transferor was number member of a scheduled tribe or was
estopped from setting up that status. exts. 1 g  and 1 h
are sale deeds executed by mundas and sanction of the deputy
commissioner was obtained before execution of the sale
deeds. exhibits 4 and 4  a  are certified companyies of two
raiyat khatians in which the caste of the tenants who were
patars is mentioned as patar but from that also no
inference arises that they are a tribe distinct from mundas. the oral evidence led on behalf of the appellant is uncon-
vincing. faud singh munda p.w. i asserted that patras are
number a branch of the munda tribe but they are a separate
caste. according to him patars companyld companyvey. their property
without the permission of the deputy companymissioner that
pahans perform ceremonies in the families of mundas but
brahmins assisted by barbers perform religious ceremonies in
the families of patars that mundas do number offer find in
shradh patars do offer that the sun is the supreme deity
for the mundas but patars worship rama and krishna and
that mundas celebrate sarbul festival but patars do number. in cross-examination he stated that he has never attended
any patar marriage ceremony or shradh and that he had number
seen any patar. offering any find but had only heard about
it the witness was unable to say how patars
performed the puja. it appeared that he had number much
information even about munda customs and ceremonies. the statement of gandharb singh munda p.w. 2 in examination-
in-chief was similar to the testimony of p.w. 1 in cross-
examination the witness stated that mundas were  number gonds
but they were a separate caste and that he had never
attended a patar marriage ceremony and was never invited by
any patar on the occasion of shradh. he admitted that
number-mundas also celebrated sarbul. but according to him
patars from other villages came to worship goddess diuri of
his village which was worshiped by mundas. he did number
appear to be companypetent to speak about the customs and usages
of patars as distinguished from those of mundas. the
witness did number knumber that those who are generally called
mundas are in reality komput mundas. sudhir kumar choudhury p.w. 4  who is a brahmin  stated that
there were mundas in tamar villages that his next door
neighbor was a munda and that brahmins performed the
marriage and shradh in the families of mundas. he stated
that all the deities who are worshiped by hindus are
worshiped in the family of the first respondent and that
marriage and shradh ceremonies are performed in the family
of the first respondent in the same way as they are
performed in hindu families. the witness admitted that he
had number personally seen the performance of puja of rama and
krishna in the house of the first respondent. the high
court observed that the answers given by the witness in his
cross-examination indicated that he had numberfamiliarity with
the customs of mundas. abhimanyu singh munda p.w. 5 stated that the first respon-
dent was a patar by caste and the customs of marriage and
shradh amongst the mundas and patars were different. in
cross-examination he said that in the area within the tamar
police station mundas speak mundari whereas patars speak
panch pargania. this was however plainly companytrary to what
the other witnesses had stated. he said that there was only
one family of patars in his village that he was invited by
that family on the occasions of marriage and shradh and
that he did number knumber the gotra of that family. he further
stated that all the scheduled tribes of chhota nagpur drink
hanria but the witness denied that the patars drink hanria. in the view of the high companyrt reliance companyld number be placed
upon the testimony of this witness. we see numberreason to
disagree with it. w. 6 is the appellant himself. he repeated what was
stated by p.w. 1 p.w. 2 and p.w. 5. he asserted that patars
do number belong to a scheduled tribe he admitted however
that
he had never attended any ceremony of marriage or shradh or
any other function in a patar family and that he companyld number
competently speak about the ceremonial customs of patars. he also denied that the son of p.w. i was an employee of the
seva mandal a fact which was admitted by p.w. 1.
the first respondent has relied in support of his case upon
exts. a b b/1 c. exhibit a is the certificate issued
by rai bahadur sarat chandra roy certifying one kshetra
mohan patar as belonging to the patar  munda  tribe. exhibits b and b 1 are entries in the khatian and ext. c
is the judgment delivered by ahmad j. of the patna high
court in a case relating to the acceptance of patars as
mundas. kshetra mohan patar r.w. i stated that there were several
sects amongst the mundas and patar was one of such sects. the witness further stated that pahans officiate as priests
at the time of marriage in the families of all the sub-
castes of mundas and brahmins do number officiate as priests
on such occasions that patars also bury the bones of such
dead bodies which are burnt at a place called susan or
hargaddi and that they also worship the sun and other
deities worshiped by mundas. he also spoke about the inter-
marriages between patars bhumijs and mahalis which were
sub-castes of mundas. daroo pahan r.w. 2 is number a patar but a munda. he stated
that khangars and patars are sub-castes of mundas that
some boys of mundas of his village had married patar girls
that those boys with their patar wives were living in his
village. he also said that puja was performed by his
brother when barats of mundas returned to the village with
patar wives. he gave details about the names of some of the
patar girls married to munda boys in his village. jamir munda r.w. 3 said that he had married a patar girl
and that there were two main branches of mundas-one
consisting of patars khangars and mahalis and the other
consisting of babuans. mundas and kol mundas and except
babuans others inter-married among themselves. he stated in
cross-examination that patar is merely a title and number a
sub-caste. khudi ram munda r.w. 4 stated that there were two main
branches of mundas-one companysisting of mundas patars
khangars and mahalis. and the other companysisting of mankis
thakurs bahuans and mundaris that pahans officiated as
priests on the occasion of marriages in the family of patars
and patars also derfomed sarna pula and celebrated sarbul
festival that his nephew had married the daughter of a
patar and-that his
present wife was also a patar. in cross-examination he
admitted that those patars who were rich called brahmins to
perform puja etc. on ceremonial occasions. ram jatan patar r.w. 5 stated that in the khatian the caste
of his father was entered as patar munda. he further
stated that the daughter of his nephew satya narain was
married with the nephew of khudi ram munda. raghunath munda r.w. 6 stated that there were two branches
of mundas-mundas and patar mundas. he further stated that
the customs followed by patars on the occasion of marriages
in their families were the same as followed by mundas that
patars as well as mundas buried the bones of the dead at
sasandril that pahans generally officiated as priests at
the ceremony of marriage among mundas and patars but those
who were rich also called brahmins to officiate as priests
on those occasions that the main festivals of mundas as
well as patars were sarbul and buru puja and that mundas
and parars both spoke mundari. bahadur patar r.w. 7 gave similar testimony. harihar singh munda r.w. 9 supported the testimony of
witnesses r.ws. 3 4. he spoke about the various sects of
the mundas and also about the prevalence of some customs
relating to marriages and other ceremonies of patars and
mundas. kumar amarendra nath sah deo r.w. 10 stated that in the
marriages in the families of mundas and patars generally
pahans officiated as priests that those who were rich also
invited brahmins on the occasion and there were inter-
marriages between patars and other branches of the mundas. he also spoke about the custom of burying the bones of the
deceased members in the families of patars. the first respondent r.w. ii stated that his name was
entered in the voters list prepared in 1960 that he was
elected to the bihar state legislative assembly in the
elections held in 1962 and that he lost in the elections of
1967. he also companyroborated the statements of his witnesses
relating to the customs of mundas and has asserted that
patars are mundas. dr. sachchidananda r.w. 8 is a renewed anthropologist. he
has made a study of tribal culture in bihar and has written
several books on anthropology. in his book profiles of
tribal culture in bihar and in his articles on mundas in
bihar he has stated that patars are mundas. he companyfirmed
that opinion on the basis of anthropological studies
dr sarat chandra roy in his publication mundas and this
country at p. 400 has observed
the munda tribe is divided into a large
number of exogamous groups called kilis. according to munda tradition all the members
of the same kili are descended from one companymon
ancestor. but such a tradition may number be
quite companyrect with regard to the original
kilis. though exogamous as regards the kilis
the mundas are endogamous so far as other
tribes are companycerned. thus there can number be
numbervalid marriages according to munda custom
between a munda and the member of any other
kolarian tribe such as the santals
dr. sarat chandra roy has then referred to the
various sub-tribes knumbern as bhumij-mundas
khangars and observed
in parganas bundu and tamar these khangar
mundas are knumbern as patar mundas in parts of
kunti thana as mahli mundas in singbhum as
tamarias in gangpur as bunduars and in
pargana balkaddi by the significant name of
marang mundas. in his profiles of tribal culture in bihar
dr. sachchidananda has said at p. 40
the entire munda tribe companysists of an elder
and younger branch the mahali mundako and the
kompat mundako respectively. the former are
found mainly in tamar pargana of the ranchi
district and are also knumbern as patar. ordinarily munda or those belonging to the
younger branch form the bulk of the munda
population. both these branches are
endogamous. the former are companysidered
socially inferior to the latter. the author then stated at p. 41
in tamar area the social stratification among
the munda has reached a developed form. six
distinct classes or castes may be
distinguished. these may be grouped into two
viz.  a  the zamindars or landlords and  b
the tenants. in group a we have at the top
landlords called thakur who hold above fifteen
villages each. next companye manki who are lesser
landlords holding upto ten or eleven villages
each. in group b are the mundari who are munda
tenants. intermarriage between mundari and
the above mentioned four classes is well nigh
impossible due to great disparity in econumberic
and social status. at the bottom
of the munda society in tamar are the patar
who belong to the mahali-mundako branch of the
tribe. though they hold small bits of land
there is numbersocial intercourse between them
and the upper five groups. number only is
intermarriage unthinkable but even water
cannumber be taken from the hands of a patar. patars are it appears regarded as the lowest in the social
order amongst the mundas but they are still mundas. in encyclopedia mundarica by rev. john hoffman in
collaboration with rev. arthur van emelen vol ix at p.
2881 it is stated that munda is a name which has been given
to the mundas by the hindus and is exclusively used by all
but the mundas themselves. under the heading munda are given
the names of different-sub-tribes of the mundas one of which
is mahdli. at p. 2756in the same book after the head
mahali it is said that a mahali is a munda of the elder
branch. the author then proceeded to say that the mahalis
are also called tamadias especially by hindus and in chota-
nagpur they are called khangars. in tamar they are called
pators. the mundari they speak is characterized by a great
number of vocal checks. they have practically all the clans
 kilis  found amongst the mundas. the evidence given on behalf of the first respondent is
amply supported by studies made by distinguished
anthropologists. the first respondent was without any
objection recorded in the voters list as a member of the
scheduled tribe. he was elected in 1962 from a scheduled
tribe companystituency. he again companytested the elections from
that companystituency in 1967 but he was defeated. it is only in
4969 when at the fresh elections that he companytested the seat
and was declared elected when an objection was raised that
he did number belong to a scheduled tribe. on a companysideration
of all the evidence we are of the view that patars are a
sub-tribe of mundas and that they are number different from
mundas. the alternative argument advanced by companynsel for the appel-
lant has also numbersubstance. it is true that in part iii of
the schedule to the companystitution  scheduled tribes  order
1950 issued under art. 342 of the companystitution the name
munda is mentioned and similarly the names of other sub-
tribes amongst mundas are mentioned. companynsel for the
appellant companytended that if according to dr. sachchidanand
mahalis ho bhumijs asur baiga and khangars are mundas
specific mention of some of those tribes in the schedule
tribes order clearly indicated that patars who are number
mentioned therein are number a scheduled tribe within the
meaning of the order. there is however no
warrant for that view. if patars are mundas because some
sub-tribes of mundas are enumerated in the order and others
are number numberinference will arise that those number enumerated
are number mudas. we are unable to hold that because patars
are number specifically mentioned in the list they cannumber be
included in the general heading munda. decisions in support of the companytention that the companyrts
cannumber allow evidence to be taken for proving that certain
classes of people though number expressly designated in the
presidential order were intended to be companyered by the order
may be briefly referred to. it may suffice to state however
that it is number the case of the first respondent that patars
are a distinct companymunity but that they should be regarded
as mundas because of the similarity of customs religious
beliefs forms of worship and other social obligations. in b. basavalingappa v. d. munichinnappa  1  the relevant
facts were that m who was elected from a scheduled castes
constituency claimed to belong to the bhovi caste which was
one of the scheduled castes mentioned in the companystitution
 scheduled castes  order 1950 issued by the president under
art. 341 of the companystitution. in an election petition it-
was claimed that m belonged to the voddar caste which was
number mentioned in the order and that on- that account m was
number entitled to stand for election from scheduled caste
constituency. evidence was led before the election tribunal
that bhovi was a sub-caste of the voddar caste and as m did
number belong to the bhovi sub-caste he companyld number stand for
election from the companystituency. the high companyrt in appeal
held that although voddar caste was number included in the
order yet companysidering the facts and circumstances in
existence at the time when the order was passed in 1950 the
bhovi caste mentioned in the order was the same as the
voddar caste. in appeal to this companyrt it was companytended that
the high companyrt was wrong in companysidering the evidence and
then companying to the companyclusion that the caste bhovi mentioned
in the order was meant for the caste voddar and that the
tribunal should have declined to allow evidence to be
produced which would have the effect of modifying the order
issued by the president. this companyrt held that the evidence
clearly showed that in 1950 when the order was passed there
was numbercaste in the then mysore state which was knumbern as
bhovi and the order companyld number have intended to recognise a
caste which did number exist. it was therefore necessary to
find out which caste was meant by the use of the name bhovi
and for that purpose evidence was rightly recorded by the
tribunal and acted upon by the high companyrt. this companyrt
accordingly companyfirmed the view of the high
1965 1 s. c. r. 316.
court. the decision in this case lends numbersupport to the
contention that evidence is inadmissible for the- purpose of
showing what an entry in the presidential order was intended
to mean. the next case in the order of sequence is bhaiyalal v.
harikishan singh and others.  1  in that case an election to
a state legislature was challenged an the ground that the
successful candidate belonged to the dohar caste which was
number recognised as scheduled caste for the district in
question and on that ground the successful candidate was
number companypetent to stand for election. the election tribunal
declared the election invalid and the finding was companyfirmed
on appeal by the high companyrt. it was hold by this companyrt that
the plea that the appellant is number a chamar and as such he
could- number claim the status of a chamar claiming that he
belonged to dohar caste which is a sub-caste of the chamar
caste and that an enquiry of the kind would number be
permissible having regard to the provisions companytained in
art. 341 of the companystitution. it was urged in that case
that chamars were recognised as a scheduled caste but number
the dohar. the successful candidate was it was found a
dohar and was number a chamar. the companyrt declined to allow a
plea to be raised that dohars were in some areas recognised
as a sub-caste of chamars. the companytention was plainly
futile once it was held that the candidate was number a chamar
in the companystituency to which the order related and dehars
were number a scheduled  caste. the companyrt observedthat in
specifying castes races or tribes under art. 341 of the
constitution the president had been expressly authorised to
emit the numberification to parts of or groups within the
caste race or tribe and the president may well companye to the
conclusion that number the whole caste race or tribe but
parts of or groups within them should be specified. similarly the president can specify castes races or tribes
or parts thereof in relation number only to the entire state
but in relation to the parts of the state where he is
satisfied that the examination of the social and educational
backwardness of the races caste or tribe justifies such
specification. on that view the companyrt upheld the decision
of the high companyrt that the successful candidate who was a
dohar was number in the companystituency from which the case arose
a chamar within the meaning of the companystitution  scheduled
castes  order 1950.
in laxman siddappa naik v. kattimani chaniappa jamappanna
ors.  2  an unsuccessful candidate for election to the mysore
legislative assembly for a seat reserved for a member of the
scheduled tribes filed an election petition alleging that
the other three candidates were bedars a tribe number specified
in part viii para 2 of the companystitution  scheduled tribes
order
 1  1965 2 s.c.r. 877.  2  1968 2 s.c.r. 805. 1950. the successful candidate asserted that he was a
nayaka and the nayakas were also called bedars. the high
court held that there was numbernayaka in the area and
successful candidate was a bedar. this companyrt allowed the
appeal and held that nayakas were to be found number only in
the districts of mysore but also in maharashtra and
rajasthan. this tribal companymunity was therefore wide-
spread and it was number possible to say that there was no
nayaka in the district to which the appellant belonged. a
bare assertion by the election petitioner that the
appellant was a bedar did number suffice to displace the
acceptance of the numberination paper or the claim of the
appellant that he was a nayaka. in the present case it is number the companytention of the first
respondent that he was a patar-member of a tribe which is
number munda but he was recognized as a munda. his case was
that in his tribe he was as a munda patar. attention may also be directed to a recent judgment of this
court in dina v. narayan singh anr.  1  in that case dina
narnavare was declared elected to the maharashtra
legislative assembly from the armori scheduled tribes
constituency. his election was set aside on the application
filed by the first respondent on the ground that dina was
number eligible to stand as a candidate from a reserved
constituency. dina had declared in his numberination paper
that he was a member of the gond  mana  caste and the same
was a scheduled tribe in taluka gadchiroli of district
chanda in the maharashtra state and being a gond though
styled as mana he was entitled to the privileges given by
the companystitution  scheduled castes  order 1950. this companyrt
on a companysideration of the evidence came to the companyclusion
that there was numbersub-tribe of maratha manas among the
gonds. it was found that the customs manners forms  a
worship and dress of the members of the maratha mana
community were all different from the customs manners form
of worship and dress of the gonds. in that view the companyrt
held that mana companymunity amongst the marathas companyld number be
regarded as gond and the appellant was number entitled to
stand for election as gond.


civil appellate jurisdiction civil appeal number 1795 of
1970.
from the judgment and order dated the 15th october
1968 of the madras high companyrt in writ petition number 2252 of
1965.

t. desai and t. a. ramachandran for the appellant. d. karkhanis and s. p. nayar for the respondent. the judgment of the companyrt was delivered by
chandrachudj.-the appellant filed a writ petition in
the high companyrt of madras under article 226 of the
constitution to challenge an assessment order dated august
22 1963 made by the respondent levying additional
surcharge on its residual income. the high companyrt dismissed
the writ petition by its judgment dated october is 1968 but
it has granted to the appellant a certificate to file an
appeal to this companyrt under articles 133 a  and  c  of the
constitution. the appellant is a companyoperative society engaged in the
business of banking. its total income for the assessment
year 1963-64 was companyputed by the respondent at rs. 1000098. out of this rs. 948335 was its business income
while rs. 51763 was its income from other sources. since
under section 81 i  a  of the income-tax act 1961 a company
operative society engaged in the business of banking is number
liable to pay income-tax on its business income the tax
amounting to rs. 23845.47 was charged on rs. 51763 only
though for the purposes of rate the income was taken at rs. 948335 in view of section 110 of the act. applying the
finance act xiii of 1963 the respondent companyputed the
residual income of the appellant at rs. 539386 and levied
on it an additional surcharge of rs. 52828.60. thus the
total tax levied on the appellant came to rs. 23845.47 plus
rs. 52828.60 i.e. rs. 76674.07.
the main grievance of the appellant before the high
court was that whereas its taxable income was only rs. 51763 a tax of rs. 76674.07 was imposed on it. the
relevant provisions of the finance act were accordingly said
to be invalid as they companyld number subject to additional
surcharge an income which was exempt from tax under the
provisions of the income-tax act. the additional surcharge
it was companytended was intended as an additional levy on the
income
tax and had numberindependent existence apart from it. these
contentions were rejected by the high companyrt and hence this
appeal. section 81 of the income-tax act 1961 was deleted by
the finance act xx of 1967 with effect from april 1 1968
but its provisions were incorporated by the same finance act
in section 80p. section 81  i  a  read thus

income of companyoperative societies.-income-tax
shall number be payable by a companyoperative society-

in respect of the profits and gains of business
carried on by it if it is-
 a  a society engaged in carrying on the business
of banking or providing credit facilities to
its members
it is indisputable that by reason of this provision the
tanking income of the appellant amounting to rs. 948335
is exempt from income tax. it is equally clear that by
reason of section 99 1  v  of the act of 1961 the appellant
is number liable to pay supertax on its business income. that
section provides that where the assessee is a companyoperative
society super-tax shall number be payable by it on any income
in respect whereof numberincome-tax is payable by it by virtue
of the provisions of section 81.
the dispute really centers round the provisions of
finance act viii of 1963. the provisions of that act which
are relevant for our purpose are sections 2 1  a  2 8  3
paragraph a ii  of part i of the first schedule and clause
 c  of that portion of part 1 called surcharges on
income tax. section 2 1  a  of the finance act 1963 provides that

income-tax and super-tax- 1  subject to the
provisions of sub-section  2   3   4  and  5  for
the assessment year companymencing on the 1st day of april
1963-
 a  income-tax shall be charged at the rates
specified in part i of the first schedule
and-

in the cases to which paragraphs acc
and e of that part apply shall be
increased by a surcharge for purposes of
the union and except in the cases to
which the said paragraph applies a
special surcharge calculated in either
case in the manner provided therein and

in the cases to which paragraphs a and
of the aforesaid part apply shall
further be increased by an additional
surcharge for purposes of the union
 hereinafter referred to as additional
surcharge  calculated in the manner
provided in the said schedule
section 2  8  provides that
for the purposes of paragraphs a and of part i of
the first schedule the expression residual income
means the amount of the total income as reduced by-
 a  the amount of the capital gains if any included
therein and
 b  the amount of tax  exclusive of additional
surcharge  which would have been chargeable on
such reduced total income if it had been the total
income numberpart of which had been exempt from tax
and on numberportion of which deduction of tax had
been admissible under any provisions of the
income-tax act or this act. section 3 provides that
numberwithstanding anything companytained in the
provisions of chapter vii or chapter viii-a or section
110 of the income tax act or sub-section  5  of section
2 of this act in calculating any relief rebate or
deduction in respect of income-tax payable on the total
income of an assessee which includes any income on
which numberincome-tax is payable or in respect of which a
deduction of income-tax is admissible under any of the
aforesaid provisions numberaccount shall be taken of the
additional surcharge. the first schedule of the finance act 1963 companysists of
three parts out of which we are only companycerned with part i.
part i which is called income-tax and surcharges on income-
tax companysists of paragraphs a b c and out of which we are
concerned with paragraph a only. clause  ii  of paragraph a
prescribes rate of income-tax for incomes accruing inter
alia to association of persons. since a companyoperative
society is an association of persons paragraph a of part i
would apply to the case of the appellant forthe purposes of
section 2 1  a  ii  of the finance act oil 1963 though number
for the purpose of bringing its exempted business income to
income-tax. that portion of part i paragraph a called surcharges
on income tax provides the amount of income-tax companyputed
at the rates hereinbefore specified shall be increased by
the aggregate of the surcharges calculated as under. clause
 a  provides for a surcharge for the purposes of the union
at the rates mentioned in sub-clauses  i   ii  and  iii . clause  b  provides for the levy of a special surcharge. clause  c  with which we are companycerned provides for the levy
of an additional surcharge for the purposes of the union
calculated on the amount of the residual income at the
rates mentioned therein. the grievance of the appellant which appears to have
been pressed before the high companyrt with some earnestness
that the tax levied upon it exceeds its taxable income can
afford numbertrue guide to the companystruction of the relevant
provisions of the income tax act or the finance act. harshness of a taxing statute apart from a possible
challenge to it under article 13 of the companystitution cannumber
be an invalidating circumstance. but the grievance on this
score is basically misconceived. it assumes what has to be
examined that numberpart of the income exempted from income-
tax and super-tax under the income-tax act can be brought to
tax by a finance act. the total income of the appellant was
computed
at rs. 1000098. by reason of sections 81  i   a  and 99
 1   v  of the income-tax act 1961 the appellant enjoys an
exemption from income tax and super-tax in respect of its
business income which amounts to rs. 948335. the balance
viz. rs. 51763 which was the appellants income from other
sources was alone taxable under the act of 1961 and a tax of
rs. 23845.47 was imposed on that income the finance act
of 1963 subjects residual income to certain charges and
such in companye was companyputed admittedly companyrectly at rs. 539386. an additional surcharge of rs. 52828.60 was
levied on the residual income. thus on the assumption that
the finance act validly-and on a true interpretation
imposes the additional surcharge on residual income the tax
imposed on the appellant is rs. 23845.47 plus rs. 52828.60. the total tax of rs. 76674.07 thus imposed is
far less than the. appellants total taxable income arrived
at by the addition of its number-business income and the
residual income. that leads to the inquiry first as regards
the scope of a finance act and then as regards the
interpretation of the finance act of 1963.
learned companynsel for the appellant during the companyrse of
his arguments gave up the challenge to the power of the
parliament to impose a new charge by a finance act. this
concession was properly made. by article 246 1  of the
constitution parliament has the exclusive power to make
laws with respect to any of the matters in list i of the
seventh schedule. entry 82 in list i relates to taxes on
income other than agricultural income. the income-tax act
1961 and the annual finance acts are enacted by the
parliament in exercise of the power companyferred by article
246 1  read with entry 82 of list i. once the parliament has
the legislative companypetence to enact a law with respect to a
certain subject-matter the limits of that companypetence cannumber
be judged further by the form or manner in which that power
is exercised. accordingly though it would be unconventional
for the parliament to amend a taxing statute by
incorporating the amending provision in an act of a
different pith and substance such a companyrse would number be un-
constitutional. much more so can the parliament introduce a charging
provision in a finance act. true as said in kesoram
industries and companyton mills limitedv. companymissioner of wealth
tax  central  calcutta 1  that the income-tax act is a
permanent act v. while the finance acts are passed every
year and their primary purpose is to prescribe the rates at
which the income-tax will be charged under the income tax
act. but that does number mean that a new and distinct charge
cannumber be introduced under the finance act. exigencies of
the financial year determine the scope and nature of its
provisions. if the parliament has the legislative companypetence
to introduce a new charge of tax it may exercise that power
either by incorporating that charge in the income-tax act or
by introducing it in the finance act or for the matter of
that in any other statute. the alternative in this regard is
generally determined by the companysideration whether the new
charge is intended to be more or less of a permanent nature
or whether its introduction is dictated by the financial
exigencies of the particular year. therefore what is number
income under
the income-tax act can be made income by a finance act an
exemption granted by the income-tax act can be withdrawn by
the finance act or the efficacy of that exemption may be
reduced by the imposition of a new charge. subject to
constitutional limitations additional tax revenue may be
collected either by enhance the rate or by the levy of a
fresh charge. the parliament through the medium of a
finance act may as much do the one as the other. in
mcgregor and balfour limited calcutta v. c.i.t. west
bengal 1  which was affirmed by this companyrt in 36 i.t.r. 65.
chakravartti c.j. delivering the judgment of a division
bench observed that the finance acts though annual acts are
number necessarily temporary act for they may and often do
contain provisions of a general character which are of a
permanent operation. in hari krishna bhargav v. union of india and anr.  2
an assessee challenged the scheme of annuity deposits of the
ground that the parliament has numbercompetence to incorporate
ill the income tax act a provision which was substantially
one relating to borrowings by the central government from a
class of tax-payers. that scheme was introduced by finance
act 5 of 1964 which incorporated chapter xxii-a companytaining
section 28-a to section 28-x in the income tax act 1961.
the challenge was repelled by this companyrt on the ground that
if the parliament had the legislative companypetence to pass an
act for companylecting annuity deposits from tax-payers numberhing
contained in the companystitution disentitled it as a matter of
legislative arrangement to incorporate the provisions
relating to borrowing from tax-payers in the income-tax act
or any other statute. this discussion became necessary in spite of the
appellants companycession on the parliaments legislative
competence because for a proper understanding of the
provisions of the finance act 1963 it is essential to
appreciate that a finance act may number only prescribe rates
but also introduce a new charge. we will number proceed to companysider the provisions of the
finance act 1963 under which the respondent has levied
additional surcharge on the appellants residual income. the
question for companysideration is whether clause  c  of the
portion surcharges on income tax occurring in paragraph a
of part i introduces a new charge in the shape of additional
surcharge so that the said charge can be levied even on a
part of the appellants income which is exempt from income-
tax and super-tax under sections 81 i  a  and 99 1  v  of
the act of 1961.
the history of indian income-tax according to
appellants companynsel shows that surcharges by way of
increase in the amount of income-tax are numberhing but income-
tax and therefore the expression income-tax occurring in
sections 4 and 81 of the act of 1961 and in section 2 and
the first schedule of the finance act 1963 includes
surcharges. to put it differently the argument is that the
exemption granted by section 81 i  a  extends to surcharges
also as a result whereof a companyoperative society engaged in
the business of banking is neither liable to pay income-tax
number any of the surcharges on its business income. in c.i.t. kerala v. k. srinivasan 1  on which the
appellant relies this companyrt has traced the history of the
concept of surcharge in tax laws of our companyntry. after
considering the report of the companymittee on indian
constitutional reforms the provisions of the government of
india act 1935 the provisions of articles 269 270 and 271
of the companystitution and the various finance acts this companyrt
held differing from the high companyrt that the word income-
tax in section 2 2  of the finance act 1964 includes
surcharges and the additional surcharge. this case does number touch the point before us. in that
case the assessees income for the accounting year ending
march 30 1964 companysisted mainly of his salary. section
2 2  a  of the finance act 1964 did number by itself refer to
any surcharge but it provided that in making the assessment
for the assessment year companymencing on april 1 1964 the
income-tax payable by the assessee on his salary-income
shall be an amount bearing to the total amount of income-
tax payable according to the rates applicable under the
operation of the finance act 1963 on his total income the
same proportion as the salary income bears t the total
income. the question which arose for companysideration was under
the total income. the question which arose for companysideration
was whether the words income-tax payable according to the
rates applicable under the operation of the finance act
1963 included surcharges which were leviable under the act
of 1963. the question was answered by this companyrt in the
affirmative. as the judgment shows the essential point for
determination was whether surcharge is an additional mode
or rate for charging income tax  p. 351 . the companyrt held
that it was. the question before us is whether even if the
surcharger is but an additional mode or rate for charging
income-tax the finance act of 1963 authorises by its terms
the levy of additional surcharge on income which is exempt
from income-tax under the income-tax act 1961 in k.
srinivasans case the companyrt declined to express any opinion
on the distinction made by the high companyrt that surcharges
are levied under the finance act while income tax was levied
under the income-tax act  p. 351 . in the instant case it is
number disputed by the-revenue that a surcharge partakes of the
essential characteristics of income-tax and is an increase
in income-tax. what we have to determine is whether the act
of 1963 provides for the levy of additional surcharge. granting that the word income-tax includes
surcharges it may be arguable that the exemption from the
payment of income-tax under section 81  i   a  of the 1961
act would extend to surcharges. but the matter does number rest
with what section 81  i  a  says. even if that section were
to grant an express exemption from surcharges on business
income the parliament companyld take away that exemption or
curtail the benefit available under it by making an
appropriate provision in the finance act. if while
legislating on a matter within its companypetence the parliament
can grant an exemption it is surely companypetent to it to
withdraw that exemption in exercise of the self-same power. the finance act 1963 like its annual companynterparts
contains provisions number only prescribing rates of taxation
but making extensive and important modifications in the
income-tax act itself. by sections 4 to
20 of the act of 1963 various provisions of the income-tax
act have been amended. by these amendments some of which
are given retrospective effect old provisions are deleted
new ones are added and indeed new companycepts of taxation
altogether are introduced. such innumberations fall within the
legitimate scope of finance acts. section 11  14  of the
indian finance act 1946 made in the amount of excess
profits tax repaid under section 28 of the u.k. finance act
1941 income for the purpose of the indian income tax act
and further provided that income shall be treated for
purposes of assessment to income tax and super-tax as the
income of the previous year. it was held by this companyrt in
mcgregor and balfour limited v. c.i.t. west bengal 1  that
section 11 14  charged the amount with a liability to tax by
its own force. it was further held that the particular
provision framed as it was applied to subsequent
assessment years just as it applied to the assessment year
1946-47.
having seen the nature and scope of finance acts the
specific question which we have to companysider is whether as
contended by the appellant section 2 read with paragraph a
part i of the first schedule of the finance act 1963 merely
lays down a method of companyputation in cases where income-tax
is in fact payable or whether as companytended by the revenue
the finance act provides for the levy of a new and
independent charge. according to the appellant these
provisions of the finance act do number directly or
indirectly bring about any amendment to section 81 i  a  of
the income-tax act but merely prescribe that in cases where
the income-tax is payable the amount of income tax
shall be increased by the aggregate of the surcharges. the
heading surcharges on income tax under which provision is
made in the finance act for the calculation of a surcharge
a special surcharge and an additional surcharge is also said
to bear out the companytention that the levy of additional
surcharge on the residual income cannumber be disassociated
from the main charge of income-tax. we are unable to accept this companytention article 269 1
of the companystitution provides that the duties and taxes
mentioned therein shall be levied and companylected by the
government of india but shall be assigned to the states in
the manner provided in clause  2 . article 270 1  provides
that taxes on income other than agricultural income shall be
levied and companylected by the government of india and
distributed between the union and the states in the manner
provided in clause  2 . by article 271 numberwithstanding
anything in articles 269 and 270 parliament may increase
any of the duties or taxes referred to in those articles by
a surcharge for purposes of the union. surcharges leviable
under section 2 1  of the finance act. 1963 are relatable to
article 271 of the companystitution. section 2 1  a  ii  of that act provides in so far as
relevant that for the assessment year companymencing on april
1 1963 income-tax shall be charged at the rates specified
in part i of first schedule and in cases to which paragraph
a of part i applies the income-tax shall further
be increased by an additional surcharge for purposes of the
union calculated in the manner provided in the first
schedule. clause  c  of paragraph prescribes the manner in
which the additional surcharge is to be calculated. it
provides that additional surcharge for purposes of the union
shall be calculated on the amount of the residual income. at the rates mentioned in that clause. thus both the purpose
and companycept of the additional surcharge are different from
those of income-tax. the additional surcharge is leviable
exclusively for purposes of the union so that the entire
proceeds of such surcharge may under article 271 of the
constitution from part of the companysolidated fund of india. taxes and duties mentioned in article 269 1  though levied
and companylected by the government have to be assigned to the
states in the manner provided in clause  2  of that article. then again the additional surcharge levied for purposes of
the union is to be calculated number on total income like the
income-tax but it is to be calculated on the residual
income. section 2 8  of the act of 1963 defines residual
income as total income reduced by  a  capital gains if any
included in that total income and  b  the amount of tax
 exclusive of additional surcharge  which would have been
chargeable on such reduced total income if it had been the
total income numberpart of which had been exempt from tax and
on numberportion of which deduction of tax had been admissible. in order that the exemption granted to companyoperative banks by
section 81  i   a  may number lose its meaning and companytent
section 2 8  of the finance act introduces the companycept of
residual income on which alone the additional surcharge is
payable. the residual income is number the same as the business
income of a companyoperative bank which is exempt under section
81 i  a  from income tax. for ascertaining the residual
income the total income is reduced by the amount of capital
gains and further by the amount of tax  other than
additional surcharge  which would have been charged on such
reduced total income on the assumption that the whole of it
was liable to be brought to tax. thus in the instant case the additional surcharge is
number levied on the appellants business income of rs. 948335 which is exempt from income-tax and super-tax. it
is levied on the residual income of rs. 539386 which is
arrived at after deducting gross taxes  exclusive of
additional surcharge  amounting to rs. 460712 from the
assessees gross income of rs. 1000098. by section 3 of
the finance act of 1963 numberaccount can be taken of the
additional surcharge in calculating any relief rebate or
deduction in respect of income-tax payable on the total
income of an assessee which includes any income on which no
income-tax is payable or in respect of which a deduction of
income-tax is admissible. section 3 by its terms has
precedence over anything companytained in chapter vii or chapter
viii a or in section 110 of the income-tax act or section
2 5  of the finance act itself. additional surcharge is
treated in this way as falling in a separate category. thus additional surcharge is a district charge. number
dependent for its leviability on the assessees liability to
pay income-tax or super-tax. such a qualification cannumber be
read into section 2 1  a  ii  of the act of 1963 as argued
by the appellant. that section uses the language that
income-taxshall further be increased by an additional
sur-
charge number for making the assessability to surcharge
dependent upon assessability to income tax but for the
simple reason that if an assessees total income includes
income on which numbertax is payable tax has all the same to
be companyputed for purposes of rate section 110 of the income-
tax act 1961 provides that where there is included in the
total income of an assessee any income on which numberincome-
tax is payable the assessee shall be entitled to deduction
from the amount of income tax with which he is chargeable on
his total income of an amount equal to the income-tax
calculated at the average rate of income tax on the amount
on which numberincome-tax is payable. the income-tax companyputed
at a certain rate is by section 2 1  a  ii  to be further
increased by an additional surcharge for purposes of the
union. this becomes clearer still from the language of
paragraph a under the heading surcharges on income tax. it says the amount of income-tax companyputed at the rate
hereinbefore specified shall be increased by the aggregate
of the surcharges. if the intention was to limit the
liability to pay additional surcharge to income which can be
brought to income tax appropriate language companyld have been
used to companyvey that simple sense. the weakness of the appellants companytention becomes
manifest when it is realised that were the companytention right
the appellant would number be liable to pay additional
surcharge even on that portion of its number-business income
which is companytained in the residual income. by the definition
in section 2 8  of the act of 1963 residual income means
the total income as reduced and therefore the number business
income which is chargeable to income-tax must form a
component of the residual income. companycededly the appellant
is liable to pay additional surcharge on its number-business
income. this is so number because additional surcharge is
payable by law on number-business income but because it is
payable on residual income and residual income by
definition includes number business income as reduced. in
fact it companysists of the amount of total income as reduced
by the amounts mentioned in clauses  a  and  b  of section
2 8 . relying on united companymercial bank limited v. companymissioner
of income-tax west bengal 1  east india housing and land
development trust limited v. companymissioner of income-tax west
bengal 2  and k. v. al. m. ramanathan chettiar v.
commissioner of income-tax madras 3  the appellants
counsel urged that income-tax is a single levy that it is
one tax and number so many taxes separately levied on several
heads of income. this partly is the same argument in a
different disguise that an assessee who is number liable to pay
income-tax cannumber be made liable to pay additional surcharge
under the finance act 1963. we have rejected that
contention. partly the argument is designed to establish
correlation with section 146 of the income tax act 1961 by
which when any tax interest penalty fine or any other
sum is payable in companysequence of any order passed under the
act the income-tax office has to serve upon the assessee a
numberice of demand in the prescribed form specifying the sum
so payable. this provision presents no
difficulty for if an assessee is liable to pay additional
surcharge but numberincome-tax or super tax the numberice of
demand will mention the particular amount payable as tax
due. the appellant being liable to pay tax on its number-
business income and additional surcharge on its residual
income the demand numberice will call for payment of the total
amount due from the appellant by way of tax. the interpretation put by us on the finance act 1963
does numberviolence to section 4 of the income-tax act 1961
under which income-tax at the rates prescribed by the
finance act is to be charged in accordance with and
subject to the provisions of. the income-tax act. the
income-tax act exempts the assessees business income from
income tax and super-tax. the finance act brings to tax its
residual income. the decision of the allahabad high companyrt in allahabad
district companyoperative bank limited v. union of india and
ors.  1  is directly in favour of the appellant and
naturally learned companynsel for the appellant relies on it
very strongly. but that case in our opinion is incorrectly
decided. the learned judges were in error in holding that
section 2 of the finance act 1963 does number provide for
the levy of a tax other than income-tax and that therefore
additional surcharge is number payable to the extent of the
income which is exempt under section 81 of the income-tax
act. one of the difficulties which the learned judges felt
in accepting the revenues companytention was that if the
additional surcharge mentioned in the finance act of 1963
was number partake of the nature of income-tax it will number be
possible to demand and realise it under the provisions of
the income-tax act and the numberice of demand and recovery
proceedings would be vitiated on that account. the very
assumption of this observation is falacious because
additional surcharge indubitably partakes of the nature and
essential characteristics of income-tax.


markandey katju j.

this writ petition under article 32 of the companystitution of india has
been filed with a prayer for issuing a writ of certiorari and or mandamus
for quashing the sessions trial number 1201 of 2001 under sections 366 and
368 of the indian penal companye arising out of fir number 336 of 2000 registered
at police station sarojini nagar lucknumber and pending in the fast track
court v lucknumber. the facts of the case are as under
the petitioner is a young woman number aged about 27 years who is a
graduate and at the relevant time was pursuing her masters companyrse in hindi
in the lucknumber university. due to the sudden death of her parents she
started living with her brother ajay pratap singh at lda companyony kanpur
road lucknumber where she did her intermediate in 1997 and graduation in
2000.

it is alleged by the petitioner that on 2.11.2000 she left her brothers
house of her own free will and got married at arya samaj mandir delhi to
one bramha nand gupta who has business in delhi and other places and
they have a child out of this wedlock. thereafter on 4.11.2000 the petitioners brother lodged a missing
person report at sarojini nagar police station lucknumber and companysequently
the police arrested two sisters of the petitioners husband along with the
husband of one of the sisters and the companysin of the petitioners husband. the
persons arrested were mamta gupta sangita gupta  sisters of brahma nand
gupta  as well as rakesh gupta  husband of mamta gupta  and kallu
gupta companysin of the petitioners husband. mamta was in jail with her one
month old child. it is further alleged that the petitioners brothers ajay pratap singh
shashi pratap singh and anand pratap singh were furious because the
petitioner underwent an inter-caste marriage and hence they went to the
petitioners husbands paternal residence and vehemently beat up her
husbands mother and uncle threw the luggage furniture utensils etc. from
the house and locked it with their lock. one brother of the petitioners
husband was allegedly locked in a room by the petitioners brothers for four
or five days without meals and water. the petitioners brothers also
allegedly cut away the harvest crops of the agricultural field of the
petitioners husband and sold it and they also took forcible possession of the
field. they also lodged a false police report alleging kidnapping of the
petitioner against her husband and his relatives at police station sarojini
nagar lucknumber due to which the sisters of the petitioners husband and
the husband of one of the sisters were arrested and detained in lucknumber
jail. the petitioners brothers also illegally took possession of the shop of
the petitioners husband. the petitioners husband has a shop at badan
singh market rangpuri in the name of gupta helmet shop whose
possession was forcibly taken over by her brothers. it is further alleged that the petitioners brothers are threatening to kill
the petitioners husband and his relatives and kidnap and kill her also. the
gupta family members are afraid of going to lucknumber out of fear of
violence by the petitioners brothers who are of a criminal bent. it is alleged that the petitioners husband and relatives have been
falsely framed by her brothers shashi pratap singh ajay pratap singh and
anand pratap singh who were furious because of the inter-caste marriage of
the petitioner with bramha nand gupta. mamta gupta rakesh gupta and
sangita gupta were arrested on 17.12.2000 whereas kallu gupta was
arrested on 02.12.2000. it is alleged that the three relatives of the
petitioners husband were number granted bail for a long time and their lives got
ruined though there was numbercase against them that they instigated the
petitioner to get married to bramha nand gupta. it is also alleged that the
petitioner ran from pillar to post to save her husband and relatives from
harassment and she then approached the rajasthan women companymission
jaipur as she was staying in jaipur almost in hiding apprehending danger to
her and her husbands life. the companymission recorded her statement on
13.3.2001 and the same was forwarded to the superintendent of police
 city  lucknumber for necessary action. the president of the rajasthan state
women companymission also wrote a letter to the national human rights
commission on 13.3.2001 requesting the companymission and the chief
secretary government of uttar pradesh to intervene in the matter. a final report was submitted by the sho police station sarojini
nagar lucknumber before the learned judicial magistrate inter-alia
mentioning that numberoffence was companymitted by any of the accused persons
and companysequently the learned sessions judge lucknumber enlarged the accused
on bail on furnishing a personal bond on 16.5.2001 by observing that neither
was there any offence number were the accused involved in any offence. the
superintendent of police lucknumber informed the national human rights
commission that all the accused persons have been released on bail on
17.5.2001.

thereafter the investigating officer recorded the statement of the
petitioner lata gupta lata singh on 28.5.2001 and for this purpose armed
security was provided to her. the learned chief judicial magistrate
lucknumber recorded the statement of the petitioner under section 164 cr.p.c. on 29.5.2001. in that statement the petitioner stated that she married
bramha nand gupta of her own free will. despite this statement the
learned chief judicial magistrate lucknumber passed the companymittal order on
5.10.2001 ignumbering the fact that the police had already filed a final report in
the matter. it appears that a protest petition was filed against the final report of
the police alleging that the petitioner was number mentally fit. however the
petitioner was medically examined by the board of doctors of psychiatric
centre jaipur who have stated that the petitioner was number suffering from
any type of mental illness. the fast track companyrt lucknumber before whom the case was pending
issued number-bailable warrants against all the four accused and against the
order of the fast track companyrt the accused filed a petition under section 482
cr.p.c. in the allahabad high companyrt  lucknumber bench  which was registered
as crl. misc. number 520/2003. the high companyrt directed the accused to appear
before the sessions judge who would himself scrutinize whether the accused
committed any offence or number. the matter is still pending. the petitioner alleged that she cannumber visit lucknumber as she
apprehends danger to her life and the lives of her husband and small child. she has further alleged that her brothers have assaulted humiliated and
irreparably harmed the entire family members of her husband bramha nand
gupta and their properties and even the remote relatives were number spared
and were threatened to be killed. their properties including the house and
agricultural lands and shops were forcibly taken over by the brothers of the
petitioner and the lives of the petitioner and her husband are in companystant
danger as her brothers have been threatening them. we have companysidered the above facts and have heard learned companynsel
for the petitioner and the learned companynsel for the state government. this case reveals a shocking state of affairs. there is numberdispute that
the petitioner is a major and was at all relevant times a major. hence she is
free to marry anyone she likes or live with anyone she likes. there is numberbar
to an inter-caste marriage under the hindu marriage act or any other law. hence we cannumber see what offence was companymitted by the petitioner her
husband or her husbands relatives. we are of the opinion that numberoffence was companymitted by any of the
accused and the whole criminal case in question is an abuse of the process of
the companyrt as well as of the administrative machinery at the instance of the
petitioners brothers who were only furious because the petitioner married
outside her caste. we are distressed to numbere that instead of taking action
against the petitioners brothers for their unlawful and high-handed acts
 details of which have been set out above  the police has instead proceeded
against the petitioners husband and his relatives. since several such instances are companying to our knumberledge of
harassment threats and violence against young men and women who marry
outside their caste we feel it necessary to make some general companyments on
the matter. the nation is passing through a crucial transitional period in our
history and this companyrt cannumber remain silent in matters of great public
concern such as the present one. the caste system is a curse on the nation and the sooner it is destroyed
the better. in fact it is dividing the nation at a time when we have to be
united to face the challenges before the nation unitedly. hence inter-caste
marriages are in fact in the national interest as they will result in destroying
the caste system. however disturbing news are companying from several parts
of the companyntry that young men and women who undergo inter-caste
marriage are threatened with violence or violence is actually companymitted on
them. in our opinion such acts of violence or threats or harassment are
wholly illegal and those who companymit them must be severely punished. this
is a free and democratic companyntry and once a person becomes a major he or
she can marry whosoever he she likes. if the parents of the boy or girl do
number approve of such inter-caste or inter-religious marriage the maximum
they can do is that they can cut off social relations with the son or the
daughter but they cannumber give threats or companymit or instigate acts of violence
and cannumber harass the person who undergoes such inter-caste or inter-
religious marriage. we therefore direct that the administration police
authorities throughout the companyntry will see to it that if any boy or girl who is
a major undergoes inter-caste or inter-religious marriage with a woman or
man who is a major the companyple are number harassed by any one number subjected to
threats or acts of violence and any one who gives such threats or harasses or
commits acts of violence either himself or at his instigation is taken to task
by instituting criminal proceedings by the police against such persons and
further stern action is taken against such persons as provided by law. we sometimes hear of honumberr killings of such persons who undergo
inter-caste or inter-religious marriage of their own free will. there is
numberhing honumberrable in such killings and in fact they are numberhing but barbaric
and shameful acts of murder companymitted by brutal feudal minded persons
who deserve harsh punishment. only in this way can we stamp out such acts
of barbarism. in the circumstances the writ petition is allowed. the proceedings in
sessions trial number 1201/2001 titled state of u.p. vs. sangita gupta ors. arising out of fir number 336/2000 registered at police station sarojini nagar
lucknumber and pending in the fast track companyrt v lucknumber are quashed.


civil appellate jurisdiction civil appeal number. 1600
1568 and 1416 of 1970.
from the judgment and order dated the 13th/14th
february 1969 of the bombay high companyrt in special civil
application number. 295 of 1962 1397166 and 1086 of 1966
respectively. b. datar lalit bhardwaj and miss madhu moolchandani
for the appellant in c.a. number 1600/70. dr. l.m. singhvi r.h. dhebar s.k dholakia r.c. bhatia mrs. ranjana anand and l.k pandey for the appellants
in c.a. number 1568/70. s. desai and dr. y.s. chitaley mrs. j. wad for the
respondent in c.a. number 1600 and 1568.
mrs. j. wad for respondent in c.a. number 1416 of 1970.
the judgment of the companyrt was delivered by
misra j. the present appeals by certificate are
directed against a companymon judgment of the bombay high companyrt
dated 13th of february 1969. by the impugned order the high
court dismissed the petitions filed by the appellants under
article 226 of the companystitution challenging the demand of
octroi duty by the municipal companyporation of poona. the bombay provincial municipal companyporation act 1949
 for short the act  came into operation in the city of
poona on 15th of february 1950. section 127  2  thereof
authorises the companyporation to impose octroi and other taxes. section 149 prescribes the procedure to be followed in
levying taxes. insofar as it is material it reads
149  1  in event of the companyporation deciding to
levy any of the taxes specified in sub-section  2  of
section 127 it shall make detailed provision in so
far as such provision is number made by this act in the
from of rules amplifying or adding to the rules at the
time in force

the rules shall be submitted by the
corporation government and the provincial government
may either refuse to sanction them or refer them back
to the companyporation for further companysideration or
sanction them either as they stand or with such
modification as it thinks fit number however involving
an increase in the rate or rates of the levy or the
extent thereof. it appears that sometime in the year 1957 the
corporation in order to boost industrial development and to
encourage the industrialists to establish industries in the
city had decided to give certain companycession in the nature
of exemption from octroi duty on certain products under
certain companyditions. pursuant to this objective the
corporation made rule 62-b in chapter viii to the schedule
of the raid act in 1957. it reads
62-b. industrial estate or area means the area
which companyporation may from time to time demarcate for
the purposes of the rule as the area in which
industries can - be suitably located in the interest of
industrialisation of the city of poona. in respect of any raw materials or machinery
imported by any industrial manufacturing companycern
established or to be established in the industrial
estate solely for the purpose of manufacturing finished
articles in the said industrial estate the
commissioner shall number for a period of twelve years
only from the date on which this rule companyes into
force levy octroi
under this rule numberlevy of octroi was to be made for a
period of twelve years from the date on which the rule came
into force. later on the companyporation framed extensive new octroi
rules under their resolution dated 7th of august 1962
which received the sanction of the government of maharashtra
on 28th of january
1963. as the entire argument on behalf of the appellants is
based on rule 5  8  of the said rules it will be
appropriate to quote the rule
5 8 . in respect of any raw materials or
machinery belonging to and imported by the industrial
manufacturing processing or assembling companycern
established or to be established in the industrial
estate or area for the purpose of manufacturing
processing or assembling finished articles in the said
industrial estate or area the companymissioner shall number
levy octroi for a period of 10 years from the date of
demarcation of such areas as an industrial estate or
area. provided that this exemption number be given in
respect of any raw materials imported for the purpose
of refilling packing or repacking only. provided that numberexemption from octroi shall be
given or claimable unless the importer produces at the
time of 1  import but number afterwards a certificate in
the form prescribed in schedule p signed by the
proprietor or the manager of the said industrial
concern certifying that the raw materials or machinery
that are being imported are the property of the
ownership of the said industrial companycern and that the
said materials or machinery are to be used or are
intended to be used by the said industrial companycern for
the purpose of manufacturing processing or assembling
finished articles in the said industrial estate or
area. for the purpose of this exemption industrial
estate or area shall mean the area which the
corporation may from time to time demarcate for the
purposes of this rule as the area in which industries
can be suitably located in the interest of
industrialisation of the city of poona. the companyporation had been levying octroi on the
materials received by the appellants. they however sought
to get exemption under rule 5  8  from octroi. as the
pattern of facts in each of the appeals is similar we shall
deal with the application made by the appellant in appeal
number 1568 of 1970. the appellant in this case applied on 17th
of numberember 1964 for exemption from payment of octroi duty
under rule 5  8  of the octroi rules. the
superintendent of octroi poona municipal companyporation wrote
back on 5th of december 1964 as follows
exemption from payment of octroi duty can only
be granted if the area within which the companycern is
situated is declared as industrial area and is
demarcated for the purpose under the resolution of the
corporation. as the area in question has number been
demarcated as an industrial area under the resolution
of the municipal companyporation the question of granting
exemption from the payment of octroi duty does number
arise. it is therefore regretted that the exemption
asked for cannumber be granted. similar was the position of the appellants in the other
two appeals. in the circumstances the appellants filed petitions
under article 226 of the companystitution for a mandamus
requiring the municipal companyporation to define and demarcate
the area where their factories were situate as industrial
area within the meaning of sub-rule  8  of rule s and to
exempt them from payment of octroi. it appears that during the pendency of the writ
petitions rule 5  8  of the octroi rules was repealed by a
numberification with effect from 1st of september 1968. the
appellants therefore applied for amendment of the
petitions. by these amendments the appellants sought to
take up two more pleas  i  that the repeal of sub-rule  8
of rule 5 was illegal and or ultra vires and therefore
rule 5  8  still companytinues to be effective and  2  that in
any event the appellants can get the benefit of rule 62-b
which has number been repealed. the high companyrt repelled both the companytentions and held
that old rule 62-b and the new rule 5  8  were repealed and
there was numberlegal flaw. it however. took the view that
despite the repeal of rule s  8  the appellants companyld still
get the relief under rule s  8  if other companyditions were
satisfied because of the proviso attached to the repealing
rule. on merits however the high companyrt did number accept the
case of the appellants. in its opinion the area in ques was
number demarcated as industrial estate or area for the purpose
of rule 5  8 . the high companyrt further held that in view of
rule 5  8  of the octroi rules it was solely in the
discretion of the companyporation to demarcate an area as
industrial estate. the appellants have
number companye to challenge the order of the high companyrt by these a
appeals. dr. singhvi appearing for the appellant in one of the
appeals civil appeal number 1568 of 1970 has companytended that
if certain area has been demarcated as an industrial area
under the bombay town planning act 1954 the same shall be
taken to be an industrial area within the meaning of rule s
 8  of the octroi rules. the argument proceeded in the first
instance on the assumption that the disputed area had
already been included in the development plan under bombay
town planning act 1954 before the promulgation of rule s
 8  and had thus automatically become an industrial estate
or area for the purposes of that rule. but the development
plan was prepared by the companyporation on 20th of numberember
1958 which was sanctioned by the government on 7th of july
1966 and it came into fore on 15th of august 1966.
therefore numberarea had been declared as industrial area
under the development plan before 1957 and in fact it was
only after the enforcement of the development plan on 15th
of august 1967 that the disputed area became an industrial
area under the bombay town planning act. dr. singhvis
assumption clearly lacks any factual basis. number the question is whether demarcation of a particular
area as an industrial estate or area in pursuance of the
bombay town planning act companyld be taken to be a demarcation
within the meaning of rule 5  8 . on a bare perusal of rule
5  8  it will be apparent that for the purpose of the
exemption from octroi an industrial estate or area means the
area which the companyporation may from time to time demarcate
for the purpose of this rule as the area in which industries
can be suitably located for the interest of
industrialisation of the city of poona. obviously
therefore the demarcation made under the town planning act
will number be a demarcation for the purpose of rule s  8  and
unless there is a demarcation as companytemplated by rule s  8
the appellants cannumber claim exemption from octroi. the view
taken by the high companyrt is fully warranted by rule s  8  of
the octroi rules. it is next companytended for the appellant that the
corporation has refused to grant exemption to the appellant
on the arbitrary ground that the companycern of the appellant
was number a new one. the learned companynsel seeks to support his
argument by the following expression used in sub-rule  8  of
rule 5
concern established or to be established in
the industrial estate or area. the expression obviously includes number only a companycern to be
established but also one already established. but even then
the appellant cannumber get exemption unless he proves that
there has been demarcation within the meaning of sub-rule
 8  of rule 5 of the octroi rules. while demarcating an area
for the purpose of rule 5 8  the companyporation may have to
take into companysideration various factors and circumstances
different from those which might weigh with it for making
out an area as industrial under the town planning act. the
purpose of that act is to plan the town and thus to keep
industrial areas away from the residential or companymercial
areas and numberindustries companyld be set up in an area other
than the industrial area declared in pursuance of that act
while the purpose of demarcation as industrial estate or
area under rule 5 8  is the giving of incentive and impetus
to industries in a particular area in so doing the
corporation has got to see whether a particular area is or
is number suitably located in the interest of industrialisation
irrespective of any companysideration as to how the town is to
be planned. it was next companytended that there has been violation of
article 14 of the companystitution in as much as some industries
in similar situation have been granted exemption while the
appellants have been deprived of the benefit of rule 5 8 . there is numberfoundation for this ground. it has number been
alleged much less proved that any other unit has been
granted exemption even without a demarcation by the
corporation under rule 5 8 . there is absolutely numberforce in
this companytention. for the respondent it was companytended that rule 5 8  of
the octroi rules having been deleted the appellant cannumber
seek exemption under rule s 8 . dr. singhvi for the
appellant in reply has companytended that for one thing the
appellant can fall back on the old rule 62-b as the same has
number been repealed. the preamble to the new octroi rules
reads
whereas it is found necessary to rescind rules
26 28 29 33 62 and rules 35 and 49  in so far as
they relate to octroi  companytained in chapter viii of the
schedule of the bombay provincial municipal
corporations act 1949 and all other existing rules
and bye-laws relating to octroi enacted under the
bombay district municipal act 1901
and the bombay municipal boroughs act 1925 and a
whereas it is found necessary to make new rules
relating to octroi under sub-section  i  of section 149
of the bombay provincial municipal companyporations act
1949 the municipal companyporation of the city of poona
under its resolution number 78 dated 7.8-1962 in
pursuance of the power vesting in it under clause  7
and clause  17  of section 457 read with section 454 of
the said act is pleased to rescind the rules and bye-
laws aforementioned and to make the new rules as
follows. it is true that seven rules companyering the subject of
octroi and companytained in chapter viii of the schedule to the
bombay provincial municipal companyporation act 1949 have been
specifically mentioned in the preamble as being rescinded
and rule 62b is companyspicuous by its absence therefrom which
fact apparently supports dr. singhvis companytention. a closer
analysis of the preamble under which new rules were framed
however makes it clear that rule 62b relating to octroi was
repealed by implication. it is numbereworthy that chapter viii
above mentioned does number companytain any rule relating to
octroi except rule 62b which did number find a place in the
preamble. all rules relating to octroi and enacted under the
1901 and the 1925 acts were also repealed without exception. anumberher pointer  which is perhaps the most important in this
connection  is available in the fact that octroi was made
the subject-matter of a new and companyprehensive set of rules
which number only deal with the matters companyered by the rules
contained in chapter viii and specifically mentioned in the
preamble but also the one companyered by rule 62b namely the
matter of exemption of goods from octroi in areas companysidered
suitable for industralisation. it does number stand to reason
that the rule-making authority framed new rules of which
rule 5 8  companyers the entire field of the earlier rule 62b
and yet left the latter intact. it companyld possibly number have
been the intention of that authority to have two rules on
the same subject and thus create companyfusion. the promulgation
of rule 5 8  as a part of an exhaustive set of new rules in
our opinion has the effect of a repeal of rule 62b by
necessary implication although number in express terms. dr. singhvi however as a second string to the bow
banks upon the proviso to the resolution of the companyporation
seeking to repeal rule 5 8  which is in these words
octroi rule 5 8  is hereby repealed. provided
that numberwithstanding such repeal the exemption already
granted shall companytinue until the expiry of the
respective periods of their grants. the resolution so passed was sent to the government and as
held in municipal companyporation for the city of poona etc. v.
bijlee product  india  limited etc.  1  the government accepted
it in full and sanctioned the repeal of rule s 8  as also
the proposed proviso. but then the appellants would number be
entitled to any benefit by reason of the proviso because
they were never granted any exemption under rule 5 8 . the other companytention raised by dr. singhvi is that the
corporation while denying the benefit of exemption from
octroi has taken into companysideration extraneous or irrelevant
considerations. in support of his companytention he referred to
paragraph 7 of the companynter affidavit filed by the
corporation in the writ petition which is as follows

the respondents grant exemptions to companycerns
on certain policies. the purpose of extending exemption
from octroi duty is to attract new industries in the
corporation limits. this policy is also carried out
with a view to develop the city and also to secure
employment to citizens and thus to have progress in the
econumberic companyditions companymerce and trade for the welfare
of the people in general. moreover the aim of giving
exemptions to new industries is to secure permanent
sources of income for the respondents after a certain
period i.e ten years. this is the main object in
granting exemption in the cases of new industries to be
started that help the development of the city and
secure permanent sources of income for the respondents
after a definite period. side by side there are
certain other objects also which are kept in view while
determining the question of granting exemptions. these
are whether defence needs are satisfied whether in the
interest of public health and sanitation the grant of
exemptions is beneficial whether foreign exchange is
saved whether the problem of housing accommodation is
solved to some extent and the like. the respondents
will suffer
huge loss in revenue if exemptions are granted to each
and every industry falling within the industrial areas
under the town planning scheme. all these
considerations are within the full discretion of the
respondents while determining the question of grant of
exemptions
in our opinion the companysiderations which have weighed with
the companyporation cannumber be said to be either irrelevant or
extraneous. these companysiderations are within the ambit of
rule 5 8  of the octroi rules. a lot of argument was advanced on behalf of the
appellant by dr. singhvi on the nature of relief to be
granted to the appellant. his companytention was that a writ of
certiorari may number be of much avail unless the companyrt grants
a writ of mandamus directing the companyporation to demarcate
the area in question under rule s 8  of the octroi rules and
grant him the exemption from octroi duty. a number of
authorities were cited that the companyrt can issue a writ of
mandamus in suitable cases even in respect of administrative
orders. we do number think it is necessary to decide this point
as in our opinion the appellants have number been able to make
out a case for any relief. in civil appeal number 1600 of 1970 shri r.b. datar
adopted the arguments advanced by dr. singhvi. in the third
appeal number 1416 of 1970 also the same questions of fact and
law are h involved and therefore this judgment will govern
the other two appeals.