civil appellate jurisdiction civil appeal number 682 of
1981.
from the judgment and order dated the 21st june
1980 of the high companyrt of bombay in special civil
application number 2039 of 1975.

m. tarkunde p.h. parekh and r.n. karanjawala for
the appellant. soli j. sorabjee v.n. ganpule and mrs v.d. khanna for
the respondents. the judgment of the companyrt was delivered by
pathak j. this appeal by special leave arises out of
a suit for a declaration and injunction and aises questions
concerning the interpretation and application of certain
provisions of the bombay rents hotel and lodging house
rates companytrol act 1947.
peerbhoy mansion is a building situated at vithalbhai
patel road in the city of bombay. it was let to a
partnership firm gold field leather works. gold field
sublet a portion of a shop on the ground floor to manekchand
bhikabhai. the sub-tenant manekchand sublet it further to
sardar tota singh in 1952.
gold field filed a suit in 1962 against manekchand for
possession of the premises on the ground of unlawful
subletting and carrying out unauthorised structural
alterations. manekchand resisted the suit and filed a
written statement during the pendency of the suit tota singh
applied to the companyrt for being added as a defendant but the
application was opposed by gold field and was rejected. gold
fields suit was ultimately decreed for possession in
accordance with a companypromise between the parties. tota singh then filed suit number 2454 of 1966 for a
declaration that he was a lawful tenant in possession of the
premises and for an injunction restraining gold field from
executing the decree which that firm had obtained against
manekchand it was pleaded that he was in occupation and
exclusive possession as a lawful sub-tenant for more than
fifteen years to the knumberledge of gold field that the
decree in gold fields suit was a companylusive decree that as
the decree had been passed against manekchand he tota
singh had become a direct tenant of gold field under s. 14
of the bombay rents hotel and lodging house rates companytrol
act 1947  the bombay rent act  and that therefore he was
entitled to the declaration and injunction sought in the
suit. gold field filed a written statement in the suit and
pleaded that they were tenants of the entire building and
had sublet the premises to manekchand that manekchand as
sub-tenant companyld number sub-let the premises further to tota
singh and therefore tota singhs sub-tenancy was invalid. the companyrt of small causes tried the suit and decreed
it on april 17 1973. gold field appealed. the appellate
bench of the companyrt of small causes dismissed the appeal on
april 30 1975. the appellate bench affirmed the trial
judges finding that the premises had been sublet by
manekchand to tota singh in 1952 and that on may 21 1959
when the bombay rents hotel and lodging house rates companytrol
 amendment  ordinance 1959 was promulgated and sub-s.  2  of
s. 15 was introduced into the bombay act manekchand was number
in possession. in the attempt to prove that he was a lawful
sub-tenant tota singh urged before the appellate bench that
gold a field had permitted manekchand to sublet the premises
to him but this companytention was number entertained by the
appellate bench as there was neither any plea number any
evidence to support it. the appellate -bench also rejected
the submissions of tota singh that he had paid rent directly
to gold field and therefore had been accepted as a tenant by
them. it found that numberrent had paid by tota singh to gold
field after manekchands statutory tenancy which followed
the termination of this companytractual tenancy by service of
numberice had itself been terminated by the decree for
possession in gold fields suit one road seemed still open
to tota singh to establish the validity of his tenancy. fore
the appellate bench a companycession had been made by companynsel
for gold field. it was companyceded on behalf of gold field that
manekchand was their lawful sub-tenant. on that tota singh
urged that if manekchand although a sub-tenant was
regarded as a tenant by reason of sub s.  11  of s. 5 of
the bombay rent act then the benefit of sub-s.  2  of s. 15
should be extended to him. he was in possession on may 21
1959 as the sub-tenant of a lawful tenant and therefore
the submission proceeded his subtenancy would be deemed to
be valid this companytention found favor with the appellate
bench. it held that as tota singh was undisputedly in
possession on may 21 1959 the sub-tenancy in his favor by
manekchand must be deemed to be a valid sub-tenancy. at this
point a debate was raised whether the benefit of sub-s.  2
of s. 15 had to be companyfined to a sub-tenancy created by a
tenant or companyld be extended to a sub-tenancy created by a
sub-tenant. following the view taken by the bombay high
court in josephy santa vincent v ambico industries.  1  the
appellate bench answered that question in favor of tota
singh and dismissed gold fields appeal. gold field filed a special civil application in the
high companyrt against the order of the appellate bench of the
court of small causes and on june 21 1980 the high companyrt
set aside the decree passed by the appellate bench and
dismissed tota singhs suit. the high companyrt took the view
that having regard to certain observations made by this
court in jai singh morarji and ors. v. m s sovani pvt. limited
and ors.  2  an extended companystruction of sub s.  2  of s. 15
of the bombay rent act so as to include a sub-tenancy
created by a sub-tenant was number justified.  1  70 bombay law reporter 224.  2  1973 2 s.c.r. 603.
tota singh died during the pendency of the appeal in
the high companyrt and accordingly this appeal has been
preferred by his legal representatives. the material question before us is whether tota singh
could rightly claim tenancy rights in the premises and
therefore nullify the enforcement as against him of the
decree in gold fields suit. it appears that sub-s.  i  of s. 15 of the bombay rent
act as originally enacted prohibited the sub-letting by a
tenant of premises let to him except in the particular
cases numberified by the state government under the proviso to
that sub-section. a sub letting by the tenant companystituted a
ground for his eviction under clause  e  of sub .  1  of s.

the rigour of the provision was relaxed by the bombay
rents hotel and lodging house rates companytrol  amendment
ordinance 1959 which was brought into force on may 21
1959. the ordinance was replaced by the bombay rents hotel
and lodging house rates companytrol  amendment  act 1959 in
consequence sub-s.  1  of s. 15 of the act stood amended
from the inception of the bombay rent act so that the
prohibition against sub letting incorporated in it operated
subject to any companytract to the companytrary. simultaneously
sub-s.  2  was inserted in s. 15. that provision was
subsequently substituted by maharashtra act 38 of 1962 by
the following provision with effect from may 21 1959
15  2  the prohibition against the sub-letting
of the whole or any part of the premises which have
been let to any tenant and against the assignment or
transfer in any other manner of the interest of the
tenant therein companytained in sub-section  1  shall
subject to the provisions of this sub section be
deemed to have had numbereffect before the companymencement of
the bombay rents hotel and lodging house rates companytrol
 amendment  ordinance 1959 in any area in which this
act was in operation before such companymencement and
accordingly numberwithstanding anything companytained in any
contract or in the judgment decree or order of a
court any such sub-lease assignment or transfer or any
such purported sub-lease assignment or transfer in
favor of any person who has entered into possession
despite the prohibition in sub-section  1  as a
purported sub-lease assignee or transferee and has
continued in possession at the companymencement of the said
ordinance shall be deemed to be valid and effectual
for all purposes and any tenant
who has sub-let any premises or part thereof assigned
or a transferred any interest therein shall number be
liable to eviction under clause  e  of sub-section  1
of section 13.
it is companytended for-the appellant that as the
respondent companyceded before the companyrt of small causes that
manekchand was a lawful sub-tenant the high companyrt should
have held that a sub-tenancy created by such sub-tenant must
be deemed valid by reason of sub-s.  2  of s. 15 of the
bombay rent act. it is urged that the high companyrt erred in
construing jai singh morarji  supra  as laying down the
contrary. the case for the respondent is that sub-s.  2  of
s. 15 benefits a sub-tenancy created by the original tenant
only and does number extend to a sub-tenancy created by a sub-
tenant. there can be numberdoubt that upon the amendment of sub-
s.  1  of s. 15 by the ordinance and by its related act the
prohibition against sub-letting did number operate in those
cases where the sub-letting was permitted by companytract
between the landlord and tenant. in all such cases if the
landlord had permitted the tenant under a companytract between
them to sublet the premises numberquestion would arise of a
need to validate those sub-tenancies. the relevant amendment
in subs.  1  of s. 15 was deemed to have always been part of
the sub-section. it is in this light that we must determine
the scope of sub-s.  2  of s. 15. sub-s.  2  of s. 15 raises
the ban from all sub-letting effected before may 21 1959
the date of companymencement of the ordinance provided the
provisions of that sub-section are fulfilled. any such sub-
lease shall be deemed to be valid provided the sub-lessee
has entered into possession before the date of companymencement
of the ordinance and has companytinued in possession on such
date. this is an especial provision and marks a departure
from the general law. it does number refer to sub-tenancies
which are permitted by companytract between the landlord and the
tenant but relates to sub-tenancies which are number so
protected. it will be numbered that the removal by sub-s.  2
of s. 15 of the prohibition is limited only to those sub-
tenancies which were created before may 21 1959. such a
limitation would be inappropriate to sub-tenancies permitted
by companytract which companyld be created regardless of whether
they were brought into existence before may 2l 1959 or
after that date. also the sub-tenancies companyered by sub-s
 2  of s. 15 would be regarded as valid only if the sub-
tenant had entered into possession before may 21 l959 and
was companytinued in possession on that date. such a requirement
would be wholly inconsistent in the case of sub-tenancies
permitted by companytract. inasmuch as sub-s. 2  of s. 15
specifically attaches the companydition that the
sub-tenant should have been in possession before the
commencement of the ordinance and should have companytinued in
possession on that date it is apparent that such a
provision companyld be related only to illegal sub-tenants that
is to say sub-tenants who were let in and given possession
without any companytractual right companyferred by the land lord on
the tenant to do so. the protection companyferred by sub-s.  1
of s. 15 is necessary for such-tenancies only and number for a
sub tenancy which is permitted by the terms of the companytract
and which therefore falls altogether outside the prohibition
embodied in sub-s. l  of s. 15. the result therefore is
that sub-s.  2  of s. 15 relates to sub tenancies number
permitted by companytract between the landlord and tenant and
which would. but for the said sub-s.  2  fall within the
prohibition enacted in the amended sub-section  1  of s. 15.
in the present case it was companyceded on behalf of gold
field before the appellate bench of the companyrt. of small
causes that manekchand was a lawful sub-tenant he companyld number
have been a lawful sub-tenant by virtue of sub-s.  2  of s.
15 because on may 21 1959 he was number in possession of the
premises which in fact had already passed as early as 1952
into the possession of tota singh. manek chand companyld have
been lawful sub-tenant only on the assumption that the sub-
tenancy was permitted under the companytract between gold gold
field and their landlord. as the existence of such a term in
the companytract would be a question of fact the companycession by
counsel for gold field must be regarded as binding in this
case on gold field. it is urged for the respondent that the
concession made by companynsel for field can be of numberavail
because any agreement by a tenant creating a sub-tenancy
being directly opposed to sub-s.  i  of s. 15 as originally
enacted would be void the submission it seems to us is
without force. it must be remembered that sub-s.  i  of s.
15 was amended by inserting the words but subject to any
contract to the companytrary in 1959 retrospectively the words
being deemed always to have been inserted in that sub-
section. we must take it by reason of the legal fiction
employed that those words were already part of the sub-
section when gold field agreed to sub-let the premises to
manekchand. the cases p.d. aswani v. kavashah dinshah
mulla l  and waman shriniwas kini v. ratilal bhagwandas and
co. 2  on which learned companynsel for the respondent relies
were decided before sub-s.  1  of s. 15 was amended and
therefore did number take into account the effect of such
amendment.  1  1953 56 bombay law reporter 467.  2  1969 supp. 2 s.c.r. 217.
therefore the present case is one where gold field is
a tenant a manekbhai is a lawful sub-tenant and the latter
has created a further sub-tenancy in favor of tota singh. the question is whether the further sub-tenancy can fall
within the scope of sub-s.  2  of s. 15. number if regard be
had to clause  i  of sub-s  l l  of s. 5 it is apparent
that in respect of the subsequent subtenancy manekbhai companyld
be described as a tenant and tota singh as his sub-tenant
and if that is so there is numberreason why tota singhs sub-
tenancy should number be regarded as a valid sub-tenancy in as
much as it was created before may 21 1959 and he had
entered into possession of the premises before that date and
was companytinuing possession on that date. but it is urged on behalf of gold field that this
court has held in jai singh morarji  supra  that sub-s  2
of s. 15 does number validate a sub-tenancy created by a sub-
tenant. that was a case where the original landlord filed a
suit against the tenant ochhavlal for possession on the
ground inter alia of illegal subletting by ochhavlal. the
suit was decreed and the plaintiff obtained possession. ochhavlal had sub-l t the premises to sovani and sovani had
sub-let them to a private limited companypany. on application by
the companypany against dispossession in the execution
proceedings the trial companyrt upheld the companypanys claim to
possession but this companyrt ultimately rejected the companypanys
claim and upheld the right of the original landlord to
possession. the facts of that case disclose that there were
two prohibited sub-tenancies the first was created by
ochhavlal in favor of sovani and the subsequent was created
by sovani in favor of the companypany. the benefit of sub-s.  2
of s 15 companyld have been extended to sovani only if the
conditions of the sub-section were satisfied if they were
satisfied in the case of sovani the benefit companyld number be
extended again in favor of the companypany. that would obviously
be so because the companydition as to possession on may 21 1959
could number possibly be satisfied by the subsequent sub-tenant
if the original subtenant was in possession on that date. if however the subsequent sub-tenant was in possession on
may 21 1959 then clearly neither sub-tenancy can be
regarded as valid. to be valid the first subtenancy had to
satisfy the companydition of possession by that-sub-tenant on
may 21 1959 which ex hypothesi was number possible. and if
the original sub-tenancy was invalid the subsequent sub-
tenancy would also be invalid. the subsequent sub-tenancy
would be valid only if the original sub-tenant had legal
interest to transfer to the subsequent sub-tenant. it is in
the light of this analysis that the decision of this companyrt
in jai singh morarji  supra  needs to be appreciated in
particular the passage on page 607 of the report which
reads
the answer to the question is whether the
respondent private companypany was a sub-tenant prior to
1959 and companytinued in possession at the companymencement of
the ordinance in 1959. ochhavlal in the present case
gave the sub-lease to sovani before the ordinance. it
is an indisputable feature in the present case that
sovani did number companytinue in possession at the
commencement of the ordinance of 1959. sovani became a
director of the private companypany. it is the private
company which claims to be a sub-lessee. the private
company was in the first place number a sub-lessee of the
tenant but a subsequent assignee from the sub-lessee. secondly sovani who was the sub-lessee number in
possession on the date of the ordinance on 21 may
1959. it was the private companypany which was in
possession. therefore the private companypany is number
within the protection of section 15  2  of the act
the learned judges were number unaware of the terms of
sub-s.   1  of s. 5 as is evident from the passage on page
608 of the report. it is then urged by learned companynsel for the respondent
that clause  a  of sub-s.  11  of s. s of the bombay rent
act cannumber be called in aid by the appellant as sub-s.  1
of s. 15 applies to companytractual tenants only. we are
referred to anand nivas  p  limited v. anandji 1  where this
court laid down that the expression tenant in sub-s.  1
of s. 15 of the bombay rent act means a companytractual tenant
and number a statutory tenant. the submission can be of no
assistance to the respondent. having regard to the
concession made by companynsel for gold field in the companyrt below
that manekchand was a lawful tenant which position as we
have discussed earlier necessarily implies a valid companytract
of tenancy between gold field and manekchand the latter must
be regarded as a companytractual tenant when he sublet the
premises to tota singh.


criminal appellate jurisdiction criminal appeal number- 164 of
1967.
appeal by special leave from the judgment and order dated
october 14 1966 of the allahabad high companyrt lucknumber bench
in criminal appeal number 425 of 1964.

p. varma for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by-
dua j.-subedar appellant has companye up an appeal by special
leave from his companyviction under s. 396 read with s. 109

p.c. and sentence of life imprisonment imposed by the
temporary civil sessions judge hardoi and affirmed on
appeal by the allabad high companyrt according to which the
appellants case is companyered by the second and third clauses
of s. 107 i.p.c. read with explanation 2.
seven persons including the appellant were tried fixe
under s. 396 i.p.c. and subedar appellant and tota under
s. 396 read with s. 109 i.p.c. the trial companyrt companyvicted
six and acquitted one. the appeal of the companyvicted persons
to the high companyrt failed. in this companyrt only subedar has
appealed. according to the companyrts below subedar and tota were number
amongst the dacoits. they are however stated to have
assembled at the time of the dacoity which was companymitted on
the night between the 21st and 22nd march 1963. subedar
it is number disputed is a first companysin of the victims of the
dacoity  gajodhar
and chhotey lal  and is a resident of village zafarpur where
the dacoity was companymitted. gajodhar it may be stated was
killed during the companyrse of the dacoity. the circumstances
on which the prosecution relied against subedar in the high
court are
 1  bitter enmity between gajodhar and
chhotey lal and subedar and tota who are fast
friends on the other
 2  the nature of the incident suggests that
the primary object of the culprits was to
commit the murder of gajodhar and chhotey lal
and touch the culprits did number succeed in
killing chhotey lal his property was looted as
an incidental venture
 3  on the evening preceding the night of
dacoity subedar and tota were seen in a grove
south of the village within less than a mile
from zafarpur in the companypany of five or six
persons including appellant gajju son of
chheda armed with kantas bhallas and lathis. on the night following the dacoity was
committed at the house of gajodhar and chhotey
lal when gajodhar was killed and chhotey lal
seriously injured and in the companymission of
that offence gajju son of chheda participated

subedar who was inimical towards
gajodhar. and chhotey lal tried to show false
sympathy for them by raising an alarm at the
time of dacoity
 5  on the following morning subedar lodged
first information report by way of peshabandi
in order to put the police on wrong track. numbere of these circumstances is in our view established on
the record number can they be companysidered either singly or
collectively to be sufficiently companyent to bring home to the
appellant abetment of the offence under s. 396 i.p.c. beyond the possibility of a reasonable doubt. according to
chhotey lal undoubtedly there was a dispute in regard to
property between him and the appellant who is his first
cousin and indeed companyrt litigation was pending between them. but it seems to be an exaggeration to say that there was
bitter enmity between the parties. in support of the second
circumstance also we are unable to find any evidence on the
record. the inference seems to be companyjectural number
supported by the material on the record on any rational
basis. the charge under s. 396 i.p.c. also postulates
murder in the companyrse of the companymission of dacoity and does
number quite support the high companyrts view. in any event it
does number implicate the appellant. after dealing with the
last two circumstances we will turn to the third. subedar
it is companyceded actually lodged the first information report
 ex. ka 7  on the morning of 22nd march. it was a writ-
ten report companyering nearly three printed pages. number merely
because there was some dispute or litigation pending in
courts between the parties it does number follow that the
report was lodged by the appellant with the object of
misleading the police or in order to forestall suspicion
against him. from the companytents of the report it is number
possible to draw this inference. there is numberhing mis-
leading in it and certainly numberhing indicative of a design
to put the police on a wrong track. in fact its detailed
nature suggests. that it must have emanated from the persons
who had taken full account of the loss and had even
evaluated the articles stolen. the dacoity and murder it
may be recalled was companymitted on the night between 21st and
22nd march. the written information was given by subedar on
the morning of the 22nd at 6.15 a.-m. at the police station
about 7 miles away. in these circumstances the suggestion
of peshabandi  to forestall suspicion  by the appellant
seems to be wholly insupportable. chhotey lal who appeared
as p.w. 2 admitted in his cross-examination that subedar
accused had gone to the police station to lodge a report
regarding the occurrence in question. though he denied that
he had sent subedar to lodge the report he was companystrained
to admit that the following day at 9 or 10 oclock the sub-
inspector had also told him that subedar had gone to the
police station to lodge the report. he also admitted that
when the sub-inspector informed him about subedar having
gone to lodge the report on his behalf he did number tell the
sub-inspector that subedar was inimical to him and his
report should therefore- be shown to him for scrutiny the
detailed nature of the report the companytents of which have
number been show in to be incorrect were presumably given to
the appellant by chhotey lal. these circumstances support
rather than negative the theory that chhotey lal had sent
subedar for lodging the report. there is however positive
evidence in the statement of dammar  p.w. 5  that chhotey
lal had sent the appellant to lodge airport. dammar  p.w. 5  had also accompanied subedar along with lila pradhan and
the chowkidar. we see numberreason for disbelieving the
testimony of p.w. 5. p.w. 17 chaudhari ishrat husain sub-
inspector has stated that subedar was arrested by him on
the 15th april 1963 the statement of babu ram  p.w. 7  and
khanna  p.w. 8  the two witnesses on whose evidence the
appellant is companyvicted were recorded by him on the 28th
march 1963. it is however number knumbern as to what they had
stated during the investigation. a day earlier on 27th
march 1963 p.w. 17 had actually framed a charge-sheet
against jitta and gajjoo son of rupan pasi. on the. 9th
april 1963 an application by chhotey lal was received by

w. 17 in which suspicion was cast on subedar and tota. prior to 9th april according this witness he had numberproof
of these two persons having participated in the dacoity
though he admits that he had already recorded chhotey lals
statement before 9th april. in fact sub-inspector deorary

w. 15  had recorded-
chhotey lals statement as early as march 22 1963 and it
was from p.w. 15 that p.w. 17 took over the investigation. w. 15 does number say that chhotey lal or anyone else
suspected the appellant the foregoing discussion strongly
indicates that the implication of subedar appellant was an
after-thought. circumstances number. 4 and 5 have thus no
basis and appear to be purely companyjectural. we may number appropriately refer to the statements of the two
witnesses whose sole testimony appears to be the basis of
the appellants companyviction. the third circumstance is found
on their evidence. babu ram  p.w. 7  whose statement was
recorded in companyrt on the 28th march 1964 has deposed that
about a year earlier he was returning to his village from
the companysolidation office at thomharwa in the evening when
the sun was about to set. khanna and bashir were with him. when they reached near the big grove lying to the south of
village daulatpur he saw five or six persons in the grove. out of them he knew only tota and with subedar. others were
number knumbern to him. they were armed ballam kanta and lathis. on the same night a dacoity was companymitted at the residence
of gajodhar and he was killed by the dacoits. khanna  p.w. 8  has deposed in similar terms. the companytradictions
elicited in their cross-examination would show that their
statement on the question of the presence of the appellant
in the grove cannumber be-safely relied upon. according to
babu ram who had on the day in question gone from katghara
 which was also the village of khanua p.w. 8  to the
consolidation office in village thomharwa along with khanna
and bashir they had made merely oral request in regard to
their grievance without submitting any application. khanna

w. 8  has on the other hand stated that bashir and
babu ram met him only on his way back home. he professes to
have submitted his application but expresses ignumberance
about babu ram and bashir having done so because they had
number met him in the companysolidation office. this
contradiction on the facts and circumstances of this case is
very material and casts a serious doubt on the veracity of
their version in regard to the circumstances in which they
profess to have seen the appellant i near the grove. in
their cross-examination a suggestion was also thrown that
subedar had appeared as a defence witness in a case
against one jailal chamar in which case these two
witnesses had appeared for the prosecution. this suggestion
was apparently intended to indicate the motive on the part
of these two witnesses to falsely implicate the appellant. the evidence of these two witnesses seems to us to be too
infirm to carry companyviction to their deposition that they saw
the appellant as alleged. it is indeed some what surprising
how their evidence was accepted by the companyrts below without
appropriate scrutiny in holding the presence of the
appellant in the grove. but even assuming that the
appellant was seen by them as alleged that by
itself is number sufficient to companynect him with the offence
charged. it cannumber be said that from this it follows as a
necessary and the only rational or reasonable inference that
the appellant was as abetter of the dacoity and murder. on
a practical approach the reasonable possibility of his
innumberence cannumber be ruled out. the companyrts below have
erroneously ignumbered this vital aspect. at this stage we may refer to some evidence which was
recorded in the high companyrt on appeal. it appears that on
behalf of the present appellant and tota it was companyplained
in the high companyrt by their companynsel that the circumstance
that these two accused persons had been seen with the
culprits who companymitted dacoity in question was number clearly
put to them under s. 342 cr. p.c. by the trial companyrt and
that they were misled in their defence because the trial
court had questioned them in a manner which suggested that
they been charged with having actually companymitted dacoity
along with the other culprits. the high companyrt therefore
summoned subedar and tota who were on bail. this order was
passed on 11th august 1966. subedar was accordingly
examined by the high companyrt on the 24th august and was
confronted with the statement of babu ram and khanna  pws 7
and 8 . the appellant denied that he was ever in the grove
as stated by these witnesses and stated that he had enmity
with them and added that they were police witnesses. subedar also expressed a desire to produce witnesses in his
defence. lila pradhan was in the circumstances examined by
the high companyrt as d.w. 4. it may be recalled that according
to danunar lila pradhan was also one of the persons who had
gone to lodge the report with him and subedar. lila pradhan
deposed in his examination-in-chief in the high companyrt that
chhotey lal had asked subedar to go and lodge a report in
the police station about the dacoity in question. subedar
also raised an alarm at the time of the dacoity. this
witness after his cross-examination by the companynsel for the
state. was examined by the high companyrt at some length he was
village pradhan for six years. his statement seems to be a
frank and straightforward. from the evidence on the record
we are also inclined to think that the appellant must have
been included in the original list of prosecution witnesses. this view finds support from the statement of sub-inspector
deorary  p.w. 15  who had recorded the statements of
chhotey lal and dammar and of other witness on the day
following the. dacoity p.w. 17 seems to us to have wrongly
denied this fact. apart from the material which we have just discussed. there
is numberother relevant material to which our attention has
been invited or which we have companye across on this record
relevant to the case against subedar. from this it is
crystal clear that there was numberreal suspicion against
subedar and that it was in april that be was involved as an
afterthought presumably because of some other ulterior
consideration. both the trial companyrt and the high
court seem to us to have companypletely gone wrong in companyvicting
subedar. the respondents companynsel strongly companytended that this companyrt
should number interfere on special leave appeal under art. 136
with the companyclusions of the two companyrts below holding die
appellant guilty. we do number agree with this submission. this companyrt undoubtedly does number numbermally proceed to review
and reappraise for itself the evidence in criminal cases
when hearing appeals under art. 136. but when the judgment
under appeal has resulted in grave miscarriage of justice by
some misapprehension or mistake in the reading of evidence
or by ignumbering material evidence then it is number only
empowered but is expected to interfere to promote the cause
of justice. article- 136 is worded in very wide terms and
the power companyferred by it is number hedged in by any technical
hurdles. this over-riding and exceptional power has been
vested in this companyrt to be exercised sparingly and only in
furtherance of the cause of justice. in the present case
which depends only on circumstantial evidence the companyrts
below have companypletely ignumbered the warming given by this
court in hanumant v. the state of madhya pradesh 1  against
the danger of companyjectures and suspicions taking the place of
proof. the caution was reiterated thus
it is well to remember that in cases where
the evidence of a circumstantial nature the
circumstances from which the companyclusion of
guilt is to be drawn should in the first
instance be fully established and all the
facts so established should be companysistent only
with the hypothesis of the guilt of the
accused. again the circumstances should be of
a companyclusive nature and tendency and they
should be such as to exclude every hypothesis
but the one proposed to be proved. in other
words there must be a chain of evidence so
far companyplete is number to leave any reasonable
ground for a companyclusion companysistent with the
innumberence of the accused and it must be such
as to show that within all human probability
the act- must have been done by the accused.  pp-1097-8 . of companyrsethe evidence on basic or primary facts has to be
approached in the ordinary practical way but the companyclusions
in the case of circumstantial evidence must necessarily
point only to the guilt of the accused excluding any
reasonable possibility of his innumberence.


original jurisdiction writ petitions number. 79 and 80 of 1963
and 140 of 1962.
petitions under art. 32 of the companystitution of india for the
enforcement of fundamental rights. n. andley rameshawar nath and p. l. vohra for the
petitioner  in petition number. 79 and 80 of 1963 . sarjoo prasad ajoy kumar gajdhar mahapatra and

d. mathur for the petitioner  in petition number
140/1962 . v. gupte additional solicitor-general s. b. misra

ganapathi lyer and r. n. sachthey for the respondents  in
all the petitions . c. setalvad j. b. dadachanji ravinder narain and o. c.
mathur for the interveners  in petition number 140/ 1962 . january 23 1964. the judgment of the companyrt was delivered
by
gajendragadkar j.-the petitioners in these three petitions
have moved this companyrt under art. 32 of the companystitution and
claimed a declaration that the operative provisions of the
orissa private lands of rulers  assessment of rent  act
1958  hereinafter called the act  and the rules framed
thereunder are unconstitutional and ultra vires. the
private lands in the possession and enjoyment of the three
respective petitioners have been assessed by the revenue
officers in companyformity with the rules framed under the act. the petitioners claim a writ or direction or order
in the nature of certiorari quashing the said orders of
assessment. the petitioner in writ petition number 140/1962 is the patrani
saheba of keonjhar and is in possession and enjoyment of
eight villages viz. mangalpur barigan nua rampas
nilung ghutru mohadijore patang and anara in the district
of keonjhar. these villages were granted to her for
maintenance a long time ago and as such they have been
recorded in the village papers as khoraki posaki
 maintenance grant  lands since the last settlement of 1918.
she has held these lands without paying assessment and her
case is that the relevant provisions of the act which
authorise the levy of assessment in respect of her lands are
unconstitutional and invalid. in her petition she has
referred to the fact that from time to time the government
of the day had refrained from levying any assessment in
respect of her lands and thereby recognised her right to
hold the said villages on assessment-free basis. the
revenue officer of keonjhar levied an assessment in respect
of the said villages purporting to act under the rules
framed under the provisions of the act. the petitioner then
preferred appeals to the board of revenue against the said
assessment orders but these appeals were dismissed. the
assessment levied against the petitioner in respect of these
lands is of the order of rs. 9000 and odd and it has to be
paid by her from 1958 retrospectively. the petitioner in w.p. number 79/1963 is smt. rani ratna prova
devi who is the wife of raja sankar pratap singh deo
mahindra bahadur ex-ruler of dhenkanal state in orissa. at
the time when the state of dhenkanal. merged with india the
petitioner was in possession and enjoyment of lands in five
villages as a proprietor. in respect of these lands
assessment had never been levied but purporting to give
effect to the relevant provisions of the act the revenue
officer dhenkanal assessed rent in respect of all the lands
which are in possession and enjoyment of the petitioner. the appeals preferred by the petitioner against the said
order of assessment failed and so the petitioner filed the
present writ petition challenging the validity of the act as
well as the validity of the assessment order. the petitioner in w.p. number 80 of 1963 is the ex-ruler of
dhenkanal. on the date of merger he held and was in
possession of 89 acres 18 dec. and 5 kadis of land in niz-
garh town as his private lands. these lands were never
subjected to the payment of rent and yet the revenue offi-
cers assessed rents in respect of these lands under the
provisions of the act. the petitioner failed in persuading
the appellate authority to set aside the -order of assess-
ment and so has filed the present writ petition
challenging the validity of the act and the order of
assessment. thus the facts on which the three petitions
claim relief are substantially similar and they have raised
common points of law for our decision. that is why the
three petitions have been heard together and would be
disposed of by a companymon judgment. the act which is challenged in the present proceedings was
passed by the orissa legislature because it was thought
expedient to provide for assessment of rent with respect to
the private lands of rulers in the state of orissa. it
received the assent of the governumber on the 21st may. 1958
and was published in the state gazette on the 6th june
1958. it companysists of 15 sections and the main object of the
act is to authorise the levy of rent in respect of the
private lands of persons included in the definition of the
word ruler prescribed by s. 2 h  of the act. section 2 e
defines private land as meaning any land held on the date
of merger by a ruler free from payment of rent while s. 2
 h  defines a ruler as meaning the ruler of a merged
territory in the state of orissa and includes his relatives
and defendants. thus the definition of the word ruler is
an inclusive definition and takes within its sweep the re-
latives of the ruler and his dependents with the result
that private lands held by such relatives or dependents by
virtue of the grants made by the ruling prince or otherwise
come within the mischief of the operative provisions of the
act. section 2 i  provides that all other expressions used
and number defined in the act shall have the same meaning as
are respectively assigned to them under the tenancy laws in
force in the companycerned areas. section 3 companytains the main
operative provision and it lays down that numberwith-
134-159 s.c.--20
standing anything companytained in any other law custom company-
tract or agreement to the companytrary the private lands field
by a ruler shall with effect from the date of companymencement
of this act be liable to assessment and levy of rent as
provided in the act. thus the effect of this provision is
that private lands held by rulers which till then were number
liable to pay rent or assessment were made liable to pay
the same. in other words the exemption from the payment of
assessment or rent which the private lands of rulers enjoyed
till then ceased to be operative and the said lands were
treated like other lands in the state liable to pay
assessment and rent. section 4 provides for the appointment of revenue officers
and sections 5 and 6 deal with the classification of lands
and prescribe the maximum rates of rent and the procedure
in determining the rent respectively. under s. 5 the lands
have to be classified as irrigated-wet land rainfed-wet
land and dry land this section provides that subject to
the provisions of s. 6 the rates at which the fair and
equitable rent shall be assessed with respect to the said
three categories of land shall number exceed the amount as may
be prescribed from time to time by the state government. the proviso to s. 5 deals with the special category of cases
where the tenants of the ruler have already acquired rights
of occupancy and lays down that the rent payable by the
ruler in respect of such lands shall be such proportion of
the rent received by him from the tenants as may be
prescribed. under s. 6 the companysiderations which have to be
borne in mind in determining the rates of fair and equitable
rent are specified by clauses  a  to  e  viz. the nature
of the soil and general productivity of such land the class
under which the land is assessable market value of the
land the prevailing rates of rent obtaining for similar
lands in the neighbourhood and such other matters relating
thereto as may be prescribed. it is thus clear that whereas
s. 5 requires the classification of the rulers private
lands to be made and provides for the prescription of the
maximum of the rent which may be levied in respect of them
s. 6 indicates the factors which have to be borne in mind in
determining the rates of fair and equitable rent. clause
 e
shows that in addition to the factors mentioned in clauses
 a  to  d  other matters may also be specified by the
rules. the rest of the sections deal with matters relating
to the levy and recovery of assessment with which we are number
concerned in the present petitions. the first companytention which has been raised before us by the
petitioners is that the provisions companytained in sections 5
and 6 are invalid inasmuch as they companytravene art. 14 of the
constitution. it is companyvenient to refer to some facts set
out in w.p. number 79/1963 in support of this argument. we
have already numbericed that under s. 6 certain companysiderations
which the act companysiders to be relevant have been prescribed
and so the revenue officer has to bear those companysiderations
in mind in determining the fair and equitable rent in
respect of a given land. w.p. number 79/1963 points out that
as a result of the companysideration of the relevant factors
mentioned in s. 6 the rates fixed by the preliminary pattas
in respect of the petitioners lands are in every case
higher than the rates of rent which are in operation in res-
pect of the revisional settlement khatian. basing them-
selves on the fact that in the calculation of the rent made
by the revenue officers in respect of the private lands of
rulers they have arrived at a figure of rent which is gene-
rally higher than the rent which would be determined in case
the rates current under the settlement prevailing in respect
of the other lands were applied the petitioners companytend
that in their operation the relevant provisions of the act
have introduced an illegal discrimination as between their
lands and the other lands liable to assessment of rent in
the state of orissa. it is also urged in support of this
argument that it would number be a valid companysideration for
levying higher assessment in respect of the private lands of
ruler that they were number required to pay assessment until
the act was passed. the legislature may in its authority
make the private lands of rulers liable to assessment of
rent but when these lands are brought within the class of
assessable lands they should be treated in the same way as
the other assessable lands are treated in orissa. that
briefly stated is the companytention on which the validity of
the act is challenged under art. 14. prima facie there is
some force in this companytention. but on the whole we are number
satisfied that the plea thus raised by the petitioners can
be said to displace and rebut the initial presumption of
constitutionality in favour of the impugned statute. in dealing with the question raised before us it is neces-
sary to bear in mind the fact that in regard to other
assessable lands a survey settlement which had already been
made was in operation and was expected to companytinue in opera-
tion for a certain specified period usually when a settle-
ment has been made and assessment levied in pursuance of it
it cannumber be revised merely by an executive order during the
stipulated period though of companyrse the legislature can
if it so desires make a law prescribing for a fresh assess-
ment even during the said specified period. but in the
present case the legislature appears to have taken the view
that it was number necessary or expedient to introduce a fresh
settlement in regard to all the other assessable lands and
so it has passed the present statute only in regard to the
private lands of rulers. that is one relevant and
historical fact which cannumber be ignumbered. proceeding to deal with the private lands of rulers on this
basis the legislature had to prescribe the method of
determining the rent payable by the said lands and the re-
levant factors specified by s. 6 appear to be just and
substantially similar to the companysiderations which are
generally taken into account at the time of survey
settlement for determining the proper revenue assessment on
ryotwari lands. there has been some argument at the bar
before us as to whether the market value of the land which
has been prescribed as a relevant companysideration by s. 6 was
also treated as relevant on the occasion of the earlier
settlement. numbermaterial has however been placed before us
in that behalf and so it is number possible to decide whether
this companysideration was taken into account on the earlier
occasion or number and if it was number what the effect of the
said circumstance would be on the validity of the impugned
statute. having regard to the relevant factors prescribed
by s. 6 it would however number be unreasonable to take the
view that fair and equitable tests have been laid down for
determin-
ing the rent which should be assessed in respect of the pri-
vate lands of the rulers and in the absence of any proof
that there has been a material departure in that behalf we
find it difficult to uphold the plea that s. 6 can be
attacked on the ground that it has companytravened art. 14 of
the companystitution. the problem posed by the requirement to levy assessment on
these private lands had to be dealt with by the legislature
on an ad hoc basis. the settlement of rent and assessment
introduced by the act had been made applicable to these
lands for the first time and so strictly speaking these
lands cannumber be treated as companyparable in every respect with
the lands which were governed by the rates prescribed under
the previous settlement and that may help to meet the
argument that the impugned act companytravenes art. 14. if the
two categories of lands do number companystitute similar lands in
all particulars numbervalid companyplaint can. be made on the
ground that there has been discrimination as between them. that is anumberher aspect which may be relevant. there is yet anumberher factor which may be mentioned in this
connection. it appears that in 1959 the orissa legislature
has passed an act number 3 of 1959 with a view to companysolidate
and amend the laws relating to survey record of rights and
settlement operations in the state of orissa and so it
appears that after the settlement operations are duly
conducted and companypleted under the relevant provisions of
this latter act assessment in regard to all the assessable
lands including the private lands with which we are company-
cerned in the present proceedings would be made on the basis
prescribed by it. the operation of sections 3 5 and 6 of
the impugned act is therefore limited to the period
between june 1958 when the act came into force and the date
when the assessment determined under the provisions of the
subsequent act actually companye into operation in respect of
all the lands. that is anumberher factor which has to be
considered in dealing with the question about the validity
of the impugned act. the allegations made by the petitioners in challenging the
validity of the act are somewhat vague and the mate-
31o
rials placed by them in support of their challenge are in-
sufficient inadequate and unsatisfactory. the reply made
by the state is also number very helpful or satisfactory. it
is precisely where a challenge to the validity of a statute
is made by a party under article 14 and he fails to adduce
satisfactory evidence in support of his challenge that the
task of the companyrt to decide the issue becomes very
difficult. in companysidering the validity of a statute under
art. 14 we cannumber ignumbere the well-established principle
that the legislature can make class legislation provided
the classification on which it purports to be based is
rational and has a reasonable nexus with the object intended
to be achieved by it and so on the failure of the party to
show that the said classification is irrational or has no
nexus with the object intended to be achieved by the
impugned act the initial presumption of companystitutionality
would help the state to urge that the failure of the party
challenging the validity to rebut the initial presumption
goes against his claim that the act is invalid. in all
cases where the material adduced before the companyrt in matters
relating to art. 14 is unsatisfactory the companyrt may have to
allow the state to lean on the doctrine of initial
presumption of companystitutionality and that is precisely what
has happened in these cases. on the whole therefore we must
hold that the petitioners have failed to show that the
impugned act companytravenes art. 14 of the companystitution. it is then argued that the act is invalid because the
definition of the expression ruler is inconsistent with
the definition of the said word prescribed by art. 366 22
of the companystitution. art. 366 22  defines a ruler in
relation to an indian state as meaning the prince chief or
other person by whom any such companyenant or agreement as is
referred to in clause  1  of art. 291 was entered into and
who for the time being is recognised by the president as the
ruler of the state and includes any person who for the time
being is recognised by the president as the successor of
such ruler. there is numberdoubt that the definition of the
word ruler prescribed by s. 2 h  of the act is wider than
that prescribed by art. 366 22 . the dependents of the
ruler and his relatives are number included in the latter
defini-
tion though they are expressly included in the former. but
it must be remembered that the definitions prescribed by
art. 366 are intended for the purpose of interpreting the
articles in the companystitution itself unless the companytext
otherwise requires and so the argument that the definition
of the word ruler prescribed by the act is inconsistent
with the definition prescribed by art. 366 22  has really
numbersubstance or meaning. besides it is fallacious to
assume that the act has made any provision in respect of
rulers as such what the act has purported to do is to
authorise the levy of assessment and rent in respect of
lands situated in orissa these lands are the private lands
of the rulers as defined by s. 2  h  and so there is no
doubt that the whole object of defining the word ruler is
to specify and describe the lands in respect of which the
operative provisions of the act would companye into play. the
subject-matter of the levy companysists of the private lands and
the companypendious way adopted by the legislature in describing
the said lands is that they are the private lands of the
rulers. it is in that companynection that the word ruler has
been broadly defined in an inclusive manner. if the
legislature had said that the private lands of the rulers as
well as the private lands of the dependents and relatives of
rulers were liable to the levy permitted under s. 3 the
petitioners would number have been able to raise any objection
because then it would have been unnecessary to define the
word ruler in a companyprehensive. way. once it is companyceded
as it must be that the orissa legislature was companypetent to
pass the act under entry 18 of list ii of the seventh
schedule it is idle to suggest that the method adopted by
the act in describing the lands which are made liable to pay
assessment introduces any infirmity in the art itself. therefore we are satisfied that the companytention that the
definition of the word ruler is inconsistent with art. 366 22  and that makes the whole act void is without any
substance. the third argument which was faintly urged before us is that
the act companytravenes the provisions of art. 31 of the
constitution. this argument is wholly misconceived. art. 31 1  deals with the deprivation of property save by autho-
rity of law and cannumber obviously be invoked against any
of the provisions of the act and art. 31 2  deals with
compulsory acquisition or requisition which also is entirely
inapplicable to the present act. what the act has purported
to do is to authorise the levy of assessment in respect of
lands which till then had been exempted from the said levy
and as art. 31 5  b  i  provides numberhing companytained in clause
 2  shall affect the provisions of any law which the state
may make for the purpose of imposing or levying any tax or
penalty. if the orissa legislature has imposed a tax in the
form of the assessment of the private lands of rulers
clearly it has number purported either to deprive the rulers of
their property or to acquire or requisition the said
property it is a simple measure authorising the levy of a
tax in respect of agricultural lands and as such it is
entirely outside the purview of art. 31. it appears that in
pratap kessari deo v. the state of orissa ors.  1  the
validity of the act was challenged before the orissa high
court and the said high companyrt has repelled the challenge and
upheld the validity of the act.


civil appellate jurisdiction civil appeals number. 1561 to
1563 of 1969 179 and 180 of 1971.
appeals from the judgment and order dated august 19 1968 of
the assam nagaland high companyrt in civil rule number 473 350
and 319 of 1966.
naunit lal for the appellants  in all the appeals . k. daphtary and d. n. mukheriee for respondents  in

as. number. 1561 1563/69 c.as. number. 179 180/71 . n. mukheriee and s. k. nandy for respondent  in c.a. number
1562/69 . the judgment of the companyrt was delivered by
alagiriswami j. these five appeals by leave are by the
state of assam against the judgment of the high companyrt of
assam in five petitions filed by the respondents in the
respective appeals. shri bansi ram das was professor and head of the department
of physics in the government companyton companylege gauhati. shri
kanak lal das was professor and head of the department of
philosophy. shri basanta kumar das was a physiological
chemist in class i of the assam veterinary service and on
the relevant date was the deputy director of animal
husbandry veterinary department. shri khageswar saikia
was an upper division assistant in the office of the deputy
commissioner darrang tezpur on the relevant date and shri
anand chandra hazarika was an head assistant in the office
of the deputy companymissioner darrang texpur. on 21st march
1963 the government of assam issued a memorandum raising the
age of retirement of its servants from 55 years to 58
years. the relevant portion of the memorandum was as
follows

numbergovernment servant will be entitled to the benefit of
the increased age of companypulsory retirement unless he has
been permitted to companytinue in service after the age of 55
years after the appointing authority is satisfied that he is
efficient and physically fit for further government service. the procedure to be followed by the appointing authorities
before they permit a government servant to companytinue in
service is outlined in the annexure

numberwithstanding anything companytained in the foregoing
paragraphs the appointing authority may require a
government servant to retire after he attains the age of 55
years on 3  three  months numberice without assigning any
reason. necessary amendments to the relevant rules will be
issued in due companyrse. in the annexure to this memorandum the procedure to find out
the efficiency and the physical fitness of the employee
concerned was laid down. they were to be tested as to their
efficiency by a board companysisting of the chief secretary the
secretary of the department companycerned and the head of the
department. as regards physical fitness such persons were
to be examined by the civil surgeon of the district in
which they were posted. these five respondents were number allowed to companytinue in
service in accordance with this memorandum and they filed
petitions before the assam high companyrt questioning the
validity of the orders
retiring them from service. the high companyrt first decided
the case of shri bansi ram das in civil rule number 319 of
1966. they allowed his petition and directed him to be put
back in service to companytinue there till he attained the age
of 58 years. the other four petitions were allowed on the
basis of this judgment without going into the facts of each
case or their merits. all the five officers had put forward the companytention that
under terms of the memorandum dated 21-3-1963 they had a
right to companytinue in service even after they had companypleted
their 55th year. all of them also companytended that they had
been picked out for special discrimination. the
governments reply to these companytentions was that numberone got
a right to companytinue in service after companypleting 55 years and
that there was numberdiscrimination and the fact that some
officers were allowed to companytinue and some others who were
found number fit were number companytinued did number mean that there was
any discrimination. in the case of shri bansi ram das and shri kanak lal das
who was the petitioner in civil rule number 350 of 1966  he is
number dead and his widow is the first respondent  the board
constituted to companysider their cases after scrutinising
their character roll and after companysideration of facts
decided to recommend them for retention in service beyond 55
years. but the minister incharge of education made a numbere
as follows
i cannumber agree to giving extension to prof. kanak lal das
and prof. bansi ram das. i companysider them to be outmoded in
their intellectual development. so it can be said these cases are alike. in their cases the
contention in the governments companynter affidavit was that
they were number found fit to companytinue in service after
attaining fifty five years. the ministers remark was also
given as anumberher reason. these two officers in particular therefore companytended that
the board companystituted to companysider their fitness for further
continuance in service having recommended them for such
continuance and there being numbermaterial on record on the
basis of which the minister companyld pass the order above
extracted. the order retiring them was invalid. it is true
that the screening board had recomended the companytinuance of
these two officers in service after their attaining the age
of 55. there is also numbermaterial to show that exactly was
responsible for the impression which the minister formed
about the capacity of these two officers. but once it is
held that the memorandum of 21-3-63 is merely an executive
instruction which companyfers numberright on any body the judgment
of the minister cannumber be questioned unless it companyld be
shown that there were any mala ides. there was no
allegation even of any malafides. this companyrt would number go
into the reasons which weighed 12-l631supci/73
with the minister in companying to the decision unless it
could be said that he was guided by ulterior motives or the
decision companytravenes some law. the decision of the minister
cannumber therefore be questioned. the cases of the other three officers are different because
in their cases there is numberrecommendation of the board on
record showing that their companytinuance had been recommended. in civil appeal 179 and 180 though the deputy companymissioner
had recommended their companytinuance the companymissioner had
taken a different view. in the case of shri khageswar
saikia the companymissioner wrote as follows
i have given careful companysideration to this case and feel
that it will number be desirable to grant extension to shri
khageswar saikia beyond 55 years. the reports for 1964 and
1966 recorded by different deputy companymissioners are hardly
favourable for his further retention. on an overall companysideration i regret my inability to accept
your recommendation for giving any extension to shri
khageswar saikia. he should retire on attaining the age of
55 years. in the case of shri anand chandra hazarika he wrote
it will be seen from the reports for 1960 1965 and 1966
that shri hazarika has been found to be lacking in the
capacity to manage the office and supervise work to the
satisfaction of his superiors. in 1960 the deputy
commissioner companymented that he should exercise more
supervision over the junior hands. in 1965 anumberher deputy
commissioner companymented on his lack of supervisory capacity
and referred to his identification with some groups in the
office. he also recorded that shri hazarika was slow in
carrying out orders. in 1966 the same deputy companymissioner
repeated his adverse companyments about lack of supervision. in
the circumstances it seems to me that the public interest
will number be served by giving extension to shri hazarika as
he will invertably hold a key supervisory post despite his
lack of supervisory ability. as regards shri narasimhans report i may state that this
report was received without being called for and in view of
the companysistent adverse remarks recorded for 1960 1965 and
1966 it is difficult to believe that shri hazarika companyld
have overnight become an excellent r.s. improved the
working of the office and proved as
an asset to the deputy companymissioner. i am afraid shri
narasimhans superlatives are based on an inadequate
assessment for too short a period. i do number propose to
comment on the preparation of a new character roll by shri
hazarika companytaining uncertified remarks i would however
invite governments attention to the deputy companymissioners
letter in this regard. i recommend that shri hazarika should be asked to retire
from service on attaining 55 years of age. in the case of shri saikia and shri hazarika the
commissioner who was the immediate superior officer of the
deputy companymissioner who recommended their case was number
satisfied that they were fit to be companytinued in service
beyond 55 years and he has given very valid reasons for number
recommending their companytinuance in service. in saikias
case in their companynter affidavit the government have
pointed out that the deputy companymissioners recommendation
was only a recommendation which cannumber bind the companymissioner
or the state government and as the companymissioner did number find
him suitable and did number allow him to companytinue beyond 55
years of age he had to retire at the age of 55 years and
there was numberdiscrimination or favouritism or arbitrary
action on the part of the government. in hazarikas case
the government in their companynter affidavit pointed out that
though the deputy companymissioner recommended his case for
extension of service the companymissioner did number do so and the
government had to decide the matter number in the light of the
recommendation of the deputy companymissioner but in the light
of the merits of the case judging from the entire material
on record that as he was number found efficient and suitable
by the appointing authority namely the companymissioner he
was number allowed to companytinue beyond 55 years of age and that
there was numberdiscrimination or denial of equal protection of
law number any infringement of. any legal right of the
petitioner. the high companyrt has ignumbered these facts and simply followed
its judgment in the case of bansi ram das in these two cases
also. it was its duty to have companysidered the merits of each
case and it had failed to do so. it is obvious that these
two respondents were found number suitable for being companytinued
in service. we shall next take up the case of basanta kumar das. in his
case also in their companynter affidavit the government had
pointed out that the appointing authority was number satisfied
with his work so as to extend his services beyond the age
of 55 years. it was specifically companytended that he was number
entitled to automatic extension till 58 years only because
the medical board and the screening board found him
efficient. it was further companytended
that as deputy director he was number able to manage his work
quite well. it was stated that with regard to the cattle
feed deals there were large number of anumberalies including
charges of questionable companyduct and that as ordered by the
minister the secretary had to go to gauhati to look into
the anumberalies and to set things right and that the
government did number see much of an advantage in extending his
services beyond the age of 55. there was numberreply filed by
the respondent to this statement on behalf of the government
and the statement therefore stood unchallenged. in the
circumstances it is number possible to say that the government
was number justified in refusing to companytinue him in service
beyond his 55th year. we shall number deal with the companytentions raised by all the
five respondents. we must first of all point out that the
memorandum dated 21-3-63 is a mere executive instruction
and number a rule made under article 309 of the companystitution. it did number companyfer any legal rights on the persons companyered by
it. numberlegal action can be founded on it. a similar view
has been taken in a recent decision of this companyrt in assam

pramadhar 1 . in kailash chandra v. union of india 1  this companyrt had to
consider the effect of rule 2046 2   a  of the railway
establishment companye which reads as follows
clause  a -a ministerial servant who is number governed by
sub-cl.  b  may be required to retire at the age of 58 years
but should ordinarily be retained in service if he companytinues
to be-efficient up to the age of 60 years. he must number be
retained after that age except in very special circumstances
which must be recorded in writing and with the sanction of
the companypetent authority. this companyrt observed
this intention is made even more clear and beyond doubt by
the use of the word ordinarily. ordinarily means in the
large majority of cases but number invariably. this itself
emphasises the fact that the appropriate authority is number
bound to retain the servant after he attains the age of 55
even if he companytinues to be efficient. the intention of the
second clause therefore clearly is that while under the
first clause the appropriate authority has the right to
retire the servant who falls within clause  a  as soon as he
attains the age of 55 it will at that stage companysider
whether or number to retain him further. this option to retain
for the further period of five years
 1  1971 1 s.c.r. 503.  2  1962 1 s.c.r. 374.
can only be exercised if the servant companytinues to be effi-
cient but in deciding whether or number to exercise this
option the authority has to companysider circumstances other
than the question of efficiency also in the absence of
special circumstances he should retain the servant but
what are special circumstances is left entirely to the
authoritys decision. thus after the age of 55 is reached
by the servant the authority has to exercise its discretion
whether or number to retain the servant and there is numberright
in the servant to be retained even if he companytinues to be
efficiency. this was a case where the rule was statutory. it need
hardly be emphasised that what applies to a statutory rule
applies with greater force to mere executive instructions. this is a companyplete answer to the claim of the respondents in
this case that as a result of the memorandum of 21-3-63 they
got a right to companytinue in service beyond the age of 55
years. a government servant has numberright to companytinue in
service beyond the age of superannuation and if he is
retained beyond that age it is only in exercise of the
discretion of the government. in b. n. mishra v. state 1  it was held that
government was number obliged to retain the services of every
public servant for the same length of time. the retention
of public servants after the period of retirement depended
upon their efficiency and the exigencies of public service. it cannumber be urged that if government decides to retain the
services of some government servants after the age of
retirement it must retain every government servant for the
same length of time. the retention of public servants after
the period of retirement depends upon their efficiency and
the exigencies of public service. this again is a companyplete answer to the companytention of the
respondents that they had been discriminated against. the
fact that certain persons were found fit to be companytinued in
service does number mean that others who were number so found fit
had been discriminated against. otherwise the whole idea of
continuing only efficient people in service even after they
had companypleted 55 years becomes only meaningless. in this
connection we may refer to certain observations of this
court in union of india v. j. n. sinha 2  as follows
there is numberdenying the fact that in all organizations and
more so in government organisations there is
 1  1965 1 s.c.r. 693.  2  1971 i s.c.r. 791 at 795.
good deal of dead wood. it is in public interest to chop
off the same. with respect we agree with this observation. it is also to
be numbericed that there is numberallegation of any mala fides on
the part of any of the authorities who had to deal with
their cases alleged or proved in any of the cases. we thus companye to the companyclusion that there are numbermerits in
any of the companytentions put forward on behalf of the
respondents in these five appeals. this however leaves
the question regarding the certificate granted by the high
court of assam in the case of three respondents in three
civil appeals number. 1961 to 1963 of 1969.
the certificates simply say leave to appeal to supreme
court is granted but do number mention under what particular
clause or sub-clause of art. 133 leave was granted. based
on the decision of this companyrt in sardar bahadur s. indra
singh trust v. c.i.t. 1  where it was stated
in that certificate all the we find is a held statement by
the high companyrt that the case is a fit one for appeal to this
court. this companyrt has ruled that such a certificate is an
invalid one and an appeal brought on the strength of such a
certificate is number maintainable. mr. daphthary who appeared for the respondent bansi ram das
urged that the appeal should be dismissed on this simple
ground. if this companytention is to be up-held it will apply
to the other two cases also. on behalf of the state of
assam it was companytended that this point was number raised till
the appeals were taken up for argument that they were
taken by surprise and they would be prepared to file a
petition for special leave if that was companysidered
necessary if the appeals were adjourned by a week. in the
very case relied upon by mr. daphtary the appellant filed a
special leave application and after hearing the parties the
court came to the companyclusion that the leave asked for should
be granted. we may number companysider some of the earlier
decisions of this companyrt on this point. in the union of
india v. kishori lal gupta bros 2  special leave to appeal
from the judgment of a single judge of the high companyrt had
been obtained without first appealing to the appellate
blench of the high companyrt. this companyrt held that the leave
could have been revoked if the objection was taken at the
earliest opportunity and an objection to the leave so
granted and an application for revocation of leave made
after inumberdinate delay at a later stage would prejudice the
appellant for it the objection had
 1  1971 82 i.t.r. 561.  2  1960 1 s.c.r. 493.
been taken at the earliest point of time the appellant would
have the opportunity to prefer a letters patent appeal and
the appellant cannumber be made to suffer for the default of
the respondent. in shri durga prasad v. the banaras bank limited 1  the high
court had certified the case under art. 13 3  1    a  of the
constitution for appeal to this companyrt. it was urged during
the hearing of the appeal on behalf of the other side that
the appeal was number companypetent on the ground that the high
court had numberjurisdiction to grant the certificate under
art. 1 3 3   1    a  of the companystitution without certifying
that the appeal involved some substantial question of law. this companyrt held that the appeal companyld number be entertained as
it was a case of a judgment of the high companyrt which affirmed
the judgment of the single judge and the high companyrt had number
certified that the decision involved any substantial
question of law. the companynsel for the appellant however
requested that in any event special leave to appeal under
art. 136 of the companystitution be granted. but having regard
to all the circumstances this companyrt decided that it was number
a fit case for granting leave to appeal. in civil appeal number 578 of 1963 decided on 23rd july 1965
this companyrt though it held that the certificate granted by
the high companyrt was incompetent heard the companynsel for the
appellant who made an oral request for grant of special
leave undertaking to file a petition supported by an
affidavit and by an application for companydonation of delay
immediately. this companyrt thought that it was a fit and
proper case and that special leave should be granted because
important questions of law had to be decided. it directed
the appellant to file the necessary special leave petition
within a week. in the latest decision of this companyrt in bijili companyton mills

industrial tribunal ii 2   to which one of us was a
party it was held that this companyrt under art. 136 is fully
competent to entertain even an oral prayer for grant of
special leave and companydonation of delay and if the cause of
justice so demands to grant the same and to companysider the
special leave to appeal on merits. on companysideration of all
the circumstances of that case it was held that it was fit
for granting special leave to appeal and for companydoning the
delay. the decision in c.a. 578 of 1963 was cited with
approval. these cases establish that the powers of this
court to grant special leave under article 136 are very wide
and that it would be prepared to exercise it at any stage in
a power case. furthermore it would number allow an objection
to the nature of the certificate to be taken if it is done
at a late stage making it impossible for the

a.i.r. 1972 s.c. 1906
appellant to resort to the proper remedy as he companyld have
done if the objection had been taken at an early stage. this companyrt does number simply dismiss an appeal on the ground
that the leave obtained was number a proper one and leave the
matter to rest there. it is always prepared to companysider
the request for grant of special leave at any stage if the
circumstances of the case require. an objection to the
certificate should be taken at the earliest possible moment
and the respondents failure to do so would number be allowed
to prejudice the appellant and he would number be made to
suffer for the failure of the respondents. in this case
also if the objection had been taken at the earliest point
of time the appellant companyld have applied for special leave
and in the circumstances of this case we would have been
prepared to grant special leave. when the high companyrt
decided these cases the judgment of this companyrt in assam v.
premadhar had number been delivered. therefore a substantial
question of law arose for decision in these cases. if the
respondents had raised the point at the earliest possible
time we would have been prepared to companysider an oral request
for special leave and for companydonation of delay and to direct
the appellants to file petitions for this purpose. but as
it has been done only at the last moment after the appeals
were taken up for hearing we are of opinion that the
appellants should number be made to suffer by the
respondentsnegligence.


civil appellate jurisdiction civil appeal number 397 of 1960.
appeal from the judgment and order dated. numberember 24
1958 of the kerala high companyrt ill i. t. r. number 23 of
1957.

n. rajagopala sastri and i p.c. menumber for the appellant. v. viswanatha sastri narayanaswami and r. gopalakrishnan
for the respondent. 1961. august 14. the judgment of the companyrt was delivered
by
subba rao j.-this appeal by certificate granted by the
high companyrt of kerala raises the question of the application
of a. 41 1  of the indian income-tax act  hereinafter
called.the act  to the fact of the case. one p. b. umbichi and his wife executed a deed dated
december 20 191.5 creating thereunder a wakf of their
properties. it was provided therein. inter alia that the
income from the properties mentioned therein should be
utilised for the maintenance of their two daughters and
their children on the female side. for 40 years upto and
inclusive of the assessment year 1954-55 the income-tax
assessments were made on the wakf through its manager under
s. 41 of the act in the status of an individual. but for
the assessment year 1955-56 the income-tax officer treated
the assessee as an association of persons and on the
ground that the shares of the beneficiaries are
indeterminate levied tax at the maximum rate under the
first proviso to s. 41 of the act. on appeal the appellate
assistant companymissioner of income-tax held that the income-
tax officer was number right in holding that the members of the
family were indeterminate but he companyfirmed the assessment
for the reason that the shares were number specified among the
individual members of the family and also between the
members of the family on the one hand and the charitable and
religious purposes on the other the first proviso to s. 41-
would be applicable to the assessee. on further appeal the
income-tax appellate tribunal took the view that the
proprietary rights in the property in question vested in the
almighty and that the mutawalli was only to look after ant
administer the properties as a manager and therefore the
proper person in whose hands the income from the properties
should be assessed was the mutawalli in his status as an
individual at the rates applicable to an individual. id
that view the appeal was allowed. at the instance of the
commissioner of income-tax the appellate tribunal referred
to the high companyrt of kerala the following question for its
determination
whether in the facts and circumstances of the
case the first proviso to section 41 is
applicable. the high companyrt held that the said proviso was number
applicable as under the wakf deed the beneficiaries and
their shares were ascertainable. aggrieved by the said
order the companymissioner of income-tax has preferred the
present appeal. mr. rajagopala sastri learned companynsel for the companymissioner
of income-tax companytended that on a fair reading of the terms
of the wakf deed it would be clear that the mutawalli was
only directed to maintain the members of the family that
numbere of the members of the family had any ascertainable
hare in the income and that therefore the case squarely
fell within the first proviso to s. 41 of the act. mr. viswanatha sastri learned companynsel. for the respondent
in addition to his attempt to sustain the companystruction put
upon the wakf deed by the high companyrt companytended that the
instant case fell outside the scope of s. 41 1  of the act
as the mutawalli was only receiving the income on behalf of
the almighty that the almighty was number a person and
that therefore as the main section  lid number apply the
proviso also would number be attracted with the result that
the muta award would have to be assessed as an
individual
as the argument turns upon the companystruction of s. 41 of the
act it will be companyvenient atthe outset to read the
relevant parts thereof. section 41  1  in the case of income
profits or gains chargeable under this act
which any trustee or trustees appointed
under a trust declared by a duly executed
instrument in writing whether testamentary or
otherwise including the trustee or trustees
under any wakf deed which is valid. under the
mussalman wakf validating act 1913 are
entitled to receive on behalf of any person
the tax shall be levied upon and recoverable
from such trustee trustees
in the like manner and to the same amount as
it would be leviable upon and recoverable from the pers
on on whose behalf such income. profits-or gains are receivable and all the
provisions-of this act shall apply
accordingly-
provided that where any such income profits
or gains or any part thereof are number
specifically receivable on behalf of any one
person or where the individual shares of-
the persons on whose behalf they are
receivable are indeterminate or unknumbern the
tax shall be levied and recoverable at the
maximum rate but where such persons have no
other personal income chargeable under this
act and numbere of them is an artificial
juridical person as if such income profits
or gains or such part thereof were the total
income of an association of persons. this section in term s applies to a trustee under a wakf
deed which is valid under the mussalman wakf validating
act 1913. under the substantive part of. the section tax
is leviable on the trustee of the wakf in the like manner
and to the same amount as it would be leviable upon and
recoverable from the beneficiarythat isthe assessment
would be at the-individual rates of tax applicable to the
beneficiary. but under the first proviso to that section
there are two exceptions to the general rule viz.  1
where the income is number specifically receivable on behalf
of anyone person and  ii  where the individual shares of-
the persons on whose behalf the income is receivable are
indeterminate or unknumbern. in those two circumstances tax
shall be levied and recoverable at the maximum rate. it is
agreed that the first exception does number apply to the
instant case. but the question that falls to be decided is
whether the individual shares of the persons on whose behalf
the income is receivable are indeterminate or unknumbern. the
answer to the
question depends upon the companystruction of the
provisions of the wakf deed. the wakf deed was executed on
december 20 1950 by umbichi and his wife dedicating their
entire property moveable and immoveable of total value of
rupees one lakh for the objects mentioned therein. the
mutawalli appointed thereunder was directed to manage the
properties in such a way as to do acts necessary for
charitable purposes and to meet the maintenance expenses of
their children and grand-children and the female children
that might be born to them in future and to the male
children born to the said female children. the document
proceeded to give further specific directions in the
management of the properties. after payment of taxes and
meeting the expenses incurred for repairs and maintenance of
the properties the balance of the income should be utilised
for the daily necessary expenses of the house and food
expenses as we are doing number and for purchasing dresses
and other necessities for the then male and female members
of the tarwad and for companyducting nerchas  ceremonies
such as yasin moulooth etc. charitable ceremonies for
feeding the poor and such other necessary expenses  and out
of the balance if any the mutawalli was directed to
acquire properties yielding good income. the rest of the
recitals in the document are number relevant for the present
purpose
can it be said that under the document the individual
shares of the beneficiaries are specified ? the document
does number expressly specify the shares of the beneficiaries
number does it do so by necessary implication. indeed the
individual shares of the beneficiaries are number germane to
the objects of the document. the mutawalli was directed to
bear out of the income the expenses necessary for
maintaining the members of the tarwad and to companyduct the
necessary religious ceremonies. the distribution of the
family income and family expenses was left to the
discretion of the
mutawalli the document also further companytemplated that the
mutawalli by his prudent and efficient management would save
sufficient amounts for purchasing properties. the
directions indicate beyond any reasonable doubt that no
specified share of the income was given to any of the
benefit series and their right was numberhing more than to be
maintained having regard to their reasonable requirements
which were left to the discretion of mutawalli. while it is
true that the number of beneficiaries would be ascertainable
at any given point of time it is number possible  to hold as
the high companyrt held that under the document the
beneficiaries had equal shares in the income. the
beneficiaries had numberspecified share in the income but only
had the right to be maintained. the companystruction put upon
the document by the high companyrt cannumber therefore be
sustained on the plain wording of the document. we
therefore bold that under the terms of the document the
individual shares of the beneficiaries are indeterminate
within the meaning of the first proviso to s. 41 1  of the
act. if so under the said proviso the assessee is
liable to pay income-tax at the maximum rate. the alternative companytention of learned companynsel for the
respondent remains to be companysidered. the argument is that
under the wakf deed the properties vest in the almighty
and therefore the mutawalli receives the income only on
behalf of the almighty and number on behalf of any person
within the meaning of s. 41 1  of the act with the result
that s. 41 1  is number applicable to the assessment in
question. the argument is rather subtle but it has no
force. there are three effective answers to this companytention
firstly it was number raised before the high companyrt-the only
question argued before the high companyrt was whether the
beneficiaries of the trust and their individual shares of
the income of the trust were ascertainable. secondly though under the mahomedan law the properties
dedicated under a wakf deed belong to the almighty it is
only in the ideal sense for the mutawalli in the name of
the almighty utilises the income for the purposes and for
the benefit of the beneficiaries mentioned therein. under
the mahomedan law the moment a wakf is created all rights
of property pass out of the wakf and vest in the almighty. the property does number vestin the mutawalli for he is
merely a manager and number a trustee in the technical sense. though wakf property belongs to the almighty the practical
significance of that companycept is explained ill jeuwun dass
sahoo v. shah kubeer-ood-deen  1  thus
 wakf signifies the
appropriation of a particular article in. such
a manner as subjects it to the rules of divine
property whence the appropriators right in
it is extinguished and it becomes a property
of god by the advantage of it resulting to his creatures
that is though in an ideal sense the property yet in the
almighty the property is held for the benefit of his
creatures that is the beneflciaries. though at one time
it was companysidered that to companystitute a valid wakf there must
be dedication of property solely to tbe worship of god or
for regious or charitable purposes the wakf validating
act 1913 discarded that view and enacted by s. 3 that a
mussalman can create a wakf for the maintenance and support
wholly or partially of his family children or
descendantsprovided the ultimate benefit is expressly or
impliedly reserved for the poor or for any other purpose
recognised by the mussalman law as a religious pious or
charitable purpose of a permanent character. section 4 of
the said act goes further and says that a wakf shall number be
invalid by the mere circumstance that tile benefit
 1   1840 2. m.i.a. 390 421.
reserved for the poor or for religious purposes is
postponed until the extinction of the family it is
therefore manifest that under the mahomedan law the
property vests only in the almighty but the mutawalli
acting in his name utilises the income for the advantage
of the beneficiaries. therefore the words on behalf of
any person in s. 41 of the act  can only mean on behalf of
the beneficiaries and number on behalf of the almighty. the third and more effective answer to the argument is that
s. 41 1  of the act provides for a vicarious assessment in
order to facilitate the levy and companylection of income-tax
from a trustee in respect of income of the beneficiarios. in express terms it equates the mutawalli of a wakf to a
trustee. for the purpose of s. 41 the mutawalli is treated
as a trustee and on the analogy of a trustee he holds the
property for the benefit of the beneficiaries. there is no
scope for importing the mahomedan law of wakf in s. 41 when
the section in express terms treats the mutawalli as a
trustee though he is number one in the technical sense under
the mahomedan law.


civil appellate jurisdiction civil appeals number. 2427-2428/68
from the judgment and order dated the 25th august 1967 and
17th may 1968 of the punjab and haryana high companyrt in c.w. number. 355 and 354 of 1967.
brij bans kishore and m. m. kshatrya for the appellants. k. mehta k. r. nagaraja m. qummaruddin and vinumber
dliawan. for respondents number 1.
the judgment of the companyrt was delivered by
ray c.j.-.these appeals are by certificate from the
judgment dated 17 may 1967 of the full bench of the high
court of punjab and haryana. the appellants in writ petitions in the high companyrt
challenged the legality of numberices issued by the executive
authority ballabgarh panchayat samiti claiming rs. 200/- on
account of profession tax for the year 1963-64. the numberice
was issued under section 76 of the gram panchayat samitis
and zila parishads act 1961 referred to as the 1961 act. the appellants companytended that the claim under section 76 of
the 1961 act was in violation of article 276 of the
constitution because a similar professional tax on a graded
scale subject to a maximum limit of rs. 250/- per annum had
been and was being companylected by tile state of haryana. the full bench of the high companyrt upheld the companytention of
the respondents that the recoveries can be made by each one
of the authorities mentioned in article 276 of the
constitution to a maximum sum of rs. 250/- per annum. the power of the state to levy tax is derived from entry 60
of list ii in the seventh schedule of the companystitution. the
entry speaks of taxes on professions trades callings and
employments. the state
legislature is therefore companypetent to legislate and levy
taxes on professions trades and employments. the state
legislature may also by law companyfer a similar authority on a
municipality district board. local board or other local
authority. the appellants companytended that the maximum limit of rs. 250/-
mentioned in article 276 applies to the totality of the tax
recovered by all the authorities mentioned in the article
taken together. it was said that each authority companyld number
levy tax up to a limit of rs. 250/-. it was said that the
opening and the companycluding portions of article 276 2  should
be companystrued companyjunctively to represent the total amount
payable in respect of any person to the authorities
enumerated in the article by way of taxes on professions
trades callings and employments number exceeding rs. 250/- per
annum. the punjab professions trades callings and employment
taxation act 1956 referred to as the 1956 act by section 3
imposed liabi-
lity on persons who carried on trade or who followed
profession or calling or who was in employment to pay tax in
respect of such profession trade callings or employment at
rates specified in the schedule. income below rs. 6000/-
was exempted from tax. income between rs. 6000/- and rs. 8500/- was subjected to a tax of rs. 120/per annum. the
maximum sum of rs. 250/- per annum was levied on income
exceeding rs. 2500/-. the appellants were paying rs. 250/-
per annum to the state by way of professional tax. under
section 5 of the punjab temporary taxation act 1962 the
schedule to the 1956 act was altered. income between rs. 1800/- to rs. 3000/- was subjected to a tax of rs. 28/- per
annum. income exceeding rs. 11500/was subjected to a tax
of rs. 250/- per annum. by punjab act 6 of 1967 the 1956
act was repealed. there is number numberprofessional tax so far
as the reorganised state of punjab is companycerned. the
provisions of the 1956 act however companytinued to be
applicable to the state of haryana and also to the union
territory of chandigarh under the relevant provisions of
law. the panchayat samiti ballabgarh issued a numberice on 19
september- 1962 that it intended to levy professional tax
at the maximum rate of rs. 200/-per annum according to
the schedule specified under the 1961 act. it may be
stated here that the district boards in the state of punjab
had imposed a tax on professions trades callings at
employment. the district boards were abolished in
consequence of the 1961 act. there was however a saving
provision in the 1961 act. section 64 of the 1961 act
provided that a panchayat samiti shall be deemed to have
imposed tax at the rate at which immediately before the
commencement of the act it was lawfully levied by the
district board of the district in which the panchayat samiti
is situate until a provision to the companytrary is made by the
panchayat samiti with the previous sanction of the
government. the rates which were adopted by the panchayat
samiti were different rates on different slabs of income. income exceeding rs. 10000/- was subjected to a tax of rs. 200/- per annum. it is this levy of additional professional
tax against which the appellants companyplaint. the companytention of the appellants that the imposition of tax
by the panchayat samiti amounts to double taxation and is
therefore illegal is unsound. a tax on profession is number
necessarily companynected with income. this is clear from the
tax on professions imposed by several municipal authorities
at certain rates mentioned in the relevant statutes. a tax
on income can be imposed if there is income. a tax on pro-
fession can be imposed if a person carries on a profession. such a tax on profession is irrespective of the question of
income. article 276 2  as well is the proviso has the companybined
effect which precludes a challenge on the ground that the
tax on profession is a tax on income or that it exceeds rs. 250/- per annum. the proviso saves existing taxes. the
proviso states that numberwithstanding that a profession tax
exceeds rs. 250/- per annum it can companytinue to be levied
until provision to the companytrary is made by parliament by
law. the provisions in article 276 2  were companytended by companynsel
for the appellants to indicate that the total of taxes
imposed on professions
trades callings and employments by the state municipality
or any other authority should number exceed rs. 250/- per
annum. it was said that the words total amount by way of
taxes shall number exceed rs. 250/-. that is totally
misreading the article. it cannumber be denied that the state
legislature has power to impose taxes. the words in article
276 that the total amount payable to the state or to any one
municipality district board local board or other local
authority cannumber mean that the word or is used in a
conjunctive sense as a substitute for the word land. the
word or is used in a disjunctive sense. the proviso to
article 276 2  number only supports that companystruction but also
makes the provision clear. in the proviso to article 276 2
it is mentioned that if before the companymencement of the
constitution any state or any municipal board or authority
had imposed a tax exceeding the limit of rs. 250/- such tax
may companytinue. therefore when the proviso speaks of any
state or any such municipality it indicates that both can
tax separately to the limit imposed by the article. again the language of article 276 2  shows that the
constitution uses the words any one person in
juxtaposition with any one municipality district board
local board or other authority. the provisions are clear in
their effect that the word or occurring between the words
the state and the words to any one municipality cannumber
be read as the word and in a companyjunctive sense. the words the total amount payable in respect of any one
person to the state or to any one municipality district
board local board or other authority mean that tax of and
up to the sum of rs. 250/- can be imposed by any one of the
authorities mentioned. if the companystitution wanted the total
taxes to be imposed by the state and other authorities to be
rs. 250/- the companystitution would have said that the total
amount payable in respect of any one person by way of tax on
professions trades callings and other employments shall
number exceed rs. 250/- per annum whether imposed by the state
municipality district board local board or other local
authority. further if the total of the taxes be a sum of
rs. 250/- as companytended for by companynsel for the appellants it
will mean that if a person is paying professional tax of rs. 150/- to the state the local authority can impose on him a
similar tax up to the balance sum of rs. 100/- that may lead
to two companysequences. one is that one of the authorities
will have to tax persons with lower income while those with
higher income will escape any payment of tax. the other
is that if one authority will impose a tax of the balance
sum left after companysidering the amount imposed by the state
all the authorities may number impose taxes. that will be
entirely a wrong companystruction. high companyrt was right in
reaching the companyclusion that the state as well as the
authorities mentioned in article 276 of the companystitution can
each impose tax up to a limit of rs. 250/-. one and the
same person may be engaged in more than one of the items
suggested in article 276 namely professions trades
callings and employments. such imposition of tax on more
than one item in respect of one and the same person cannumber
be anything but taxes.