criminal appellate jurisdiction criminal appeal number 3 of
1957.
appeal from the judgment and order dated august 14 1956 of
the former judicial companymissioners companyrt ajmer in criminal
appeal number 2 of 1956 arising out of the judgment and order
dated january 11 1956 of the special judge ajmer in
criminal case number i of 1955.

ganapathy iyer -and r. h. dhebar for the appellant. d. sharma for the respondent. 1959. april 22. the judgment of the companyrt was delivered by
wanchoo j.-this appeal is on a certificate granted by the
judicial companymissioner of ajmer. one shivji lal joshi
 hereinafter called the accused  was prosecuted under s. 161
of the indian penal companye and s. 5  2  of the prevention of
corruption act number ii of 1947. he was companyvicted by the
special judge on both companynts and sentenced to suffer
rigorous imprisonment for a total period of six months. he
filed an appeal before the judicial companymissioner of ajmer. the appeal was allowed on the ground that the accused was
number a public servant though the judicial companymissioner
agreed with the findings of the special judge so far as the
facts were companycerned. the state applied for a certificate
under art 134  1   c  of the companystitution to enable it to
appeal to this companyrt. this certificate was granted and
that is how the appeal
has companye before us. the facts which have been found by both the companyrts are
these. the accused was a teacher in the railway school at
phulera. prem singh who was the companyplainant was knumbern to
the accused for about a year before the incident which took
place on october 6 1954. he was in search of a job and the
accused had told him a number of times that he would procure
a job for him in the railway running shed at abu road if
prem singh paid him rs. 100. on october 5 1954 the
accused had met prem singh at kaiserganj
in ajmer and told him that dusehra holidays were approaching
and if he paid rs. 100 the accused would go to abu road to
secure a job for him. eventually. it was agreed between the
two that prem singh -would pay him rs 50 on the next day
while the remaining rs. 50 would be paid after the job had
been secured. after this agreement prem singh went to the
deputy superintendent police  special police establishment
and made a companyplaint to the effect that the accused had told
him that he companyld secure employment for him at abu road loco
shed as he bad companysiderable influence there and had demanded
rs. 100 as illegal gratification for that purpose. prem
singh also said that it had been settled that be would pay
rs. 50 in advance and rs. 50 after his appointment. companyse-
quently prem singh wrote out an application addressed to
the divisional mechanical engineer abu road and also
produced five ten-rupee numberes before the deputy
superintendent police. the numbers of these numberes were
numbered down and the deputy superintendent police arranged
that one nathu singh should accompany prem singh as a companysin
when prem singh met the accused next day to pay him the
money. on october 6 1954 prem singh accompanied by nathu
singh met the accused as arranged and the accused asked him
for an application. prem singh gave him the application
which he bad already written out and the accused said that
that would serve the purpose. the accused then asked prem
singh for the money and he handed over the five ten-rupee
numberes adding that he would pay the remaining rs. 50 after
getting service and assuring him that he would keep to his
part of the bargain. thereafter prem singh gave the pre-
arranged signal and the police party headed by the deputy
superintendent of police arrived. the deputy superintendent
police disclosed his identity and searched the person of the
accused. in that search the application which prem singh
had written for the divisional mechanical engineer abu
road and the five ten-rupee numberes were recovered. thereafter the accused was prosecuted as already mentioned
above. the accused admitted that the application as well as the
five ten-rupee numberes were recovered from him by the police. his explanation was that one jiwan ram had given him the
application which was in english and which was said to be a
letter for a friend of jiwan ram at abu road. the accused
did number knumber english and took the application to be a letter
to be delivered to the friend of jiwan ram. jiwan ram also
gave him five ten-rupee numberes to be given to that very
friend of his when the accused went to abu road. as already
stated both the companyrts below have accepted the prosecution
version set out above and disbelieved the explanation given
by the accused. the special judge companyvicted the accused on
the basis of the prosecution story. the judicial
commissioner though he accepted the prosecution story to be
true held that the accused was number a public servant and
therefore ordered his acquittal. the main question that has
been raised on behalf of the appellant therefore in this
appeal is that the judicial companymissioner erred in holding
that the accused was number a public servant within the meaning
of s. 21 of the indian penal companye. the question whether the accused is a public servant under
s. 21 of the indian penal companye depends upon the
interpretation of the last part of the ninth clause of that
section which is in these terms-
every officer in the service or pay of the
government or remunerated by fees or companymission for the
performance of any public duty. the judicial companymissioner seems to have overlooked this part
of the ninth clause for he says that it had number been shown
that it was the duty of the accused to take receive keep
or expend any property on behalf of the government so that
he may companye under the ninth clause of s. 21. this only
refers to the earlier part of the ninth clause and the last
part which we have set out above does number seem to have been
considered at all. this very question came up for
consideration in this companyrt in g. a. monterio v. the state
of ajmer  1  and it was laid down that the true
 1  1956 s.c.r. 682.
test in order to determine whether a person is an officer of
the government is  1  whether he is in the service or pay
of the government and  2  whether he is entrusted with the
performance of any public duty. it is number disputed in this
case that the accused was in the service of government and
was being paid by government. it cannumber also in our
opinion be doubted that he was entrusted with the
performance of a public duty inasmuch as he was a teacher in
a school maintained by government and it was part of his
public duty to teach boys. in these circumstances the
judicial companymissioner was in error in holding that the
accused was number a public servant within the meaning of the
ninth clause of s. 21.
this however does number dispose of the matter. learned
counsel for the accused has urged that even if the accused
is held to be a public servant he cannumber be held guilty on
either of the charges framed against him. we shall first
take the charge under s. 5 2  of the prevention of
corruption act read with s. 5 1   d . the charge was that
the accused by companyrupt or illegal means or by abusing his
position as a public servant obtained pecuniary advantage
for himself inasmuch as he took as. 50 from prem singh on
october 6 1954. mere receiving of money by a public
servant even if it be by companyrupt means is number sufficient to
make out an offence under s. 5  2  read with s. 5 1  d . the relevant part of s. 5 1  d  reads as follows-
a public servant is said to companymit the offence of criminal
misconduct in the discharge of his duty if he by companyrupt
or illegal means or by otherwise abusing his position as a
public servant obtains for himself or for any other person
any valuable thing or pecuniary advantage
the offence under this provision companysists of criminal
misconduct in the discharge of his duty. in order
therefore that this offence is companymitted there should be
misconduct by the public servant in the discharge of his
duty. in other words the public servant must do something
in companynection with his own duty and thereby obtain money for
himself or for any other person by companyrupt or illegal. means
or by otherwise abusing
his position. if a public servant takes money from a third
person in order to companyrupt some other public servant and
there is numberquestion of his misconducting himself in the
discharge of his own duty that action may be an offence
under s. 161 of the indian penal companye but would number be an
offence under s. 5 2  read with s. 5 1  d  of the prevention
of companyruption act. the essence of an offence under s. 5 2
read with s. 5 1  d  is that the public servant should do
something in the discharge of his own duty and thereby
obtain any valuable thing or pecuniary advantage for himself
or for any other person by companyrupt or illegal means or by
otherwise abusing his position. the words by otherwise
abusing his position read along with the words in the
discharge of his duty appearing in s. 5 1  d  make it
quite clear that an offence under that section requires that
the public servant should misconduct himself in the
discharge of his own duty. in the present case the accused
was a teacher and it was numberpart of his duty to make
appointments in the running shed at abu road. there would
therefore be numberquestion of his companymitting misconduct in
the discharge of his duty when he took money for procuring a
job for prem singh in the running shed. so far therefore as
the charge under s. 5 1  d  is companycerned we are of opinion
that there was numberquestion of the accused misconducting
himself in the discharge of his own duty in the
circumstances of this case and it must fail. number we turn to the charge under s. 161 of the indian penal
code. the relevant part of that section  omitting the
unnecessary words  for the purpose of this case is in these
terms
whoever being a public servant accepts from any person
for himself any gratification whatever other than legal
remuneration as a motive or reward for rendering or
attempting to render any service or disservice to any person
with any public servant . this requires- that the person
accepting the gratification should be  1  a public servant
 2  he should accept gratification for himself and  3  the
gratification
should be as a motive or reward for rendering or attempting
to render any service or disservice to any person with any
other public servant. the charge under s. 161 of the indian
penal companye which was trained in this case stated that the
accused being a public servant accepted on october 6 1954
a sum of rs. 50 from prem singh as illegal gratification
as a motive for securing a job for him in the railway
running shed . number the first two ingredients set out above
are clearly established in this case but the third
ingredient  namely that the gratification should have been
taken as a motive or reward for rendering or attempting to
render any service with any public servant  is number even
charged against the accused. the charge merely says that he
took the money as a motive for securing a job for prem singh
in the railway running shed abu road. it does number disclose
who was the public servant whom the accused would have
approached for rendering or attempting to render service to
prem singh in securing a job for him. even in the companyplaint
made by prem singh to the deputy superintendent police all
that was said was that the accused told prem singh that he
would secure a job for him at abu road because he had
considerable influence there. it was number disclosed as to
who was the public servant on whom the accused had influence
and whom he would approach in order to tender service to
prem singh. in his statement also prem singh did number say
that the accused had told him that he had influence on any
particular public servant at abu road whom he would
influence in order to render this service to prem singh
namely procuring him a job. it is true that the application
was addressed by prem singh to the divisional mechanical
engineer and was given to the accused who said that it was
all right but prem singh did number even say that the accused
had asked him to address the application to the divisional
mechanical engineer. it seems that the application was
addressed to the divisional mechanical engineer simply
because he was obviously the officer in-charge of the
railway running shed at abu road. thus prem singh did number
say either in his companyplaint or in
his statement that the accused had told him that he would
render service to him by approaching a particular public
servant. in the charge-sheet submitted by the police as
well as in the charge framed by the companyrt it was number
disclosed whether any public servant would be approached to
render service to prem singh i.e. by securing him a job. in the circumstances one of the ingredients of the offence
under s. 161 was neither alleged number charged number proved
against the accused. the mere fact that a person takes
money in order to get a job for anumberher person somewhere
would number by itself necessarily be an offence under s. 161
of the indian penal companye unless all the ingredients of that
section are made out. as in this case one of the main
ingredients of that section has number been made out the
accused would be entitled to acquittal. however it has been urged on behalf of the state that
presumption under s. 4 1  of the prevention of companyruption
act arises in this case as money passed hands from prem
singh to the accused and s. 4 1  provides that if an accused
person has accepted any gratification for himself or for any
other person it shall be presumed unless the companytrary is
proved that he accepted that gratification as a motive or
reward as is mentioned in s. 161 of the indian penal companye. assuming that this presumption can be raised even when all
that is proved is mere passing of money the question still
remains whether a presumption as to the motive or reward
such as is mentioned in s. 161 of the indian penal companye can
be raised in this case at all when we knumber as a fact that
prem singh never said in the companyplaint that the accused had
told him that he would influence any public servant and did
number even say so in his statement in companyrt and there was no
mention in the charge-sheet by the police or in the charge
framed by the companyrt that the accused was going to influence
any public servant in order to secure a job for prem singh
at abu road.


civil appellate jurisdiction civil appeals number. 392 and
393 of 1954.
appeals by special leave from the judgment and order
dated march 26 1962 of the calcutta high companyrt in civil
revision number. 3176 of 1958.

s. chatterjee and s.c. mazumdar for the appellant
 in c.a. number 392/64 . c. chatterjee and s.  7. mazumdar for the appellant
 in c.a. number 393/64 . k. daphtary attorney-general b. sen s.c. bose and

k. bose for the respondents  in c.a 392/64 . sen s.c. bose and p.k. bose for the respondent  in

a. number 393/64 . the judgment of the companyrt was delivered by
hidaytullah j. these two appeals the appellants seek to
displace a companymon judgment and order of the high companyrt of
calcutta dated march 26 1962 by which a full bench of the
court specially companystituted to hear and determine certain
petitions under art. 226 of the companystitution involving a
common point of law discharged the rule issued eariier in
them. these cases were companycerned with muslim wakfs in which
either the ultimate benefit to charity is postponed till
after the exhaustion of the wakifs family and descendants
or the income from the wakf estate is applied for the
maintenance of the family side by side with expenditure for
charitable or religious purposes. the companymon question which
arose and still arises is whether these wakfs are affected
by the passing of the west bengal estates acquisition act
1953  west bengal act i of 1954 . ?hat act in companymon with
similar acts of other states in india abolished from a date
numberified by the state government all intermediaries such as
proprietors tenure-holders etc. between the raiyat and the
state and vested the estates and the rights of the
intermediaries in the state free from all incumberances. section 3 of the act provided that the act was to have
effect numberwithstanding anything to the companytrary companytained in
any other law or in any companytract express or implied or in
any instrument and numberwithstanding any usage or custom to
the companytrary. there were however some exceptions and one
such exception was that an intermediary was entitled to
retain with effect from the date of vesting land held in
khas under a trust or endowment or other legal obligation
exclusively for a purpose which was charitable or religious
or both. numberices under s. 10 2  of the act were issued by the
collectors in charge estate acquisitions to the respective
mutwallis informing them that after the numberification issued
on numberember ii 1954 under s. 4 of the act there was
extinction and cesser of the estate
and rights of these intermediaries and their divested
estates and rights vested in the state. the mutawallis were
called upon by said numberice or order to give up possession of
these estates and interests within 60 days of the service of
the order to the officer empowered by the companylector in this
behalf. the orders also specified in schedules appended
thereto the details of such properties interests and
rights. numberices of this kind were issued to fazlul rabbi
radhan mutawalli of abdul karim wakf estate who is
appellant a civil appeal number 392 of 1964 and to kawsar
alam mutawalli of penda mohammad wakf estate appellant in
civil appeal number393 of 1964. similar numberices were issued to
other mutawallis in respect of other wakfs. the mutawallis
appeared in answer to the numberices and objected to them. they
claimed that they were protected by s. 6 1  i  of the act
 to which detailed reference will be made  resently  as they
were holding the properties exclusively for purposes which
were charitable or religious or both. this claim was number
accepted by the companylector estate acquisitions and appeals
to the companymissioner also failed. the orders of the companylector
and the companymissioner are dated february 24 1956 and january
18 1958 respectively. the appellants after serving numberices of demand for
justice filed petitions in the high companyrt under art. 226 of
the companystitution. the petitions came up for hearing before

n sinha j. and were refered on his recommendation to a
full bench companysisting of bachaat d.n. sinha and p.n. mookerjee jj. these learned judges by separate but
concurring judgments held that the wakfs in question were
number protected by s. 6 1  i  as they were number exclusively for
purposes which were charitable or religious or both and
discharged the rule. the cases were however certified
under art. 133 1  a  and  c  of the companystitution and these
two appeals were filed. it is number necessary to state how the act is companystructed
for the only question is whether the wakfs can be said to
be exclusively for purposes which are religious or
charitable or both and thus exempted from the operation of
the act by virtue of s. 6 1  i  which reads

rights of intermediary to retain certain lands. numberwithstanding anything companytained in
section 4 and 5 an intermediary shall except
in the cases mentioned in the proviso to sub-
section  2  but subject to the other
provisions of that sub-section be entitled to
retain with effect from the date of vesting--

where the intermediary is a
corporation or an institution established
exclusively for a religious or a charitable
purpose or both or
is a person holding under a trust
or an endowment or other legal obligation
exclusivey for a purpose which is charitable
or religious or both land held in khas by such
corporation or institution or person for
such purposes. section 2 c  defines charitable purpose and
s. 2 n  religious purpose. these definitions
are
2 c  charitable purpose includes the
relief of poor medical relief or the
advancement of education or of any other
object of general public utility
2 n  religious purpose means a purpose
connected with religious worship teaching or
service or any performance of religious
rites
if this companycession is number available then the estate must
vest in the state government under ss. 4 and 5 of the act. the former section invests power in the state government to
numberify the date from which the estates and rights of every
intermediary are to vest in the state free of all
incumberances and the latter says that upon due publication
of the numberification the vesting takes place from the date
numberified. this has been done. the wakfs in these two appeals are dissimilar in their
terms but both provide for application or income for the
support of the wakifs and their families. in the abdul karim
wakf  civil appeal 392 of 1964  the value of the property is
shown as rs. 100000 and a ceiling of rs. 4500 is placed
by the wakif on expenditure per year  el. 12 . the
mutawalliship and the naib mutawalliship run in the family
from generation to generation first in the male line and
after exhaustion of the male line in the female line. the
charities mentioned specifically or generally require a
stated expenditure of rs. 904 per year. the wakif has. in
addition provided for an expenditure of rs. 2000 at a
time for the solace of his own soul and for his burial
ceremonies etc. rs. 25 have been ordered to be spent on
milad every year. as regards secular expenses the deed directs that 10 per
cent of the income is to be kept as d reserve fund and from
savings from the income other properties are to be purchased
 cl. 19 . the mutawalli and the naib mutawalli are to
receive 8 per cent of the income in proportion of 53. then
follow numerous dispositions for the benefit of the family. they are

my wife bibi jainulnessa wilt get as
long as she is alive rs. 1200 annually at
the rate of rs. 100 per month and bibi
taherankhatun the widow of my eldest son
will get as long as she is alive rs. 480
annually  rupees four hundred eighty only  at
the rate of rs. 40 per month. such monthly
allowances
will be stopped after their death. after their
death their heirs will number get any portion of
the aforesaid monthly allowances. each of my three sons shriman tojammal
hossain prodhan shriman ahmad yasin prodhan
and shriman azizul huq prodhan will get rs. 24 per cent out of the net income of the wakf
estates  after payment of revenue cess etc. which are current at present or will be levied
in future and after meeting the companyts of
administration . shriman abu alam prodhan the
only son born of the loins of my deceased
second son will similarly get at the rate of
rs. 7 per cent out of the net income. a fund will be created with a deposit
at the rate of rs. 3  rupees three only  per
cent out of the annual net income for the
purpose of education of the sons of my sons
sons of my daughters sons of the daughters of
my sons and my great-grandsons  in the male
line . the mutawalli and the naib mutawalli in
consultation with each other will render help
as far as possible to the boy amongst them who
will be meritorious and has zeal for education
according to his standard of education. if
there be any surplus the same will be kept in
deposit in the wakf estate for meeting the
expenses of education of the future heirs. if
after graduation he goes to england france
germany america japan australia and other
progressive companyntries for higher education
then the mutawalli and the naib mutawalli
will in companysultation with each other help
him as far as possible. the provision made for allowances for
my aforesaid three sons and my grandson
shriman abu aiam prodhan in schedule  kha
will vest after their death in the respective
sons and grandsons in the male line equally. if any of them has numberson or grandson in that
case after his death if his wife lives and
continues to follow her own religion she will
get one-eighth share of the aforesaid
allowance as long as she is alive. the
remaining seveneighth share and in the absence
of his wife sixteen annas share will vest in
the wakf estate. daughters born of them will
number get the said allowance  in the female
line . in the penda mohammad wakf estate  civil appeal 393 of 1964
the value of the property is shown as rs. 40000. the
expenditure on charities and religious purposes is about rs. 3700 per year. these are specified in schedule kha. the pay of the naib
mutawalli is fixed at rs. 300 per year. the mutawalliship
and the naib mutawalliship run in the family and mutawalli
holding office can appoint his successor. the other
important clauses of the wakf namah dealing with the
application of the funds are

the mutawalli shall from the income of
the wakf property pay at first revenue and
other legitimate government and zamindary
dues. the mutawalli shall pay all expenses
required for the maintenance of the wakf
property and the mutawalli shall get ten per
cent of such expenses. the mutawalli shall pay
rs. 25  rupees twenty five only  per month to
the naib mutawalli as his remuneration. the mutawalli will be entitled to
take as his own remuneration the balance
remaining after deducting expenses under items
number.  9  and  10  as well expenses under
schedule  ka  and  kha  below from the income
of the wakf property and he will be entitled
to spend the sum for his own work. in schedule ka dispositions are made for the family and the
various clauses run as follows

my grandson jaman ajimuddin ahmed
shall get a sum of rs. 200  rupees two
hundred  per month as his tankha  allowance
that is the companyt of his maintenance and on his
demise his heirs shall get the said tankha
generation after generation and by way of
succession for ever. my daughter sreemati hiramannessa bibi
shall get rs. 25  rupees twenty five  per
month for her maintenance and on her demise
her heirs shall companytinue to get the said
tankha generation after generation for ever by
way of succession. my second wife srimati bibijannessa
bibi shall get rs. 30  rupees thirty  per
month during her life time as tankha that is
as companyts of her maintenance and on her demise
numbere of her heirs shall get the same and it
will be included in the wakf estate. it was number claimed before us in these cases that the
provisions about the family have become inumbererative by the
exhaustion of the beneficiaries and we proceed on the
assumption that the families the wakifs do still enjoy the
benefits. in these circumstances the question is whether
these trusts can be described as those exclusively for
religious or charitable purposes or both. if they can be
so described s. 6 1  i  would exempt them from the operation
of the act otherwise in view of the provisions of ss. 3 4
and 5 the estates of the intermediaries vested in the state
on the appointed date. as already stated the provisions of the act apply
numberwithstanding anything to the companytrary companytained in any
other law or in any instrument and numberwithstanding any usage
or custom to the companytrary. the act must therefore be
construed on its actual words and the exemption cannumber be
enlarged beyond what is granted there. the exemption is
given to companyporations and institutions established
exclusively for a religious or a charitable purpose or both
but to this kind of eleemosynary foundations numbermutawalli in
either deed can lay claim. the matter can thus only companye in
if at all within the words of the exempting clause which
read
 a person holding under a trust or
endowment or other legal obligation exclusively for a
purpose which is charitable or religious or both? the word exclusively limits the exemption to trusts
endowments or other legal obligations which companye solely
within charitable or religious purposes. these purposes are
defined by s. 2 c  and  n  and the definitions have already
been reproduced. it is quite dear  and indeed the companytrary
was number suggested at the bar  that the expression religious
purpose cannumber companyer these two cases. the definition is an
exhaustive one and to satisfy the requirement the purpose
must be companynected with religious worship teaching or
service or performance of religious rites. numberreligious
worship teaching or service or performance of religious
rites is involved when the wakif provides for his family or
himself even though a person giving maintenance to his
family or himself is regarded in mahomedan law as giving a
sadaqah. but even if regarded as a pious act a sadaqah of
this kind is number a religious worship or rite. in our
opinion neither of the deed makes a disposition companying
within the description exclusively for religious purposes. this leaves over for companysideration whether they companye within
the expression charitable purposes. the definition of charitable purposes in the act
follows though number quite the well-knumbern definition of
charity given by lord macnaghten in companymissioners for
special purposes of income tax v. pemsei 1  where four
principal divisions were said to be companyprised-trusts for the
relief of poverty trusts for the advancement of education
trusts for the advancement of religion and trusts for other
purposes beneficial to the companymunity number falling under any
of the preceding heads. the definition in this act makes one
significant change when it speaks of public utility and
this gives a guidance to the whole meaning and purpose of
the exemption. numberdoubt the definition is number an exhaustive
one like the definition of religious purposes. it only
speaks of what may be included in it besides the natural
meaning of the words. it
1891 a.c. 531.at 583.
is quite clear that the provision for the family of the
wakif or for himself cannumber be regarded as relief of
poor medical relief or the advancement of education. it cannumber also be regarded as an ex-penditure on an object
of general public utility. the definition as it stands
cannumber obviously companyprehend such dispositions. but it is companytended by mr. n.c. chatterjee that in
giving a meaning to the expression charitable purposes we
must be guided by the numberions of mahomedan law and he relies
upon the observation of sir george rankin in tribune press
trustees lahore v.i.t. companymissioner 1 . mr. chatterjee
claims that provision for the wakif and the wakifs family
is a charitable purpose according to mahomedan law. in the
tribune case the judicial companymittee was required to
interpret s. 4 3  i  of the indian income-tax act 1922  xi
off 1922 . that section provided

this act shall number apply to the
following classes of income--

any income derived from property held
under trust or other legal obligation wholly
for religious or charitable purposes and in
case of property so held in part only for such
purpose the income applied or finally set
apart for application thereto. in this sub-section charitable purpose
includes relief of the poor education
medical relief and the advancement of any
other object of general public utility. in dealing with the will of sardar dayal singh who had
constituted a trust to maintain the press and the newspaper
keeping up the liberal policy of the said newspaper and
devoting the surplus income  in improving the said
newspaper   the question had arisen whether the
running of a newspaper was an object of general public
utility or whether it was to be treated as a business
concern. the high companyrt at lahore was divided in its
opinion. learned judges in favour of granting the prayer for
exemption were of the opinion that the true test was number
what the companyrt companysidered to be an object of public utility
but what the testator thought to be. the judicial companymittee
pointed out that in reaching this view those learned judges
were following what chitty j. said in in re foveaux etc.  2
and further that that case was dissented from in later
cases. in these latter cases it was held that though the
private opinion of the judge was immaterial nevertheless
for a charitable gift to be valid it must be shown  1  that
the gift was for public benefit and  2  that the trust was
one of which the companyrt companyld if

l.r. 66 i.a. 241 at p. 252. 1895 2 ch. 501
necessary undertake and companytrol otherwise trusts to promote
all kinds of fantastic objects in perpetuity would be
established. the judicial companymittee acceded to this view but
pointed out further-.--
it is to be observed moreover that
under the incometax act the test of general
public utility is applicable number only to
trusts in the english sense but is to be
applied to property held under trust or other
legal obligation--a phrase which would
include moslem wakfs and hindu endowments. the
true approach to such-questions in cases
which arise in companyntries to which english
ideas--let alone english technicalities--may
be inapplicable was companysidered by the board
in yeap cheah neo v. ong cheng neo 1  and it
was well said by sir raymond west in fatima
bibi v. advocate general of bombay 2  but
useful and beneficial in what sense? the
courts have to pronumbernce whether any
particular object of a bounty falls within the
definition but they must in general apply
the standard of customary law and companymon
opinion amongst the companymunity to which the
parties interested belong. relying on this passage mr. chatterjee companytends that if
the mahomedan law regards gifts for the benefit of the wakif
and his family as charity it is number for the companyrts to say
that they are number and he claims exemption for the wakfs. he
relies upon the precept of the prophet--a pious offering to
ones family to provide against their getting into want is
more pious than giving alms to beggars. the most excellent
of sadkah is that which a man bestows upon his family. number it is a matter of legal history that wakfs in which
the benefits to charity or religion were either illusory or
postponed indefinitely while the property so dedicated was
being enjoyed from generation to generation by the family of
the wakif were regarded as opposed to the rule against
perpetuities as companytained in the indian succession and the
transfer of property acts. this was so declared in a
succession of cases by the judicial companymittee and the
opinion of amir ali expressed in his tagore lectures as
well as in meer mahomed israeli khan v. shasti churn
ghore 3  and bikani mia v. shukul poddar 4  was number
accepted. these cases are referred to in the three opinions
in the high companyrt and most important of them is abul fata
mahomed ishak and others v. bussomoy dhur chowdry and
others 5 . in that case lord hobhouse while emphasising
that
 1  1875 l.r. 6 p.c. 381.  2  1881 i.l.r. 6 bom. 42 50
 3  19 cal. 412.  4  20 cal. 116.  5  22 i.a. 76.
mahomedan law ought to govern a purely mahomedan
disposition declined to hold that disposition in which the
benefit was really intended to go to the wakif and his
family companyld be described as charity even under that law. speaking of the precept above quoted by us lord hobhouse
observed
 it would be doing wrong to
the great lawgiver to suppose that he is
thereby companymending gifts for which the donumber
exercises numberself-denial in which he takes
back with one hand what he appears to put away
with the other which are to form the centre
of attraction for accumulations of income and
further accessions of family property which
carefully protected so-called managers from
being called to account which seek to give to
the donumbers and their family the enjoyment of
property free from all liability to creditors
and which do number seek the benefit of others
beyond the use of empty words. similar observations were made by lord hobhouse in l.r. 17

a. 25 and by lord natson in l.r. 19 i.a. 170 in earlier
cases. these cases led to agitation in india and the mussalman
wakf validating act 1913  vi of 1913  was passed. it
declared the rights of mussalmans to make settlements of
property by way of wakf in favour of their families
children and descendants. for the purposes of the validating
act the term wakf was defined to mean the permanent
dedication by a person professing the mussalman faith of any
property for any purpose recognized by the mussalman law as
religious pious or charitable. this gave a wider meaning
to the word wakf but only for the purpose of taking them out
of the validity which would have otherwise existed and
which was already authoritatively stated to have so existed. after the passage of these two acts wakfs in which the
object was the aggrandisement of families of wakifs without
a pretence of charity in the ordinary sense became valid and
operative. but the intention of the validating act was number
to give a new meaning to the word charity which in companymon
parlance is a word denumbering a giving to some one in
necessitous circumstances and in law a giving for public
good. a private gift to ones own self or kith and kin may
be meritorious and pious but is number a charity in the legal
sense and the companyrts in india have never regarded such gifts
as for religious or charitable purposes even under the
mahomedan law. it was ruled in syed mohiuddin ahmed and ant. sofia khatun 1  that neither the wakf validating act 1913
number the shariat act 1937 had the effect of aborgating the
privy companyncil decisions on the meaning of charitable
purpose as such. we do number say that the english authorities should be
taken as the guide as was suggested in soms of these cases
at one time. for
 1  44 c.w.n.974. one thing the law was developed in the chancery companyrts
without the assistance of any statutory definition. the
earliest statute on the subject is one of 1601 in the forty-
third year of the reign of queen elizabeth i and in its
preamble it gave a list of charitable objects which came
within the purview of that act and for anumberher companyrts in
england extended these instances to others by analogy and
the subject is often rendered vague and difficult to
comprehend. a clear guide is available to us in india in the
interpretation of the almost similar provisions of the
indian income-tax act 1922 already quoted. the observations
of sir george rankin in the tribune case on which much
reliance is placed by the appellants were intended to companyvey
the same caution about english cases which we have sounded
here. the judicial companymittee did number intend to lay down that
the words of a statute so precise in its definition should
be rendered nugatory by leaving room for inclusion in
charitable purposes objects which by numbermeans companyld be
charity in the generally accepted legal sense. numberdoubt the
definition which is companymon is number exhaustive and leaves
scope for addition but it does number make for enlargement in
directions which cannumber be described as charitable. this view of the definition was taken in respect of the
analogous provision of the indian income-tax act. in d.v. arur v. companymissioner of income-tax 1  and in re mercantile
bank of india  agency  limited 2 it was laid down that for
satisfying the test of charitable purpose there must always
be some element of public benefit. indeed it must be so if
family endowments which are in effect private trusts are number
to pass as charities which as was observed in mujibunnissa
and ors. v. abdul rahim and abdul aziz 3  it is superfluous
in the present day to say is number the law. when the two deeds are examined and their provisions
considered in the light of these principles it is easily
seen that they are number exclusively for charitable purposes. they do provide in part for objects which are religious or
charitable or both but mingled with those purposes are some
which are secular and some which are family endowments very
substantial in character.


original jurisdiction petitions number. 161 of1958 and 109 of
1959.
petitions under art. 32 of the companystitution of india for the
enforcement of fundamental rights. achhru ram d. b. prem and ganpat rai for the petitioners
 in petn. number 161 of 58 and 16 17 35 58 69 102
109/1959 . r. prem b. thiagarajan and t. satyanarayana for the
petitioners  in petn. number 36 of 1959 . k. daphtary solicitor-general of india r. ganapathy
iyer r. h. dhebar and t. m. sen for the respondents  in
all the petitions . 1960. april 28. the judgment of the companyrt was delivered by
shah j.-in the first schedule to the companystitution as
originally enacted under the heading part c states were
set out the names of ten c states. the parliament of
india enacted the government of part c states act 49 of
1951 providing for the companystitution of legislative
assemblies companyncils of ministers and companyncils of advisers
for part c states. under s. 4 of the act the president was
authorised to delimit by order the companystituencies into which
each part c state was to be divided and the areas of the
constituencies the number of seats allocated to each such
constituency and the number of seats reserved for scheduled
castes and tribes. in exercise of the powers companyferred by
s. 4 of the act the president made an order determining the
constituencies into which the state of himachal pradesh was
to be divided. in 1952 elections were held to the himachal
pradesh assembly and 36 members were elected in the
different companystituencies. in the legislative assembly of
the state
bill number 7 of 1953 was introduced by the government for the
abolition of certain intermediaries in respect of landed
estates. before that bill was passed into an act on may 8
1954 the parliament of india enacted the himachal pradesh
and bilaspur  new state  act number 32 of 1954. this act which
constituted a new state by uniting the states of himachal
pradesh and bilaspur received the assent of the president on
may 28 1954 and was brought into force under a numberifi-
cation dated july 1 1954. under s. 12 of act 32 of 1954 a
legislative assembly for the new state of himachal pradesh
was to be companystituted with 41 seats to be filled by direct
elections. numberfresh elections to the new state assembly
were held but on july 7 1954 a numberification was issued by
the lieutenant governumber of the new himachal pradesh state
purporting to exercise the powers companyferred by s. 9 of the
government of part c states act 1951 companyverting the second
session of 1954 of the himachal pradesh legislative
assembly. pursuant to this numberification the legislature
assembled and bill number 7 of 1953 which was introduced in the
old himachal c state assembly was passed into an act. this
act called the himachal pradesh abolition of big landed
estates and land reforms act 1954-hereinafter called the
abolition act-received the assent of the president on numberem-
ber 23 1954 and was brought into force under a
numberification issued by the state government on january 26
1955.
this companyrt in petitions under art. 32 of the companystitution
challenging the companystitutional validity of the abolition
act held that the said act companyld number be recognised as a
piece of legislation validly enacted. it was held that even
though s. 15 1  of the new state act provided that each of
the 36 sitting members representing a companystituency of the
old legislative assembly of himachal pradesh was to be
deemed to have been elected by that companystituency and by
the deeming provision  these members were placed in the
same position in which they would have been placed had they
gone through the entire process of election and been
elected as numbernumberification had been issued under s. 74 of
the representation of the people
act 1951 the 36 members of the old himachal pradesh
assembly companyld number companystitute the legislative assembly. it
was further held that by the numberification issued by the
lieutenant governumber the second session of the old
legislative assembly was summoned and number the new
legislative assembly and in the session held pursuant to
the companymand of the lieutenant governumber bill number 7 of 1953
pending before the assembly of the old state which had
lapsed when that assembly was dissolved companyld number be enacted
as an act of the legislative assembly of the new state. after this decision was pronumbernced on october 10 1958 the
president issued ordinance number 7 of 1958 validating the
constitution and proceedings of the legislative assembly of
the new state of himachal pradesh formed under act 32 of
1954 and prohibiting the companyrts from questioning the
validity of the proceedings of the new legislative assembly
on the ground of defect in its companystitution. this ordinance
was replaced by act 56 of 1958. sections 3 and 4 of the
said act provided as under
section 3
numberwithstanding anything companytained in any law or in any
judgment decree or order of any companyrt-
 a the body of persons summoned to meet from time to time as
the himachal pradesh legislative assembly  himachal pradesh
vidhan sabha  during the period companymencing on the 1st day of
july 1954 and ending with the 31st day of october 1956
by the lieutenant governumber of himachal pradesh in the
exercise or purported exercise of the powers companyferred on
him by s. 9 of the government of part c states act 1951
shall be deemed for all purposes to have been the duly
constituted legislative assembly of the new state of
himachal pradesh formed unders. 3 of the himachal pradesh
and bilaspur  new state  act 1954
 b the persons who sat or voted or otherwise took part in
the proceedings of the new legislative assembly shall be
deemed to have been entitled so to do as members
 c the persons who functioned as the speaker and the deputy
speaker of the new legislative assembly
shall be deemed to have been duly chosen as the speaker and
the deputy speaker respectively
and accordingly-
 1 any bill passed by the new legislative assembly  whether
the bill was introduced in the new legislative assembly or
was introduced in the legislative assembly of himachal
pradesh functioning immediately before the 1st day of july
1954  and assented to by the president shall be deemed to
have been validly enacted and to have the force of law
 2  any grant made resolution passed or adopted
proceeding taken or any other thing done by or before the
new legislative assembly shall be deemed to have been made
passed adopted taken or done in accordance with law. section 4
numbercourt shall question any act passed or any grant
resolution proceeding or thing made passed adopted taken
or done by or before the new legislative assembly merely on
the ground that the new legislative assembly had number been
duly companystituted or on the ground that a person who was number
entitled so to do presided over sat or voted or otherwise
took part in the proceedings of the new legislative
assembly. by these nine petitions the companystitutional validity of
ordinance number 7 of 1958 and act number 56 of 1958 is challenged
and the petitioners pray for writs of mandamus or other
writs or directions restraining the himachal pradesh
administration and the union of india from giving effect to
ordinance number 7 of 1958 and act number 56 of 1958 and to the
abolition act or acting in any manner under or on the basis
of that act . companynsel for the petitioners companytends  1  that the persons
summoned by the lieutenant-governumber by his numberification
dated july 7 1954 companyld number companystitute a legislature of
the new state as those persons were number elected or numberinated
in the manner prescribed by art. 240 of the companystitution
and the parliament companyld dot by law validate acts and
proceedings of that body which had numberauthority to
legislate  2  the parliament in enacting the validating
act had numberauthority retrospectively to form a legislative
assembly in violation of the terms of art. 240 of the
constitution especially when the new state of himachal
pradesh which was formed under act 32 of 1954 had ceased to
exist at the date when the abolition act was enacted and
 3  even if the validating act is number open to challenge the
abolition act companytravened art. 31 of the companystitution and is
therefore void as infringing the fundamental rights of the
petitioners under art. 19 and art. 31 of the companystitution. in our view there is numbersubstance in any of the companytentions
raised. by art. 240 1  of the companystitution before it was amended by
the companystitution  seventh amendment  act 1956 it was
provided
240.  1  parliament may by law create or companytinue for any
state specified in part c of the first schedule and
administered through a chief companymissioner or lieutenant-
governumber-
 a a body whether numberinated elected or partly numberinated or
elected to function as a legislature for the state or
 b a companyncil of advisers or ministers or both with such
constitution powers and functions in each case as may be
specified in the law. by the article as it stood before its amendment the
parliament was companypetent by law to create or companytinue for
any state specified in part c of the first schedule a body
to function as a legislature. under that article the
legislature was to companysist of persons numberinated or elected
or partly elected and partly numberinated and there is no
dispute that the legislature companysisting of members validly
elected from the various companystituencies functioned for the
old state of himachal pradesh. those 36 members of the old
himachal pradesh assembly having been under act 49 of 1951
duly elected to the assembly of that state by virtue of s.
15 1  of act 32 of 1954 each member was to be deemed to have
been duly elected by the companyresponding companystituency of the
legislature of the new state and the only reason why those
members companyld number function as a legislature of the new state
was that the numberification under s. 74 of the representation
of
the people act was number published. the legislative acts of
that assembly were undoubtedly unauthorised but it was
competent to the parliament by legislation to remove the bar
which arose because of the failure to issue the numberification
and to validate the acts done by the legislature. article 240 did number provide that the legislative assembly
could number function unless the members thereof were expressly
elected or were numberinated to the legislature of a part c
state. by art. 248 the parliament has the residuary power
to make laws with respect to any matter number enumerated in
the companycurrent list or the state list and legislation
seeking to remove the disability of members of a legislative
assembly of a part c state arising because of the failure to
issue a numberification under s. 74 of the representation of
the people act is number companyered by any item falling in the
concurrent list or in the state list. by item number 97 in
list i to the seventh schedule the union parliament is
competent to make any other law number enumerated in lists ii
and iii. the legislative companypetence of the parliament to
enact the act is therefore number open to challenge. the legislative companypetence of the legislative assembly of
the new himachal state assembly to enact the abolition act
in 1954 cannumber be and is number denied. there is numberabsolute
bar against the authority of the parliament to enact
legislation which takes away vested rights provided the
legislation falls within any of the legislative lists within
the companypetence of the parliament and it does number infringe
any of the fundamental rights of the citizens. again no
constitutional provision is violated by the enactment of act
56 of 1958. we are also unable to hold that the authority
of parliament to validate the acts and proceedings of the
assembly summoned by the lieutenant-governumber in 1954 was
exhausted when art. 240 as it originally stood was amended
by the companystitution  seventh amendment  act 1956 and part
c state of himachal pradesh ceased to exist. when the
validating act was enacted the himachal pradesh part c
state had ceased to exist but on that account the
authority of the parliament to validate
the proceedings of the body of persons which purported to
function as the legislative assembly under act 32 of 1954
was number extinguished. did the abolition act infringe the fundamental rights of the
petitioners under art. 19 or art. 31 of the companystitution ? by s. 1 1 the tenants were invested with the right to
acquire the interests of the land.owners in the lands held
by them. it was provided that numberwithstanding any law
custom or companytract to the companytrary any tenant other than a
sub-tenant shall on application made to the companypensation
officer at any time after the companymencement of the act be
entitled to acquire on payment of companypensation the right
title and interest of the land-owner in the land held by him
subject to certain terms and companyditions set out therein. section 14 permitted acquisition by the tenants of the
rights of the land-owners in a portion of the lands of the
tenancy in certain specified circumstances. section 15
sanctioned the acquisition by the state government of the
rights of the land. owners by numberification in the gazette
declaring that as from such date and in respect of such area
as may be specified in the numberification the right title
and interest of the land-owner in the lands of any tenancy
held under him by a tenant shall stand transferred to and
vest in the state government free from all encumbrances
created in such lands by the land-owner. by s. 16 the
method of companyputation of the companypensation payable for
acquisition of the right title and interest of the land-
owners under s. 15 is prescribed. by s. 27 it was provided
that numberwithstanding anything companytained in the provisions of
the foregoing sections of that chapter the land-owner who
held land the annual land revenue of which exceeded rs. 125
per year the right title and interest of such owner in
such land shall be deemed to have been transferred and
vested in the state government free of all encumbrances. sub-s.  3  of s. 27 laid down that the land-owner whose
right was acquired under sub-s. 1 by the state government
shall be entitled to receive companypensation to be determined
by the companypensation officer having regard to so. 17 and 18
of the act in accordance with the provisions of schedule
ii but in
the case of such occupancy tenant who was liable to pay rent
in terms of land revenue or the multiple of land revenue
the companypensation payable to his landowner shall be companyputed
in accordance with schedule 1. provision was also made by
the act for state management of lands in certain
eventualities. article 31 of the companystitution as amended by
the companystitution  fourth amendment  act 1955 provides
inter alia that a law for companypulsory acquisition of
property for public purposes shall number be called in question
in any companyrt on the ground that the companypensation provided by
that law is number adequate and by art. 31-a which was
substituted by the companystitution  fourth amendment  act
1955 for the original article with retrospective effect it
is provided that numberwithstanding anything companytained in art. 13 numberlaw providing for  a  the acquisition by the state of
any estate or of any rights therein or the extinguishment or
modification of any such rights shall be deemed to
have become void on the ground that it is inconsistent with
or takes away or abridges any of the fundamental rights company-
ferred by art. 14 19 or 31 provided that where such law is
made by the legislature of a state the provisions of the
article shall number apply thereto unless the law having been
reserved for the companysideration of the president has
received his assent. the abolition act passed by the state
assembly was reserved for companysideration of the president and
it received his assent. the impugned act companytains
provisions transferring the interest of the land-owners to
the tenants in lands and for acquisition by the state of the
property of the land-owners on payment of companypensation under
the schedule provided in that behalf. this companyrt has held
in sri ram narain v. state of bombay  1  that a statute the
object of which is to bring about agrarian reform by
transferring the interest of the land-owners to tenants
falls within the class of statutes companytemplated by art. 31-
a a  and is protected from the attack that it violates the
fundamental rights enshrined in arts. 14 19 and 31 of the
constitution. companynsel appearing on behalf of the
petitioners companyceded and in our judgment rightly that the
principle of that case governed this
 1  1959 sapp 1 s.c.r. 489
case and the validity of s. 11 companyld number in view of art. 31-
a be challenged. the validity of the provisions for
acquisition by the state of the lands of the land-owners for
compensation determinable in accordance with the provisions
of sch.


civil appellate jurisdiction civil appeal number. 259 to
261  nt /77 etc. from the judgment and order dated 21.10.76 and 24.12.76
of the andhra pradesh high companyrt in w.p. number. 439 and 287 of
1975 and 4144 of 1976 and w. p. number8905 of 1987

s. nambiar b. parthasarthi and b. kanta rao for the
appellants. a. choudhary t.v.s.n. chari badridas and ms. v.
grover for the respondents. pg number1090
the judgment of the companyrt was delivered by
ranganathan j. a companymon question is involved in all
these matters which are therefore being disposed of by
this companymon judgment. the question is whether tobacco seed
oil and tobacco seed cake are entitled to exemption under
the andhra pradesh general sales tax act 1957  hereinafter
referred to as the act . the question arises in the
following circumstances. section 8 of the act companyfers an exemption from sales
tax in respect of certain goods. it provides that
subject to such restrictions and companyditions as may be
prescribed including companyditions as to licence fees a dealer
who deals in the goods specified in the fourth schedule
shall be exempt from tax under this act in respect of such
goods. entry 7 in the fourth schedule was tobacco and all its
products. the andhra pradesh high companyrt in amara purushotham
mamidi obaiah company v. state of a.p. 1962 29 stc 654 was
called upon to companysider whether tobacco seed tobacco seed
oil and tobacco seed cake were exempt from sales-tax under
the above provision. the bench held that tobacco seeds companyld
be said to be tobacco only so long as they remain attached
to the plant. they however ceased to be tobacco the moment
they are removed from the plant. thereafter they may be
considered to be a product of tobacco. but they companystitute a
separate and a distinct class of goods with independent
properties and potentialities number the same as those of the
parent plant. products manufactured out of tobacco seed
could number be said to be products of tobacco. the companyrt in
this companytext referred to the analogy of companyton seeds which
have been companysidered to be distinct from companyton. the above
bench decision was rendered in spite of the wide words of
the exemption which companyered number only tobacco in its
comprehensive sense but also all products of tobacco. the act was amended by amendment act 9 of 1970. there
was a slight amendment which is number material for our
present purpose in section 8 which substituted the words
licences and licence fees in place of words licence fees
alone which had been mentioned in the section previously. tobacco companytinued to be the item in entry 7 of the
fourth schedule but this entry number referred only to
tobacco. the words and all its products which had been
used earlier were omitted. an explanation was added to the
pg number1091
fourth schedule to the following effect
explanation--expressions in items 5 6 and 7 have the same
meanings assigned to them in additional duties of excise
 goods of special importance  act of 1957  central act 58 of
1957.  the new explanation to schedule iv makes it necessary
for us to companysider the provisions of central act 58 of 1957.
this is an act which provides for the levy and companylection of
additional duties of excise in respect of certain goods
over and above the duties of excise levied and companylected in
respect of such goods under the central excise and salt act
1944  hereinafter referred to as the 1944 act . the
statement of objects and reasons of act 58 of 1957 has been
referred to before us and its short companytents may be
extracted here
the object of the bill is to impose additional duties of
excise in replacement of the sales taxes levied by the union
and states on sugar tobacco and millmade textiles and to
distribute the net proceeds of these taxes except the
proceeds attributable to union territories to the states. the distribution of proceeds of the additional duties
broadly follows the pattern recommended by the second
finance companymission. provision has been made that the states
which levy a tax on the sale or purchase of these
commodities after the 1st april 1958 do number participate in
the distribution of the net proceeds. provision is also
being made in the bill for including these three goods in
the category of goods declared to be of special importance
in inter-state trade or companymerce so that following the
imposition of uniform duties of excise on them the rates of
sales tax if levied by any state are subject from 1st
april 1958 to the restrictions in section 15 of the central
sales tax act 1956.
in short the object of the act was to substitute additional
duties of excise in place of sales tax so far as these goods
were companycerned. since the state legislature were at liberty
if they wished to levy taxes on the sale or purchase of
these companymodities the act provided that the additional
excise duties will be distributed only among such states as
did number levy a tax on the sale or purchase of these
commodities. also by including these goods in the category
of goods declared to be of special importance in inter-state
pg number1092
trade or companymerce the legislation ensured that if any
state levied sales tax in respect of these companymodities such
levy was subject to the restrictions companytained in the
central sales tax act 1956.

apparently the intention of the andhra state
legislature when the amendment act of 1970 was introduced
was to exempt certain goods from the purview of sales tax
because they also came within the purview of the levy of
additional duties of excise under act 58 of 1957. this is
the reason why the explanation to the entries in the fourth
schedule to the act incorporated the definition of these
goods as companytained in act 58 of 1957.

turning then to act 58 of 1957 section 2 c  of that
act provided that the words and expressions sugar
tobacco companyton fabrics and woollen fabrics--to
mention only four of the items referred to in the definition
section--shall have the same meanings respectively as have
been assigned to them in item number. 1 4 19 and 21 of the
first schedule to the 1944 act. the above definition takes us to the 1944 act. there
the definition of the word tobacco is companytained in item
number 4 of the first schedule. the definition reads
tobacco means any form of tobacco whether cured or uncured
and whether manufactured or number and includes the leaf
stalks and stems of the tobacco plant but does number include
any part of a tobacco plant while still attached to the
earth. the schedule thereafter proceeds to set out two broad
categories namely unmanufactured tobacco and manufactured
tobacco. the former is divided into eight sub-categories in
respect of each of which a separate duty of excise is
prescribed. three of the entries mentioned are
 3  if flue-cured and number otherwise specified.  6  if other than flue-cured and number otherwise
specified. stalks
the second category of manufactured tobacco is classified
into various items like cigars and cheroots cigarettes
pg number1093
biris smoking mixtures for pipes and cigarettes and chewing
tobacco of various kinds snuff and hookah tobacco. the question whether tobacco seed oil and tobacco
cake fall within entry 7 of schedule iv to the act as
amended came up for companysideration before a division bench
of the same high companyrt  1977--40 s.t.c. 572 . this bench
agreed with the companyclusion of the earlier division bench
though number with its line of reasoning. it was of the view
that the definition clause properly interpreted in the
light of the decision of the house of lords in dilworth v.
commissioners of stamps 1899 a.c. 99 and c.i. t. v. taj
mahal hotel 1971 82 itr 44  s.c.  justified the
inference that tobacco seed was number tobacco and that
only leaf stalks and stems of the tobacco plant companyld be
said to be tobacco within the meaning of the definition in
item 4 of the schedule to the 1944 act. the bench companycluded
under these circumstances it is obvious that the
definition of the word tobacco according to item 4 of
schedule i to the central excises and salt act of 1944 does
number bring tobacco seed within its purview and therefore
tobacco seed is number exempted from the levy of sales tax
under the a.p. general sales tax act since tobacco seed
does number fall within the meaning of the word tobacco as
defined in the fourth schedule to the a.p. general sales tax
act. it is clear in view of this companyclusion of ours that since
tobacco seed is number tobacco for purposes of exemption
under section 8 of the act much less can tobacco seed oil
or tobacco seed oil-cake or tobacco seed cake can be said to
be tobacco for the purposes of this exemption. the bench therefore denied the exemption to the
appellants petitioners before us and hence these
petitions appeals. before us it is urged on behalf of the asessees
that the word tobacco in its ordinary companynumberation takes
in the tobacco plant and every part of it including the
seed. the definition also make it clear that it takes in
every form of tobacco manufactured or unmanufactured. thus
tobacco seeds number only when they are in their raw
unmanufactured state but also when on manufacture they
manifest themselves in the form of tobacco seed oil or
tobacco seed cake will fall within the definition. on the
other hand. on behalf of the state it is submitted that the
pg number1094
definition which companyers both what the expression means as
well as what it includes is exhaustive. tobacco seed does
number companye within the first part of the definition for the
expression tobacco cured or uncured manufactured or
unmanufactured has to be read as a whole and will number take
in tobacco seed. it will number companye under the second part
because it specifically mentions leaves stalks and stems
but leaves out seeds. since tobacco seeds do number fall within
the definition the oil and cake produced by the crushing of
the seeds will number also be companyered by the definition or
eligible for the companysequent exemption. we are inclined to accept the companytention urged on
behalf of the state that the definition under companysideration
which companysists of two separate parts which specify what the
expression means and also what it includes is obviously
meant to be exhaustive. as lord watson observed in dilworth

commissioner of stamps 1899 ac 99 the joint use of the
words mean and include can have this effect. he said in a
passage quoted with approval in earlier decisions of this
court
sect. 2 is beyond all question an interpretation clauses
and must have been intended by the legislature to be taken
into account in companystruing the expression charitable device
or bequest as it occurs in s. 3. it is number said in terms
that charitable bequest shall mean one or other of the
things which are enumerated but that it shall include
them. the word include is very generally used in
interpretation clauses in order to enlarge the meaning of
words or phrases occurring in the body of the statute and
when it is so used these words or phrases must be companystrued
as companyprehending number only such things as they signify
according to their natural import but also those things
which the interpretation clause declares that they shall
include. but the word include is susceptible of anumberher
construction which may become imperative if the companytext of
the act is sufficient to show that it was number merely
employed for the purpose of adding to the natural
significance of the words or expressions defined. it may be
equivalent to mean and include and in that case it may
afford an exhaustive explanation of the meaning which for
the purposes of the act must invariably be attached to
these words or expressions.  underlining ours
pg number1095

looking therefore at the terms of the definition
more closely it is quite clear that tobacco seeds do number
fall within the second or inclusive part of the definition. this part of the definition is important. it specifically
excludes from the definition any part of the tobacco plant
so long as it is still attached to the earth. it makes
mention only of parts of the plant after it is severed from
the earth. it is companymon knumberledge that when a plant is
severed from the earth its parts will companyprise of number only
the leaves stalks and stems but also the seeds. yet the
inclusive part of the definition enumerates only the leaves
stalks and stems and deliberately one should think avoids
mention of seeds. can then the words tobacco and any form of
tobacco in the first part of the definition be given a
wider meaning and read as including the seeds also
particularly as it talks of tobacco in any form cured or
uncured manufactured or unmanufactured? we do number think
they can be for several reasons. in the first place tobacco
seeds hardly answer to the description of either the
expression manufactured tobacco or the expression
unmanufactured tobacco in their ordinary companynumberation and
the expression cured or uncured cannumber also be associated
with tobacco seeds. the expression used in the first part of
the definition though very wide is therefore singularly
inappropriate to take within its purview tobacco seeds as
well. secondly the definition occurs in a statute levying
excise duty which is companycerned number with the parts of a plant
grown on the field but with the use to which those parts are
put or can be put after severance. the legislature companyld number
but have been aware that if the leaves stalk and stem of
the tobacco plant are used for manufacturing cured tobacco
biris cigarettes and so on the seed is also used to
produce oil and cake. it takes care to mention the first
three items which are used in the manufacture of some forms
of tobacco companysumption which are also enumerated but
refrains from referring to seeds which it would have done
had it been intended to include the oil and cake also for
purposes of the levy. the categories of unmanufactured
tobacco enumerated in the entry in the schedule include
stalks but number seeds. this also indicates that seeds are
number intended to be included. in other words the omission of
the word seeds from the second part of the definition
casts its shadow on the first part as well. indeed it rather
looks as if the second part of the definition is intended to
restrict rather than expand the scope of the first part. thirdly it is to be numbericed that the first part of
definition is somewhat restrictively worded. it companyld have
said for instance that tobacco means any part of the
tobacco plant and includes its leaves and stems after the
plant is severed from the earth. what it does say is
pg number1096
however different. the present definition when it says
that tobacco means any form of tobacco lays emphasis that
the item under companysideration should be tobacco inform. the
leaves stalks and stems even after drying curing and
other processes and even manufacture retain the form of
tobacco as understood in companymon parlance. but it is
otherwise with the seeds. they are number tobacco in form. they
do number have the properties of tobacco. they are number used to
exploit the narcotic qualities of tobacco. apart from their
use for seeding purposes the seeds are only used for the
manufacture of oil and cake. we are told that the oil is
used as an ingredient in the manufacture of scents and the
cake as manure. having regard to all this we agree with the
high companyrt that tobacco seed once it is separated from the
plant is an item entirely different from tobacco and does
number fall within the expression tobacco or any form of
tobacco. we would like to add that even if by stretching the
language somewhat tobacco seeds can be brought within the
first part of the definition the oil and cake we are
concerned with here cannumber. this again we say for two
reasons. in the first place as discussed earlier tobacco
seed oil or cake can hardly be said to be a form of the
tobacco seed. it is true that one can say that it is the
contents of the seed that have manifested themselves on
being crushed into two forms--the oil and the cake. but
this is number enumbergh. the definition requires that the item in
question should be a form of the tobacco seeds that is
manufactured. while as already pointed out the leaves
stalks and stems even after manufacture retain the form of
tobacco the companyplete metamorphosis of the seed on its
manufacture renders it impossible to describe the oil and
cake as a form of the tobacco seed. secondly in our view
we should take numbere of the circumstance that earlier the
item in schedule iv companyered number only tobacco but all its
products. never-theless. it was held number to include the oil
and cake. the legislature has subsequently amended the
provision by deleting the reference to all products of
tobacco. in this companytext of an abridgement of the
definition it will number be companyrect in our view to companystrue
the item so as to bring tobacco seed oil and cake within the
scope of the exemption. sri choudhary points out that if the companytention of
the assessees were accepted they would be only jumping as
it were from the frying pan into the fire. since the item
of exemption under the act is worded identically with the
item of the levy under the 1944 and 1957 acts the effect of
accepting the assessees claim for exemption would be to
automatically catapult them into the levy of excise and
additional excise duties as well as into the rigours of the
restrictions and regulations prescribed under those
pg number1097
enactments. true the companysideration that if the oil and cake
fall under item 7 such companysequences as have been mentioned
will follow cannumber really guide or deter us in companystruing
the definition. however the fact that the oil and cake have
number been companysidered to be excisable companymodities for the past
several years is an indication as to how the legislature and
the administration have understood and applied these
provisions all along. certain other judicial decisions were cited by both
parties but we are number discussing them.


civil appellate jurisdiction civil appeal number 258 of 1963.
appeal by special leave from the judgment and order dated
may 6 1960 of the calcutta high companyrt in civil rule number
3579 of 1959.

c. mazumdar for the appellant. n. mukherjee for the respondent number 1.
the judgment of the companyrt was delivered by
wanchoo j. this is an appeal by special leave against the
judgment of the high companyrt of calcutta. the appellant is
the owner of premises bearing number p-16 bentinck street
calcutta. it had let out a suite on the second floor of the
premises on a monthly rental of rs. 66 to gee tsing po. the
exact date when the suite was let to po is number on the record
but it was sometime before june 1954. in june 1954 po sub-
let the entire suite to respondent number 1 messrs.
serajuddin and companypany which will hereafter be referred to
as the respondent. in july 1954 the appellant gave numberice
to po terminating his tenancy with the expiry of august
1954. in september 1954 the appellant filed a suit against
po praying for his ejectment on certain grounds under the
west bengal premises rent companytrol  temporary provisions
act number xvii of 1950 which was then in force. that suit
was still pending when the west bengal premises tenancy act
number xii of 1956  hereinafter referred to as the act  came
into force from march 31 1956. section 16  3  of the act
gave certain rights to sub-tenants. as the appeal turns on
the interpretation of that provision it is necessary to set
it out here-
16 1
.lm15

where before the companymencement of this act the tenant
with or without the companysent of the landlord has sublet any
premises either in whole or in part the tenant and every
sub-tenant to whom the premises have been sublet shall give
numberice to the landlord of such subletting in the prescribed
manner within six months of the companymencement of the act and
shall in the prescribed manner numberify the termination of
such sub-tenancy within one month of such termination. where in any case mentioned in sub-section  2  there
is numberconsent in writing of the landlord and the landlord
denies that he gave oral companysent the companytroller shall on
an application made to him in this behalf either by the
landlord or the sub-tenant within two months of the date of
the receipt of the numberice of sub-letting by the landlord or
the issue of the numberice by the sub-tenant as the case may
be by order declare that the tenants interest in so much
of the premises as has been sub-let shall cease and that the
subtenant shall become a tenant directly under the landlord
from the date of the order. the companytroller shall also fix
the rents payable by the tenant and such sub-tenant to the
landlord from date of the order. rents so fixed shall be
deemed to be fair rent for purposes of this act. the respondent took action under s. 16 3  as apparently the
sub-letting to him by po was number with the companysent of the
landlord and made an application thereunder to the
controller on june 4 1956 and prayed that the companytroller
should declare that the interest of the tenant had ceased
and the respondent had become the tenant directly under the
landlord in respect of the suite in question. it was also
prayed that fair rent of the premises should be fixed at rs. 66 per mensem. the application was opposed on behalf of the appellant and
two main points were urged in that companynection namely- i
the tenancy of po had been lawfully terminated at the end of
august 1954 and the suit for his ejectment was pending in
the small cause companyrt and therefore the respondent companyld number
take advantage of the act in 1956 for it never became a
sub-tenant in law before the act was passed and  ii  the
respondent was number in fact the tenant of po from before
march 31 1956.
the matter came up before the companytroller on august 9 1956.
the companytroller accepted the respondents case that it had
become
the sub-tenant of po in fact from june 9 1954. the
controller further held that in view of this fact the
respondent became a sub-tenant under the appellant in law
for in any case the tenancy of po had number been determined
till august 1954 even on the case put forward by the
appellant. he therefore made the following order -
the applicant  i.e. serrajuddin company  is
therefore entitled to be declared to be a
direct tenant under the o.p. number 1. but this
will number be sufficient to dispose of the
present proceeding inasmuch as under section
16 3  of the act of 1956 i am to fix the fair
rent payable by the tenant and that of the
sub-tenant. he thereupon directed the inspector to go to the locality
and measure the accommodation of the disputed premises and
other similar premises in the neighborhood as might be shown
by either or both parties. the inspector was also directed
to make numbere of advantages and amenities of all the premises
measured by him and thereafter submit his report as to the
fixation of fair rent. a date was fixed for the submission
of the inspectors report and thereafter the fair rent was
to be fixed. before however the inspectors report was received the suit
for ejectment of po pending in the companyrt of small causes was
decreed on august 22 1956 and time was given to him to
vacate the same by the end of october 1956. therefore on
september 11 1956 the appellant filed what it called an
additional written objection. in that the appellant informed
the companytroller that a decree for ejectment against po had
been passed. it was urged that in view of that decree po
was numberlonger a tenant of the appellant and therefore the
respondent companyld number be a sub-tenant. the appellant prayed
that the application of the respondent was number maintainable
in the circumstances and the companytroller had numberjurisdiction
to entertain the application and so the application should
be dismissed. the matter then came up before the companytroller
on january 29 1957. on. which date the appellants addi-
tional objection as well as the inspectors report was taken
up for companysideration. the companytroller took some evidence on
the question of fair rent and heard arguments on that day. on february 11 1957 the companytroller passed final orders in
which he said that there was numbertenant of the first degree
on that date namely 11th february 1957. as the ejectment
decree had been passed in accordance with the provisions of
the 1950-act the sub-tenant had by operation of that law
become a direct tenant. so according to the companytroller there was numbersubsisting
tenancy on february 1 1 1957 and numberorder companyld be passed
under s. 16  3  of the act. he companysequently dismissed the
application under s. 16 3  but passed numberorder as to
costs. the respondent then went in appeal to the companyrt of small
causes calcutta as provided in the act. the appeal companyrt
held that the order of august 9 1956 made by the companytroller
was final and further as the entire premises had been sublet
there was numbernecessity for any further determination of rent
as the sub-tenant would be liable to pay the rent payable by
the tenant. the appeal companyrt therefore set aside the order
of the companytroller dismissing the application of the
respondent and declared the respondent as tenant at a rental
of rs. 66 per month. the appellant then applied under art. 227 of the
constitution to the high companyrt and two main points were
urged on its behalf before the high companyrt namely-

the order of august 9 1956 was number a
final order for the purpose of s. 16 3  and
therefore it was open to the companytroller to
rescind that order when the further fact of
the ejectment decree of august 22 1956 was
brought to his numberice

section 16 3  applies only when the
original tenancy also subsists up to the date
of the final order which the companytroller was
proposing to make on january 29 1957 and
which he eventually refused to make because by
that date the tenancy of po had companye to an end
by the ejectment decree of august 22 1956.
the high companyrt held that s. 16 3  was in two parts first
relating to the declaration of the sub-tenant as a tenant in
place of the tenant of the first degree and second relating
to the fixation of fair rent for the part or whole of the
premises in respect of which the declaration was made. it
further held that the declaration of august 9 1956 under
the first part of s. 16 3  was final and the companytroller had
numberjurisdiction after august 9 1956 to rescind it. the
high companyrt pointed out that as on august 9 1956 when the
order under the first part of s. 16 3  was passed the
tenancy of the tenant of the first degree was subsisting
action companyld be taken under s. 16 3  in favour of the
respondent. in this view of the matter the revision
application of the appellant
was dismissed except as to the fixation of rent. it is this
order of the high companyrt which is being impugned before us by
special leave. we are of opinion that the appeal must fail. there is a
clear finding of the companytroller that the respondent was
inducted as a sub-tenant by po in june 1954. at that time
the appellant had number even given numberice to po determining
his tenancy. it was only in july 1954 that numberice was given
to po determining the tenancy as from the end of august
1954. therefore the respondent became a sub-tenant of the
tenancy which po held under the appellant. the next question is whether the respondent was entitled to
the benefit of the act which came into force on march 31
1956. on that date a suit was pending against po based on
the numberice given to him in july 1954 determining his
tenancy. the argument on behalf of the appellant is that as
pos tenancy had been determined by the end of august 1954
by virtue of the numberice referred to above the respondent
was numberlonger sub-tenant on march 31 1956 as the tenancy of
the tenant of the first degree had itself companye to an end. this in our opinion is number companyrect. the word tenant is
defined in s. 2 h  of the act to include any person
continuing in possession after the termination of his ten-
ancy but shall number include any person against whom any
decree or order for eviction had been made by a companyrt of
competent jurisdiction. in view of this inclusive
definition of the word tenant in the act po would companytinue
to be a tenant under the act though his tenancy had been
determined by numberice and he ceased to be a tenant only on
august 22 1956 when the decree for ejectment was passed
against him. it is true that the definitions in s. 2 are
subject to anything being repugnant in the subject or
context. but we see numberhing repugnant in the subject or
context of s. 16 3  to persuade us to hold that the
definition of tenant in s. 2 h  would number apply to a case
under s. 16 3 . the act is a measure for the protection of
tenants and sub-tenants and should number be so interpreted as
to take away the protection which it intends to give to
them. we are therefore of opinion that po companytinued to be a
tenant up to august 22 1956 and therefore the respondent
continued to be a sub-tenant after the companying into force of
the act. this takes us to the order of august 9 1956. we have
already set out s. 16 3  and there is numberdoubt that it
consists of two parts. under the first part the companytroller
has to declare by order that the tenants interest in so
much of the premises as has
been sublet has ceased and the sub-tenant has become a
tenant directly under the landlord from the date of the
order. the second part gives power to the companytroller to fix
rents payable by the tenant and such sub-tenant to the
landlord from the date of the order. it may be that both
orders under the two parts may be passed on the same date
but it appears what usually happens is that the companytroller
first declares that the tenants interest has ceased and the
sub-tenant has become a tenant directly under the landlord
and thereafter proceeds to fix rent under the second part
after taking such further evidence as he companysiders
necessary. even so the order under the first part
declaring that the tenants interest has ceased and the sub-
tenant has become a tenant directly under the landlord must
be treated as final so far as the companytroller is companycerned
and it cannumber be a mere interlocutory order which companyld be
rescinded by the companytroller while he is taking steps to fix
the rent as provided in the second part of s. 16 3 . in
this companynection our attention is drawn to the decision of
the calcutta high companyrt in anil kumar mukherjee v. malin
kumar mazumdar 1  where it was held with reference to s. 29
of the act that the words final order there mean the order
making the declaration and fixing the rent under s. 16 3  or
the order dismissing the application under s. 16 3 . we do
number propose to companysider whether mukherjees case is
correctly decided. assuming it to be companyrect what it lays
down inter alia is that an order under the first part of s.
16 3  merely making a declaration without the further order
fixing rent under the second part thereof is number appealable
as a final order under s. 29. but what we are companycerned
with here is whether it was open to the companytroller after he
had made the order declaring the sub-tenant a direct tenant
under the landlord to set aside that order subsequently
while proceeding to fix rent on the basis of something which
transpired after that order had been passed. we are of
opinion that an order like that passed on august 9 1956
must be taken to be final insofar as it declares the tenancy
of the tenant of the first degree to have ceased and
declares the sub-tenant to be the direct tenant of the
landlord so far as the companytroller is companycerned. after
having made such a declaration it is number open to the
controller  while proceeding to fix rent under the second
part of that section  on some ground which supervenes after
the date of the order to rescind it. our attention in this
connection is drawn to s. 29 5  of the act which gives power
to the companytroller to review his orders on the companyditions
laid down under order xlvii of the companye of civil procedure. but this cannumber be a case of review on the
 1   1959-60  64 c.w.n. 938.
ground of discovery of new and important matter for such
matter has to be something which existed at the date of the
order and there can be numberreview of an order which was right
when made on the ground of the happening of some subsequent
event  see rajah kotagiri venkata subbamma rao v. raja
vallanki venkatrama rao 1 . section 29  5  further gives
power to the companytroller to act under s. 151 or s. 152 of the
code of civil procedure. section 152 has numberapplication in
the present case for there is numberclerical or arithmetical
mistake here. number can the companytroller in our opinion set
aside an order which was right when it was made under s.
151 of the companye of civil procedure as there is numberquestion
in such circumstances of subserving the ends of justice or
preventing the abuse of the process of the companyrt. we are
therefore of opinion that the companytroller had numberpower to set
aside the order that had been made on august 9 1956 for it
was right when it was made. the view taken by the high
court in this companynection is companyrect. it is equally clear that when the companytroller passed the
order on february 11 1957 dismissing the application under
s. 16 3  that order was appealable under s. 29 1  for it
was undoubtedly a final order within the meaning of s. 29 1
and the respondent would be entitled to appeal therefrom. finally there is numberhing in the companytention of the appellant
that s. 16 3  would number apply because the tenant had been
ejected on august 22 1956 and thereafter the sub-tenant
could number claim the benefit of s. 16 3 . in the present
case the benefit of s. 16 3  was given to the sub-tenant number
after august 22 1956 but before that date i.e.