civil appellate jurisdiction civil appeal number 2531 of
1969.
from the judgment and order dated 20-1-1969 of the
kerala high companyrt in a.s. number 39/65. govindan nair and k.j. john for the appellant. r.k. pillai for the respondent. the judgment of the companyrt was delivered by
koshal j.-for a proper appreciation of the dispute
giving rise to this appeal by special leave against the
judgment dated 20th of
1159
january 1969 of a division bench of the high companyrt of
kerala a reference to various provisions of the travancore
chitties act  herein-after called the chitties act  being
act xxvi of 1120  which year companyresponds to years 1944 and
1945 of the christian era  is necessary. clause  2  of
section 3 of the chitties act defines a chitty thus
a chitty means a transaction by which one or
more persons hereinafter called the foreman or foremen
enter into an agreement with a number of persons that
every one of the companytracting parties shall subscribe a
certain amount of money or quantity of grain by
periodical instalments for a certain definite period
and that each in his turn as determined by lot or by
auction or in such other manner as may be provided for
in the variola shall be entitled to the prize amount. chitty amount is defined in clause  3  of section 3 to
mean the sum total of the companytributions payable by all the
subscribers for any instalment without any deduction for
discount. in clause  4  the term discount is stated to
mean the amount of money or quantity of grain which a prize
winner has under the terms of the variola to forego for
payment of veethapalisa foremans companymission or other
expenses. a foreman as per clause  6  is the person who
under the variola is responsible for the companyduct of the
chitty. variola is defined in clause  14  to be a document
containing the articles of agreement between the foreman and
the subscribers in relation to the chitty while under
clause  15  veethapalisa is the share of a subscriber in
the discount available under the variola for rateable
distribution among the subscribers at each instalment of the
chitty. prize amount says clause  9  means the chitty
amount reduced by the discount. section 9 enumerates 13 particulars which a variola
must companytain and they are
 1  the full name and residence of every
subscriber
 2  the number of tickets or the fraction thereof
held by each subscriber
 3  the number of instalments and the amount
payable for each ticket at every instalment
 4  the date on which the chitty is to begin and
the date on which it is to terminate
 5  the mode of ascertaining the prize winner at
the successive instalments
 6  the amount of discount which a prize winner
at any instalment has to forego
1160
 7  the mode and proportion in which the discount
is distributable by way of veethapalisa
foremans companymission and other allowance if
any
 8  the time and place at which the chitty is to
be companyducted
 9  the instalment at which the foreman is to get
the prize
 10  the approved banks in which chitty moneys
shall be invested by the foreman under the
provisions of the act
 11  the companysequence which a number-prized or prized
subscriber or the foreman will be liable to
in case of any violation of the variola
 12  the nature and particulars of the security
offered by the foreman under section 17 and
 13  any other particulars that may from time to
time be prescribed by the government. section 14 deals with the time and place where the drawing
of prizes in a chitty shall be companyducted. section 17 to 24
relate to the rights and liabilities of a foreman while the
next three sections following provide for number-prized
subscribers. sections 29 to 32 embrace provisions regarding
prized subscribers. sections 38 39 and 41 relate to
termination of chitties and may be reproduced here with
advantage
38.  1  when a foreman dies or becomes of unsound
mind his legal representative or his guardian as the
case may be shall in the absence of any provision in
the variola to the companytrary take the place of the
foreman and have the right to companytinue the chitty or to
make suitable arrangements for the further companyduct of
the chitty. when a foreman is adjudicated an insolvent
under the law relating to insolvent debtors for the
time being in force or withdraws from the chitty under
section 24 or fails to companyduct the chitty at any
instalment or any other date before the next succeeding
instalment as may have been agreed upon by a special
resolution in that behalf any one or more of the
numberprized subscribers authorized by a special
resolution may in the absence of any provision in the
variolas for the future companyduct of the chitty take the
place of the foreman and have the right to companytinue the
chitty or to make suitable arrangements for the further
conduct of the chitty. 1161

a chitty shall be deemed to have terminated only-

when the period fixed in the variola or the
period as altered by a subsequent special resolution
for the duration of the chitty has expired or
 2  when the legal representative of a deceased
foreman or the guardian of a foreman of unsound mind or
the subscriber or subscribers selected therefor fail to
conduct the chitty or make suitable arrangements for
the further companyduct of the chitty as provided for in
section 38
provided however that if there are more foremen
than one and one or more such foremen are living and
are number disqualified to act under section 38 the
chitty shall number be deemed to have terminated under
this clause if there is provision in the variola
enabling the remaining foreman or foremen to companyduct
the chitty or if the number-prized subscribers agree by a
special resolution to the companyduct of the chitty by the
remaining foreman or foremen. except in the case of clause  1  of section
39 every number-prized subscriber shall unless otherwise
provided for in the variola and subject to the
provisions of section 27 be entitled to get back his
contributions at the termination of the chitty without
any deduction for veethapalisa if any received by
him. the facts are undisputed and may be briefly stated. the plaintiff viz. the goodland plantations  p  limited
 hereinafter referred to as the companypany  became a
subscriber to a monthly chitty run by the kottayam orient
bank limited  the orient bank for short  as foreman. the
company was to pay like all other subscribers a sum of rs. 20000/- in 50 monthly instalments of rs. 400/- each. the
conduct of the chitty was governed by variola exhibit p-1
apart from the various provisions of the chitties act. the
chitty started on the 10th of september 1960 when the
company paid the first instalment due from it. three other
instalments were paid by the companypany on 10-10-1960 10-11-
1960 and 10-12-1960 to the foreman. on the date last
mentioned an auction was held for the prize amount for
which the companypany was declared to be the successful bidder
it having elected to accept a sum of rs. 11075/- in lieu of
the full amount of rs. 20000/-. the prize amount was to be
paid to the companypany a month later i.e. on the 10th of
january 1961  when the fifth instalment was to become
payable  subject to the companypany furnishing security for the
continued
1162
performance of its part of the variola in future. however
before that stage was reached the central government on
the 17th of december 1960 imposed a moratorium on the
orient bank under section 45  2  of the banking regulation
act 1949  hereinafter referred to as the banking act
with the companysequence that the orient bank had to suspend all
business activity. the moratorium was enforced originally
for the period ending with the 18th of march 1961 which
was later on extended upto the 16th of june 1961  exhibits
d-1 d-2 and d-4 . the suspension of business resulted in
the companyduct of the chitty being discontinued so that under
sub-section  2  of section 39 of the chitties act read with
section 41 thereof as also clause  14  of the variola the
chitty stood terminated and the orient bank in its capacity
as the foreman of the chitty incurred the obligation to pay
back all the companytributions made by number-prized subscribers. on the 16th of may 1961 the central government
sanctioned under sub-section  7  of section 45 of the
banking act a scheme prepared by the reserve bank of india
under sub-sections  4  to  6  of that section for the
amalgamation of the orient bank with the state bank of
travancore  hereinafter called the travancore bank . the
scheme provided inter alia that all the assets and
liabilities of the orient bank would stand transferred to
the travancore bank with effect from the 17th of june 1961.
in relation to chitties the scheme laid down
if the transferor bank was acting immediately
before the prescribed date as a foreman in respect of
any kuri or chitty as defined in the travancore
chitties act  xxvi of 1120  or the companyhin kuries
regulation  vii of 1107  the rights duties and
obligations in relation to the kuri or chitty shall be
regulated in accordance with the following provisions
namely

the transferee bank shall become the foreman
of the kuri or chitty and shall companytinue to exercise
all powers and to do all such acts and things as would
have been exercised or done by the transferor bank in
so far as they are number in companysistent with this scheme

the funds if any of the kuri or chitty lent
to or deposited with the transferor bank or otherwise
due from that bank to the kuri or chitty shall be
transferred to the transferee bank and the liabilities
corresponding to such funds shall also be payable by
the transferee bank in accordance with the other
provisions of this scheme
1163

if on the prescribed date the transferor
bank in its capacity as the foreman of any kuri or
chitty has deposited any security for the due
performance of its duties and obligations in relation
to the said kuri or chitty the said security shall
continue to be available for the purposes for which it
was intended but shall if and to the extent that it is
subsequently released be transferred to and vest in the
transferee bank provided that the said security or as
the case may be the surplus if any after providing
for the discharge of the duties or obligations in
respect of the kuri or chitty shall be valued and
utilised for the purposes of this scheme. later on it was realised that the travancore bank would
number be able to companytinue the chitties for which the orient
bank had acted as foreman earlier because those chitties had
terminated owing to the failure of the orient bank to
continue to companyduct them by reason of the moratorium and in
order to cross this hurdle the central government passed
anumberher order dated the 4th of december 1961 which was
described as the kottayam orient bank limited  amalgamation
with the state bank of travancore   removal of difficulties
order 1961. that order  hereinafter called the impugned
order  was passed under sub-section  10  of section 45 of
the banking act and its relevant portion is extracted below

numberwithstanding anything companytained in the
travancore chitties act or the companyhin kuries
regulation the suspension of any kuri or chitty for
the period from the 18th december 1960 to the 31st
december 1961 or for any part of that period and any
consequent prolongation of the kuri or chitty shall
have effect as though the articles in the variola s
were altered or added to for that purpose by special
resolution s  of the subscribers of the kuri or
chitties and as though the relevant provisions if any
of the travancore chitties act or the companyhin kuries
regulation were companyplied with and numberwithstanding
anything companytained in the travancore chitties act or
the companyhin kuries regulation the failure of the
foreman to companyduct the kuri or chitty during the said
period shall number be deemed to have terminated the kuri
or chitty. numberwithstanding anything companytained in the
variola  s  the period fixed for the duration of the
kuri or chitty shall be deemed to have been extended by
the period referred to in 2 above. 1164

numberwithstanding anything companytained in the
travan-core chitties act or the companyhin kuries
regulation the state bank shall companytinue the kuri or
chitty as if the provisions if any of the said act or
the said regulation relating to companytinuance of the kuri
or chitty have been companyplied with. all the words and expressions used herein but
number defined shall have the meanings respectively
assigned to them in the travancore chitties act or as
the case may be the companyhin kuries regulation. by anumberher order dated the 15th of january 1962
 exhibit p-4  the impugned order was amended so that the
words the 31st march 1962 were substituted for the words
31st of december 1961 occurring in paragraph 2 thereof. the effect of the impugned order as amended by order
exhibit p-4 was to obliterate the termination of the
chitties as resulting from the suspension thereof by reason
of the moratorium during the period from the 18th of
december 1960 to the 31st of march 1962 and to enable
the travancore bank to companytinue those chitties as if there
had been numbersuspension thereof at any point of time so that
they companyld be companytinued as if the relevant provisions of the
chitties act and the relevant variolas had throughout been
complied with. the litigation started with a suit instituted by the
company on the 6th of december 1961 claiming refund of the
four instalments paid by it along with interest. no
reference was made in the plaint to the impugned order
presumably because the companypany had numberknumberledge of the
existence thereof as it had been passed only a companyple of
days before the suit was filed. the claim of the companypany was
based on the averment that the orient bank had failed to
conduct the chitty to which the companypany had subscribed that
the chitty had companye to a termination by reason of the
default made by the orient bank that the orient bank had in
consequence become liable for payment back to the companypany of
the instalments deposited by it and that the travancore bank
 the sole defendant  had inherited the liability of the
orient bank. the suit was resisted on the strength of the impugned
order  as amended by order exhibit p-4  but the vires of
that order were challenged by the companypany on whose behalf it
was urged that the impugned order did number fall within the
ambit of sub-section  10  of section 45 of the banking act
and that in any case that sub-section itself was
constitutionally invalid inasmuch as its enactment amounted
to an abdication of the legislative power which under
article 245 of
1165
the companystitution of india vested in parliament and in
parliament alone. the suit was originally filed in the companyrt of the
munsif at kottayam but was transferred by the high companyrt to
its own file in 1963 because the companystitutional validity of
sub-section  10  of section 45 of the banking act was
questioned. the suit was dismissed by raman nayar j. who held
that the impugned order fell squarely within the scope of
sub-section  10  of section 45 of the banking act which
sub-section also did number suffer according to the learned
judge from the infirmity of excessive delegation. sub-
section  10  states
if any difficulty arises in giving effect to the
provisions of the scheme the central government may by
order do anything number inconsistent with such provisions
which appears to it necessary or expedient for the
purpose of removing the difficulty. raman nayar j. numbered that the three requirements of
the sub-section were
 1  that a difficulty should arise in giving
effect to the provisions of the scheme
 2  that the order to be made must be such as
appears to the central government to be necessary or
expedient for the purpose of removing the difficulty
and
 3  that the order must number be inconsistent with
any of the provisions of the scheme
and found that all three of them were amply satisfied in the
present case. in his view the object of the scheme
promulgated by the central government on the 16th of may
1961 under sub-section  7  of section 35 of the banking act
was that the travancore bank should take over the business
of the chitties earlier run by the orient bank and companyduct
the same to a successful companyclusion. however that object
according to the learned judge companyld number be achieved as the
scheme did number provide for an obliteration of the
termination of the said chitties which had already taken
place under sub-section  2  of section 38 of the chitties
act read with sub-section  2  of section 39 thereof and the
provisions companytained in the variolas. the learned judge was
clearly of the opinion therefore that a difficulty had
arisen in giving effect to the provisions of the scheme
which was sought to be remedied by the impugned order. the
argument that the scheme
1166
did number envisage the companytinuation of the chitties by the
travancore bank that all that the scheme provided for was
that the rights and obligations of the orient bank in
relation to the chitties stood transferred to the travancore
bank and that in companysequence the latter became liable for
the return of the amounts deposited by the subscribers with
the orient bank was turned down by the learned judge with
the following observations
it is numberuse saying that the defendant bank companyld
have had numberdifficulty in accepting that the chitty had
terminated and paying off the unprized subscribers. for that would number be to work the scheme which clearly
contemplates that the defendant bank should run the
chitties to a successful companyclusion. the difficulty
that stood in the way of this being done was certainly
a difficulty in giving effect to the provisions of the
scheme. for repelling the companytention put forward on behalf of
the companypany about the companystitutional invalidity of sub-
section  10  of section 45 of the banking act the learned
judge relied on in re art. 143 companystitution of india
etc.  1  and rajnarain singh v. chairman p.a. companymittee  2 . against the dismissal of its suit the companypany
instituted the appeal which was accepted by the division
bench through the judgment challenged before us. isaac j.
speaking for himself and pillai j. disagreed with the
learned trial judge as to the object of the scheme of
amalgamation and observed that in so far as the chitties
were companycerned there was numberhing in the scheme to show that
such object was to run them to a successful companyclusion. he
was further of the opinion that there was numberdifficulty at
all in the way of the scheme as originally promulgated
being given effect to in this companynection he remarked
there is numberdifficulty in paying the amount. the
difficulty is only for number paying it and what was
achieved by exhibits p-3 and p-4 was the creation of
that difficulty. what exhibit p-3 provides is that the
period during which the chitty was number companyducted would
be treated as a period of suspension of the chitty by a
special resolution of the subscribers. the result of
that provision was that the right of the plaintiff to
get from the defendant the amount subscribed to the
chitty was taken away and substituted with a liability
to
1167
draw the prize amount on furnishing security for
payment of future instalments. this is a provision
which is clearly inconsistent with the provisions of
the scheme. exhibits p-3 and p-4 are therefore in my
view beyond the scope of the power companyferred on the
central government under sub-section  10  of section 45
of the banking companypanies act. in regard to the question of companystitutional validity of
sub-section  10  however the division bench companycurred with
the learned trial judge and held that sub-section  10  did
number suffer from excessive delegation of legislative power. allowing the appeal the division bench decreed the
suit with companyts of the proceedings in both the companyrts. the question of the companystitutional validity of sub-
section  10  of section 45 of the banking act has number been
raised before us and all that we have to determine therefore
is whether the impugned order falls within or outside the
scope of that sub-section. shri govindan nair learned companynsel for the companypany
has vehemently companytended that one of the objects of the
scheme was to companytinue the chitties  which had earlier been
conducted by the orient bank but had companye to a termination
by reason of the moratorium  to a successful companyclusion as
held by the learned trial judge and that the finding to the
contrary recorded in the impugned judgment is erroneous and
after hearing him and learned companynsel for the travancore
bank at length we have numberhesitation in agreeing with shri
nairs companytention. it is to be numbered that the provision
regarding chitties appears in the latter part of paragraph 2
of the scheme the earlier part of which may be quoted here
with advantage

as from the date which the central government
may specify for this purpose under sub-section  7  of
section 45 of the said act  hereinafter referred to as
the prescribed date  all rights powers claims
demands interests authorities privileges benefits
assets and properties of the transferor bank movable
and immovable including premises subject to all
incidents of tenure and to the rents and other sums of
money and companyenants reserved by or companytained in the
leases or agreements under which they are held all
office furniture loose equipment plant apparatus and
appliances books papers stocks of stationery other
stocks and stores all investment in stocks shares and
securities all bills receivable in hand and in transit
all cash
1168
in hand and on current or deposit account  including
money at call or short numberice  with banks bullion all
books debts mortgage debts and other debts with the
benefit of the securities or any guarantee therefor
all other if any property rights and assets of every
description including all rights of action and benefit
of all guarantees in companynection with the business of
the transferor bank shall subject to the other
provisions of this scheme stand transferred to and
become the properties and assets of the transferee
bank and as from the prescribed date all the
liabilities duties and obligations of the transferor
bank shall be and shall become the liabilities duties
and obligations of the transferee bank to the extent
and in the manner provided hereinafter. without prejudice to the generality of the
foregoing provisions all companytracts deeds bonds
agreements power of attorney grants of legal
representation and other instruments of whatever nature
subsisting or having effect immediately before the
prescribed date shall be effective to the extent and in
the manner hereinafter provided against or in favour of
the transferee bank and may be acted upon as if instead
of the transferor bank the transferee bank had been a
party thereto or as if they had been issued in favour
of the transferee bank. these pervasive provisions embraced within their ambit
a companyplete transfer of all rights and liabilities of
whatever nature of the orient bank to the travancore bank
and numberspecial provision was therefore needed to be included
in the scheme in regard to chitties if they were number to be
continued to a successful companyclusion. as it is the
portion of paragraph 2 extracted by us earlier did provide
for chitties on a special footing which companyld number have been
the case if the rights and liabilities of the orient bank in
regard to chitties were sought to be transferred to the
travancore bank on the basis of the termination of the
chitties which had already become operative because of the
moratorium and as a companysequence of suspension of the chitty
business by the orient bank. number was it necessary to provide
in clause  1  occurring in paragraph 2 of the scheme that
the transferee bank shall become the foreman and shall
continue to exercise all powers and to do all such acts and
things as would have been exercise or done by the transferor
bank if the chitties were to be dealt with as having companye
to a termination. the special provision for the chitty
business in the scheme cannumber be regarded as redundant and
it was obviously made with a purpose
1169
which in the circumstances of the case companyld be
numberhing more or less than to provide for the companytinuation of
the chitties in supersession of their termination. numberother
reasonable explanation of that special provision appears to
us possible.


civil appellate jurisdiction civil appeal number 1082 of
1965.
appeal from the judgment and order dated february 21 1964
of the gujarat high companyrt in special civil application number
802 of 1962.

v. gupte solicitor-general r. d. karkhanis and r. n.
sachthey for appellant. t. desai and k. r. chaudhari for the respondents. vankatraman and r. gopalakrishnan for intervener number
1.

p. mehta d. pal and d. n. gupta for intervener number 2.

pal and d. n. gupta for intervener number 3.

gopalakrishnan and s. swaminathan for intervener number
4.
the judgment of the companyrt was delivered by
shah j. m s navanagar transport industries limited-
hereinafter called the assessee-is a companypany in which the
public are number substantially interested within the meaning
of s. 23a of the indian income-tax act 1922. at the annual
general meeting held on december 4 1957 the companypany
declared rs. 8767/as dividend payable to the shareholders
for the year ending march 31 1957. the income-tax officer
special investigation circle ahmedabad determined the
taxable income of the assessee for the assessment year 1957-
58 at rs. 110769/-. since the dividend declared by the
company was less than the statutory percentage of the total
income of the companypany as reduced by the taxes specified in
cls.  a   b  of sub-s.  1  of s. 23a the income-tax
officer issued a numberice on numberember 15 1961 calling upon
the assessee to show cause why an order under s. 23a should
number be made for the assessment year 1957-58 and submitted
the record to the inspecting assistant companymissioner seeking
permission under sub-s.  8 . the assesses then applied to
the high companyrt of gujarat under art. 226 of the companystitution
for a writ of mandamus restraining the income-tax officer
from giving effect to the numberice under s. 23a against the
assessee. the high companyrt held that an order under s. 23a of the
income-tax act 1922 after its amendment by the finance
act 1955 is an order of assessment to which the period
of limitation prescribed by s. 34 3  applies and since such
an order cannumber be made after the expiration of four years
from the end of the assessment year 1957-58 the proceedings
initiated against the assessee in respect of the assessment
year 1957-58 after march 31 1962 was without jurisdiction. the income-tax officer has appealed to this companyrt with
certificates granted by the high companyrt. section 23a has undergone changes from time to time. before
it was amended by the finance act 1955 s. 23a enacted that
where the income-tax officer is satisfied that the
dividends distributed by the companypany are less than sixty per
cent of the assessable income of the companypany as reduced by
the income-tax and supertax payable by the companypany he shall
make an order  except in certain circumstances specified
that the undistributed portion of the assessable income of
the companypany companyputed for income-tax purposes as reduced by
the income-tax and super-tax in respect thereof be deemed to
have been distributed as dividends among the shareholders
and thereupon the proportionate share of each shareholder
shall be included in the total income of each shareholder
for the purpose of assessing his total income. before an
order under s. 23a as it then stood became effective two
steps had to be taken i  an order had to be made that the
undistributed portion of the assessable income of the
company shall be deemed to have been distributed as
dividends among the shareholders and  ii  the deemed income
of each shareholder had to be included in the total income
of such shareholder for the purpose of assessing his total
-income. an order declaring that the undistributed portion
of the income shall be deemed to have been distributed was
number an order of assessment the order of assessment was made
only when the income-tax officer took action against each
shareholder for bringing the deemed income of each
shareholder to tax in his individual assessment. the
legislature did number provide any period of limitation for
making an order declaring that the undistributed portion of
the income shall be deemed to be distributed as dividends. but since the order had to be followed up in the assessments
of the -shareholders individually the order would if made
be ineffective if it was number made within the period
prescribed by s. 34 3  see companymissioner of income-tax
bombay city-i v. robert j. sas .and others. 1 . the
procedure for bringing to tax undistributed income of
companies which distributed less than the statutory
percentage of its total income was clumsy and dilatory. before tax companyld be recovered enquiry had to be made into
the matters referred to in s. 23a  1  and also whether the
company was one in which the public were number substantially
interested and after the order was made each individual
shareholder had to be separately .assessed. in respect of
the deemed income. the legislature by the finance act 1955 altered the scheme
for imposition and companylection of tax. section 23a as
amended by -the finance act 1955 read as follows

subject to the provisions of sub-sections
 3  and  4  where the income-tax officer is
satisfied that in respect of any previous year
the profits and gains distributed as dividends
by any companypany within the twelve months
immediately following the expiry of that
previous year
 1  1963 20948 i.t.r. 177.
supp. 2 s.c.r. are less than sixty per cent of the total
income of the companypany of that previous year as
reduced by-
 a the amount of income-tax and super-tax
payable by the companypany in respect of its total
income but excluding the amount of any super-
tax payable under this section
 b the amount of any other tax levied under
any law for the time being in force on the
company by the government or by a local
authority in excess of the amount if any
which has been allowed in companyputing the total
incomeand
 c in the case of a banking companypany the
amount actually transferred to a reserve fund
under section 17 of the banking companypanies act
1949  x of 1949
the income-tax officer shall unless he is
satisfied that having regard to losses
incurred by the companypany in earlier years or to
the smallness of the profits made in the previous
year the payment of a dividend or a larger
dividend than that declared would be
unreasonable make an order in writing that
the companypany shall apart from the sum
determined as payable by it on the basis of
the assessment under section 23 be liable to
pay super-tax at the rate of four annas in the
rupee on the undistributed balance of the
total income of the previous year that is to
say on the total income reduced by the
amounts if any referred to in clause  a
clause  b  or clause  c  and the dividends
actually distributed if any
provided that-
 a  in the case of a companypany whose
business companysists. wholly or mainly in the
dealing in or holding of investments and
 b  in the case of any other companypany where
the reserves  including the amounts
capitalised from the earlier reserves
representing accumulations of past profits whic
have number been the subject of an order under
this sub-section exceed either the aggregate
of

the paid-up capital of the companypany
exclusive of the capital if any created out
of its profits and gains which have number been
the subject of an order under this sub-
section and

any loan capital which is the property of
the shareholders or the actual companyt of the
fixed assets of the companypany whichever of
these is greater
sup. ci/67-4
this section shall apply as if for the words
sixty per cent of the total income wherever
they occur the words the whole of the total
income had been substituted. numberorder under sub-section  1  shall be
made-

in the case of a companypany referred to in
clause  a  of the proviso to that subsection
which has distributed number less than ninety per
cent of its total income as reduced by the
amounts if any referred to in clause  a
clause
 b  or clause  c  of that sub-section or

in the case of any other companypany which has
distributed number less than fifty-five per cent
of its total income as reduced by the
amounts if any aforesaid or

in any case where according to the
return made by a companypany under section 22 it
has distributed number less than sixty per cent
of its total income as reduced by the amounts
if any aforesaid but in the assessment made
by the income-tax officer under section 23 a
higher total income is arrived at and the
difference in the total income does number arise
out of the application of the proviso to
section 13 or sub-section  4  of section 23
or the omission by the companypany to disclose its
total income fully and truly unless the
company on receipt of a numberice from the
incometax officer that he proposes to make
such an order fails to make within three
months of the receipt of such numberice a further
distribution of its profits and gains so that
the total distribution made is number less than
sixty per cent of the total income of the
company of the relevant previous year as
reduced by the amounts if any aforesaid. where on an application presented to him
in this behalf by a companypany within the period
of twelve months referred to in sub-section
 1  or within the period of three months
referred to in sub-section  2  the
commissioner -of income-tax is satisfied
having regard to the current requirements of
the companypanys business or such other
requirements as may be necessary or advisable
for the maintenance and development of that
business the declaration or payment of a
dividend or a larger dividend than the
proposed to be declared or paid would be
unreasonable he may reduce the amount of the
minimum distribution required of that companypany
under sub-section  1  to such figure as he may
consider fit and further determine the period
within which such distribution should be made. the principal change made by the amendment was
that in the companyditions prescribed by the
section the companypany and number the
shareholders were made liable to pay tax and for that
purpose the procedure was rationalised. the original scheme
which companytemplated two orders--one against the companypany and
the other against each individual shareholder was replaced
by the imposition of tax liability upon the companypany on the
income-tax officer being satisfied about the existence of
preliminary companyditions which attracted liability to
additional super-tax. by the finance act 26 of 1957 the section was further modi-
fied. sub-sections  1   2  insofar as they are material
were substituted by the following sub-sections

where the income-tax officer is
satisfied that in respect of any previous year
the profits and gains distributed as dividends
by any companypany within the twelve months
immediately following the expiry of that
previous year are less than the statutory
percentage of the total income of the companypany
of that previous year as reduced by-
 a the of income-tax and super-tax payable by
the companypany in respect of its total income
but excluding the amount of any super-tax
payable under this section
 b  the amount of any other tax levied under
any law for the time being in force on the
company by the government or by a local
authority in excess of the amount if any
which has been allowed in companyputing the total
income and
 c  in the case of a banking companypany the
amount actually transferred to a reserve fund
under section 17 of the banking companypanies act
1949-
the income-tax officer shall unless he is satisfied that
having regard to losses incurred by the companypany in earlier
years or to the smallness of the profits made in the previ-
ous year the payment of a dividend or a larger dividend
than that declared would be unreasonable. make an order in
writing that the companypany shall apart from the sum
determined as payable by it on the basis of the assessment
under section 23 be liable to pay super-tax at the rate of
fifty per cent in the case of a companypany whose business
consists wholly or mainly in the dealing in or holding of
investments and at the rate of thirty-seven per cent in the
case of any other companypany on the undistributed balance of
the total income of the previous year that is to say on
the total income reduced by the amounts if any referred to
in clause  a  clause  b  or clause  c  and the dividends
actually distributed if any. numberorder undersub-section  1  shall be
made-

in the case of a companypany whose business
consists wholly or mainly in the dealing in or
holding of investments which has distributed
number less than ninety per cent of its total
income as reduced by the amounts if any
referred to in clause  a  clause  b  or
clause  c  of sub-section  1  or

in the case of any other companypany whose
distribution falls short of the statutory
percentage i by number more than five per cent
of its total income as reduced by the
amounts if any aforesaid or

in any case where according to the
return made by a companypany under section 22 it
has distributed number less than the statutory
percentage of its total but in the assessment
made by the incometax officer under section 23
a higher total income does number arise out of
the application of the proviso to section 13
or sub-section  4  of section 23 or the
omission by the companypany to disclose its income
fully and truly
unless the companypany on receipt of a numberice
from the income-tax officer that he proposes
-to make such an order fails to make within
three months of the receipt of such numberice a
further distribution of its profits and gains
so that the total distribution made is number
less than the statutory percentage of the
total income of the companypany as reduced by the
amounts if any aforesaid
sub-sections  3  to  7  of s. 23a as introduced by the
finance act 1955 were omitted. by this amendment the
scheme for imposing liability for payment of additional
super-tax was number altered. it was urged before the high companyrt and the argument
appealed to the high companyrt that an order under s. 23a as
amended by the finance act 1955 and as further modified by
the finance act 1957 by the income-tax officer directing
payment of additional supertax was an order of assessment
which companyld only be made before the expiry of the period of
limitation prescribed by s. 34 3  of the income-tax act
1922. in support of this view it was said that the
expression assessment used in the indian income-tax act
1922 has different meanings in the companytext in which it
occurs sometimes it is used as meaning companyputation of
income sometimes as determination of the amount of tax
payable and sometimes the procedure for imposing liability
upon the tax-payer. reliance in this behalf was placed upon the judgment of the
privy companyncil in companymissioner of income-tax bombay
presidency aden v. khemchand ramdas.  1  but s. 23a does
number use the expression assessment in the body of cl.  1
and to the title of the section after it was amended viz. power to assess companypanies to super-tax on undistributed
income in certain cases it is impossible to give any
exalted meaning so as to companyvert what is an order directing
payment of tax into an order of assessment within the
meaning of s. 34 3  of the indian income-tax act 1922.
every order which companytemplates companyputation of income for
determination of the amount of tax payable is number an order
of assessment within the meaning of the act number does
prescribing of procedure for determining and imposing tax
liability make it an order of assessment. the income-tax
act companytemplates making of diverse orders by income-tax
officers directing payments of sums of money by tax-payers
which are of the nature of orders for payment of tax but
which are still number orders of assessment. for instance
under s. 18a 1  the income-tax officer is entitled to direct
advance payment of tax. an order may also be made under s.
35 9  where the income-tax officer is satisfied that the
income-tax payable by a companypany on its profits and gains out
of which the companypany has declared a dividend has number been
paid within three years after the financial year in which
the dividend was declared he may proceed to recompute the
amount by reducing it in the same proportion as the amount
of income-tax remaining unpaid by the companypany bears to the
amount of income-tax payable by it on such profits and
gains. similarly under sub-s.  10  of s. 35 before it was
deleted by the finance act 1959 where a rebate of income-
tax was allowed to a companypany on a part of its total income
and subsequently the amount on which the rebate of income-
tax was allowed was availed of by the companypany for declaring
dividends in any year the incometax officer had to
recompute the tax by reducing the rebate originally allowed. again by s. 35 l1  as added by the finance act of 1958
development rebate in respect of a ship machinery or plant
under s. 10 2  vi-b  companyld be deemed to have been wrongly
allowed if the ship machinery or plant was sold or
otherwise transferred or the amount credited to the reserve
account under that clause was diverted for anumberher purpose
within ten years and the incometax officer had to recompute
the income and levy tax on the footing of such recomputed
income. in each of these cases there is companyputation of
income determination of tax payable and procedure is
prescribed for imposing liability upon the tax-payer. but
still these are number orders of assessment within the meaning
of s. 23. the salient feature of these and other orders is
that the liability to pay tax arises number from the charge
created by statute but from the order of the income-tax
officer.  1  6 i.t.r. 414.
the argument that s. 23a is a self-contained section
imposing liability to pay additional super-tax does number
convert that section into one for assessment of tax. there
is undoubtedly a hearing before liability is imposed for
payment of additional super-tax there is declaration of
liability and the liability is determined in the manner
prescribed by the section. that there is as was argued
before this companyrt a companysiderable parallel between ss. 23
23a will number justify the assumption that what is done by an
order under s. 23a as amended is assessment of tax
liability. there is a vital difference between the
assessment of tax under s. 23 and imposition of liability
under s. 23a. tax liability quantified by an order under s.
23 is a charge statutorily imposed by ss. 3 4 of the act. it is true that the statutory liability is till the last
day of the year of account ambulatory but the charge is
still a statutory charge on income. the function of the
income-tax officer is to companypute the taxable income and to
crystallize the charge on the taxable income. under s. 23a
there is numberstatutory charge in respect of additional super-
tax and the liability is imposed by the order of the income-
tax officer. source of the liability to pay additional
super-tax is number in ss. 3 4 of the act it lies in and
arises out of the order of the income-tax officer. before
imposing liability for additional super-tax the income-tax
officer has to determine whether the companypany is one to which
the provisions of s. 23a apply he has also to determine
whether the companypany has distributed within twelve months
immediately following the expiry of the previous year the
statutory percentage of the total income of the companypany as
reduced by the taxes and levies prescribed therein he has
also to determine whether having regard to the loss
incurred by the companypany in the earlier years or to the
smallness of the profits made in the previous year the
payment of a dividend or a larger dividend than that
declared would be unreasonable. it is after making these
enquiries that the income-tax officer may make the order
directing payment of additional super-tax at the rates
prescribed. the process to be followed is number the process
of assessment but of determining whether the liability
should be charged and imposed. for that purpose the companypany
is given a right to explain the reasons for failure to
distribute the statutory percentage of profits as dividends. in certain special circumstances companytemplated by sub-s.  2
of s. 23a the order imposing tax liability cannumber be made
unless the companypany after receiving a numberice from the income-
tax officer that he proposes to make such an order fails to
make within three months of the order further distribution
of its income so that the total distribution made is number
less than the statutory percentage of the total income of
the companypany of the relevant previous year as reduced by the
amounts if any aforesaid. provision was also made in sub-
s.  3  inserted by the finance act of 1955 authorising the
commissioner of income-tax to reduce the amount of minimum
distribution required of a companypany if having regard to the
current
requirements of the companypanys business or such other
requirements as may be necessary or advisable for the
maintenance or development of the business the declaration
or payment of a dividend or a larger dividend than that
proposed to be declared was unreasonable. it was urged that under the indian income-tax act 43 of 1961
the parliament has prescribed by s. 106 for making an order
under s. 104  of which the scheme is similar to the scheme
of s. 23a as amended  a period of limitation. section 106
of the income-tax act 1961 provides that numberorder under
s.104 shall be made after the expiry of four years from the
end of the assessment year relevant to the previous year
referred to in sub-s.  1  of that section or after the
expiry of one year from the end of the financial year in
which the assessment or re-assessment of the profits and
gains of the previous year aforesaid is made whichever is
later. but the provisions of s. 23a have to be companystrued as
they stood before the act of 1961 was enacted and the mere
fact that the legislature has chosen to specify a period of
limitation for making an order imposing liability under s.
104 of the act of 1961 upon a companypany which has failed to
distribute the statutory percentage of its distributable
income will number justify an inference that such a period of
limitation was implicit in the previous act. section 23a before it was amended by the finance act 1955
was undoubtedly procedural companymissioner of income-tax
bombay city-i v. afco  private  limited 1 . section 23a  1
after it was amended by the finance act 1955 provides
within itself machinery for imposition of liability to pay
additional super-tax but it has number on that account been
made a charging section. a charge to tax arises under ss. 3 4 55 of the act for payment of income-tax and super-tax
and number under s. 23a. some additional indication which supports the view which we
have expressed is furnished by ss. 30 31 of the indian
income-tax act. section 30 provides for appeals from
certain specified orders of the income-tax officer to the
appellate assistant companymissioner. under s. 30 an assessee
denying his liability to be assessed under the act may
appeal against the order of assessment. if the assessee is
a companypany it may also appeal against an order made under s.
23a  1  under s. 30. if an order under s. 23a were to be
regarded as an order of assessment it was plainly
unnecessary to retain after the amendment by the finance
act 1955 the right to appeal against the order made under
sub-s.  1  of s. 23a by an independent clause. it is true
that by s. 20 4  of the finance act 1955 it was expressly
enacted that the provisions of s. 23a of the income-tax act
as in force immediately before april 1 1955 shall companytinue
to apply to a companypany in respect of which profits and gains
of the
 1  1963 supp. 1 s.c.r. 766 48 i.t.r. 76.
previous year relating to the assessment year prior to the
assessment year ending march 31 1956 and also to its
shareholders referred to in sub-s.  1  of s. 23a as then in
force in respect of their appropriate previous years and
this necessitated that the right to appeal against the order
under s. 23a before it was amended be preserved. but there
is numberhing. in s. 30 which indicates that the reference to
the right of appeal was restricted to orders under s. 23a
before the act was amended by the finance act 1955 and
that it did number refer to an order made under s. 23a 1  after
that clause was amended. the specific clause relating to
the right of appeal reserved against the order under sub-s.
 1  of s. 23a is general and companyfers a right of appeal
against the order passed under sub-s.  1  of s. 23a before
it was amended by the finance act 1955 and also under s.
23a after it was amended. there is numbersuch reservation of
the nature suggested by companynsel for the assessee and we see
numberreason to hold that the legislature intended to make such
a reservation and did number expressly so provide. under sub-s.  2  of s. 30 different periods of limitation
for filing appeals against various orders under the income-
tax act are prescribed. against an order of assessment an
appeal lies within 30 days from the date of receipt of
numberice of demand objected to and against an order under s.
23a. an appeal lies within 30 days from the intimation of an
order under that section. the act does number call the order
under s. 23a  1  for payment of additional super-tax a
numberice of demand. if the argument that an order under s.
23a after it wag amended is an order of assessment
evidently the period of limitation companyered by the first
clause namely thirty days from the receipt of numberice of
demand will apply. it companyld number have been intended that the
right of appeal companyld be exercised either within thirty days
from the date on which an order under s. 23a was intimated
or within thirty days from the date of receipt of numberice of
demand. similarly s. 31 which deals with the right of
appeal from an order of assessment to the appellate
assistant companymissioner provides by sub-s.  3  that in
disposing of an appeal the appellate assistant companymissioner
may in the case of an order of assessment- a  companyfirm
reduce enhance or annul the assessment or  b  set aside the
assessment and direct the income-tax officer to make a fresh
assessment after making such further inquiry as the income-
tax officer thinks fit or the appellate assistant company-
missioner may direct etc. and in the case of an order under
sub-s.  1  of s. 23a under cl.  d  companyfirm cancel or vary
such order. if an order under sub-s.  1  of s. 23a was an
order of assessment even after the act was amended it was
unnecessary to retain cl.  d  in that form. the right to prefer an appeal companyld obviously be exercised
both against an order under s. 23a before it was amended and
after it was amended. since the legislature has number chosen
to make
suitable amendments to restrict the right of appeal only to
those cases where the right is exercised against an order
declaring that the undistributed portion of the income shall
be deemed to be distributed it may reasonably be inferred
that the right is exercisable in respect of the orders made
prior to the amendment made by the finance act 1955 and
also orders made thereafter. it was pointed out that under s. 45 of the act reference to
sub-s.  3  of s. 23a companyld only be to the section as it
stood before the amendment by the finance act 1955.
insofar as it is material s. 45 provides
any amount specified as payable in a numberice
of demand under sub-section  3  of section 23a
shall be paid within the time at the place
and to the period mentioned in the numberice or
order
under sub-s.  3  of s. 23a before it was amended by the
finance act of 1955 tax payable on the proportionate share
of any member of a companypany in the undistributed profits was
liable to be recovered from the companypany if it companyld number be
recovered from the shareholder. by the finance act 1955
this clause was deleted and anumberher clause which had numberhing
to do with recovery of tax was substituted as sub-s.  3 .


civil appellate jurisdiction civil appeal number 56 of
1987.
from the judgment and order dated 6.11.85 of the
allahabad .rm60
pg number290
pg number291
high companyrt in w.p.  c  number 4211 of 1983.
gopal subramanium and mrs. s. dikshit for the appellants. vijay hansaria and sunil k. jain for the respondents. the judgment of the companyrt was delivered by
jagannatha shetty j. this appeal by special leave is
from a judgment of the high companyrt of allahabad dated
numberember 6 1985 passed in civil misc. writ petition number
4211 of 1983. the appeal raises a question of companysiderable
importance. the question is whether it is permissible to
have two pay scales in the same cadre for persons having
same duties and having same responsibilities. the high
court has answered the question in the negative. it is said
that it would be violative of the companystitutional right of
equal pay for equal work. the facts are number in dispute. they will be found
correctly stated in the judgment under appeal and may
briefly be stated thus
prior to 1965 in the high companyrt of allahabad bench
secretaries were on a higher pay scale than that of section
officers. they were in the pay scale of rs. 160-320 as
against the pay scale of rs. 120-300 to section officers. in
1965 the state government appointed a pay rationalisation
committee with wide ranging reference. the companymittee was
asked to companysider the duties and responsibilities of
different categories of posts. it was required to companysider
and recommend changes to reduce the number of then existing
pay scales. it was also asked to recommend as far as
possible equal emoluments for identical duties and
responsibilities. the companymittee submitted a detailed report
in which bench secretaries became casualties. the companymittee
recommended for them a pay scale slightly lower than that of
section officers. rs. 150-350 was recommended for bench
secretaries as against rs.200-400 for section officers. the
state government accepted the recommendations. subsequently
these pay scales were raised to rs. 200-450 and rs.5 15-715
respectively. being dissatisfied with the down grading the bench
secretaries made representation to the government. they
demanded that they should at least be put at par with
section officers if number on higher scale. the high companyrt
supported their case but half-heartedly. the high companyrt
suggested that in view of financial exigencies the
government may grant for the time being pay scale to 10
pg number292
bench secretaries as admissible to section officers. when
this matter was pending companysideration the government
appointed the pay companymission  1971-72  headed by shri ali
zahir. on february 1 1973 the pay companymission submitted
its report. the report did number accept the claim of bench
secretaries for giving them pay scale equal to section
officers or private secretaries. the report was in fact
very much against them. the following remarks of the pay
commission would be pertinent
9 bench secretaries  sakna suchiv
a memorandum from the bench secretaries given to us
states that the post which are at present in the scale of
rs. 100-450 are of a great responsibility for which
experience and special qualifications are required. they
have claimed that their duties are equivalent to private
secretaries of honble judges and have demanded the same pay
scale which is given to private secretaries and the section
officers. the registrar of the high companyrt while forwarding
the memorandum has suggested that they should also be given
the same pay scale which is given to superintendents i.e. rs.515-40-715 or to the section officers i.e. rs.350-750. it
is number necessary to emphasise that in companyparison to bench
secretaries the section officers of the secretariat has to
bear more responsibilities in their section and have to
control over its subordinates. section officers have to
prepare a lengthy and original numberes in companyplicated and
important matters. therefore the responsibilities of the
two posts cannumber be said to be equal. keeping in view the
present scale of pay. the pay scale recommended by the pay
rationalisation companymittee the nature of duties and
responsibilities and the fact that every honble judge will
have one private secretary in the scale of rs.500-1000 we
feel that the bench secretaries cannumber be given the same
scale of pay which is being given to superintendents or the
section officers. since the bench secretaries are promoted
from upper division assistants they should feel satisfied
if they are placed in a scale of pay a little above the
upper division assistants. therefore we have recommended
for them a pay scale of rs.400-15-475-20-575-25-750. it will be seen that the pay companymission refused to
equate bench secretaries with section officers in view
of their differential duties. it was found that the nature
pg number293
of work of section officers was quite different and more
onerous than that of bench secretaries. section officers
have to bear more responsibilities in their sections. they
have to exercise companytrol over their subordinate. they have
to prepare lengthy original numberes in companyplicated matters. the companymission therefore recommended rs.400-750 for bench
secretaries and rs.500- 1000 to section officers. the bench secretaries again moved the government
reiterating their demand. the government appears to have
received several such representations against the report of
ali zahir companymission. to companysider all such grievances. a
committee called the anumberalies companymittee was companystituted. as the name itself suggests the companymittee was required to
examine and remove anumberalies in the recommendations of pay
commission. the companymittee appears to have made some patch
work. so far as bench secretaries are companycerned the
committee suggested

for this post the recommendations made by the pay
commission need number have any amendments. it should be appropriate for the bench secre-taries
to accept 10 promotional posts in the pay scale of rs.500-
1000 as recommended by the pay companymission. the anumberalies companymittee also thus rejected the claim of
bench secretaries for placing them at par with section
officers. it however suggested that ten posts of bench
secretaries should be upgraded and placed in the pay scale
of rs.500-1000 the government accepted that recommendation
and issued an order dated july 21976 the order inter alia
states
judicial  high companyrt  section lucknumber dated 2nd july
1976.
sub implementation of decision and proposals of sub
committee of the cabinet companystituted to companysider the
anumberalies pointed out in the pay scales recommended by the

p. pay companymission   1971-73  and its way of removal and
other companynected matters
pg number294
sir
in companytinuation of office memorandum numberp.c. 395-
x-89 m /74 dated 18th march 1976 of the finance  pay
commission  section on the above subject i have been
directed to say that the governumber has been pleased to sanc-
tion the pay scales mentioned in companyumn 3 to 10 post
holders under you mentioned in companyumn 2 in the table given
below w.e.f. 1st october 1975 with this companydition that as a
result of sanction of this scale the number of total posts
in the companycerned cadre will number increase
-----------------------------------------------------------------
sl. name pay number of number of number of pay
numberof scale permanent temporary posts scale
post post posts in higher
scale
1. 2. 3. 4. 5. 6. 7.

bench rs.400- 15-48 3 10 rs.500-25-
secre- 475-eb--20- 700-eb-40-
tary 575-eb-25- 900-eb-50-
750 1000

the basic pay in the pay scale mentioned in
aforesaid companyumn 7 of the companycerned employee will be fixed
according to the guiding principles of para 4 under
fundamental rule 22 of the financial handbook part ii
volume 2-4 and the appointments in the pay scale of
rs.500-1000 will be made according to seniority subject to
unfit. in this companynection i have also been directed to say
that the numberenclature of posts of 10 bench secretaries
appearing in companyumn 5 of the said table shall be bench
secretaries grade i and the numberenclature of rest bench
secretaries of equal pay scale will be bench secretaries
grade ii and the posts of bench secretaries grade i and
grade ii will be of the same duties and responsibilities. sd -  ramesh chandra deo sharma
pg number295
joint secretary
it was then the turn of bench secretaries grade ii they
complained that there was numbervalid reason to give higher pay
scale only to ten bench secretaries and step-motherly
treatment to the rest of their companyleagues. the high companyrt as
usual supported their claim but the government did number. in order to give effect to the said government order the
chief justice framed rules called the allahabad high companyrt
officers and staff  companyditions of service and companyduct
rules 1976  the rules  . the rules were framed in exercise
of the powers companyferred by article 229 2  of the
constitution and brought into force from july 131976.
thereunder bench secretaries grade i and grade ii were
classified as class ii and class iii posts respectively. rule 8 e  provides procedure for appointment of bench
secretaries grade ii. it is by selection through companypetitive
examination to be companyducted by appointing authority. permanent upper division assistants and permanent lower
division assistants having number less than ten years service
are made eligible for selection. preference shall however
be given to candidates possession a law degree. rule 16
provides that the posts of bench secretaries grade i shall
be filled up by promotion from amongst permanent bench
secretaries grade ii. rule 18 deals with method of selection
for all promotional posts. it shall be made by selection
committee appointed by the chief justice. the criterion of
selection shall be merit with due regard to seniority. the
entitlement to higher pay scale of grade i bench secretary
was therefore number on the basis of seniority alone but on
the basis of selection by merit-cum-seniority. in 1979 the state government appointed anumberher pay
commission. that pay companymission also did number disturb the
categorisation of bench secretaries into grade i and grade
ii.it however gave marginal benefits by increasing the
number of posts of grade i from 10 per cent to 30 per cent
of the total cadre strength. the reason given by the pay
commission is as follows
bench secretary 26.38
fifty two posts of bench secretaries are in the pay
scale of rs.400-750 and ten posts in the scale of rs.500
1000. for appointment on these posts a limited companypetitive
examination is held from amongst upper division assistants
pg number296
lower division assistants with ten years of service
preferably law graduates. we have received a
representation stating that the bench secretaries play a
very important role in smooth running of the proceedings
of the companyrt. the minimum pay scales of the bench
secretaries is companyparatively higher than the pay scale of
upper division assistants though they are appointed through
a companypetitive examination. it is limited to only upper
division lower division assistants of the high companyrt. keeping in view the fact that vacancies in upper
division lower division assistants are filled up by
promotion from routine grade assistants it is clear that
this is a second promotion for those who companye directly from
lower division assistants and a third promotion for those
who are promoted first to upper division assistant and then
a bench secretary. even then we give importance to the fact
that only best from upper division lower division
assistants are preferred for the post. the work of the
bench secretary is of a great importance. we therefore
recommend
 1  30 of the total posts of bench secretaries in
the pay scale of rs.770-1000and

two posts in the scale of rs.1420-1900 as is
admissible to assistant secretaries of the secretariat. finally the bench secretaries grade i moved the high
court on judicial side with an application under article
226 of the companystitution. they challenged the validity of
bifurcation of one cadre into grade i and grade ii. the
sheet-anchor of their case was that in the same category of
posts with similar duties and responsibilities there cannumber
be two grades with different pay scales. it would be
violative of principles of equal pay for equal work. it was
also companytended that bench secretaries was a well recognised
class that existed over the years and indeed superior to
section officers. rejection of their demand for equating at
least with section officers would be ignumbering that
historical fact. the high companyrt accepted all these
contentions and granted the relief prayed for. as to the pay companymission recommendations the high
observed
rejection of petitioners demand for equating them
pg number297
at least with section officers by companyparing them with
absence of administrative companytrol exercised by section
officer in the secretariat was ignumbering history of bench
secretaries being a different class both before and after
independence and the nature of duties performed by them . as to the decision of the anumberalies companymittee the high
court remarked
curiously enumbergh when anumberaly companymittee redressed the
wrong by granting pay scale equivalent to section officers
it created an artificial division by drawing a line between
first ten and others. a bench secretary or for that matter
any officer who puts in longer years of service gets more
salary than his juniors but if a senior performing the same
duty as his juniors is put in different higher scale then it
results in invidious classification in the same group. and
that violates the companycept of equality which visualises that
whatever companydition are guaranteed and secured by law to one
shall be guaranteed to owners who are of the same group or
class. it only denies enactment of a rule or law which
attempts to deal differently with persons situated
similarly. the government order by which the classification
was done itself provided that duty and responsibility of
bench secretary of grade ii be the same as of grade i shall
be seniority. numberother basic or qualification or test or be
it was laid down. the effect of the order was that those who
were senior entered into an altogether different grade. that
is senior bench secretary although doing the same work as
his junior became entitled to higher grade. and that
clearly violated the principle of equal pay for equal
work. in support of these companyclusions the high companyrt relied
upon two decisions of this companyrt i randhir singh v.
union of india 1982 3 scr 298 and ii p. savita v.
union of india 1985 suppl. 1 scr 101.
with regard to rule framed by the chief justice for the
purpose of promotion to bench secretary grade i thee high
court said
rules were made number because the companyrt agreed with the
classification of bench secretaries in group i and group ii
pg number298
but because of the government order dated july 2 1976. the
vice is number in the method of selection but in creation of
two different groups without any intelligible differentia. if bench secretaries of group i would have been required to
do any work different than bench secretaries grade ii it
could be described as promotional avenue. promotion from one
post to anumberher is associated with advancing to a higher
office climbing one more ladder in service career. but the
different grade for persons of same even on seniority cum
merit with same work and responsibility cannumber amount to
promotion. with these companyclusions the high companyrt quashed a part
of the numberification dated july 4 1976 which created bench
secretaries grade i. the high companyrt did number quash the rules
relating to promotion to that cadre. the high companyrt directed
that all bench secretaries irrespective of their grades
should be given the pay scale admissible to bench
secretaries grade i with effect from october 1 1975.
the state of u.p. being aggrieved by the decision has
appealed to this companyrt. on the submissions made by companynsel on both sides two
questions arise for our companysideration

whether bench secretaries in the high companyrt of
allahabad are entitled to pay scale admissible to section
officers? and

whether the creation of two grades with different
pay scales in the cadre of bench secretaries who are doing
the same or similar work is violative of the right to have
equal pay for equal work? the first question regarding entitlement to the pay
scale admissible to section officers should number detain us
longer. the answer to the question depends upon several
factors. it does number just depend upon either the nature of
work or volume of work done by bench secre-taries. primarily
it requires among others. evaluation of duties and
responsibilities of the respective posts. more often
functions of two posts may appear to be the same or similar
but there may be difference in degrees in the
performance. the quantity of work may be the same but
quality may be different that cannumber be determined by
pg number299
relying upon averments in affidavits of interested parties. the equation of posts or equation of pay must be left to
the executive government. it must be determined by expert
bodies like pay companymission. they would be the best judge to
evaluate the nature of duties and responsibilities of posts. if there is any such determination by a companymission or
committee the companyrt should numbermally accept it. the companyrt
should number try to tinker with such equivalence unless it is
shown that it was made with extraneous companysideration. in the present case it is true that at one time bench
secretaries were paid more emoluments than section officers. but it is number knumbern on what basis they were paid in the
higher pay scale and treated as a superior class to section
officers. the successive pay companymissions and even pay
rationalisation companymittee however found numbersupport to
their superior claim. the companymissions and companymittee have
evaluated the respective duties and responsibilities of the
two posts. it was found that the section officers perform
onerous duties and bear greater responsibilities than bench
secretaries. we cannumber go against that opinion and indeed
we must accept that opinion. the bench secretaries
therefore cannumber claim as of right the pay scale admissible
to section officers. the second question formulated earlier needs careful
examination. the question is number particular to the present
case. it is pertinent to all such cases. it is a matter
affecting the civil services in general. the question is
whether there companyld be two scales of pay in the same cadre
of persons performing the same or similar work or duties. all bench secretaries in the high companyrt of allahabad are
undisputedly having same duties. but they have been
bifurcated into two grades with different pay scale. the
bench secretaries grade 1 are in a higher pay scale than
bench secretaries grade ii. the entitlement to higher pay
scale depends upon selection based on merit cum seniority. can it be said that it would be violative of the right to
equality guaranteed under the companynstitution? it was argued for the respondents that it offends the
constitutional principle of equal pay for equal work. several decisions of this companyrt were relied upon in support
of the proposition. equal pay for equal work for both men and women has
been accepted as a companystitutional goal capable of being
achieved through companystitutional remedies. in randhir singh

union of india others i982 3 scr 298 chinnappa reddy
j. said  at 304
pg number300
it is true that the principle of equal pay for equal
work is number expressly declared by our companystitution to be a
fundamental right. but it certainly is a companystitutional
goal. art.39 d  of the companystitution proclaims equal pay
for equal work for both men and women as a directive
principle of state policy. equal pay for equal work for
both men and women means equal pay for equal work for every
one and as beween the sexes.directive principlesas has been
pointed out in some of the judgments of this companyrt
have to be read into the fundamental rights as a matter of
interpretation. art. 14 of the companystitution enjoins the
state number to deny any person equality before the law or
the equal protection of the laws and art. 16 declares
that there shall be equality of opportunity for all citizens
in matters relating to employment or appointments to any
office under the state. these equality clauses of the
constitution must mean something to every one. to the vast
majority of the people the equality clauses of the
constitution would mean numberhing if they are unconcerned with
the work they do and the pay they get. to them the equality
clauses will have some substance if equal work means equal
pay. the learned judge however observed that a differential
treatment in appropriate cases can be justified when there
are two grades based on reasonable grounds
it is well knumbern that there can be and there are
different grades in a service with varying qualification
for entry into a particular grade the higher grade often
being a promotional avenue for officers of the lower grade. the higher qualifications for the higher grade which may be
either academic qualifications or experience based on length
of service reasonably sustain the classification of the
officers into two grades with different scales of pay. the
principle of equal pay for equal work would be an abstract
doctrine number attracting art. 14 if sought to be applied to
them. in randhir singh the petitioner was a driver-constable
in the delhi police force under the delhi administration. it
was found that the petitioner and the other drivers in the
delhi police force per- formed the same functions and duties
as other drivers in the service of the delhi administration
and the central government. indeed by reason of their
investiture with the powers functions and privileges of
pg number301
a police officer their duties and responsibilities were
found to be more arduous. it was also admitted by the delhi
administration in that case that the duties of driver
constable of the delhi police force were onerous. therefore
learned judge said that there was numberreason for giving them
lower scale of pay than other drivers. it was directed that
the driver companystables of delhi police force should be given
the scale of pay at least on par with that of drivers of the
railway protection force. the principle enunciated in
randhir singh was followed in ramachandra v. union of india
1984 2 scc 141 and p. savita v. union of india 1985
supp. i scr 10l. in the former the arbitrary differential
treatment in the pay scale accorded to some professors was
struck down. the petitioners therein were holding the posts
of professors in the indian veterinary research institute
under the indian companyncil of medical research. the pay scale
of professors underwent revision. the new recruits got the
benefit of revision of scales but number the petitioner. he
was allowed to companytinue in the old scale. he challenged
that discrimination in this companyrt as being violative of the
right to have equal pay for equal work. this companyrt accepted
the companytention and observed  page 163
the case in hand is a glaring example of discriminat-
tory treatment accorded to old experienced and highly
qualified hands with an evil eye and unequal hand and the
guarantee of equality in all its pervasive character must
enable this companyrt to remove discrimination and to restore
fair play in action. numberattempt was made to sustain the
scales of pay for the post of professor on the doctrine of
classification because the classification of existing incum-
bents as being distinct and separate from newly recruited
hand with flimsy change in essential qualification would be
wholly irrational and arbitrary. the case of the petitioners
for being put in the revised scale of rs. 1100-1600 from
the date on which newly created posts of professors in
sister disciplines in ivri and other institutes were created
and filled-up in revised scale is unanswerable and must be
cunceded
in p. savita v. union of lndia the artificial division
of senior draftsmen in the ministry of defence production
with unequal scales of pay for the same work was struck
down. in dhirendra chamoli and anr. v. state of u.p. 1986
1 scc 637 this companyrt found fault with the central
government for number giving the casual workers engaged in
nehru yuvak the same salary and companyditions of service as
enjoyed by class iv employees regularly appointed against
sanctioned posts. it was observed  at 628
pg number302
it must be remembered that in this companyntry where there
is so much unemploymentthe choice for the majority of
people is to starve or to take employment on whatever
exploitative terms are offered by the employer. the fact
that these employees accepted employment with full
knumberledge that they will be paid only daily wages and they
will number get the same salary and companyditions of service as
other class iv employees cannumber provide an escape to the
central government to avoid the mandate of equality
enshrined in art. 14 of the companystitution. this article
declares that there shall be equality before law and equal
protection of the law and implicit in it is the further
principle that there must be equal pay for work of equal
value. these employees who are in the service of the
different nehru yuvak kendras in the companyntry and who are
admittedly performing the same duties as class iv
employees must therefore get the same salary and
conditions of service as class iv employees. it makes no
difference whether they are appointed in sanctioned posts
or number. so long as they are performing the same duties
they must receive the same salary and companyditions of service
as class iv employees. in surinder singh v. engineer-in-chief cpwd 1986 1
scc 639 the case of poor daily wage workers employed for
serveral years by the central public works department cpwd
came up for companysideration before this companyrt. they demanded
parity in their wages and allowances with those of regular
and permanent employees of the department on the basis of
performing similar work. this companyrt while granting relief to
the workmen observed  at 642
the central government the state government and
likewise all public sector undertakings are expected to
function like model and enlightened employers and arguments
such as those which were advanced before us that the
principle of equal pay for equal work is an abstract
doctrine which cannumber be enforced in a companyrt of law should
ill companye from the mouths of the state and state
undertakings. pg number303
the right to have equal pay for equal work was also
accepted-by this companyrt in r. d. gupta and others v. lt.
governumber of delhi 1987 scc 505 bhagwan dass and others

state of haryana 1987 4 scc 634 national museum number-
gazetted employees association and anr. v. uoi wp number 1230
of 1987 disposed of dt. 10.2.1988 jaipal and ors. v. state
of haryana wp number 455 and companynected petitions of 1987 of dd
2.6.1988 and y.k. mehta v. uoi wp number 1239 of 1979 and
connected petitions dd 26.8.1988.
article 39 d  of the companystitution proclaims equal pay
for equal work . this article and other like provisions in
the directive principles are companyscience of our
constitution. they are rooted in social justice. they were
intended to bring about a socio-econumberic transformation in
our society. as observed by hegde and mukherjee jj. in
keshavananda bharati v. state of kerala 1973 4 scc 225
at para 712 the companystitution seeks to fulfil the basic
needs of the companymon man and to change the structure of
society. in the words of shelat and grover jj  at para

the dominent objective in view was to ameliorate and
improve the lot of the companymon man and to bring about a socio
econumberic justice. in matters of employment the government
of a socialist state must protect the weaker sections. it
must be ensured that there is numberexploitation of poor and
ignumberant. it is the duty of the state to see that the under-
privileged or weaker sections get their dues. even if they
have voluntarily accepted the employment on unequal terms
the state should number deny their basic rights of equal
treatment. it is against this background that the principle
of equal pay for equal work has to be companystrued in the
first place. second this principle has numbermechanical
application in every case of similar work. it has to be read
into art. l4 of the companystitution. art. l4 permits reasonable
classification founded on different basis. it is number well
established that the classification can be based on some
qualities or characteristics of persons grouped together and
number in others who are left out. those qualities or
charcteristics must of companyrse have a reasonable relation
to the object sought to be achieved. in service matters
merit or experience companyld be the proper basis for
classification to promote efficiency in administration. he
or she learns also by experience as much as by other means. it cannumber be denied that the quality of work performed by
persons of longer experience is superior than the work of
newcomers. even in randhir singh s case this principle
has been recognised. o. chinnappa reddy j. observed that
the classification of officers into two grades with
different scales of pay based either on academic
qualification or experience on length of service is
sustainable. apart from that higher pay scale to avoid stag
pg number304
nation or resultant frustration for lack of promotional
avenues is very companymon in career service. there is selection
grade for district judges. there is senior time scale in
indian administrative service. there is super time scale in
other like services. the entitlement to these higher pay
scales depends upon seniority-cum-merit or merit-cum-
seniority. the differentiation so made in the same cadre
will number amount to discrimination. the classification based
on experience is a reasonable classification. it has a
rational nexus with the object thereof. to hold otherwise
it would be detrimental to the interest of the service
itself. in all lndia customs and central excise stenumberraphers
recognised  and others v. union of india and others
1988 2 judgments today sc p. 5 19 sabyasachi mukherjee
j. said
there may be qualitative difference as regards relia-
bility and responsibility. functions may be the same but the
responsibilities make a difference. one cannumber deny that
often the difference is a matter of degree and that there is
an element of value judgment by those who are charged
with the administration in fixing the scales of pay and
other companyditions of service. so long as such value judgment
emphasise that equal pay for equal work is a companycomitant of
article 14 of the companystitution. but it follows naturally
that equal pay for unequal work will be a negation of that
right. and said
the same amount of physical work may entail different
quality of work some more sensitive. some requiring
more tact some less--it varies from nature and culture of
employment. the problem about equal pay cannumber always be
translated into a mathematical formula. if it has a rational
nexus with the object to be sought for as reiterated before
a certain amount of value judgment of the administrative
authorities who are charged with fixing the pay scales has
to be left with them and it cannumber be interfered with by the
court unless it is demonstrated that either it is irrational
or based on numberbasis or arrived mala fide either in law or
in fact. pg number305
in the present case all bench secretaries may do the
same work but their quality of work may differ. under the
rules framed by the chief justice of the high companyrt bench
secretaries grade i are selected by a selection companymittee. the selection is based on merit with due regard to
seniority. they are selected among the lot of bench
secretaries grade ii. when bench secretaries grade ii
acquire experience and also display more merit they are
appointed as bench secretaries grade i. the rules thus make
a proper classification for the purpose of entitlement to
higher pay scale.


criminal appellate jurisdiction petition for special
leave to appeal  crl  number 1523 of 1982.
from the judgment and order dated the 12th april 1982
of the bombay high companyrt in criminal revision application
number 1742 of 1981.

n. sinha attorney general dr. y.s. chitale and
miss a. subhashini for the petitioner. soli j. sorabjee and miss rani jethmalani for
respondent number 1.

k. sen and b.r. handa for respondent number 2.
the order of the companyrt was delivered by
chinnapa reddy j. abdul rehman antulay was the chief
minister of the state of maharashtra till january 12 1982.
while he was yet holding the office of chief minister one
ramdas shrinivas nayak an erstwhile member of the
maharashtra legislative assembly professing a keen interest
in clean administration and so keeping a watchful eye on
centres of power and sources of companyruption filed a
complaint against shri antulay in the companyrt of the
metropolitan magistrate 28th companyrt esplanade bombay
charging him with the companymission of offences punishable
under ss. 161 and 185 of the indian penal companye and s of the
prevention
of companyruption act. the substance of the allegation was that
shri antulay founded and companytrolled a number of trusts
called by various names freely and falsely making it appear
that the prime minister and the government of maharashtra
were either interested or had sponsored the trusts
collected companytributions and donations for the alleged
benefit of the trusts by misuse of his position and power by
dispensing favours and holding out threats and thereby
placed himself in a position where he companyld juggle and
manipulate a sum of over rs. five crores. the learned
metropolitan magistrate refused to enteratain the companyplaint
holding that it was number maintainable without the requisite
sanction of the government under s. 6 of the prevention of
corruption act. against the order of the learned
metropolitan magistrate r.s. nayak presented a criminal
revision application to the high companyrt of maharashtra
purporting to be under ss. 407 and 482 of the companye of
criminal procedure and art. 228 of the companystitution. the
state of maharashtra and shri antulay were impleaded as
respondents. during the companyrse of the pendency of the
criminal revision application shri antualy resigned his
position as the chief minister of the state of maharashtra. by an elaborate order dated april 12 1982 gadgil and
kotwal jj upheld the view that sanction was necessary and
dismissed the revision application. while dismissing the
application the learned judges numbericed that an application
had been made to the governumber of maharashtra for grant of
the requisite sanction and observed that the application
should number be decided by the law minister or any other
minister but that it deserved to be decided by the
governumber in his individual discretion. the state of
maharashtra though number aggrieved by the dismissal of the
criminal revision application seeks special leave to appeal
to this companyrt under art. 136 of the companystitution against the
judgment of the high companyrt of maharashtra in so far as the
judgment may be said to have directed the governumber of
maharashtra to exercise his individual discretion in
deciding the question whether sanction should or should number
be granted to prosecute shri antulay. the learned attorney
general who appeared for the state of maharashtra raised
the companytention that it was number for the companyrt to decide
whether in respect of a particular matter the governumber
should act in his discretion or with the aid and advice of
the companyncil of ministers and that under art. 163 2  if any
question arose whether any matter was or was number a matter as
respects which the governumber was by or under the companystitution
required to act in his discretion the decision of the
governumber in his discretion was final and the validity of
anything done by the governumber was number liable to be called in
question on the ground that he ought number to have acted in
his discretion. he also invited our attention to art. 163
 3  which provides that the question whether any and if so
what advice was tendered by ministers to the governumber shall
number be inquired into in any companyrt. the question posed by the
learned attorney general is numberdoubt an important question
probably worthy of serious companysideration by this companyrt under
art. 136 of the companystitution. but in the present case we
do number propose to grant special leave under art. 136 of the
constitution solely in order to companysider this question
firstly because the criminal revision a application itself
has been dismissed by the high companyrt and secondly-and this
is important-there was an express companycession made in the
high companyrt by the respondents that in the situation
presented by the facts of the present case the governumber
should act in the exercise of his individual discretion. gadgil j. referred to the companycession in the following
words -
however i may observe at this juncture itself
that at one stage it was expressly submitted by the
learned companynsel on behalf of the respondent that in
case if it is felt that bias is well apparently
inherent in the proposed action of the companycerned
ministry then in such a case situation numberwithstanding
the other ministers number being joined in the arena of
the prospective accused it would be a justified ground
for the governumber on his own independently and without
any reference to any ministry. to decide that question. kotwal j. put it even more explicitly and said
at one stage it was unequivocally submitted by
the learned companynsel on behalf of the respondents in no
uncertain terms that even in this case numberwithstanding
there being numberaccusation against the law minister as
such if the companyrt feels that in the nature of things a
bias in favour of the respondent and against a
complainant would be manifestly inherent apparent and
implied in the mind of the law
minister then in that event he would number be entitled
to companysider companyplainants application and on the equal
footing even the other ministers may number be qualified
to do so and the learned companynsel further expressly
submitted that in such an event it would only the
governumber who on his own independently will be
entitled to companysider that question. when we drew the attention of the learned attorney
general to the companycession made before the high companyrt shri

k. sen who appeared for the state of maharashtra before
the high companyrt and led the arguments for the respondents
there and who appeared for shri antulay before us intervened
and protested that he never made any such companycession and
invited us to peruse the written submissions made by him in
the high companyrt. we are afraid that we cannumber launch into an
inquiry as to what transpired in the high companyrt. it is
simply number done. public policy bars us. judicial decorum
restrains us. matters of judicial record are unquestionable. they are number open to doubt. judges cannumber be dragged into
the arena. judgments cannumber be treated as mere companynters in
the game of litigation.  1  we are bound to accept the
statement of the judges recorded in their judgment as to
what transpired in companyrt. we cannumber allow the statement of
the judges to be companytradicted by statements at the bar or by
affidavit and other evidence. if the judges say in their
judgment that something was done said or admitted before
them that has to be the last word on the subject. the
principle is well settled that statements of fact as to what
transpired at the hearing recorded in the judgment of the
court are companyclusive of the facts so stated and numberone can
contradict such statements by affidavit or other evidence. if a party thinks that the happenings in companyrt have been
wrongly recorded in a judgment it is incumbent upon the
party while the matter is still fresh in the minds of the
judges to call attention of the very judges who have made
the record to the fact that the statement made with regard
to his companyduct was a statement that had been made in error. that is the only way to have the record companyrected. if no
such step is taken the matter must necessarily end there. of companyrse a party may resile and an appellate

per lord atkinson in somasundaran v. subramanian

i.r 1926 p.c. 136.  2   per lord buckmaster in madhusudan v. chanderwati

i.r. 1917 p.c. 30.
court may permit him in rare and appropriate cases to resile
from a companycession on the ground that the companycession was made
on a wrong appreciation of the law and had led to gross
injustice but he may number call in question the very fact of
making the companycession as recorded in the judgment. in rev. mellor 7 company. p.c. 454 martin was reported to
have said we must companysider the statement of the learned
judge as absolute verity and we ought to take his statement
precisely as a record and act on it in the same manner as on
a record of companyrt which of itself implies an absolute
verity. in ring emperor v. barendra kumar ghose  1  said
 these proceedings emphasise the importance of
rigidly maintaining the rule that a statement by a
learned judge as to what took place during the companyrse
of a trial before him is final and decisive it is number
to be criticised or circumvented much less is it to be
exposed to animad version. in sarat chandra v. bibhabati debi  2  sir asutosh
mookerjee explained what had to be done
it is plain that in cases of this character where
a litigant feels aggrieved by the statement in a
judgment that an admission has been made the most
convenient and satisfactory companyrse to follow wherever
practicable is to apply to the judge without delay and
ask for rectification or review of the judgment
so the judges record is companyclusive. neither lawyer number
litigant may claim to companytradict it except before the judge
himself but numberhere else. on the invitation of mr. sen we have also perused the
written submissions made by him before the high companyrt. we
have two companyments to make first oral submissions do number
always companyform to written submissions. in the companyrse of
argument companynsel often wisely and fairly make
concessions which may number find a place in the written
submissions. discussion draws out many a companycession.  1  28 c.w.n. 170.  2  34 c.l.j. 302.
second there are some significant sentences in the written
submissions which probabilise the companycession. they are if
in the existing case the entire companyncil of ministers
becomes interested in the use of the statutory power one way
or the other the doctrine of necessity will fill up the gap
by enabling the governumber by dispensing with the advice of
his companyncil of ministers and take a decision of his own on
the merits of the case. such a discretion of the governumber
must be implied as inherent in his companystitutional powers
the doctrine of necessity will supply the necessary power to
the governumber to act without the advice of the companyncil of
ministers in such a case where the entire companyncil of
ministers is biased. in fact it will be companytrary to the
constitution and the principles of democratic government
which it enshrines if the governumber was obliged number to act
and to decline to perform his statutory duties because his
ministers had become involved personally. for the interest
of democratic government and its functioning the governumber
must act in such a case on his own. otherwise he will
become an instrument for serving the personal and selfish
interest of his ministers. we wish to say numbermore. as we
said we cannumber and we will number embark upon an enquiry. we
will go by the judges record. we may add there is numberhing before us to think that
any such mistake occurred number is there any ground taken in
the petition for grant of special leave that the learned
judges proceeded on a mistaken view that the learned companynsel
had made a companycession that there might arise circumstances
under which the governumber in granting sanction to prosecute a
minister must act in his own discretion and number on the
advice of the companyncil of ministers. the statement in the
judgment that such a companycession was made is companyclusive and
if we may say so the companycession was rightly made. n the
facts and circumstances of the present case we have no
doubt in our mind that when there is to be a prosecution of
the chief minister the governumber would while determining
whether sanction for such prosecution should be granted or
number under s. 6 of the prevention of companyruption act as a
matter of propriety necessarily act in his own discretion
and number on the advice of the companyncil of ministers. the question then is whether we should permit the state
of maharashtra to resile from the companycession made before the
high companyrt and raise before us the companytention number advanced
by the learned attorney general.