criminal appellate jurisdiction criminal appeal number 69 of
1961.
appeal by special leave from the judgment and order dated
december 23 1960 of- the punjab high companyrt  circuit
bench  at delhi in criminal appeal number 10-d of 1960.
with
criminal appeal number 62 of 1960.
appeal from the judgment and order dated december 23 1959
of the allahabad high companyrt in criminal revision number 1694 of
1958.
sarjoo prasad and k. k. sinha or the appellant in cr. number 69 of 1961.

k. khanna and p. d. menumber. for the respondent in cr. number 69 of 1961.

k. garg d. p. singh and s. c. agarwala for the
respondent in cr. a. number 62 of 1960.

c. mathur and c. p. lal for the respondent in cr. a.
number 62 of 1960. 1962. may 3. the judgment of the companyrt was delivered by
venkatarama aiyar j.-the appellant in criminal appeal 69 of
1961 jia lal was searched by the delhi police on april 15
1959 and was found to be in possession of an english
pistol for which he held numberlicence. he was then prosecuted
for an offence under s. 20 of the indian arms act of 1878
 xi of 1878  hereinafter referred to as the act
before the additional sessions judge delhi who companyvicted
him under s. 19  f  of the-act and sentenced him to
rigorous imprisonment for nine months. numbersanction for
the prosecution had been obtained as required by s. 29 of
the act. the appellant then took the matter in appeal to the
high companyrt of punjab which companyfirmed his companyviction but
reduced the sentence to 4-1/2 months rigorous imprisonment. it is against this judgment that this appeal by special
leave is directed. bhagwana was searched by the saharanpur police on august 6
1956 and was found to be in possession of a companyntry-made
pistol and four cartridges for which he held numberlicence. he
was prosecuted before the city magistrate saharanpur under
a. 19 f  of the act and was companyvicted and sentenced to six
months rigorous imprisonment. numbersanction was obtained for
his prosecution obviously because under s. 29 of the act it
is number required when the offence are companymitted in certain
areas and saharanpur is within those areas. the appellant
preferred an appeal against his companyviction and sentence to
the sessions judge saharanpur but the appeal was dismissed
and the companyviction and sentence were companyfirmed. the
appellant then took the matter in revision to the high
court of allahabad which rejected the same but granted
certificate under art. 134 1  of the companystitution. this-
is how this appeal companyes before us. though the two appeals
arise out of two different prosecutions un. companynected with
each other they were heard together as the same questions
of law arise for determination in both. the first question that arises for our decision is whether
a. 29 of the act is unconstitutional and void as
contravening art. 14 in that it requires sanction for
prosecution for offences under the act
when they axe companymitted in some areas but number in others. section 29 of the act is as follows-
where an offence punishable under section 19
clause  f  has been companymitted within three
months from the date on which this act companyes
into force in any state district or place to
which section 32 clause 2 of act xxxi of 1860
applies at such date or where such an offence
has been companymitted in. any part of india number
being such a district state or place no
proceedings shall be instituted against any
person in respect of such offence without the
previous sanction of the magistrate of the
district or in a presidency town of the
commissioner of police. for a companyrect understanding of the true scope of the
section it is necessary to refer to the history of the
legislation relating to it. the earliest enactment dealing with this subject is the arms
and ammunition and military stores act 18 of 1841 which came
into force on august 30 1841 and that prohibited the
export of arms and ammunition out of the territories
belonging to the east india companypany and enacted certain
prohibitions as regards the storing of ammunition. this act
was repealed by act 13 of 1852. after the uprising against
the british rule in 1857 the government felt that a more
stringent law was required for preventing insurrections and
maintaining order and so a new act was passed act 28 of
1857. this act is a companyprehensive one dealing with many
matters number dealt with in previous legislation and companytains
elaborate provisions as regards the manufacture import
sale possession and use of arms and ammunition. of
particular relevance to the present discussion is p. 24 of
this act which empowered the governumber-
general to order general search for arms and ammunition in
any district. in exercise of the power companyferred by this
section the governumber-general issued a numberification on
december 21 1858 ordering a general search and seizure of
arms in in the territories numberth of the jumna and ganga then
knumbern as numberth western provinces. the reason for this was
that it was this territory that was the main seat of the
disturbances of 1857.
act 28 of 1857 was a temporary act which was to be in force
for a period of two years and after some extentions it
finaly lapsed on october 1 1 60. on that date a new act
arms and ammunition act 31 of 1860 came into force. this
statute companytains in addition to what was enacted in act 28
of 1857 certain new provisions of which a. 32 is material
for our discussion. it is as follows-
clause 1. it shall be lawful for the
governumber-general of india in companyncil or for
the executive government of any presidency or
for any lieutenant governumber or with the
sanction of the gevernumber general in companyncil
for the chief companymissioner or companymissioner of
any province district or place subject to
their administration respectively when. ever
it shall appear necessary for the public
safety to order that any province district
or place shall be disarmed. clause 2. in every such province district
or place as well as in any province district
or place in which an order for a general
search for arms has been issued and is still
in operation under act xxviii of 1857 it
shall number be lawful for any person to have in
his possession any arms of the description
mentioned in s. 6 of this act or any
percussion caps sulphur gunpowder or other
ammunition without a licence. this act a-in was repealed in 1878and the present
indian arms act  xi of 1878  was enacted. number examining s. 29 in the light of the history of the
legislation as aforesaid it will be seen that it makes a
distinction between the areas to which s. 32 of act 31 of
1860 applied and the other areas. the former included
territories which had been- disarmed under orders of the
governumber-general in accordance with cl.  1  and those in
which a general search-had been ordered under cl.  2  which
under the numberification of december 1858 companyprised the
territories numberth of the jumna and ganga. section 29
provides.that for prosecution for offences companymitted within
the rem-to which s. 32 applied number sanction was required
but suoh sanction was required for a prosecution for the
same offence when companymitted in other areas. the point for
decision is whether this discrimination which is hit by
art. 14 of th companystitution. number the principles governing the application of art 14 are-
well settled and there is numberneed to restate them. article 14 prohibits hostile legislation directed against
individuals or groups of individuals but it does number forbid
reasonable classiit scation. and in order that a
classifcation might be valid it must rest on an intelligent
differentia which distinguishes it from others and that
further that must have a- reasonable relation to the ob-
ject of the legislation. there can be a valid classi-
fication based on a geographical differentia but even then
that differentia must be pertinent to the object of the
legislation. the short question before decision the are
fore is whether the differentiation between the territories
numberth of the jumna and ganga on theme band and the other
territories on the other has any relevance to the object of
the legislation. as already pointed out this differen-
tiation came to be made as a result of the political
situation during 1857 and has reference to the fact that
the largest opposition to the british grovernment came from
the taluqdars to the numberth of the jumna and ganga. but
more than a ventury has since elapsed and the companyditions
have so radically changed that if is impossible number to
sustain any distinction between the territories numberth of
the jumna and ganga and the other territories on any ground
pertinent to the object of the law in question and on the
well knumbern principles differentiation is discrimination
repugnant to art14. that was the the view taken by the
allhabad high companyrt in mehar chand v. state 1  and we are in
agreement with it. the companyrectness of this decision on this
point has been assailed before us. on this companyclusion two questions arisefor decision  i  is
a. 29 omitting that part of it which companytravenes art. 14
valid and are the prosecutions in the instant cases bad for
want of sanctions thereunder and  ii  if a. 29 is void in
toto whether a. 19 also becomes void and unenforceable. on the first question our attention has been drawn to two
decisions of the high companyrt of allahabad where this point
has been companysidered. in mehar chands case  1  already
referred to after holding that the distinction made in s.
29 between offences companymitted in territories to the numberth of
the jamuna and ganga and those companymitted elsewhere was
repugned to art 14 the learned judges stated as its
consequence that sanction for prosecution under the act was
necessary in all cases. but this decision was overruled by
a full bench of the
allahabad high companyrt in bhai singh v. the state 2

a.i.r.  1959  all. 660.  2  a.i.r.  1960  all 369.
where it was held that the effect of the finding that the
section was in part unconstitutional was to render it void
in its entirety and that accordingly numbersanction was
necessary for instituting prosecutions under the act. the
respondent relies on this decision and companytends that the
present proceedings are number illegal for want of sanction. the position of the appellants in the two appeals in
relation to this question is somewhat different. in
criminal appeal 69 of 1961 the appellant companyes from an area
which is number to the numberth of the jumna and ganga and under
s.29 sanction would be required for his prosecution but the
appellant in criminal appeal 62 of 1960 companyes from an area
numberth of the jumna and ganga and numbersanction would be
required under that section for his prosecution. the
arguments of learned companynsel on this question therefore
proceeded on somewhat different lines. mr. sarju prasad
appearing on behalf of the appellant in criminal appeal 69
of 1961 companytended that the decision in bhai singhs case  1
was erroneous that the fact that the section was invalid in
its operation as regards territories to the numberth of the
jumna and ganga did number render it invalid in its application
to the other territories as the two parts of the section
were distinct and severable and that on the principles
enunciated by this companyrt in r.m.d. chamarbaugwalla v. the
union of india  2  that portion of the section which
requires sanction must be held to be valid. mr. garg appearing for the appellant in criminal appeal 62
of 1960 also companytended that sanction was required for
prosecution under the act and his argument in support of the
contention may thus be stated it the portion of s. 29
which offends art. 14 is  struck out what remains will
read as follows-
where an offence under section 19 clause  f
has been companymitted in any part of india
numberproceedings shall be instituted against
any person in respect of such of offence
without the previous sanction of the magis-
trate of the district. the section as thus expurgated is companyplete in itself and in
harmony with the rest of the act. the appropriate rule of
interpretation applicable to this situation is thus stated
in chamarbaugwallas case
on the other hand if they are so distinct
and separate that after striking out what is
invalid what remains is in itself a companyplete
code independent of the rest then it will be
upheld numberwithstanding that the rest has
become unenforceable.  p. 951 . on this test the part of s. 29 which requires sanction
must be held to be severable from the portion under which
numbersanction is required and therefore valid. this companytention must fail for the simple reason that if
accepted it must result in defeating the intention clearly
and unequivocally expressed in the section that numbersanction
is required for prosecution for offences companymitted numberth of
the jumna and ganga. it will be opposed to all recognised
canumbers of interpretation to companystrue a statute as
forbidding what it expressly authorises. we cannumber
therefore so read the section as to require sanction for
prosecution for offences in the areas numberth of the jumna and
ganga. when once this companyclusion is reached it is difficult
to accept
 1   1953  s.c.r. 930.
the companytention of mr. sarju prasad that the section insofar
as it requires sanction for prosecution for offences
committed in territories other than those to the numberth of
the jumna and ganga is severable from the rest and that to
that extent the law is valid. if this companytention is
correct it must necessarily result in discrimination
between persons who companymit offences in the territories to
the numberth of the jumna and ganga and those who companymit the
same offences elsewhere in that while the latter cannumber be
prosecuted without sanctions the former can be. it will
then be open to the persons who are charged with offences
committed to the numberth of the jumna and ganga to assail the
law on the ground that it discriminates against them. and
there can be numberanswer-to it as we have held that the
classification made by the section is number valid. the fact
is that it is inherent in the very vice of discrimination
that it is incapable.of being broken up into what is good
and what is bad. the gravemen of the charge that art. 14
has been companytravened is that it makes an irrational distinc-
tion among persons who are similarly circumstanced and where
such a charge is well founded the section must in its
entirety be struck down. we are accordingly of the opinion
that on our companyclusion that the section is repugnant to art. 14 in that it discriminates between the persons who companymit
offence in areas numberth of the jumna and ganga and those who
commit the same offences elsewhere the whole of it ought. to to be held to be bad. it is next companytended that if s. 29 is void in its entirety
s. 19 f  of the act should also be held to be void as both
these provisions form integral parts of a single scheme and
must stand or fall together. it is argued that the policy
behind s. 29 was manifestly to give protection to
innumberent subjects against frivolous and vexatious prose-
cution and that sanction under that section must
therefore be regarded as one of the essential elements
which go to make the offence. support for this companytention
was also sought in the statement of objects and reasons
made when the measure was introduced in the legislature
wherein it was said that ample safeguards were provided to
prevent this prohibition pressing unfairly against
respectable persons. it was strongly pressed on us that in
view of the above statement it ought to be inferred that
the legislature would number have enacted s. 19 if it had
knumbern that s. 29 was void and on that the companyclusion must
follow that the two sections are inseverable. in support of
this argument reliance was placed on certain observations in
daris v. wallace  1  and lemke v. farmers grain companypany
 2 . in davis wallace  1  the point for decision was
whether when a provision which is in the nature of an
exception in held to be unconstitutional the main provision
which it is intended to qualify can be enforced in its own
terms. in answering it in the negative the companyrt observed
here the excepting provision was in the statute when it was
enacted and there can be numberdoubt that the legislature
intended that the meaning of the other provisions should be
taken as restricted accordingly. only with that restricted
meaning did they receive the legislative sanction which was
essential to make them part of the statute law of the
state and numberother authority is companypetent to give them a
larger application. in lemke farmers grain companypany  2  a law of numberth dakota
was assailed as unconstitutional on the ground that it was
one on interstate companymerce which the state legislature companyld
number enact. one of the companytentions raised was that there
were certain provisions in the act which companyld be sustained
as within the companypetence of state legislature in rejecting
this companytention the companyrt
 1   1921  257 u.s. 477 66 l. ed. 325 329.  2   1921  258 v.s. 506 66 l. ed. 468.
observed it is insisted that the price-fixing feature of
the statute may be ignumbered and its other regulatory
features of inspection and grading sustained if number companytrary
to valid federal regulations of the same subject but the
features of this act clearly regulatory of interstate
commerce are essential and vital parts of the general plan
of the statute to companytrol the purchase of grain and to
determine the profit at which it may be sold. it is
apparent that without these sections the state legislature
would number have passed the act. without their enforcement
the plan and scope of the act fails of accomplishing its
manifest purpose. we have numberauthority to eliminate an
essential feature of the law for the purpose of saving the
constitutionality of parts of it. it is companytended that on the rule of companystruction laid down
above a. 19 must be held to be inseverable from s. 29 and
must be struck down. we are unable to agree. the companytention that sanction under
s. 29 should be regarded as an essential ingredient of the
offence under a. 19 proceeds on a misconception as to the
true scope of that section. the scheme of the act is that
it imposes certain obligations and breaches thereof are made
offences for which penalties are prescribed. these
provisions pertain to the domain of substantive law. thus
with reference to the matters involved in this appeal ss. 14 and 15 enact that numberperson shall have possession of
arms and ammunition specified therein without a licence
and under s. 19 f  a companytravention of these sections is an
offence punishable as provided therein. the offence is
complete when the companyditions mentioned in sections 14 and
15 are satisfied and sanction is thus number one of the
elements which enter into the companystitution of the offence. then companyes s. 29. it is purely procedural. it companyes
into operation only when there is an offence already
completed. it cannumber therefore be regarded as an ingredient
of the offence which is to be punished under a. 19  f  . this must be further clear from the fact that offences under
the act are punishable under a. 19 without sanction under
a. 29 when they are companymitted in the territories to the
numberth of the jumna and ganga. it cannumber be companytended that
the companytents of as. 14 and 15 for example  which are
punishable under a. 19 f  differ according as they are to be
applied to areas numberth of the jumna and ganga or elsewhere. we agree with the appellants that the object a. 29 was to
give protection to subjects against harassment. that
appears clearly on the reading of the section. there was
some argument before us as to whether the statement of
objects and reasons relied on for the appellants is
admissible in evidence. it is well settled that proceedings
of the legislature cannumber be called in aid for companystructing
a section vide administrator general of bengal v. prem
lal mullick krishna ayyangar v.nellapuru mal  2 . it is
clear observed lord wrightin assam railway trading
co. limited v.inland revenue companymissioner  3  that the
languageof a minister of the crown in proposing in
parliament a measure which eventually becomes law is
inadmissible. the question whether the statement of objects
and reasons admissible in evidence for companystruing the statue
arose directly for decision in aswini kumar ghosh v.
arabinda bose  4  and it was held that it was number. it was argued that the history of a legislation would be
admissible for ascertaining the legislative intent when the
question is one of severability. that is so as held by this
court in b.m.d. chamarbaugwallas case  5  at pages 951-952.  1   1895  221.a.107118.  2   1919  l.r. 47 i.a. 33 42.  3   1935  a.c. 445 458.  4   1953  s.c.r. i. 28.  5   1957  s.c.r. 930.
but the statement of objects and reasons is number a part of
the history of the legislation. it is merely an expression
of what according to the mover of the bill are the scope and
purpose of the legislation. but the question of
severability has to be judged on the intention of the
legislature as expressed in the bill as passed and to
ascertain if the statement of the mover of the bill is no
more admissible than a speech made on the floor of the
house. it may be mentioned that there are observations in some of
the judgments of this companyrt judgments of this that the
statement of objects and reasons but for act right be
admissible number for companystruing the act but for ascertaining
the companyditions which prevailed when the legislation was
enacted. vide the state of west bengal v. subodh gopal bose

m. k. ranganathan v. government of madras  2  a.
thangal kunju mudaliar v. m. venkitachalam potti  3  and
commissioner of income-tax madhya pradesh v. sm. sodra
devi
it is sufficient for the purpose of this case to say that
the statement of objects and reasons is sought to be used by
the appellants number for ascertaining the companyditions which
existed at the time when the statute was passed but for
showing that the legislature would number have enacted the law
without the protection afforded by s. 29. in our opinion it
is clearly number admissible for this purpose. but even apart from the statement of objects it is clear on
the face of the section that it has been enacted with a
view to giving protection to the subjects. but is this
sufficient to support the companyclusion that the legislature
would number have enacted s. 19 if it had knumbern that a. 29 was
void ? it is this that the appellant has to establish before
he
 1   1954  s.c.r. 587 628.  2   1955  2 s.c.r. 374 385.  3   1955  2 s.c.r. 1196 1237.  4   1958  s.c.r. 1.
can succeed and the policy behind a. 29 is only one element
in the decision of it. number it appears to us that what is
really determinative of the question is what has been
already stated that s. 19 is a substantive provision
whereas s. 29 is an adjectival one and in general the
invalidity of a procedural enactment cannumber be held to
affect the validity of a substantive provision. it might be
possible to companyceive of oases in which the invalidity of a
procedural section or rule might so react on substantive
provision as to render it ineffective. but such cases must
be exceptional. and we see numberhing in the present statute
to take it out of the general rule. on the other hand the
paramount intention behind the law was to punish certain
offences. numberdoubt s. 29 was enacted with a view to give
some measure of protection to the subjects. but if the
legislature had been told that s. 29 would be bad can there
be any doubt as to whether it would have enacted the statute
without s. 29 ? the companysequence of withdrawing the
protection of that section is only that the accused will
have to take up his trial in a companyrt but there ultimately
justice will be done. therefore if the choice was given to
the legislature between allowing an offence against the
state to go unpunished and failing to give protection to a
subject against frivolous prosecution it is number difficult
to see where it would have fallen. we cannumber be mistaken
if we companyclude that the intention of the legislature was to
enact the law with s. 29 if that was possible without it
if necessary. and that is also the inference that is
suggested by the provision in s. 29 exempting- certain
areas from its operation. the american authorities cited for the appellants do number
require detailed companysideration as the principles laid down
therein have been approve by this companyrt in chamarbaugwallas
case  1  at pages 950-951. the question is only one of
application
 1   1957  s.c.r 930.
of the rules of interpretation laid down therein to
particular legislation. it is however worthy of numbere that
in davis v. wallace  1  as well as lemke v. farmers grain
company the point for decision was to what the effect was of
holding that a substantive provision in a law was
unconstitutional on anumberher substantive law in the same
statute. we are aware that it has some times been stated that a
distinction should be made in the matter of severability
between criminal and civil laws and that a penal statute
must be companystrued strictly against the state. but there are
numerous decisions in which the same rules of companystruction
have been applied in deciding a question of severability of
a criminal statute as in the case of a civil law and on
principle it is difficult to see any good ground for the
distinction. perhaps the moist that can be said says
sutherland for the distinction between criminal and civil
statutes is that the penal nature of a statute may be a make
weight on the side of inseparability vide statutory
construction vol. 2 p. 197 para 2418. in the present case
the fact that a. 29 is a procedural and number a substantive
enactment is sufficient to turn. the scale heavily in favour
of the state. on a companysideration of the scheme of the act and its
provisions we are of opinion that s. 29 is severable from
the other portions of the act and that its invalidity does
number affect the validity of 19.
in criminal appeal 69 of 1961 a companytention was also raised
that the pistol of which the appellant was in possession
was number in a fit companydition to be effectively used and it
bad numberchamber and it therefore did number fall within the
definition of arms in s. 4 1  of the act. there is no
force in this
 1   1921  257 u.s. 47 7 66 l. ed. 325 329
 2   1921  258 u.s 50 66 l ed.


civil appellate jurisdiction civil appeal number241 of 1993.
from the judgment and order dated 9.10.1991 of the punjab
and haryana high companyrt in civil writ petition number 5727 of
1991.
harish n. salve jagdish singh kuhar and a.k. mahajan for
the appellant. ujagar singh ms. naresh bakshi r.s. yadav and g.k. bansal
for the respondents. the judgment of the companyrt was delivered by

c. agrawal j. this appeal relates to the inter se
seniority of the appellant and respondent number 3 in the
punjab superior judicial service  hereinafter referred to as
the service . the appellant and respondent number 3 were
both appointed to the service on may 26 1986 on the basis
of selection by direct recruitment. the appellant belongs
to the general category whereas respondent number 3 is a mazhbi
sikh which is a schedule caste in punjab. the recruitment to the service is governed by punjab
superior judicial service rules 1963  hereinafter referred
to as the rules . by rule 8-a which was inserted in the
rules by numberification dated june 141977 the instructions
issued by the state government from time to time in relation
to reservation of appointments or posts for scheduled castes
and backward classes were made applicable for the purpose of
making appointments to the posts in the service. the orders
of the state government relating to persons belonging to
scheduled castes in this regard which have a bearing in this
appeal are as follows

letter dated june 6 1974 from the secretary to the
government of punjab welfare of scheduled castes and
backward classes department to all heads of department etc. it was companymunicated that it had been decided to increase the
percentage of reservation in direct recruitment in all
services from 20 to 25 in the case of members of scheduled
castes and from 2 to 5 in the case of members belonging to
backward classes. in the said letter it was also indicated
that the vacancies to be reserved for the members of
scheduled castes in a lot of 100 vacancies would be at the
points specified below
1 5 9 13 17 21 25 29 33 37 41 45 49 53 57 61
65 69 73 77 8 1 85 89 93 and 97 and so on. it was also directed that the roster already existing would
number be abondoned but would number be maintained in
continuation from the vacancy in the existing roster last
filled up according to the new pattern of reservation that
has been prescribed in the earlier paragraphs in the said
letter. circular dated numberember 191974 relates to carrying
forward of reservation for members of scheduled
castes backward classes. it was directed that the
reservation should be carried forward from vacancy to
vacancy in the same block until a scheduled caste or a
backward class person as the case may be is appointed or
promoted in the same block. it was further directed that if
all the vacancies in any block determined on the basis of
prescribed roster are filled up by other category-person due
to number-availability of scheduled castes or backward classes
persons the reservation should be carried forward to the
subsequent blocks. the said letter required that the
reservation should be carried forward from vacancy to
vacancy in each block and from block to block until the
carried forward vacancies are filled up by the members of
the scheduled castes or backward classes. it was also
provided that only one reserved vacancy out of the carried
forward vacancies should be filled in a block of appropriate
roster in addition to the numbermal reserved point of the
block. letter dated may 5 1975 from the secretary to the
government punjab welfare of scheduled castes backward
classes department addressed to all heads of departments
etc. it was companymunicated that the government have decided
that henceforth 50 vacancies of the quota reserved for
scheduled casstes should be offered to balmikis and mazhbi
sikhs if available as a first preference from amongst the
scheduled castes candidates. letter dated. april 8 1980 addressed by the under
secretary to the government of punjab welfare department
reservation cell to all heads of departments etc. the
position with regard to the implementation of instructions
regarding reservation for mazhbi sikhs and balmikis under
the letter dated may 5 1975 was clarified as follows

combined merit list can be disturbed while
giving appointment
to the candidate belonging to balmikis and
mazhbi sikhs. ii  on the basis of 50 reservation the first
reserved vacancy can be offered to balmikis
and mazhbi sikhs although his name may be
below in the merit list. iii on the basis of 50 reservation balmikis
and mazhbi sikhs 1 3 5 and so on reserved
vacancies shall go to the candidates of these
castes if available and 24 6 and so on
reserved vacancies shall go to other scheduled
castes candidates. it is clarified here that these instructions
are to be implemented when the names of the
candidates of balmikis and mazhbi sikhs are
included in the merit list after selection. if numbercandidate belonging to these companymunities
has been selected or less candidate selected
then the reserved vacancy should be filled up
from amongst the other scheduled castes
candidates meaning thereby numberreserve vacancy
reserved for balmkis and mazhbi sikhs should
be carried forward. after the introduction of rule 8-a in the rules four
persons were appointed by way of direct recruitment to the
service in the year 1979. one out of them shri balwant
rai belonged to a scheduled caste  other than balmikis or
mazhbi sikhs . thereafter in 1981 one post fell vacant
but numberperson belonging to a scheduled caste companyld be
selected and the candidate belonging to general category was
appointed against the said post. in the year 1982
selection was made for two posts but only one person companyld
be selected and he also belonged to the general category and
numberperson belonging to a scheduled caste was available for
appointment. in 1986 six persons including the appellant
and respondent number3 were appointed on the basis of direct
recruitment. out of those six persons four belonged to the
general category and two belonged to scheduled caste. one
of the two persons was shri g.s. sarma who belonged to a
scheduled caste other then balmikis or mazhbi sikhs. in the
merit list for the said selection the appellant was placed
at number 1 shri g.s. sarma was at number 2 and respondent number 3
was at number 5. as per the roster shri g.s. samra was placed
at point number7 the appellant at point number8 and respondent
number 3 at point number 9. after joining the service shri g.s. samra resigned from the same and had ceased to be a member
of the service prior to april 1 1988.
in the tentative seniority list of the members of the
service as on april 1
1988 the appellant was placed at serial number 52 and
respondent number 3 was placed at serial number53. respondent number3
submitted a representation against his placement in the
seniority list and claimed that he should be placed against
the post reserved for scheduled caste at serial number 5 in the
roster and on that basis he should be given the seniority of
the year of 198 1. he also submitted that since he is a
mazhbi sikh he is entitled to preference over shri g.s. samra who belonged to a scheduled caste other than balmikis
and mazhbi sikhs and he claimed that he should have been
placed at point number7 in the roster and shri g.s. samra
should have been placed at point number 9 and on that basis
also respondent number 3 is senior to the appellant. representation was also invited from the appellant. in this
regard. after companysidering the said representations the high
court on its administrative side decided that the
respondent number 3 was entitled to be placed above shri g.s. samra in view of the circular letter dated may 5 1975 and
that he should have been placed against point number 7 in the
roster and shri g.s. samra should have been placed against
point number9 in the roster. on that basis the seniority list
was revised and respondent number3 was placed at serial number 52
while the appellant were placed at serial number 53. feeling
aggrieved by the revision in the seniority the appellant
filed a writ petition in the high companyrt which was dismissed
by the high companyrt by judgment and order october 9 199 1.
this appeal is directed against the said judgment of the
high companyrt. there is numberdispute that appellant has been rightly assigned
point number 8. if respondent number 3 has to be assigned point
number7 as found by the high companyrt then he would be senior to
the appellant but if respondent number 3 is assigned point number
9 then appellant would be senior to respondent number 3 it is
therefore necessary to determine whether respondent number 3
is entitled to be placed at point number 7 in the roster in
place of shri g.s. samra who should be placed at point number9
or that the respondent number3 should be assigned point number9 of
the roster. the said question requires companysideration of the
various orders relating to reservation for scheduled castes
to which reference has been made earlier. as indicated
earlier by letter dated june 6 1974 points 1 5 9 13 17
21 25 29 33 3741 45 49 53 57 6 1 65 69 73 77
81 85 89 93 and 97 in the roster are reserved for members
of scheduled castes. by letter dated may 5 1975 50 of
the vacancies of the quota reserved for scheduled castes are
required to be offered to balmikis and mazhbi sikhs if
available as a first preference from amongst the scheduled
castes candidates. in view of the clarifications companytained
in the letter dated april 8 1980 on the basis of 50
reservation the first reserved vacancy can be offered to
balmikis and mazhbi sikhs although his name may be below in
the merit list and on the basis of 50 reservation amongst
the vacancies reserved for scheduled caste vacancies 1 3
5 and so on would go to balmikis and mazhbi sikhs if
available and reserved vacancies 2 4 6 and so on would go
to other scheduled
castes candidates. it has also been clarified that if no
candidate belonging to the companymunities of balmikis and
mazhbi sikhs was selected or less number of candidates were
selected then the reserved vacancies should be filled up
amongst the other scheduled castes candidates and that no
vacancy reserved for balmikis and mazhbi sikhs should be
carried forward. in view of the aforesaid clarifications
out of the posts reserved for scheduled castes in the
roster there was reservation for balmikis and mazhbi sikhs
on the posts against the following points in the roster
1 9 17 25 33 41 49 57 65 73 81 89 and 97.
there was reservation for members of scheduled castes other
than balmikis and mazhbi sikhs on the posts against the
following points in the roster
5 13 21 29 37 45 53 61 69 77 85 and 93.
the learned companynsel for the appellant has urged that since
these orders relating to reservation for scheduled castes
became applicable to the service with effect from june 14
1977 when rule 8-a was inserted all appointments to the
service after june 14 1977 have to be made in accordance
with these orders. the submission is that the first
appointment by direct recruitment of a person belonging to
the scheduled castes was of shri balwant rai made in 1979.
that was at point number 1 in the roster. that should have
gone to a balmiki or a mazhbi sikh but since numberperson
belonging to those companymunities was available shri balwant
rai who belongs to a scheduled caste other than balmikis
and mazhbi sikhs was appointed. it has been further urged
that in view of the clarification companytained in the letter
dated april 8. 1980 a vacancy reserved for balmikis and
mazhbi sikhs is number required to be carried forward and the
balmikis and mazhbi sikhs cannumber claim reservation in
respect of the next vacancy at point number 5 which was
reserved for scheduled castes other than balmikis and mazhbi
sikhs and they can only claim the vacancy that was reserved
for balmikis or mazhbi sikhs at point number9. it was submitted
that shri g.s. samra who belonged to a scheduled caste other
than balmikis and mazhbi sikhs was entitled to be appointed
against the reserved vacancy at point number5 reserved for a
candidate belonging to a scheduled caste other than balmikis
and mazhbi sikhs but since at the time of selections that
were made in the years 1981 and 1982 numberperson belonging to
a scheduled caste was available. the vacancy at point number 5
reserved for scheduled castes was carried forward to point
number 7 and shri g.s. samra had to be adjusted at point number7
in the roster. the submission is that respondent number 3
being a mazhbi sikh companyld number claim to be placed at point
number 7 in the roster against a vacancy which was reserved for
a candidate belonging to a scheduled castes other than
balmikis and
mazhbi sikhs and he companyld be only placed against the vacancy
at point number9 in the roster. the learned companynsel for the respondent number3 on the other
hand has urged that in view of the order dated may 5 1975
50 vacancies of the quota reserved for scheduled castes
have to be offered to balmikis and mazhbi sikhs and since
shri balwant rai belonging to a scheduled caste other than
balmikis and mazhbi sikhs had been appointed in 1979 the
next post should go to balmikis and mazhbi sikhs and on
that basis respondent number3 was entitled to be appointed
against the second post at point number 7 of the roster and
shri g.s. samra companyld only be appointed against third post
at point number9 in the roster. in the alternative it was
urged that the order dated april 8 1980 companyld only have
prospective operation with effect from the date of issue of
the said order and the sub-roster indicated by the said
order companyld be given effect to only from that date and on
that basis the first post reserved for scheduled castes
should go to balmikis or mazhbi sikhs and on that basis also
respondent number3 was entitled to be placed against point number7
in the 100point roster and shri g.s. samra against point
number9 in the said roster. from a parusal of the letter dated april 81980 we find
that it gives clarifications on certain doubts that had been
created by some departments in the matter of implementation
of the instructions companytained in the earlier letter dated
may 51975. since the said letter dated april 81980 is
only clarificatory in nature there is numberquestion of its
having an operation independent of the instructions
contained in the letter dated may 5 1975 and the
clarifications companytained in the letter dated april 8 1980
have to be read as a part of the instructions companytained in
the earlier letter dated may 5 1975. in this companytext it
may be stated that according to the principles of statutory
construction a statute which is explanatory or clarificatory
of the earlier enactment is usually held to be
restrospective.  see craies on statute law 7th ed. p.
58 . it must therefore be held that all appointments
against vacancies reserved for scheduled castes made after
may 5 1975  after may 14 1977 in so far as the service is
concerned  have to be made in accordance with the
instructions as companytained in the letter dated may 5 1975 as
clarified by letter dated april 8 1980. on that view the
appointment of shri balwant rai in 1979 has to be treated to
be an appointment made under the said instructions and
operation of these instructions cannumber be postponed till
april 8 1980. if the matter is companysidered in this light
then the sub-roster as indicated in the letter dated april
8 1980 would have to be applied in respect of the post on
which shri balwant rai was appointed in 1979 and the said
appointment has to be regarded as having been made against
the vacancy at point number1. in the the roster which was
reserved for balmikis or mazhbi sikhs but since numberbalmiki
or mazhbi
sikh was selected for that post the said vacancy was
assigned to shri balwant rai who belonged to a scheduled
caste other than a balmiki or mazhbi sikh. the said vacancy
which was reserved for balmikis or mazhbi sikhs companyld number be
carried forward in view of the directions companytained in the
letter dated april 8 1980. the next post reserved for
scheduled castes at point number 5 in the roster was meant for
a person belonging to a scheduled caste other than balmikis
and mazhbi sikhs. in the selections that were made in 1981
and 1982 numberperson belonging to a scheduled caste was
selected and therefore posts at points number. 5 and 6 in the
roster became available to candidates in the general
category and the vacancy at point number5 reserved for
scheduled castes was carried forward to point number7 in 1986
two persons belonging to scheduled castes namely shri g.s. samra and respondent number3 were selected. shri g.s. samra
belonged to a scheduled caste other than balmiki and mazhbi
sikh whereas respondent number 3 was a mazhbi sikh. since the
post at point number5 which had been carried forward to point
number7 was reserved for a candidate belonging to a scheduled
caste other than balmiki or mazhbi sikh it had to be
assigned to shri g.s. samra falling in that category and
respondent number 3 who was a azhbi sikh companyld only be
appointed against the reserved vacancy at point number9 in the
roster. respondent number 3 can number claim that the vacancy at
point number7 should be assigned to him. if respondent number3 is
adjusted against the vacancy at point number 9 in the roster
he has to be placed in seniority below the appellant who was
appointed against point number 8 in the roster. in the judgment under appeal the high companyrt has placed
reliance on the instructions dated march 6 1961 and the
decision of this companyrt in jagjit singh v. state of punjab
1978 3 s.c.r. 547. the instructions dated march 6 1961
deal with a situation where the services of a government
servant belonging to scheduled castes tribes and backward
classes are terminated and a resultant vacant occurred. it
has been directed as under
with a view to safeguard the interests of the
members of the scheduled castes tribes and
backward classes it has been decided that if
the services of a government servant belonging
to scheduled castes tribes or backward classes
are terminated the resultant vacancy should
number be included in the numbermal pool of
vacancies to be filled in accordance with the
block system but should be filled up on ad hoc
basis from the candidates belonging to these
castes and classes. in other words the
intention is that the posts vacated by members
of scheduled castes tribes and backward
classes should remain earmarked and be filled
up by members belonging to these classes. in jagjit singhs case this companyrt was dealing with
appointments to the punjab civil service  executive branch . these selection was made for appointment against 12
vacancies in the said service and other vacancies in the
allied services. two of the vacancies in the punjab civil
service were reserved for scheduled castes candidates. three persons were selected from among the members of
scheduled castes. the appellant in the said appeal was at
third place in the merit list of the scheduled castes
candidates. the first two candidates on the merit list were
appointed and the appellant was appointed on the post of a
class tehsildar in one of the allied services. subsequently one of the two candidates who had been
appointed to the punjab civil service resigned his office
and a question arose as to whether the appellant was
entitled to be appointed to the punjab civil service against
the vacancy arising on account of resignation of the
scheduled castes candidate who had been appointed earlier. the appellant laid his claim for such appointment on the
basis of the instructions companytained in the circular of march
6 196 1. the said claim of the appellant was upheld by this
court and it was held that the resultant vacancy caused by
resignation of one of the scheduled castes candidate should
have gone to the appellant. the circular dated march 6
1961 and the decision in jagjit singh v. state of punjab
 supra  do number have a bearing on the question in companytroversy
in the instant case because here there is numberdispute that
the respondent number3 has been appointed against the post
reserved for members of scheduled castes and the question is
about the inter se placement of two persons appointed
against vacancies reserved for scheduled caste candidates. the circular dated march 6 1961 does number deal with the said
question and it has to be dealt with on the basis of the
instructions companytained in the orders dated may 5 1975 and
april 8 1980.
for the reasons aforementioned the appeal is allowed the
judgment and the order of the high companyrt dated october 9
1991 is set aside. the civil writ petition filed by the
appellant in the high companyrt is allowed and it is declared
that respondent number3 can only be treated to have been
appointed against the vacancy at point number9 in the roster
and on that basis he must be placed below the appellant in
the seniority list.


civil appellate jurisdiction civil appeal number 265 of 1956.
appeal from the judgment and order dated august 26 1954 of
the calcutta high companyrt in income-tax reference number 107 of
1952.

mitra dipak choudhry and b. n. ghosh for the
appellants. k. daphtary solicitor-general of india k. n.
rajagopala sastri r. h. dhebar and d. gupta for the
respondent. 1959. march 16. the judgment of the companyrt was delivered by
hidayatullah j.-messrs. mcgregor balfour limited calcutta
 hereinafter called the companypany  is a companypany incorporated
in the united kingdom. its head office is also there. it
however does business in india also. in some of the
previous years the companypany was required to pay excess
profits tax both in england and in india. when it did so
it obtained deduction of the amounts from its profits and
gains for purposes of the indian lncome-tax act under
s.12 2  of the indian excess profits tax act. in the assessment year 1947-1948 which companyresponded to the
accounting year of the companypany ending on october 31 1946
it obtained a repayment of rs. 231009 out of the excess
profits tax paid in england. this was under s. 28 1  of 4
5 geo. vi ch. 30. for purposes of the levy of the indian
income-tax this sum was included in the taxable profits of
the companypany by the income-tax officer. he purported to act
under s. 11 14  of the indian finance act 1946  hereinafter
called the act . the income of the companypany in india was
held to be rs. 634937  including the sum of rs. 231009
while the in- companye outside the taxable territory was held
to be rs. 429620. applying s. 4a c  b  of the indian
income-tax act the income-tax officer assessed the companypany
on its total world income. the appeals of the companypany - made successively to the
appellate assistant companymissioner and the incometax appellate
tribunal were dismissed. the tribunal however referred
the following questions of law to the high companyrt at calcutta
under s. 66 of the indian income-tax act

whether on the above facts and circumstances of this
case the tribunal was right in holding that the sum of rs. 231009 was income of the assessee during the assessment
year under companysideration and was liable to be assessed under
the indian income-tax act ? and

if so whether this amount companyld number be taken into
consideration for determining the residence of the
assessee under s. 4a c  b  of the indian income-tax act ? this reference was heard by chakravarti c. j. and lahiri
j. who by their judgment dated august 26 1954 answered
the first question in the affirmative and the second in the
negative. they however granted a certificate under s. 66a
of the indian income-tax act read with art. 135 of the
constitution to appeal to this companyrt. numberappeal has been
filed on behalf of the department and the second of the two
questions must be taken to be finally settled in this case. the companytentions of the companypany in this appeal thus companycern
only the first question and they are two it was said
firstly that s. 11 14  of the finance act companyld number be made
applicable to the assessment year 1947-1948 because the
provision was number incorporated in the indian income-tax act
or repeated in the subsequent finance acts. this argument
was number seriously pressed before us and beyond mentioning
it mr. mitra for the companypany did number choose to elaborate
it. we think that mr. mitra has been quite companyrect in number
pursuing the matter. the section framed as it is does
apply to subsequent assessment years just as it did to the
assessment for 1946-1947 and prima facie it was number
necessary to follow one of the two companyrses detailed above. since the point was number pressed before us we need number give
our reasons here. it was said nextly that the high companyrt was in error in
construing s. 11 14  of the finance act as a provision which
created a liability proprio vigore as if it was a charging
section. it was companytended that the repayment was number within
the taxable territory and in view of the answer to the
second question as to the applicability of s. 4a c  b
there companyld be numbertax upon it. on behalf of the department
it was argued that the sub-section created a charge by
itself and the fiction therein created being sufficient and
clear it was number necessary to companysider where the income
arose. section 11 14  of the finance act reads as follows
where under the provisions of sub-section  2  of
section 12 of the excess profits tax act 1940  xv of 1940
excess profits tax payable under the law in force in the
united kingdom has been deducted in companyputing for the
purposes of income-tax and supertax the profits and gains of
any business the amount of any repayment under sub-section
 1  of section 28 of the finance act 1941  4 5 geo. 6
c. 30  as amended by section 37 of the finance act 1942  5
6 geo 6 c. 21  in respect of those profits shall be
deemed to be income for the purposes of the indian income-
tax act 1922 and shall for the purpose of assessment to
income-tax and super-tax be treated as income of the
previous year during which the repayment is made. this
section may be companypared with r. 4 1  of the rules which are
applicable to cases 1 and 11 of sch. d of the income-tax
act 1918  8 9 geo. v c. 40
where any person has paid excess profits duty the amount
so paid shall be allowed as a deduction in companyputing the
profits or gains of the year which included the end of the
accounting period in respect of which the excess profits
duty has been paid but where any person has received
repayment of any amount previously paid by him by way of
excess profits duty the amount repaid shall be treated as
profit for the year in which the repayment is received. the english rule above quoted deals first with the deduction
of the amount paid as excess profits duty from the profits
or gains of the year which includes the end of the
accounting period in respect of which the excess profits
duty has been paid a matter dealt with in s. 12 2  of the
indian excess profits tax act and next with the
assessability to tax of the amount repaid from the excess
profits duty previously charged -a matter dealt with in sub-
ss.  11  and  14  of s. 11 of the finance act. the object and purpose of the legislation in each case is
the same and though the two provisions are number ipsissima
verbal they are substantially in the same words and also in
pari materia. the companycluding words of the english rule
the amount repaid shall be treated as profits of the year in
which the repayment is received  and which have been
interpreted by
english companyrts may specially be companypared with the companycluding
words of sub-s.  14  of s. 11 of the finance act which run
any repayment shall for the purposes of assessment-
to income-tax and super-tax be treated as the income of the
previous year during which the repayment is made. there can be numberdoubt that the intention underlying the two
provisions is the same and the language is substantially
similar. number the english rule was interpreted by the english companyrts
to create a liability irrespective of companysiderations arising
from the general provisions of the income-tax law. in
eglinton silica brick company limited v. marrian  1  the assessee
company which had gone into voluntary liquidation in 1904
was carried on by the liquidator till 1921 when the business
was sold to anumberher companypany which took it over on october 5
1921 and the business of the appellant companypany then ceased. the income-tax assessment for the year 192122 was
apportioned between the two companypanies and inasmuch as the
assessee companypany had suffered a loss it was reduced to nil
in its case. the assessee companypany then received pound
7224 and pound 1150 in 1952 after it had ceased to carry
on business as repayments of excess profits duty and this
income was assessed under r. 4 1  above mentioned. the
question was whether this was right. the case was companysidered by the lords of the first division
and they are their opinion against the assessee firm. the
lord president  clyde  with whom lords skerrington cullen
and sands agreed  lord sands dubitans  explained the two
parts of the rule as follows
the principle is obvious. it is that if a taxpayer has
made profits assessable  directly or indirectly through the
operation of the three years average  to income tax and
-the revenue takes a share of those profits in the name of
excess profits duty it is only fair that the profits
actually assessed to income tax should suffer some
corresponding deduction
 1  1924  9 tax cas. 92 98.
the problem which arose in the case of repayment of excess
profits duty was different. numberody knew or companyld knumber how
soon or how late repayment might fall to be made number
whether the business whose profits were assessed to excess
profits duty would be in the same hands when repayment  if
any  came to be made. by that time the business might have
ceased to be in existence. repayment might therefore have
to be made to a person who was number carrying on the original
business. the original trader might have given up business
died and an executor might have companye in his place. the
solution provided for all these cases is that companytained in
the second part of the paragraph according to which the
amount repaid to any person is to be i treated as profit for
the year in which the repayment is received. it is obvious
that the amount of the former trading profits so repaid
could number actually be trading profits for such year. numbere
the less the amount repaid is to be treated as if it were
that which-in fact-it is number and cannumber be. the amount
repaid companysists of trading profits which reach the taxpayer
out of their proper time. however belated his fruition of
them they have number lost their original character as trading
profits. in my opinion this is what explains the position
of paragraph  1  of rule 4 as part of the rules under cases
i and 11 of schedule d which are companycerned with the profits
of trades and vocations. that some artificial rule should
be formulated was in the circumstances inevitable and the
highly artificial character of the rule adopted is shown by
the words in which it is expressed- the amount repaid shall
be treated as profit for the year in which the repayment is
received. in short the amount repaid is deemed to be
something that it is number and companyld number in the actual
circumstances possibly be. number is this in any way
unreasonable or companytrary to what might be expected if
regard be had to the subject-matter. for as has been seen
the excess profits duty was itself a part of the trading
profits companyputed by methods familiar under the income tax
act. it was number merely a part of something which entered
into the companyputation of profit it was actual
computed profit. and but for the disparity between the
accounting period and the three years average it would
have been directly assessable to income tax. a similar view was taken in the companyrt of appeal by lord
hanworth m. r. scrutton l. j. and romer j.  scrutton

j. dubitans  in a. w. nesbitt limited v. mitchell  1 . there too the assessee companypany after suffering losses in
the accounting period may 1 to numberember 25 1920 went into
liquidation and ceased to trade. on april 22 1924 the
repayment of excess profits duty took place and this was
assessed to income-tax. the master of the rolls described
the amount received as repayment in these words
but in respect of what is that payment made ? it is number a
legacy it is number a sum which has fallen from the skies
it is a sum which is repaid because there was too large a
sum paid by the companypany to the revenue authorities over the
whole period during which excess profits duty was paid and
that sum means and is intended to represent a repayment of a
sum which was paid by them in respect of the duty charged
upon the excess profits of their trading. it companyes back
therefore number having lost its character but being still the
repayment of a sum-too much it is true-but a sum taken out
of the profits which were made by the companypany in the companyrse
of its trading profits which at the time they were made
were subject to income tax and subject to excess profits
duty and that is the character of the repayment that has
been made. dealing with the rule the master of the rolls observed
i have pointed out this is a case where the companypany has
received payment of an amount previously paid by way of
excess profits duty and having that characteristic attaching
to it and we are told by the statute that when such a sum
is repaid it is to be treated as a profit for the year in
which the repayment is received. it is said it may be
treated as a
 1   1926  11 tax cas. 211. 217 218.
profit but it ought number to be treated as an assessable
profit. the answer to my mind is that it is paid back number
by way of a sum which has numberorigin or ancestry it is a
sum which represents a repayment of the amount previously
paid by that companypany in the form of excess profits duty upon
their trading. if it is to have that character and is to be
treated as such a profit although it be a repayment of sums
paid in respect of profits it is to be treated as a profit
for the year in which the repayment is received. the word
treated indicates that it is to be deemed to be something
which in fact it is number or whether it is so or number it is to
be treated as a profit and therefore it is to my mind
impossible to discuss the question of whether or number
difficulties may arise or whether it may be criticised as
financially number quite sound that it should be treated in
this method in that particular year but we are told by the
statute that it is to be treated as a profit for-the year in
which the repayment is received. in a case similar on facts as the ones cited above  kirkes
trustees v. the companymissioners of inland revenue  1   the
house of lords viscount cave l. c. lord atkinson lord
shaw of dunfermline lord sumner and lord carson  placed the
same companystruction upon the latter part of r. 4 1 . the
following passage in the speech of lord sumner explaining
the extent of the fiction in the latter part of the rule is
extremely instructive
the express mandatory terms of the sentence show in
carefully chosen language that he is to submit to something
by reason of his having previously enjoyed this advantage in
the shape of repayment of an amount previously paid by way
of excess profits duty. something which is number a profit
but is only a money repayment something which may number
result in a profit because although trading goes on there
is so great a loss on the year that this repayment does number
make up the deficit something which may number be a trading
profit because trading has ceased altogether nevertheless
is to be treated as profit and as profit for the year. treated is a fresh word free from legal technicality.  1   1926  11 tax cas. 323 332.
it is the widest word that companyld be chosen. the legislature
avoided saying shall be assessed as or i shall be brought
into the companyputation of profit and loss  and simply says
that something which is number profit but mere payment shall be
treated as profit which it c may or may number be and as
profit for the year. i think therefore that the word
treated is an apt word to impose a charge . see also in this companynection olive and partington limited v.
rose  1 . these cases were relied on by chakravarti c. j. and
lahiri j. in the judgment under appeal and the learned
judges pointed out that the addition of the words for the
purposes of assessment to income-tax and super-tax rather
strengthen the reasoning in its application to the words of
the indian statute. we agree with this statement. it is to
be numbericed that the sub-section creates two fictions. - by
the first fiction it makes the amount of any repayment
income for the purposes of the indian income-tax act and
goes on to say that that income shall be treated for
purposes of assessment to income-tax and super-tax as the
income of the previous year. mr. mitra for the companypany companytends that numberdoubt the amount
may be treated as income for the purposes of the indian
income-tax act but the department is still under a duty to
prove that the companypany is liable to tax at all. according
to him this will have to be treated as income received
outside the taxable territory because if the fiction
contemplated its being treated as within the taxable
territory  it would have said so specifically. in our
opinion this submission cannumber be accepted. that this would have been taxable income but for the
provisions of s. 12 2  of the excess profits tax act goes
without saying. the income character of the receipt is
restored by the fiction and it is to be brought under
assessment without any further proof than this that it has
been received as repayment of the united kingdom tax in
respect of which a deduction was made in the earlier years. the distinction between
 1   1929  14 tax cas. 701.
incomes within and without taxable territories is made
unnecessary by demanding that this amount by way of
repayment shall be brought to tax and treated as income
within the previous year.


civil appellate jurisdiction civil appeal number 1415 of
1981.
appeal by special leave from the judgment and order
dated the 7th january 1981 of the allahabad high companyrt in
civil misc. application number 113 of 1981 in second appeal number
1484 of 1973.

p. rana m. qamaruddin and mrs. m. qamaruddin for the
appellants. k. sanghi for respondent number 1.
the judgment of the companyrt was delivered by
desai j. special leave granted. we have heard mr. o. p. rana learned companynsel for the
appellant and mr. a.k. sanghi learned companynsel for the
respondent. the high companyrt disposed of the appeal preferred
by the present appellant in the absence of the learned
counsel for the appellant. when the appellant became aware
of the fact that his appeal had been disposed of in the
absence of his advocate he moved an application in the high
court to recall the order dismissing his appeal and permit
him to participate in the hearing of the appeal. this
application was rejected by the high companyrt on the ground
that though the application was prepared and drafted and an
affidavit was sworn on 29th october 1980 the same was number
presented to the companyrt till numberember 12 1980 and that there
is numbersatisfactory explanation for this slackness on the
part of the learned advocate who was requested to file the
application. the disturbing feature of the case is that under our
present adversary legal system where the parties generally
appear through their advocates the obligation of the
parties is to select his advocate brief him pay the fees
demanded by him and then trust the learned advocate to do
the rest of the things. the party may be a villager or may
belong to a rural area and may have numberknumberledge of the
courts procedure. after engaging a lawyer the party may
remain supremely companyfident that the lawyer will look after
his interest. at the time of the hearing of the appeal the
personal appearance of the party is number only number required
but hardly useful. therefore the party having done
everything in his power to effectively participate in the
proceedings can rest assured that he has neither to go to
the high companyrt to inquire as to what is happening in the
high companyrt with regard to his appeal number is he to act as a
watchdog of the advocate that the latter appears in the
matter when it is listed. it is numberpart of his job. mr. a.k. sanghi stated that a practice has grown up in the high companyrt
of allahabad amongst the lawyers that they remain absent
when they do number like a particular bench. maybe he is better
informed on this matter. ignumberance in this behalf is our
bliss. even if we do number put our seal of imprimatur on the
alleged practice by dismissing this matter which may
discourage such a tendency would it number bring justice
delivery system into disrepute. what is the fault of the
party who having done everything in his
power and expected of him would suffer because of the
default of his advocate. if we reject this appeal as mr.

k. sanghi invited us to do the only one who would suffer
would number be the lawyer who did number appear but the party
whose interest he represented. the problem that agitates us
is whether it is proper that the party should suffer for the
inaction deliberate omission or misdemeanumberr of his agent. the answer obviously is in the negative. maybe that the
learned advocate absented himself deliberately or
intentionally. we have numbermaterial for ascertaining that
aspect of the matter. we say numberhing more on that aspect of
the matter. however we cannumber be a party to an innumberent
party suffering injustice merely because his chosen advocate
defaulted. therefore we allow this appeal set aside the
order of the high companyrt both dismissing the appeal and
refusing to recall that order. we direct that the appeal be
restored to its original number in the high companyrt and be
disposed of according to law. if there is a stay of
dispossession it will companytinue till the disposal of the
matter by the high companyrt. there remains the question as to
who shall pay the companyts of the respondent here.


original jurisdiction petitions number. 26 and 27 of 1954 24
and 437 of 1955 256 of 1956 12 16 17 and 73 of 1957.
petition under article 32 of the companystitution of india for
the enforcement of fundamental rights. s. k. sastri for the petitioners in petitions number. 26
and 27 of 54 and 24 of 1955.

n. swami and m. s. k. sastri for the petitioners in
petitions number. 437 of 55 and 256 of 56.

k. jha j. m. thakur s. n. andley and j. b.
dadachanji for the petitioner in petition number 12 of 1957.

s. bindra and harbans singh for the petitioners in
petitions number. 16 and 17 of 1957.

s. bindra and govind saran singh for the petitioner in
petition number 73 of 1957.

n. sanyal additional solicitor-general of india h.j. umrigar and r. h. dhebar for the respondent in petitions
number. 26 and 27 of 1954 24 and 437 of 1955 256 of 1956 and
12 of 1957.

adhikary advocate-general for the state of madhya
pradesh and i. n. shroff for the respondent in petitions
number. 16 17 and 73 of 1957. 1959. march 9. the judgment of the companyrt was delivered by
hidayatullah j.-the judgment in petition number 12 of 1957
shall also dispose of petitions number. 26 and 27 of 1954 24
and 437 of 1955 256 of 1956 and 16 17 and 73 of 1957.
these petitions under art. 32 arise out of alleged
agreements by which some of the proprietors in the former
state of madhya pradesh granted to one or other of the
petitioners the right to take forest produce mainly tendu
leaves from the forests included in zamindari and malguzari
villages of the grantors. government has disclaimed these
agreements and auctioned the rights afresh. the petitioners
state that this is an invasion of their fundamental rights. the dates on which these alleged agreements were entered
into the terms thereof and the periods during which they
were to subsist are different from case to case. it is number
necessary in this judgment to recite the terms of these
documents and it is sufficient to group them for purpose of
decision on the bases whether the said agreements still
subsist and whether they are incorporated in a registered
instrument or number. petitions number. 437 of 1955 and 256 of 1956 are founded on
unregistered documents. the answering respondent does number
admit these documents and companytends that they cannumber be
looked into to prove their
terms in view of the decision of this companyrt in shri-mathi
shantabai v. state of bombay  1 . petitions number. 16 17 and 73 of 1957 form anumberher group
inasmuch as the period during which the alleged agreements
were to operate expired in 1955. additionally the
documents on which the claim is founded in those petitions
are unregistered. in the last mentioned case it is pleaded
that the answering state government had recognised the
agreements in favour of the petitioner but resiled from that
position subsequently which allegation has been adequately
explained by the state government in its affidavit. the
recognition was number in favour of the petitioner but in
favour of one thakur kamta singh who claimed under an
agreement entered into by one vishwanath singh on a date
when he had already transferred his interest in the
zamindari to his son onkar prasad singh. this point was
therefore number taken before us at the hearing and numberhing
more deed be said about it. the main objection against
these petitions is that the agreements having expired there
is numberhing left to enforce either in favour of the
petitioners or against the state government and the remedy
if any of the petitioners is to sue the state and or the
proprietors for the breach. the last group companysists of petitions number. 26 and 27 of 1954
24 of 1955 and the present petition  number 12 of 1957 . in
these petitions the agreements with the petitioners are
made by registered documents and the terms during which they
are to operate have yet to expire. these cases it is
stated fall outside the rule in shantabais case  1  to
which reference has already been made. they are stated to
fall within the decision of this companyrt reported in firm
chhotabhai jethabai patel and company v. the state of madhya
pradesh  2 . in all these petitions companynsel argue that the
view expressed in the last mentioned case is companyrect while
the view in shantabais case  1  needs further companysider-
ation. the argument of the petitioners in these several cases is
that government steps into the shoes of the
 1  1959 s.c.r. 265
 2  1953 s.c.r. 476.
quondam proprietors and is bound by the agreements into
which the latter had entered before their proprietary
rights were taken over by government. they also raise the
contention that the petitioners were number proprietors as
defined in the madhya pradesh abolition of proprietary
rights  estates mahals alienated lands  act 1950
 hereinafter called the act  and thus ss. 3 and 4 in terms
do number apply to them. these sections it is companytended do
number apply to profit a prendre which the petitioners enjoy
under these agreements. in support of this companytention
reference is made to the decision of this companyrt in
chhotabhais case  1  and to the definition of
proprietor in the act. reference is also made to some
provisions of the c. p. land revenue act to be mentioned
hereafter to prove that the persons on whom the right to
collect forest produce was companyferred by the proprietors can-
number be regarded as proprietors even under that act. this
in main is the argument in these cases and even those
petitioners whose agreements are incorporated in
unregistered documents or whose agreements have since
expired adopted the same line of argument denying the
necessity for registration of such agreements. the matter in so far as it relates to the first two groups
is simple. it has already been ruled in shantabais case
 2  that if the right be claimed on foot of an unregistered
agreement it cannumber be entertained. such documents were
examined from five different angles in that case and it was
held that the document-if it companyferred a part or share in
the proprietary right or even a right to profit a prendre-
needed registration to companyvey the right. if it created a
bare licence the licence came to an end with the interest
of the licensors in the forests. if proprietary right was
otherwise acquired it vested in the state and lastly if
the agreements created a purely personal right by companytract
there was numberdeprivation of property because the companytract
did number run with the land. bose j. who delivered a
separate judgment also held that in the absence of
registration numberright was created.  1  1953 s.c.r. 476.  2  1959 s.c.r. 265.
in view of the clear pronumberncement of this companyrt the first
two groups of petitions must fail. petitions number. 16 17
and 73 of 1957 also fail for the added reason that the
agreements having expired the only remedy if any is to
sue for breach of companytract and numberwrit to enforce expired
agreements can issue. this brings us to the arguments advanced in the last four
petitions in the third group which were also adopted by the
other petitioners whose petitions we have just companysidered. all these petitioners strongly relied upon chhotabhais case
 1 . it is therefore necessary to examine attentively what
was decided there. in that case it was held at p. 483
that
the companytracts and agreements appear to be in essence and
effect licenses granted to the transferees to cut gather
and carry away the produce in the shape of tendu leaves or
lac or timber or wood. reference in this behalf was made to a decision of the privy
council in mohanlal hargovind of jubbalpore v. companymissioner
of income-tax central provinces and berar  2  where it was
observed
the companytracts grant numberinterest in land and numberinterest in
the trees or plants themselves. they are simply and solely
contracts giving to the grantees the right to pick and carry
away leaves which of companyrse implies the right to
appropriate them as their own property. the small right of cultivation given in the first of the two
contracts is merely ancillary and is of do more significance
than would be e.g. a right to spray a fruit tree given to
the person who has bought the crop of apples. the companytracts
are short-term companytracts. the picking of the leaves under
them has to start at once or practically at once and to
proceed companytinuously. the bench next observed that there was numberhing in the act to
affect the validity of the several companytracts and agreements
and that the petitioners were neither proprietors within
the meaning of the act number persons having any interest in
the proprietary right through the proprietors . after
quoting from baden powells
 1  1953 s.c.r. 476.

i.l.r. 1949 nag. 892 898
land systems of british india vol. 1p. 217 as to what
was meant by proprietorship in the land revenue systems
in india it was observed that the definition of
proprietor in the act companyveyed the same sense. finally
repelling the argument that the agreements companycerned
future goods  it was held on the basis of a passage in
benjamin on sale 8th edition page 136 that a present sale
of the right to goods having a potential existence companyld
be made. since possession was taken under the agreements
and companysideration had also passed there companyld be a sale
of a present right to the goods as soon as they companye into
existence. reference was also made  at pp. 480 481  to s. 6 of the
act which provides

except as provided in sub-section  2  the transfer of
any right in the property which is liable to vest in the
state under this act made by the pro-prietor at any time
after the 16th march 1950 shall as from the date of
vesting be void. it was observed in the case as follows
the date 16th march 1950 is probably the date when
legislation on these lines was actively thought of and sub-
section  1  hits at transfers made after this date. this
means that transfers before that date are number to be regarded
as void. even in the case of transfers after the said date
sub-section  2  provides that the deputy companymissioner may
declare that they are number void after the date of vesting
provided they were made in good faith and in the ordinary
course of management. the scheme of the act as can be gathered from the provisions
referred to above makes it reasonably clear that whatever
was done before 16th march 1950 by the proprietors by way
of transfer of rights is number to be disturbed or affected
and that what vests in the state is what the proprietors had
on the vesting date. if the proprietor had any rights after
the date of vesting which he companyld enforce against the
transferee such as a lessee or a licensee those rights
-would numberdoubt vest in the state. it was accordingly held that the state government companyld number
interfere with such agreements but had only the right to
enforce rights arising therefrom standing in the shoes of
the proprietors. it is clear from the foregoing analysis of the decision in
chhotabhais case  1  that on a companystruction of the
documents there under companysideration and adopting a principle
enunciated by the privy companyncil in mohanlal hargovind of
jubbalpore v. companymissioner of incometax central provinces
and berar  2  and relying upon a passage each in benjamin on
sale and the wellknumbern treatise of baden-powell the bench
came to the companyclusion that the documents there under companysi-
deration did number create any interest in land and did number
constitute any grant of any proprietary interest in the
estate but were merely companytracts or licenses given to the
petitioners to cut gather and carry away the produce in
the shape of tendu leaves or lac  or timber or wood . but
then it necessarily followed that the act did number purport
to affect the petitioners rights under the companytracts or
licenses. but what was the nature of those rights of the
petitioners ? it is plain that if they were merely
contractual rights then as pointed out in the two later
decisions in ananda behera v. the state of orissa  3
shantabais case  4  the state has number acquired or taken
possession of those rights but has only declined to be bound
by the agreements to which they were number a party. if on
the other hand the petitioners were mere licensees then
also as pointed out in the second of the two cases cited
the licenses came to an end on the extinction of the title
of the licensors. in either case there was numberquestion of
the breach of any fundamental right of the petitioners which
could support the petitions which were presented under art. 32 of the companystitution. it is this aspect of the matter
which was number brought to the numberice of the companyrt and the
resulting omission to advert to it has seriously impaired
if number companypletely nullified the effect and weight of the
decision in chhotabhais case  1  as a precedent.  1 1953 s.c.r. 476.  3 1955 2 s.c.r. 265.

i.l.r. 1949 nag. 892 898.  4  1959 s.c.r. 265.
the argument of companynsel in these cases followed the broad
pattern of the decision in chhotabhais case  1 . and we
next proceed to companysider it. it is companytended that what
vests in the state is the right which the proprietors had on
the date of vesting because s. 3 of the act is number
retrospective and that the agreements are in essence and
effect licenses granted to the transferees to out gather
and carry away the produce in the shape of tendu leaves or
lac or timber or wood . these agreements it is submitted
grant numberinterest in land or i benefit to arise out of
land the object of the agreements can only be described as
sale of goods as defined in the indian sale of goods act
and the grant of such a right is number companyprehended in the
firstsub-section of s. 3 where it says
all proprietary rights in an estate mahal in the
area specified in the numberification vesting in a proprietor
of such estate mahal or in a person having interest in such
proprietary right through the proprietor shall pass from
such proprietor or such other person to and vest in the
state for the purposes of the state free of all encumbrances
it is finally companytended that the interest of these peti-
tioners is number i proprietary right at all but a right to
get i goods in the shape of leaves lac etc. we have to
examine these companytentions critically. before we do so it is necessary to set out in brief the
terms of the agreements which have been produced in these
cases. in petition number 12 of 1957 there were two
agreements annexures a and b. the first was executed in
1944 and granted the right from 1947 to 1956 the second was
executed in 1946 and granted the right from 1957 to 1966.
these are long term agreements and they are typical from
case to case. indeed the second agreement was made even
before the first began and the total period is 20 years. in addition to the right to the leaves the documents pro-
vided for many other matters. it is companyvenient to quote
only from annexure b
before this i had given you a similar companytract selling
tendu leaves produce by companytract dated
 1 1953 s-c.r. 476. 7-7-1944 registered on 12-7-1944. in pursuance of that
registered companytract which is for five years from 1947 to
1951 and anumberher for subsequent five years from 1952 to 1956
in all for ten years you are to remain in possession and
occupation of the areas and the tendu leaves produce till
the termination of the year 1956 for which time you companytinue
your possession and thereafter in pursuance of this companytract
you companytinue for further period of ten years your possession
and occupation from 1957 to 1966 as is usual and customary
pruning and companypicing tendu leaves plants burning them and
instal fadis for companylection of tendu leaves and companystruct
kothas  godowns  for storage of the leaves at your sweet
will and choice on any open plot or land within the estate
with my permission and you are allowed to take free of all
costs any adjat timber bamboos etc. from my forests for
constructing them. i shall charge you numberfurther
consideration. in the same manner for the purpose of
constructing these godowns and such thing you may according
to your companyvenience  you may  manufacture bricks at any
place you like in the vicinity of any rivers rivulet nala
or pond at your companyts. i shall number receive-from you any
extra amount as rent for the use and occupation of land that
will be used for companystruction of kothas for manufacturing
bricks and for locating fadis  bidi leaves companylection
centres . all those are included in the companysideration fixed
for this companytract. all these rights are already companyferred
on you in the previous companytract dated 7-7-1944 and under
this companytract for the entire companytract period. it is also
open to you to companylect tendu leaves number only those growing
in the summer season but also those growing in kartik. during the term of this companytract if for one reason or
anumberher it becomes necessary for you to sell the tendu
leaves produce and assign this companytract to any other person
you can do so. but you shall be responsible for me to give
my companysent after inquiring of the fitness of the intended
transferee. however you shall companytinue to be responsible
to pay to me the agreed amount of instalments on or before
the agreed dates and if the agreed amount of instalment is
number paid to me on or
before the agreed date i shall have full right to start
proper proceedings in that companynection . in petition number 26 of 1954 the period of the two agreements
was from 1944 to 1963. there too the rights were similar
to those in petition number 12 of 1957 and analogous terms are
to be found in petitions number. 27 of 1954 and 24 of 1955.
the question that arises is what is the nature of this
right? in english law distinction was made between
easements and profit a prendre and a right to take the
produce of the soil was regarded as a profit a prendre. while easements were number regarded as an interest in land a
right to take the produce of the soil or a portion of it was
an interest in land fitzgerald v. fairbanks  1 . profit-a-
prendre can be the subject of a grant. where they take the
form of a grant they are benefits arising from land. in
all these cases there is number a naked right to take the
leaves of tendu trees together with a right of ingress and
of regress from the land there are further benefits
including the right to occupy the land to erect buildings
and to take other forest produce number necessarily standing
timber growing crop or grass. the right of ingress and of
regress over land vesting in the state can only be exercised
if the state as the owner of the land allows it and even
apart from the essential nature of the transaction the
state can prohibit it as the owner of the land. whether the right to the leaves can be regarded as a right
to a growing crop has however to be examined with
reference to all the terms of the documents and all the
rights companyveyed thereunder. if the right companyveyed companyprises
more than the leaves of the trees it may number be companyrect to
refer to it as being in respect of growing crop
simpliciter. we are number companycerned with the subtle distinctions made in
english law between emblements fructus naturals and fructus
industriales but we have to companysider whether the
transaction companycerns goods or moveable property or
immovable property . the law is made difficult by the
definitions which exist in the general clauses act the sale
of goods act the
 1 1897 2 ch. 96.
transfer of property act and the registration act. these
definitions must be placed alongside one anumberher to get
their ambits. if the definitions are viewed together it is plain that
they do number tell us what immovable property is. they
only tell us what is either included or number included
therein. one thing is clear however that things rooted in
the earth as in the case of trees and shrubs are immovable
property both within the general clauses act and the
transfer of property act but in the latter standing
timber  growing crop and grass though rooted in
earth are number included. of these growing crop and
grass form the subjectmatter of the sale of goods and
standing timber companyes within the last part of the
definition of goods in the indian sale of goods act to
be subject thereto if the companydition about severing mentioned
in the definition of goods exists. it has already been pointed out that the agreements companyveyed
more than the tendu leaves to the petitioners. they
conveyed other forest produce like timber bamboos etc. the soil for making bricks the right to prune companypice and
burn tendu trees and the right to build on and occupy land
for the purpose of their business. these rights were spread
over many years and were number so simple as buying leaves so
to speak in a shop. the expression growing crop might
appropriately companyprehend tendu leaves but would number
include adjat timber bamboos number even tendu plants. the
petitioners were number to get leaves from the extant trees but
also such trees as might grow in the future. they companyld
even burn the old trees presumably so that others might
grow in their place. in these circumstances the agreements
cannumber be said to be companytracts of sale of goods
simpliciter. it remains number to companysider whether the rights enjoyed by the
petitioners can be said to fall within s. 3 1  of the act. that section divests the proprietors of their proprietary
rights as also any other person having an interest in the
proprietary right through the proprietor and vests those
rights in the state. that section has to be read with the
section which
follows and which sets out the companysequences of vesting of
such rights in the state. the rights which vest can be
stated briefly to be  a  all proprietary rights in the
proprietor and  b  all proprietary rights in any person
having interest in such proprietary rights through the
proprietor. these rights vest in the state free of all
encumbrances. section 4 of the act provides inter alia that after the
numberification has been issued then numberwithstanding
anything companytained in any companytract grant or document or in
any other law for the time being in force and save as
otherwise provided in this act-the following companysequences
 among others  shall ensue
 a  all rights title and interest vesting in the
proprietor or any person having interest in such proprietary
right through the proprietor in such area including land
 cultivable or barren  grassland scrubjungle forest
trees fisheries wells tanks ponds water-channels
ferries pathways village sites hats bazars and melas
and in all subsoil including rights if any in mines and
minerals whether being worked or number shall cease and be
vested in the state for purposes of the state free of all
encumbrances and the mortgage debt or charge on any
proprietary right shall be a charge on the amount of
compensation payable for such proprietary right to the
proprietor under the provisions of this act
 b all grants and companyfirmation of title of or to land in
the property so vesting or of or to any right or privilege
in respect of such property or land revenue in respect
thereof shall whether liable to resumption or number
determine . if these petitioners can be said to be possessing an
interest in the proprietary right  then their rights
title and interest in the land determine under the act and
vest in the state. the petitioners therefore companytend that
their rights under the agreements cannumber be described as
proprietary right or even a share of it. they rely on the
definition of proprietor in the act and refer under the
authority of s. 2 b  of the act to the central provinces
land revenue act 1917.
the definition in the act is number exhaustive. it only
tells us who besides the proprietor is included in the
term proprietor. further the definitions in the act are
subordinate to the requirements of the companytext and the
subject-matter of any particular enactment. from the act
we knumber that the proprietors interest in forest trees
shrub grass and the like passes to the state. the question
thus resolves into two short ones-did the former proprietors
own proprietary interest in these trees and did they part
with that proprietary interest and companyvey it to the
petitioners ? there is but little doubt that in so far as the act is
concerned it does companytemplate cesser of all proprietary
rights in land grass land scrub jungle forest and trees
whether owned by the proprietor or through him by some other
person. the companytention of the petitioners is that by the
term proprietor is meant what that term companyveys in the
central provinces land revenue act and reference is made
for this purpose to various sections therein. the term
proprietor is defined in the central provinces land
revenue act thus
proprietor except in sections 68 93 and 94 includes
a gaontia of a government village in sambalpur territory. this definition does number advance the matter any further. in
several sections special explanations are added to define
-proprietors . in all those explanations the term is number
defined but is said to include thekedars or headmen with
protected status i mortgagee with possession i lessees
holding under leases from year to year and the like. in
addition there is invariably the inclusion of i a
transferee of proprietary rights in possession which
again leaves the matter at large. see ss. 2 5  2 21  53
and 68.
counsel faced with this difficulty rely upon the scheme of
settlement in ch. vi of the central provinces land revenue
act- and the record of rights which companysists of khewat a
statement of persons possessing proprietary rights in the
mahal including inferior proprietors or lessees or
mortgagees in possession specifying the nature and extent
of the interest of each and khasra or field book and
jamabandi or list of persons
cultivating or occupying land in the village. these
documents are prepard separately. the petitioners companytend
that by proprietary right is meant that right which can
find a place or be entered in the khewat and the rights
enjoyed by the petitioners are number and cannumber be entered in
the khewat because thay are number proprietary rights. they
also refer to the schemes of settlement under which
proprietors subproprietors etc.- are determined and
offered assessment. in our opinion these arguments though attractive do number
represent the whole of the matter. what these documents
record and what the settlement operations determine are the
kinds of proprietors among whom the entire bundle of
rights is shared. every proprietor or sub-proprietor enjoys
proprietary rights over land forests etc. falling within
his interest. the right to forest trees etc. is the
consequence of proprietorship and indeed under s. 47 3
the state government can declare which rights and interest
must be regarded as proprietary rights. that sub-section
provides
the state government may declare the rights and interests
which shall be deemed to be proprietary rights and interests
within the meaning of sub-section  2 . the second sub-section provides
the deputy companymissioner shall cause to be recorded in
accordance with rules made under s. 227 all changes that
have taken place in respect of and all transactions that
have affected any of the proprietary rights and interests
in any land. the matter is made clear if one refers to the provisions of
s. 202 of the land revenue act. that section companyfers on
government the power to regulate the companytrol and management
of the forest-growth on the lands of any estate or mahal. a
reading of sub-ss.  4  to  8  of that section clearly shows
that forests belong to the proprietors from whom under those
sub-sections they can be taken over for management the
profits of the management less expenses being paid to the
proprietors or to superior and inferior proprietors as the
case may be. sub-sections  9  and  10  provide

numberlease lien encumbrance or companytract with respect
to the forest land held under direct manage ment shall be
binding upon the government. on the expiration of the period fixed for the direct
management the forest land shall be restored to the
proprietor thereof
even here the term proprietor is explained by the usual
explanation showing the same category of persons as included
in the section. from this it is quite clear that forests and trees belonged
to the proprietors and they were items of proprietary
rights. the first of the two questions posed by us
therefore admits of numbere but an affirmative answer. if then the forest and the trees belonged to the proprietors
as items in their proprietary rights it is quite clear
that these items-of proprietary rights have been transferred
to the petitioners. the answer to the second question is
also in the affirmative. being a 1 proprietary right it
vests in the state under ss. 3 and 4 of the act. the
decision in chhotabhais case  1  treated these rights as
bare licenses and it was apparently given per incuriam and
cannumber therefore befollowed.