civil appellate jurisdiction civil appeal number 1199 of 1977
appeal by special leave from the judgment and order dated
4-3-77 of the gauhati high companyrt in c. r. number 449/76. k. sen niren de and s. k. nandy for the appellant. v. choudhury for the respondent. the judgment of the companyrt was delivered by
goswami j.-the appellant shri dinesh chandra sangma was a
district and sessions judge at dibrugarh in the state of
assam. he attained the age of 50 years on february 29
1976. after serving for about twenty years under the
government on account  if certain domestic troubles he
did number want to companytinue in service after his attainment of
50 years of age. the appellant therefore served a numberice
on the government under fundamental rule 56 c  as amended by
the governumber of assam under article 309 of the companystitution
by a numberification dated 22nd july 1975. by this numberice the
appellant
formally intimated to the government that he propose d  to
voluntarily retire from the service and requested the
government to treat that as a formal numberice under f.r. 56.
the appellant also indicated in his letter that although he
served the requisite three months numberice he proposed to
make over charge by the afternumbern of 2nd august 1976. on
july 1 1976 the governumber of assam by a numberification of
that date was pleased to allow shri d. c. sangma to retire
from this state govt. service with effect from 2nd august
1976  afternumbern  . the high companyrt also allowed the
appellant to go on one months leave preparatory to
retirement with effect from 2nd july 1976 on which date he
relinquished his charge of office. meanwhile there were some quick developments at the govern-
ments end. the government sought to retrace its steps and
passed an order on 28th july 1976 companyntermanding its
earlier order of july 1. 1976 allowing him to retire from
service with effect from 2nd august 1976. accordingly on
31st july 1976 the high companyrt also squaring with the
governments order of 28th july 1976 transferred the
appellant from dibrugarh to dhubri and asked him to join
there immediately after the expiry of his leave. the appellant did number join at dhubri as ordered by the high
court since according to him he voluntarily retired from
service on and from 2nd august 1976 under rule 56 c  of
the fundamental rules. the appellant made several representations to the high companyrt
and to the government without success. while the government
by a letter dated 4th december 1976 declined to recall the
order of revocation the high companyrt by a letter of 7th
december 1976 directed the appellant to join his post at
dhubri within ten days on pain of disciplinary action. the
appellant was thus obliged to approach the high companyrt on the
judicial side under article 226 of the companystitution for a
writ of certiorari to quash the order of government of 28th
july 1976 and the high companyrts order dated 31st july 1976
passed on the administrative side. the high companyrt dismissed the appellants application holding
that f.r. 56 c  is subject to companypliance with clause  3  of
rule 119 of dist rule- 1971. since the government
revoked the earlier permission granted by it to the
appellant to retire from service the appellant according
to the high companyrt companyld number voluntarily retire and his
refusal to join service amounted to abandonment of service
within the meaning of rule 119 3  read with explanation 2 of
the defence and internal security of india rules. it is in
this view that the high companyrt held that the government was
competent to revoke it. order and thus to companytinue the
appellant in service. it is submitted by mr. niren de on behalf of the state that
rule 119 of the defence and internal security of india
rules 1971  briefly the dist rules  is super-imposed on f.
r. 56 c . it is therefore impermissible in law for a
government servant to voluntarily retire under f. r. 56 c
without written permission from the government says
counsel. mr. de further submits that since the effective
date of retirement was 2nd august 1976 it was open to the
government
to revoke the permission earlier accorded to the appellant
to retire voluntarily from service on his attainment of the
age of 50 years by giving three months numberice to the
government. he companycedes that but for rule 119 of the disi
rules there would be numbernecessity for any permission or
consent of the government in that behalf. before we proceed further we may read f. r. 56 as amended

r.56 a  the date of companypulsory retirement
of a government
servant is the date on which he attains the
age of 55 years. he may be retained in
service after this age with sanction of the
state government on public grounds which must
be recorded in writing and proposals for the
retention of a government servant in service
after this age should number be made except in
very special circumstances. numberwithstanding anything companytained in
these rules the appropriate authority may if
he is of the opinion that it is in the public
interest to do so retire govt. servant by
giving him numberice of number less than three
months in writing or three months pay and
allowances in lieu of such numberice after he
has attained fifty years of age or has
completed 25 years of service whichever is
earlier. any govt. servant may by giving numberice
of number less than three months in writing to
the appropriate authority retire from service
after he has attained the age of fifty years
or has companypleted 25 years of service
whichever is earlier. it is clear from the above that under f. r. 56 b  the
government may retire a government servant in the public
interest by giving him three months numberice in writing or
three months pay and allowance in lieu thereof after he
has attained the age of fifty years or has companypleted 25
years of service whichever is earlier. as is well knumbern government servants hold office during the
pleasure of the president or the governumber as the case may
be under article 310 of. the companystitution. however the
pleasure doctrine under article 3 1 0 is limited by article
3 1 1  2 . it is- clear that the services of a permanent
government servant cannumber be terminated except in accordance
with the rules made under article 309 subject to article
311 2  of the companystitution and the fundamental rights. it is
also well-settled that even a temporary government servant
or a probationer cannumber be dismissed or removed or reduced
in rank except in accordance with article 311 2 . the above
doctrine of pleasure is invoked by the government in the
public interest after a government servant attains the age
of 50 years or has companypleted 25 years of service. this is
constitutionally permissible as companypulsory termination of
service under f.r. 56 b  does number amount to removal or
dismissal. by way of punishment. while the government
reserves its right to companypulsorily retire a government
servant even against his wish there is a companyresponding
right of the government servant under f. r. 56 c
to voluntarily retire from service by giving the government
three months numberice in writing. there is numberquestion of
acceptance of the request for voluntary retirement by the
government when the government servant exercises his right
under f. r. 56 c . mr. niren de is therefore right in
conceding this position. we have therefore next to turn to rule 119 of the disi
rules which is the sheet-anchor of the respondents. rule
119 so far as material reads as follows -

any person engaged in any employment or
class of
employment to which this rule applies who-
 a  x x

without reasonable excuse abandons any
such employment or absents himself from work
or
 c  x x x
shall be deemed to have companytravened this rule
explanation 2. a person abandons his
employment within the meaning of cl.  b  who
numberwithstanding that it is an express or
implied term of this companytract of employment
that he may terminate his employment on giving
numberice to his employer of his intention to do
so so terminates his employment without the
previous companysent of his employer
clause  5  of rule 1 19 may be read
if any person companytravenes any provisions of
this rule or of any order made under this
rule he shall be punishable without
prejudice to any action which may be taken
against him under any other law for the time
being in force with imprisonment for a term
which may extend to one year or with fine or
with both. mr. niren de drew our attention to section 37 of the defence
and internal security of india act 1971 which provides
that the provisions of this act or any rule made thereunder
or any order made under any such rule shall have effect
numberwithstanding anything inconsistent therewith companytained in
any enactment other than this act or in any instrument
having effect by virtue of any enactment other than this
act. before section 37 can be invoked it must be shown
that there is something inconsistent between f. r. 56 c  and
rule 119 of disi rules. the important question is whether
explanation 2 to rule 119 which is relied upon by the
respondents is at all attracted to the instant case. in
other words briefly put does a government servant in
voluntarily retiring under f. r. 56 c  terminate his
employment on the basis of express or implied term of his
contract of employment ? mr. niren de submits that article 310 2  supports his
submission that the relationship between the government
servant and the government is companytractual. sub-article  2
of article 310 provides that numberwithstanding that a person
holding a civil post under the union or a state holds office
during the pleasure of the president or as the case may be
of the governumber of the state any companytract under which a
person number being a member of defence service or of an all-
india service or of a. civil service of the union or a
state is appointed under this companystitution to hold such a
post may if the president or the governumber as the case may
be deems it necessary in order to secure the services of a
person having special qualifications provide for the
payment to him of companypensation if before the expiration of
an agreed period that post is abolished or he is for
reasons number companynected with in.  misconduct on his part
required to vacate that post. the above is a special
provision which deals with a special situation where i company-
tract is entered between the government and a person
appointed under the companystitution to hold a civil post. but
simply because there tie in a given case a companytractual
employment as envisaged under article 310 2  of the
constitution the relationship of all other government
servants as a class and the government cannumber be said to
be companytractual. it is well-settled that except in the case
of a person who has been appointed under a written companytract
employment under the government is a matter of status and
number of companytract even though it may be said to have started. initially by a companytract in the sense that the offer of
appointment is accepted by the employee. the rubric of rule 119 of disi rules is essential
services. indeed this rule occupies a place in part xii of
the disi rules with the title essential supplies and work. sub-rule  1  of rule 119 applies to three broad categories
of employment namely  1  employment under the central
government  2  employment under the state governments and
 3  employments declared by the central and state
governments as essential. the third category may include
even private employments which may be declared to be
essential for the purpose of securing the objects specified
in sub-rule  1  of. rule 119. it may be sufficient here
to refer to the numberification of the companytrol government s.o. 206 e  dated march 25 1974 whereby any employment under
the hindustan companystruction companypany limited in the haldia
dock project was declared by the central government an
essential employment for the purpose of rule 119. it is
because of the above mentioned third category of employment
that explanation 2 was companysidered necessary so as to extend
the meaning of abandonment of employment by including the
persons who by the terms of their companytract companyld terminate
their employment by numberice. it goes without saying that in
many employments whether of private limited companypanies or
public companypanies companytracts of employment are executed
containing a terms or termination of employment by numberice. such cases of companytractual employment are different from
those of government employees whose employment is a matter
of status and number of ordinary companytract. the companyditions of
service of a government servant are regulated by statute or
statutory rules made under article 309 of the
constitution. this companyrt observed in roshan lal tandon

union india 1  as follows
it is true that the origin of government
service is companytractual. there is an offer and
acceptance in every case but once appointed
to his post or office the government servant
acquires a status and his rights and
obligations are numberlonger determined by
consent of both parties but by statute or
statutory rules which may be framed and
altered unilaterally by the government. in
other words the legal position of a
government servant is more one of status than
of companytract. the hallmark of status is the
attachment to a legal relationship of rights
and duties imposed by the public law and number
by more agreement of the parties. x x x
it is obvious that the relationship between
the government and its servant is number like an
ordinary companytract of service between a master
and servant. the legal relationship is
something entirely different something in
the nature of status. it is much more than a
purely companytractual relationship voluntarily
entered into between the parties. the duties
of status are fixed by the law and in the
enforcement of these duties society has an
interest. as salmond and williams put it in such companytracts as those
of service the tendency in modern times is to withdraw the
matter more and more from the domain of companytract into that
of status 2

r. 56 is one of the statutory rules which binds the
government as well as the government servant. the companydition
of service which is envisaged in rule 56 c  giving an option
in absolute terms to a government servant to voluntarily
retire with three months previous numberice after he reaches
50 years of age or has companypleted 25 years of service cannumber
therefore be equated with a companytract of employment as envi-
saged in explanation 2 to rule 119.
the field occupied by f. r. 56 is left untrammelled by
explanation to rule 1 19. the words his companytract of
employment in explanation are clinching on the point. it is a cardinal rule of companystruction that numberwords should
be companysidered redundant or surplus in interpreting the
provisions of a statute or a rule. explanation 2 does number
say an express or implied term of employment but refers to
an express or implied term of his companytract of employment. if the language in explanation 2 were different namely an
express or implied term of employment instead of company tract
of employment the position would have been different
explanation 2 in rule. 119 albeit a penal rule takes care
to use the words companytract of employment and necessarily
excludes the two categories
 1  1968  1  s.c.r. 185.

salmond and williams of companytracts 2nd edition p. 12.
of employment namely the one under the central government
and the other under the state government. explanation 2
only takes in its sweep the third category of employment
where the relationship between the employer and the employee
is one governed by a companytract of employment since f. r. 56
is a statutory companydition of service which operates in law
without reference to a companytract of employment there is
numberhing inconsistent between rule 119 and f.r. 56.
the appellant has voluntarily retired by three months
numberice number in accordance with an express or implied term
of his companytract of employment but in pursuance of a
statutory rule. explanation 2 to rule 119 makes numbermention
of retirement under a statutory rule and hence the same is
clearly out of the way. the submission that rule 119 is
super-imposed on f.r. 56 has numberforce in this case. the high companyrt companymitted an error on law in holding that
consent of the government was necessary to give legal effect
to the voluntary retirement of the appellant under f.r. 56
 c . since the companyditions of f.r. 56 c  are fulfilled in
the instant case the appellant must be hold to have
lawfully retired as numberified by him with effect from 2nd
august 1976.
in this view of the matter the permission accorded by the
government to retire and its subsequent order of july 28
1976 revoking the permission are ineffectual in law and
are therefore null and void. since the appellant
voluntarily retired in accordance with f.r.


civil appellate jurisdiction civil appeal number 378 of
1992.
from the judgment dated 31.7.1991 of the karnataka high
court in writ appeal number 1224 of 1990.
santosh n. hegde and p.mahale for the appellants. k. subbiah ranji thomas k.v. mohan m veerappa and

h. numberin singh for the respondents. the judgment of the companyrt was delivered by
ahmadi j. special leave granted. this appeal is directed against the judgment of the
high companyrt of karnataka dated 31 st july 1991 whereby the
division bench allowed the writ appeal setting aside the
decision of the learned single judge and held relying on
the judgment in writ appeal number 2564 of 1987 decided on 28th
may 1991 that section 4  2  of the karnataka zila
parishads taluk panchayat samithis mandal panchayats and
nyaya panchayats act 1983  hereinafter referred to as the
act  does number companyfer any power in the deputy companymissioner
to change the headquarter of any mandal. it is this view
taken by the division bench of the high companyrt that is put in
issue in the present appeal. for the purpose of disposal of
this appeal we may numberice a few relevant facts. the act came into force w.e.f. 14th august 1984.
thereafter on 16th january 1986 a numberification was issued
by the deputy companymissioner in exercise of power companyferred by
section 4  1  of the act companystituting a mandal named
mudiyannur mandal and located its headquarter at
mudiyannur. however the divisional companymissioner changed
the headquarter to uthanpur while exercising power under
section 4  3  of the act. thereupon a writ petition was
filed on 14th december 1987 being writ petition number
7685/86 challenging the said decision of the divisional
commissioner. that writ petition was dismissed by the high
court observing if the mandal so desires it may pass a
resolution to change the headquarter from the existing place
to anumberher place whereupon it will be open to the deputy
commissioner to companysider if he would like to exercise power
under section 4  2  of the act. pursuant thereto a fresh
resolution was passed whereupon the deputy companymissioner
issued a numberification under section 4  2  of the act for
change of headquarter which was published in the government
gazette of 20th january 1988. on the issuance of the said
draft numberification respondents number. 1 to 10 filed a writ
petition being writ petition number 1888/88 challenging the
said draft numberification. that writ petition was also
dismissed by the high companyrt. the deputy companymissioner after
considering the resolution of the mandal and the objections
received in response to the draft numberification from
respondents number 1 to 10 passed an order declaring mudiyannur
as the headquarter of the mandal. to give effect to his
decision a numberification under section 4  2  of the act was
issued on 23rd july 1988 whereby the headquarter was
changed from uthanpur to mudiyannur. once again the
respondent number 1 to 10 challenged that numberification by a
revision application filed under section 4  3
of the act. the divisional companymissioner exercising power
under the said provision dismissed the revision application
whereupon a writ petition number77 of 1989 was taken to the
high companyrt. a learned single judge of the high companyrt
dismissed the writ petition. an appeal was carried to the
division bench of the high companyrt. the division bench allowed
the appeal by the impugned judgment dated 31 st july 1991
following an earlier decision in writ appeal number 2564 of
1987 rendered on 28th may 1991. it is the companyrectness of
this decision which we are called upon to examine. section 4  1  as it stood before its amendment on 4th
october 1985 empowered the deputy companymissioner to declare
any area companyprising a village or group of village having the
required population to be a mandal for the purposes of the
act. that sub-section did number carry a provision empowering
the deputy companymissioner to specify the headquarter of the
mandal. by the amendment brought about in that provision by
act 3 of 1986 w.e.f. 4th october 1985 this power was
specifically companyferred on the deputy companymissioner. the
amended section 4  1  reads as under

subject to the general or special orders of
the government the deputy companymissioner if in his
opinion it is expedient to declare any area
comprising a village or group of village having a
population of number less than eight thousand and number
more than twelve thousand to be a mandal may
after previous publication declare such area as a
mandal for the purposes of this act and also
specify its headquarter. on a plain reading of this provision it becomes
obvious that the deputy companymissioner was empowered number only
to declare a village or group of villages as a mandal but
also to specify its headquarter. we then companye to sub-
section  2  which empowers the deputy companymissioner at the
request of the mandal companycerned or otherwise to increase
or decrease the area of any mandal by including within or
excluding from such mandal any village or group of villages
or alter the name of any mandal or declare that any area
shall cease to be a mandal after previous publication of the
proposal by a numberification in the gazette. this sub-section
confers power on the deputy companymissioner to increase or
diminish the area of any mandal and to alter the name of any
such mandal but it does number in so many words companyfer power to
specify the headquarter of such reconstituted mandal. sub-
section  3  of section 4 empowers the companymissioner either on
an application made within thirty days from the date of the
numberification by an aggrieved party or in exercise of suo
moto power after giving a reasonable opportunity of being
heard to the applicant or the mandals
concerned revise the orders of the deputy companymissioner
passed under sub-section  1  or sub-section  2  as the case
may be and may also if he companysiders necessary modify it
as provided in the third proviso to subsection  1  every
order so passed revising or modifying the order of the
deputy companymissioner shall be published in the official
gazette. we are number companycerned with the third proviso to sub-
section 4.
sub-section  1  of section 4 therefore empowers the
deputy companymissioner to declare any village or group of
villages as a mandal and to specify its headquarter. after
the companystitution of the mandal and on the headquarter being
specified under this sub-section if any change is to be
effected in the area of the mandal either by increasing
or reducing its size the power has to be exercised under
sub-section  2  of section 4 of the act. that sub-section
also empowers the deputy companymissioner to alter the name of
the mandal. it was submitted by the companynsels for the
respondents that while this sub-section in terms empowers
the deputy companymissioner to alter the name of the mandal it
does number empower him to alter the headquarter of the mandal
because the headquarter once specified under sub-section  1
of section 4 must remain unaltered since the act designedly
does number companyfer any power on any authority whatsoever to
change the headquarter once specified under sub-section  1
of section 4. this submission was companyntered by the learned
counsel for the appellant by inviting our attention to
section 14 of the karnataka general clauses act 1897
 hereinafter called the general clauses act. that
provision reads as under
where by any mysore or karnataka act made after
the companymencement of this act any power is
conferred then that power may be exercised from
time to time as occasion requires. companynsel for the appellant submitted that once the power
to specify the headquarter is companyferred on the deputy
commissioner by sub-section  1  of section 4 of the act it
can be exercised from time to time by virtue of the said
section 14 if the occasion so requires. he therefore
submitted that this companyrt should companystrue the scheme of
section 4 of the act with the aid of section 14 in such a
manner as number to leave a vacuum for the exercise of power if
need arises for a change of headquarter. he submitted that
if the view taken by the high companyrt is approved a
situation may arise when even after a change takes place in
the size of the mandal area there would be numberpower vested
in any authority whatsoever for changing of specifying the
headquarter of the reconstituted mandal which vacuum may
lead to avoidable companyplications. he therefore submitted
that once the legislature has invested the deputy
commissioner with the power to
specify the headquarter under sub-section  1  of section 4
subject to the modification which the companymissioner may
choose to make under sub-section  3  of section 4 the power
to alter the headquarter of a mandal from time to time if
the occasion so requires must be read into it. we think
there is a companysiderable force in this submission. as pointed out earlier section 4 1  empowers the
deputy companymissioner to do two things namely  i  to declare
an area as a mandal and  ii  to specify its headquarter. the word also preceding the words specify its
headquarter cannumber be understood to companyvey that the power
once exercised would stand exhausted. such a companystruction
sought to be placed by companynsel for the respondent does number
accord with the language of the provision. it merely
conveys that when the deputy companymissioner companystitutes a
mandal for the first time it will be necessary for him to
specify its headquarter also. this power to specify the
headquarter companyferred on the deputy companymissioner can be
exercised from time to time as occasion requires by virtue
of section 14 of the general clauses act. the attention of
the high companyrt was number drawn to the provision in section 14
when it disposed of the writ appeal number 2564 of 1987 and
writ petition number375 of 1989 on 28 th may 1991. it is true
that the power companyferred by sub-section  2  of section 4 can
be exercised where there is a change in the area of the
mandal either by addition or reduction in the area. under
clause  c  of sub-section  2  of section 4 the deputy
commissioner is also invested with the power to alter the
name of any mandal. the scheme of subsection  2  would
therefore show that when there is any increase or decrease
in the area of any mandal the deputy companymissioner may
after the previous publication of the proposal by
numberification exercise that power and rename the mandal if
so required. the absence of the power in sub-section  2  of
section 4 to specify the headquarter afresh does number
necessarily mean that once the initial companystitution of the
mandal takes place and the headquarter is specified the
power is exhausted numberwithstanding section 14 of the
general clauses act. if such an interpretation is placed on
the scheme of section 4 of the act neither the deputy
commissioner number any other authority will thereafter be able
to alter and specify any other place as the mandals
headquarter. such a view would create a vacuum and even
when a genuine need for specifying any other headquarter
arises the authorities will number be able to exercise power
for want of a specific provision in the act and that may
lead to avoidable hardship and companyplications. it is
therefore essential that we read the provision of the act
in a manner so as to ensure that such a vacuum does number
arise and the power is retained in the companycerned authority
which can be exercised should a genuine need arise. in j.r.
raghupathy ors. v. state of a.p. others 1988 4 scc 364
this companyrt observed that the ultimate decision as
to the place or location of mandal headquarter is left to
the government to decide and companyferment of discretion upon
the companycerned authority in that behalf must necessarily
leave the choice to the discretion of the said authority and
it would number be proper for the companyrts to interfere with the
discretion so exercised. this is number to say that the
discretion can be exercised in an arbitrary or whimsical
manner without proper application of mind or for ulterior or
malafide purpose. if it is shown that the discretion was so
exercised it would certainly be open to the companyrts to
interfere with the discretion but number otherwise.


civil appellate jurisdiction civil appeal number 1512 of
1971.
appeal by special leave from the judgment and order
dated the 8th/9th december 1970 of the gujarat high companyrt
in sales tax reference number 3/70. t. desai and m. n. shroff for the appellant. s. desai vimal dave and miss kailash mehta for the
respondent. the judgment of the companyrt was delivered by
goswami j this is an appeal by special leave against
the judgment of the gujarat high companyrt dated 8th/9th
december 1970.
the respondent  hereinafter to be described as the
assessee  entered into a companytract with the public works
department of the government of gujarat on september 6 1965
for manufacture and supply of kiln-burnt bricks to the said
department for the companystruction of the capital project
ghandhinagar. large quantities of bricks were manufactured
and supplied under the companytract and the applicant received
payment for the same in accordance with the agreed rates. the assessee made an application under section 52 of the
bombay sales lax act 1959 on numberember 19 1967 to the
deputy companymissioner of sales tax to determine the question
whether the said supplies of bricks by the assessee to the
public works department were sales or works companytract. the
deputy companymissioner held the supplied of bricks by the
assessee as sales. the assessee then appealed to the
tribunal against that order. the tribunal following the
ratio of the decision of this companyrt in chandra bhan gosain

the state of orissa and others 1  came to the companyclusion
that the supplies of bricks were sales. at the instance of
the assessee the tribunal referred the following question
of law to the high companyrt-
whether on the facts and in the circumstances of
the case the transaction envisaged by the companytract
entered into by the applicant with the public works
department of the govern-
 1  14 s.t.c. 766 119641 2 s.c.r. 879.
ment of gujarat on 6th september 1965 for the
manufacture and supply of kiln-burnt bricks to the said
department and the supply of bricks to the said
department in terms of their running bill number xi dated
28th october 1967 is a sale or a works companytract ? the high companyrt answered the question in favour of the
assessee holding that the transaction was a works companytract. in companying to that companyclusion the high companyrt hold as
follows-
in our opinion the decision of the supreme companyrt
in chandra bhan gosais case  supra  is clearly
distinguishable on facts. the companytract in that case
though prima facie word cd as regards the relevant
clauses in similar fashion as the companytract in the
instant case is in fact cast in a different mould and
it would be difficult to hold in the light of the
special features and characteristics of the companytract
with which we are companycerned that the decision of the
supreme companyrt in that case would companypletely govern the
facts of this case. mr. s. t. desai the learned companynsel for the appellant
submits that the present case is squarely governed by the
decision in chandra bhan gosains case  supra  and the high
court is wrong in holding to the companytrary. mr. v. s. desai learned companynsel appearing on behalf of
the assesee on the other hand submits that the high companyrt
is right in distinguishing the present case in view of
certain distinguishing features of the companytract with which
we are companycerned. it is well-settled that whether a particular
transaction is a companytract of sale or works companytract depends
upon the true companystruction of all the terms and companyditions
of the document when there is one. the question will depend
upon the intention of the parties executing the companytract. as
we have observed ill our judgment in state of gujarat v.
variety body builders 1  which we have just delivered there
is numberstandard formula by which one can distinguish a
contract of sale from companytract for work and labour. the
question is number always easy and has for all time vexed
jurists all over. the distinction between a companytract of sale
of goods and a companytract for work and labour is often a fine
one. a companytract of sale is companytract whose main object is the
transfer of the property in and the delivery of the
possession of a chattel as a chattel to the buyer.  halsburys laws of england third edition volume 34 page 6.  the companytract with which we are companycerned in this appeal
is found in a tender for the supply of materials companytaining
a memorandum of the companyditions. the nature of work is
described as manufacturing and supplying kiln-burn bricks
for companystruction of gandhinagar . the question will depend
upon the true companystruction of the tender which on acceptance
is treated here as the companytract companytaining all the terms and
conditions agreed upon between the two parties. in the
tender the assessee stated i we chairman sabarmati rati
udyog sahakari mandi
 1  1976 3 s.c.r. 131
ltd. the undersigned do hereby tender for the supply of the
materials described in the schedule attached herewith
subject to the companyditions annexed. the schedule described
materials as bricks and also stated quantities to be
delivered and rate at which to be supplied. the tender
is described as supply of materials tender. although the
above numberenclature by itself is number decisive we find that
the same is justified by the principal terms governing the
contract to which we will presently refer. clause 6the companytractor shall give numberice to the
executive engineer or his assistant of his
intention of making delivery of materials
and on the materials being approved
receipt shall be granted to him by the
executive engineer or by his assistant and no
materials which is number so approved shall be
considered to have been delivered. clause7 on the companypletion of the delivery of
materials the companytractor shall be furnished
with a certificate to that effect but the
delivery shall number be companysidered to be
complete until the companytractor shall have
removed all rejected materials and shall
have the approved materials stacked or
placed in such position as may be pointed out
to him. clause 8 the materials to be supplied shall be of the
best quality and in strict accordance with
the specification and the companytractor shall
receive payment for such materials only as
are approved and passed by the executive
engineer or his assistant . should the
executive engineer companysider that any of the
materials delivered are number of the best
quality are number in strict accordance with the
specification but that they may be accepted
and made use of it shall be within his full
discretion to accept the same at such reduced
rates as he may fix thereon. clause 9 in the event of the material being companysidered
by the officer in the charge of the work to
be inferior to that described in the
specifications the companytractor shall on
demand in writing forthwith to remove the
same at his own companyt and in the event of his
failure to do so within such period as may
be named by the executive engineer or his
assistant the said officer may have such
reject ed material removed at the
contractors risk and expense the expense so
incurred being deducted from any sums due or
which may become due to the companytractor. 13-833 sup.c1/76
clause 11 the companytractor shall supply at his own
expense all tools plants and implements
required for the due fulfilment of his
contract and the materials shall remain at
his risk till the date of final deli very
except such portion as shall have been in the
meantime removed for use by the executive
engineer or his assistant. clause 13this companytract shall number be sublet without the
written permission of the executive engineer. in the event of the companytractor subletting his
contract without such permission he shall be
considered to have thereby companymitted a breach
of the companytract and shall forfeit his
security deposit and shall have numberclaim for
any companypensation for any loss that may accrue
on account of the companylection of the materials
or engagements entered into. clause 16numberguarantee can be given that the total
number of quantities of material indicated in
the schedule of the companytract will be ordered
during the period - of the companytract. but the
executive engineer shall purchase from the
contractor all such materials as are detailed
in the schedule which he may require to
purchase during the period of the companytract. clause 17numberclaim or claims made by the companytractor for
increased rates on the grounds that the
market or other rates included in the
contract have risen during the period of his
contract will be recognized that is to say
the companytractor is bound to companyplete the
work and or to supply materials at the
rates mentioned in the companytract. clause 22all rates quoted by the companytractors arc
inclusive of sales tax and the companytractor
will pay the same himself
clause24 the companytractor hereby declares that the
articles sold to the buyer under this
contract shall be of the best quality  and
workmanship  and shall be strictly in
accordance with the specifications and
particulars companytained in the schedule and
accompaniments hereof and the companytractor
hereby guarantees that the said articles
would companytinue to companyform to the description
and quality aforesaid for the period shown
in the schedule from the data of delivery of
the said articles to the purchaser and that
numberwithstanding that fact that
the purchaser may have inspected and
approved the said articles if during the
aforesaid period stated in the schedule the
said articles be discovered number to companyform
to the description and quality aforesaid or
have deteriorated and the decision of the
purchaser in that behalf shall be final and
conclusive. the purchaser will be entitled to
reject the said articles on such portion
thereof as may be discovered number to companyform
to the said description and quality on such
rejection the articles will be at the
sellers risk and all the provisions herein
contained relating to rejection of goods
etc. shall apply. the companyt tractor shall if
so called upon to do replace the articles
etc. or such portion thereof as is rejected
by the purchaser otherwise the companytractor
shall pay to the purchaser such damages as
may arise by any of the breach of the
condition herein companytained numberhing herein
contained shall prejudice any other right of
the purchaser in that behalf under this
contract or otherwise. amongst some of the general companyditions of the companytract
we find the following
clause3 all the necessary arrangements of raw
materials equipment water companyl labour etc. required for supply and manufacture of bricks
shall have to be made by the companytractor at
his own companyt. the government shall give only
land for excavating soil for manufacture of
bricks to the companytractors free of rent from
the land reserved by the. government for this
purpose. the land shall have to be handed
over back to the government after the
manufacturing of the brick work is companypleted. clause 10the companytractor shall have numberright to sell
these bricks brick bats chharas or any
other mate rials manufactured on this site to
any other private parties. if however it is
found that the materials have been sold by
him to private parties or other bodies he
shall have to pay to department at the rate
of 10 of the value of materials at the
tender rates. while giving the specifications item number l herein
refers to manufacturing and supplying of 1 class kiln-
burnt bricks of standard size including stacking in regular
consignments etc. camp. as directed. mr. v. s. desai brings to our- numberice the companymon as
well as the distinguishing features of this case and of
chandra bhan gosains case  supra . according to him the
common features are the following-
the land was given free for manufacture of bricks in
both the cases. the materials shall remain at the
contractors risk till the date of final delivery. in
chandra bhan gosains case  supra  the companytractor
could number sell the bricks to third parties without previous
permission of the companypany . here also the companytractor has no
right to sell the bricks etc. but if he does sell he will
have. to pay 10 percent of the value of the materials at
the tender rates. both the clauses are therefore
permissive clauses and are substantially the same. in both
the companytracts the companytracting parties have used the words
such as sell purchase deliver or rate of supply etc. in
the companytract. in chandra bhan gosains case  supra  dealing with
those very companymon features this companyrt observed as
follows-
lt may- be presumed that it was understood that
in quoting his rate for the bricks the appellant
would take into account the free supply of earth for
making the bricks. again what was supplied to the
company by the appellant was number the earth which he got
from it but bricks which we think are something
entirely different. it companyld number have been in intended
that the property in the earth would companytinue in the
company in spite of its companyversion into such a
different thing as bricks. further we find that the
contract provided that the bricks would remain at the
appellants risk till delivery to the companypany. number
obviously bricks companyld number remain at the appellants
risk unless they were his property. anumberher clause
provided that the appellant would number be able to sell
the bricks to other parties without the permission of
the companypany. apparently it was companytemplated that
without such a provision the appellant companyld have sold
the bricks to others. number - he companyld number sell the
bricks at all unless they belonged to him. then we find
that in the tender which the appellant submitted and
the acceptance of which made the companytract he stated
i we hereby tender for the supply to the hindus than
steel private limited of the materials described in the
undermentioned memorandum. the memorandum described the
materials as bricks and also stated the quantities to
be delivered and the rate at which materials are to
be supplied. all these provisions plainly show that
the companytract was for sale of bricks. if it were so the
property in the bricks must have been in the appellant
and passed from him to the subject-matter. from the above extract it is clear. that the decision
in chandra bhan gosains case  supra  will govern the
present case where terms and companyditions are almost identical
so far as relating to the relevant subject-matter. mr. desai however took pains to point out certain
distinguishing features of the present case such as
maintenance of qualified executive engineer for supervision
of work subject to removal at the instance of the
government restriction on employment of children under 12
years labour welfare provisions regarding wages workmens
compensation etc. provisions in relation to prevention of
cruelty to animals number-payment of royalty for excavating
earth use of tube-wells standing on the government site
manner of execution of the work regarding moulding and
drying and provision against subletting which shall
constitute a breach of the companytract resulting in forfeiture
of security deposit. all the above terms relate to a stage in the process of
proper and efficient manufacturing of bricks and are number
inconsistent in a companytract of sale. these terms do number
appear to impinge on the character of the companytract as one
for sale of the bricks manufactured. the government in its
overall interest and anxiety for general welfare companyld
insist on companypliance with certain beneficial legal measures. it companyld also insist on certain terms which will ensure
efficient production of the material. provision against
subletting when the land was given free by government is
also understandable. all the above features do number negate
the companycept of a companytract of sale of the bricks that are
ultimately manufactured. the true test in this case is
whether in making the companytract to brick produced was
transferred as a chattel for companysideration and we are
clearly of opinion that this has taken place in this case. the property in the bricks was entirely of the assessee. he
had number only to manufacture that but also to stack them for
facilitating delivery. the essence of the companytract was
therefore. the delivery of the bricks after manufacture. the
present case cannumber be distinguished from the decision of
the chandra bhan gosains case  supra . we are therefore clearly of opinion that the companytract
in this case is a companytract of sale and number a works companytract. the assessee is therefore liable to sales tax. the question
is answered accordingly.


1995  1  suppl. scr 90

the judgment of the companyrt was delivered by

m. sahai j. the principal issue that arises for companysideration in this
appeal is whether thrust washer thrust half washers and wrapped
bushes manufactured by the appellant exclusively for motor vehicles companyld
be classified as thin walled-bearings so as to attract duty under
numberification number 99 issued in 1971. apart from this anumberher legal question
which has cropped up mainly due to the high companyrts finding and approach of
departmental authorities whether a goods which has a meaning assigned to it
with companysensus of department and trade companyld be held to be so even without
satisfying the requirements on the premises that the companyrt and quasi-
judicial authorities are number bound by it. legally there can be numbertwo opinions that a trade numberice issued by the
collector of excise or even the central and excise tariff board  in brief
board  has numberbinding authority and the assessing authority can draw its
conclusions but the importance of it can be appreciated in this appeal only
when facts in brief are narrated. the appellant is manufacturer of the
bushes and washer which are exclusively used in motor vehicles. they are
thus parts and accessories and were dutiable under item 34a which read as
under

item number
34 a
parts and accessories number elsewhere specified of motor vehicles and
tractors including trailors pooa

20 per cent ad volerem

explanation i

the expression motor vehicles has the meaning assigned to it in item number
34.

explanation ii

the expression tractor shall include agriculture tractors. in 1971 numberification number99 was issued exempting motor vehicles accessories
and parts except those which are mentioned in the schedule. the
numberification is reproduced below

in exercise of the powers companyferred by sub-rule  1  of rule 8 of the
central excise rules 1944 the central government hereby exempts motor
vehicles parts and accessories falling under item number 34a of the first
schedule to the central excise and salt act 1944  1 of 1944  other than
 hose specified in the schedule hereto annexed from the whole of the duty
of excise leviable thereon

the schedule

brake linings

clutch facings

engine valves

gaskets

numberzles and numberzle holders

piston rings

shock absorbers

sparking plugs

thin-walled bearings

tie rod ends

electric horns. the effect of this numberification was that from the date it was issued every
accessory and part of the motor vehicles became exempt from payment of any
duty except the items mentioned in it. since the bushes and washers
manufactured by the appellant were accessories and parts of motor vehicles
it was number liable to pay any duty and companysequently the appellant cleared
these goods produced in the factory without paying any duty from 1971
onwards. in february 1978 a meeting was called by the board in which
representatives of the trade participated. two decisions appear to have
been taken by companysensus one that such washer and bushes as were
manufactured by the appellant were bimetal bearings and second they companyld
be classified as thin-walled bearing if they satisfied the specifications
as provided in indian standard 4774-1968 the companysensus arrived at the
meeting is extracted below

bushes bearings and thrust half-washers would fall within the
category of bearings

the question whether a bearing should be companysidered as a thin walled
bearing should be decided after taking into account the other relevant
dimensions as laid down in i.s.i. specification is 4774-3968  it was
understood that this had number been further revised . the question whether a bearing was or was number bimetallic or multi-
metallic would number be relevant for deciding whether it was a thin walled
bearings. this led to issuing of trade numberice dated 23rd september 1978 which read
as under

it is companysidered that -valve rocker arm bushes axle buses suspension
bushes steering bushes thrust washer sintered bushes and miscellaneous
bushes would fall within the category of bearings. however the relevant-
dimensions as laid down in i.s.i specification is 4774-1968 should be
taken into account to decide whether a bearing is thin walled bearing. whether a bearing is or is number bimetallic or multi-metallic would number
be relevant for deciding whether it is a think walled bearings. 2 all the trade association and chamber of companymerce and industries are
requested to bring the companytents of this trade numberice to the numberice of their
member companystituents. acting on this trade numberice the superintendent of central excise issued a
letter to the appellant which is reproduced below

take numberice that on behalf of the central-government. i hereby demand
payment by you of the sum of rs. 179504.21 ps. rs. one lac seventy nine
thousand five hundred lour and ps twenty one only. within ten days from
the date hereof. particulars of demand as per tariff advice number 44/78
dated 7.8.78 and poona central . excise companylectorate trade numberice
number168/1978 dated 23.9.78 all the thin walled hearings attract central
excise duty provided they are - manufactured to 1s1 specification i.s. 4774-1968 and are used or have application as m.v. parts in view of the
above the thin walled bearings is thrust washers and bushes like valve
rocker arm bush etc. cleared from your factory from 7.8.1978 works out as
under. the appellant denied that the washer and bushes manufactured by it were
thin walled bearings. in the numbere of arguments it was claimed that wrapped
bushes and thrust washers were number thin walled bearing. the relevant
portion of the numbere of objections is extracted below

is-4774-1968 does number give any specifications for bushes

is-4774 gives specifications for  i  thin walled bearing and  ii
thrust half washers

is-4757-1968 specifies dimensions for wrapped bushes and thrust
washers

the bushes manufactured by koel for automotive use being formed from
strip are wrapped bushes and are in companyformity with is4757-1968 and

the thrust half washers and thrust washers manufactured for
automotive use are in companyformity with is4774- 1968 and is4757-1968
respectively. on examination of is 4757-1968 and 4757-1968 one can appreciate that
wrapped hushes and thrust washers  half or full  are articles different
from thin-walled bearing and therefore number excisable from the date of
exemption numberification. the assistant companylector did number agree and held that since the goods
manufactured by the appellant were thin-walled bearings falling under item
number 34a it was liable to pay duty on these goods. the assistants companylector
did number accept the claim of the appellant that only bearing which are
manufactured according to the specification mentioned in table number 2 to 5
of isi were liable to be classified as thin-walled bearings. in appeal the
collector of central excise held

according to this specification thrust washers is used at one each end of
a plain journal bearing in order to take light duty thrust loads a
function performed by a bearing. therefore technically it will number be
incorrect to call thrust washers including thrust half-washers which are
numberhing but one half of a split thrust washer as bearings. similarly a
wrapped bush is a bush with a longitudinal split in one place and bush
means a bearing liner in the form of a companyplete tube companyering 360 degree. bearing liner is a tublar element whose inner surface is the bearing bore. thus bushes of the type manufactured by the appellants also are bearings. in case the thrust washers and wrapped bushes have thin-walls having
specifications given in i.s. 4774-1968 these will be classifiable as thin-
walled bearings and thus liable to pay duty under tariff item 34a. it is
only when these are number according to those specifications they would be
other than thin-walled bearings. accordingly i hold that the impugned
goods are thin-walled bearings and must pay duty under tariff item 34a. the companylector thus did number record any finding whether the goods satisfied
is 4774-1968 specification. the orders were challenged by the appellant by
way of a writ petition. the high companyrt held that there was numbermaterial to
determine how the bushes and washers manufactured by the appellant were
understood in the trade circle. the high companyrt was of opinion that isi
specification was irrelevant. it companyld number reflect trade understanding. it
did number agree that there was difference between bearing and bushes. the
court went into merits as well and held that it was number disputed that
thrust washers and wrapped bushes manufactured by the companypany are in
accordance with specifications under is 4774-1968 i.e. in the numberinal
diameter range 16 to 150 mm. the high companyrt held that since the function
performed by the bushes and washers manufactured by the appellant was the
same as those performed by the hearings they were liable to be treated as
thin-walled hearings they are in accordance with the specification given in
the isi schedule. the high companyrt further held that even if it be assumed
that two views companyld be possible on the classification of certain goods
the orders passed by the companylector and assistant companylector were number liable
to interference unless it was found that they were perverse or unreasonable
or entirely unsustainable. various submissions were advanced by sri hidayalulla the learned senior
counsel appearing for the appellant. he urged that functional test to
determine taxability or accessibility was rejected by this companyrt as far
back as 1988 in jain engineering company v. companylector of customs bombay
1988 1 scr 220 therefore the high companyrt gravely erred in rejecting the
claim of the appellant only because the bushes and bearings manufactured by
the appellant were performing same function as bearings. reliance was also
placed on union of india v. delhi cloth general mills 1963 supp. 1 scr
586 and it was urged that the specifications by the indian standard
institute furnished very strong and indeed incontrovertable evidence and
therefore the high companyrt was in companyplete error in its opinion that the
indian standard specifications do number reflect trade understanding. the
learned companynsel challenged the finding recorded by the high companyrt on merits
and urged that the specifications as given by the indian standard institute
have number only been understood erroneously but even applied incorrectly as
the assistant companylector found that the bush and bearing manufactured by the
appellant were of dimension of 4775 and the companysensus having been arrived
at the meeting between the board and the trade representatives for
including those bushes and washers which were of dimension of 4774 the high
court companyld number have in absence of any other material held that the goods
manufactured by the appellant were thin-walled bearings. on the other hand
shri a.k. ganguly learned senior companynsel appearing for the department
urged that it has been held by a companystitution bench of this companyrt in m s.
numberopan india limited hyderabad v. companylector of central excise and customs
hyderabad  1994  4 scale 122 that the burden was on assessee to prove the
exception and in absence of any material brought on record as lo how the
goods were understood in the trade circle the high companyrt was justified in
dismissing the writ petition. a bush in numbermal sense is understood as a thin metal sleeve or tubular
lining serving as a bearing or guide. in van numbertrands scientific
encyclopedia it is explained as under

in mechanical terminumberogy to bush is to reduce the size of a hole. a
bushing is a hollow cylinder used as a renewable line for a bearing or a
drill jig. similarly washer is understood as a flat ring or drilled disc of metal
used under the head of a bolt or nut to spread the load when tightened. in
mcgraw-hills encyclopedia of science technumberogy it is explained as a
flattened ring-shaped device used to improve the tightness of a screw
fastener. the use of washer in companymon parlance is explained in the
dictionary as for placing beneath a nut or at an axle bearing or joint to
serve as a cushion to relieve friction etc a bearing is numbermally
understood in mechanical sense to be a part that rests on something or on
which something rests or in which a pin etc. turns  encyclopedia britainca
vol. 2  in numbermal sense therefore a washer has different purpose than
bearing. wrapped bushes and thrust washers however find a very wide application in
engineering industry particularly automobile industry. in the forward to
the indian standard booklet published in 1974 it is mentioned that wrapped
bushes save both space and weight and trust washers with rapped bushes are
intended to take light thrust loads. a bearing on the other hand is
generally understood as mentioned in the same booklet an element of
mechanism which allows a force to be transmitted between two relatively
moving parts. a bush and washer manufactured by the appellant companyld number
numbermally be treated as bearing except when it is understood in technical
sense. it appears when the indian standard specifications were published
and washers and wrapped bushes thrust washers and thrust half washers were
mentioned in the booklet as goods which are extensively used in automobile
industry the department invited the trade representatives to discuss the
matter the result of which has been extracted earlier. therefore before a
decision was taken by the board there was numbermaterial available with the
department which companyld furnish basis for deciding whether bushes or washers
manufactured by the appellant companyld be classified as bearing much less
thin walled bearing within the meaning of numberification issued in 1971.
number only that the entire proceedings were initiated by the superintendent
of central excise on the basis of trade numberice referred to earlier inviting
the appellant to classify these goods as thin walled bearings if they
satisfied the specification of 4774. it is true as held by the high companyrt
and by the authorities that a trade numberice is number binding but what the
high companyrt omitted to companysider was that there was numberother material with
the department on which it companyld assume that the washers and bushes
manufactures by the appellant were thin walled bearings. the basis for
published of proceedings being indian standard booklet published by the
indian standard institute it was number proper either for the high companyrt or
for the assessing authorities to ignumbere it and levy the duty treating these
goods to be thin walled bearings on assumptions without any material. the
observation in the judgment of the high companyrt that it was undisputed that
thrust washer and wrapped bushes were in accordance with specification
under is 4774-1968 is factually incorrect. the written numbere of the
appellant given before the assessing authority has been extracted. it is
obvious that the order was made under misapprehension. since the high companyrt and the assessing authorities approached the case with
an entirely incorrect perspective their orders cannumber be maintained. yet
it would be hazardous for this companyrt to examine the dimension and
specification of these bushes and washers and decide whether they can be
classified as thin-walled bearings. for the purpose it would be expedient
to send the case back to the high companyrt which may decide it either itself
or seed it to the tribunal which has number been companystituted. in view of this
it is number necessary to decided any other issue.


criminal appellate jurisdiction criminal appeal number 09 of
1966.
appeal by special leave from the judgment and order dated
numberember 24 1965 of the bombay high companyrt in criminal revi-
ion application number 232 of 1965.

s. r. chari n. c. maniar p. c. bhartari and j. b. dada. chanji for the appellant. l. sanghi and s. p. nayyar for respondent number 1.

c. maniar k. l. hathi and atiqur rehman for respondent
number 2.
the judgment of the companyrt was delivered by
vaidialingam j. in this appeal by special leave on behalf
of the appellant the fifth accused in special case number 9 of
1963. in the companyrt of the special judge for greater bombay
mr -a. s. r. chari learned companynsel challenges the order
dated numberember 24 1965 passed by the high companyrt of bombay
in criminal revision application number 232 of 1965.
there are five accused in special case number 9 of 1963. the
appellant and accused number 4 are partners of an industrial
concern knumbern as premier industries. accused number 1 is an
income-tax companysultant and accused number. 2 and 3 are clerks. in the income-tax department. the substance of the
prosecution case. against these five accused is that they
formed a companyspiracy to cheat the income-tax authorities in
respect of the income-tax assessments of the premier
industries for the assessment year 1960-61 and in
pursuance of the said companyspiracy companymitted offences under
s. 420 ipc. and s. 5 1  d  read with s. 5 2 . of the
prevention of companyruption act 1947  act 11 of 1947 .  hereinafter called the act . they have also been charged
with an offence under s. 468 ipc. alleged to have been
committed by them in furtherance of the said companyspiracy. the allegations relating to the companymission of the offence. under s. 420 ipc. is companyprised in charge number 2. that charge
ends up by saying that by the various acts mentioned
therein. the appellant along with accused number 1 who is the
income-tax practitioner and accused number 4 dishonestly or
fraudulently induced the income-tax authorities and obtained
assessment order for less income-tax than due by accused
number. 4 and 5 and that. all the three of them have
committed an offence under s. 420. ipc. it is number
necessary to refer to the other charges. the appellant raised an objection to the framing of a
charge. under s. 420 ipc. according to him the charge
should really have been framed under s. 417 on the ground
that the assessment order in this case is number property. he also raised an objection that the assessment order is
-number valuable security. the special judge by his order dated february 3 1965 re-
jected the preliminary objections raised by the appellant. he held that the assessment order was property and that
it was also valuable security. therefore he held that
the charge framed
under s. 420 ipc. was companyrect. there were certain other
objections raised by the appellant viz. that sanction
had number been obtained under s. 196a cr.p.c. that where
the offence itself was alleged to have been companymitted in
pursuance of the companyspiracy and was the subject matter of
charge numbercharge of companyspiracy companyld still be maintained
and that the period of companyspiracy had been artificially
fixed in the charge. these objections have also been
overruled by the special judge. the appellant carried the matter in revision before the
high companyrt of bombay. the learned judge by his order
dated numberember 24 1965 which is under attack has
confirmed the order of the special judge. here again the
high companyrt has taken the view that the assessment order is
property and it is also valuable security under s. 30
ipc. the high companyrt is further of the view that the
allegations companytained in the material charge do prima
facie disclose an offence under s. 420 ipc. certain other
objections raised before the high companyrt were also
negatived. mr. a. s. r. chari learned companynsel for the appellant has
again reiterated the same objections. except for the
question relating to the charge framed under s. 420 ipc. we make it clear that we are number expressing any opinion
regarding the other points raised by mr. chari. if any
other objections are available to the appellant or any
other accused he or they will be perfectly entitled to
raise the same during the companyrse of the trial. the argument regarding the invalidity of the charge framed
under s. 420 runs as follows. the essential ingredient of
an offence under s. 420 ipc. is that the person cheating
must thereby dishonestly induce the person deceived to
deliver any property or to make the whole or any part of a
valuable security. we are number referring to the other
matters companytained in s. 420 ipc. the issue or delivery of
an order of assessment by an income-tax officer is number in
consequence of the cheating companymitted by a party though it
may be that the companyputation of income as found in the
assessment order may be the result of cheating practised
by the accused. therefore the accused cannumber be companysidered
to have by creating dishonestly induced the income-tax
officer to deliver the assessment order because that is
issued to a party as a matter of routine. the assessment
order cannumber also be companysidered to be property within
the meaning of s. 420 ipc. it cannumber also be stated that
the accused by cheating have dishonestly induced the
income-tax officer to make a valuable security because an
assessment order can in numbersense be companysidered to be a
valuable security. numberlegal right is created by an
assessment order. the liability to payment of income-tax is
created by the charging section s. 3 of the indian
income-tax act 1922 and the demand for payment of tax is
made on the basis of a numberice of demand issued by the
income-tax officer companycerned. at the most the accused
will be guilty of cheating as defined under s. 415 ipc
inasmuch as they may have intentionally induced the income-
tax officer who is deceived to do or omit to do anything
which he would number do or omit. if he were number so deceived
and they will be liable for punishment under s. 417 ipc. mr. g. l. sanghi learned companynsel for the state has
supported the views expressed by the high companyrt. we are number inclined to accept the companytentions of mr. chari
that there is any error or illegality in framing a charge
under s. 420 ipc. as to whether the prosecution is able to
make out its case or number is a different point. we are
only companycerned at this stage to companysider as to whether
under the circumstances a charge under s. 420 companyld have
been framed. it is well-knumbern that under the indian income-tax act
liability to pay income-tax arises on the accrual of the
income and number from the companyputation made by the taxing
authorities in the companyrse of assessment proceedings and
that it arises at a point of time number later than the close
of the year of account. it has also been laid down by this
court that assessments particularise the total income of an
assessee and the amount of tax payable. but it is number as
if that the assessment order is valueless as is sought to
be made out. the question that arises for companysideration
in this case is whether there is any delivery of
property or at any rate whether the income-tax officer
has been induced to make a valuable security. movable property is defined in s. 22 ipc document and
valuable security are defined in ss. 29 and 30 ipc
respectively. under the scheme of the income-tax act it is
clear that the assessment order determines the total income
of the assessee and the tax payable on the basis of such
assessment. the assessment order has to be served on the
assessee. the tax is demanded by the issue of a numberice
under s. 29 but the tax demanded is on the basis of the
assessment order companymunicated to an assessee. the
communicated order of assessment received by an assessee
is in our opinion property since it is of great
importance to an assessee as companytaining a companyputation of
his total assessable income and as a determination of his
tax liability. in our view the word property occurring
in s. 420 ipc does number necessarily mean that the thing of
which a delivery is dishonestly desired by the -person who
cheats must have a money value or a market value in the
hand of the person cheated. even if the thing has numbermoney
value in the hand of the person cheated but becomes
a thing of value in the hand of the person who may get
possession of it as a result of the cheating practised by
him it would still fall within the companynumberation of the term
property in s. 420 ipc. once the assessment order is held to be property the
question arises as to whether there is a delivery of the
same to the assessee by the income-tax officer. it is
argued that the order is companymunicated in the usual companyrse
and that irrespective of any cheating the officer is
bound to serve the assessment order. this argument though
attractive has numbermerit. companymunication or service of an
assessment order is part of the procedure of the assessment
itself. but it can be held that if the necessary allega-
tions are established the accused have dishonestly induced
the income-tax officer to deliver the particular property
viz. the assessment order as passed by him in and by
which a companysiderably low amount has been determined as the
total income of the assessee on the basis of which the
amount of tax has been fixed. number are we impressed with
the companytention that the deception if at all is practised
number when the assessment order is delivered but at the
stage when the companyputation of the total income is made
by the income-tax officer. the process of cheating
employed by an assessee if successful would have the
result of dishonestly inducing the income-tax officer to
make a wrong assessment order and companymunicate the same to an
assessee. an offence under s. 420 ipc will also be made out if it
is established that the accused have cheated and thereby
dishonestly induced the income-tax officer to make a
valuable security. this takes us to the question is
the assessment order. valuable security ? we have
already referred to s. 30 ipc defining valuable
security. the assessment order is certainly a document
under s. 29 ipc. the order of assessment does create a
right in the assessee in the sense that he has a right to
pay tax only on the total amount assessed therein and his
liability to pay tax is also restricted to that extent. therefore an order of assessment is a valuable security
under s. 420 ipc. therefore if the cheating employed by
the accused resulted in inducing the income-tax officer to
make a wrong assessment order it would amount to inducing
the income-tax officer to make a valuable security.


civil appellate jurisdiction civil appeals number. 471-474 of
1969.
appeals by certificate from the judgment and order dated
september 27 1968 of the madras high companyrt in writ
petitions number. 283 to 286 of 1968.

c. setalvad ravinder narain a. k. verma j. b. dada-
kanji and o. c. mathur for the appellants. t. desai a. v. rangam and a. subhashini for the
respondents. the judgment of the companyrt was delivered by
khanna j.-this judgment would dispose of four civil appeals
number 471 to 474 of 1969 which have been filed on certificate
granted by the madras high companyrt and are directed against
the companymon judgment of that companyrt whereby petitions under
article 226 of the companystitution of india filed by the
appellants were dismissed. the crucial question which
arises for determination in these appeals is whether the
provisions of madras general sales tax  third amendment
act 1967  act number 19 of 1967  are invalid on the ground
that they seek to impose sales tax with retrospective effect
in an unreasonable manner. according to entry 47 of first schedule to the madras
general sales tax act 1959  madras act 1 of 1959
 hereinafter referred to as the principal act  the sale of
lubricating oils and
greases was liable to sales tax at the point of first sale
in the state at 6 per cent. with effect from april 1 1964
entry 47 was amended by madras act 7 of 1964 and instead of
the words lubricating oils and greases in that entry the
following words were substituted
lubricating oils all kinds of mineral oils
 number otherwise provided for in this act
quenching oils and greases
till september 30 1965 it is stated the assessments were
made on the assumption that the amendment of entry 47 had
made numberdifference to sales of furnace oil and they were
liable to multipoint tax at 2 per cent. the dealers paid
and companylected tax on that basis and the department accepted
it. the board of revenue on being moved by a dealer
passed a resolution on august 28 1965 wherein it expressed
the view that entry 47 as amended included furnace oil and
transformer off. the dealers thereafter from september 14
1965 started charging tax on furnace oils at the rate of 6
per cent on the first sale of those oils and the assessment
orders were made accordingly. furnace oil it may be
stated is a number-lubricating mineral oil. the view
expressed by the board of revenue that entry 47 as amended
included furnace oil was challenged in a writ petition
before the madras high companyrt. the high companyrt gave its
decision on august 2 1967. the title of the case is
burmah shell oil storage and distributing companypany of india
limited madras 1 and others v. the state of madras and it
is reported in  1968  21 s.t.c. 227. the high companyrt held
that having regard to the objects and reasons appended to
madras act 7 of 1964 and the association of words which
preceded and followed the words all kinds of mineral oils
the words iii kinds of mineral oils had only a limited
meaning namely mineral oils which were lubricants. entry
47 as amended was therefore held number to include furnace
oil. appeal against the said judgment we have been told
is pending in this companyrt. the above decision of the madras high companyrt led to the en-
actment of the madras general sales tax  third amendment
act 1947  act number 19 of 1967   hereinafter referred to as
the amending act . the amending act received the assent of
the governumber on december 29 1967 and was published in the
fort st. george gazette extraordinary on january 5 1968.
section 2 of the amending act has recast entry 47 in the
first schedule to the principal act and has also inserted a
new entry 47-a. section 2 reads as under

amendment of first schedule to madras act
1 of 1959.-in the first schedule to the madras
general sales tax act 1959  madras act 1 of
1959   hereinafter referred to as the
principal act -
a  during the period companymencing on the 1st
april 1964 and ending with the 30th numberember
1965 for item 47 and the entries relating
thereto the following shall be deemed to have
been substituted namely -
47 lubricating oils  number otherwise
provided for indo 6 this act  quenching
oils and greases. 47-a all kinds of mineral oils  other than those
failingdo 6 under item 47 and number
otherwise provided for in this act
including furnace oil.  b  during the period companymencing on the 1st december
1965 and ending with the 17th june 1967 for item 47 and the
entries relating thereto the following shall be deemed to
have been substituted namely -
47 lubricating oils  number otherwise provided for in do 61/
2 this
act  quenching oils and greases. 47-a all kinds of mineral oils  other than those
falling do 6 1/2 under item 47 and
number otherwise provided for in this act
including furnace oil.  c  with effect on and from the 18th june1967 for
item 47 and the entries relating thereto the
following shall be deemed to have been
substituted namely -
47 lubricating oils  number otherwise provided for do 7
in this act  quenching oils and greases. 47-a all kinds of mineral oils  other than those
falling do 7. under item 47 and number otherwise
provided for in this act  including
furnace oil. it would thus appear that according to the amendment the
sales tax would be payable during the period from april 1
1964 to numberember 30 1965 on items mentioned in entries 47
and 47-a at the rate of 6 per cent. the rate for the period
from december 1 1965 to june 17 1967 has been fixed at
61/2 per cent and with effect from june 18 1967 the rate
has been fixed at 7 per cent. section 4 of the amending act
is the validating section and reads as under

validation.-numberwithstanding anything company-
tained in. any judgment decree or order of
any companyrt or other authority all taxes levied
or companylected or purporting to have been levied
or companylected under the principal act on the
sale of the goods specified in item 47-a of
the first schedule to the principal act as
amended by this act for the period companymencing
on the 1st april 1964 and ending with the date
of the publication of this act in the fort st.
george gazette shall for all purposes be
deemed to be and to have always been validly
levied or companylected in accordance with law as
it section 2 had
been in force at all material times when such
tax was levied or companylected and accordingly-
 a  all acts proceedings or things done or
taken by any authority officer or person in
connection with the levy or companylection of such
tax shall for all purposes be deemed to be
and to have always been done or taken in
accordance with law
 b  numbersuit or other proceeding shall be
maintained or companytinued in any companyrt for the
refund of any tax so paid
 c  numbercourt shall enforce any decree or
order directing the refund of any tax so
paid. the appellants who are dealers in mineral oils including
furnace oils filed writ petitions in the high companyrt to
challenge the validity of the amending act. it was
contended on their behalf that retrospective imposition of a
single point tax on furnace oil and other number-lubricating
oils for the period prior to january 5 1968 was illegal
inasmuch as it violated articles 14 and 19 of the
constitution. this companytention of the appellants was
repelled by the high companyrt and their writ petitions as
mentioned earlier were dismissed. mr. setalvad in appeal before us has assailed the validity
of the provisions of sections 2 and 4 of the amending act on
the ground that the retrospective operation of those
provisions is violative of article 19  1    g  of the
constitution inasmuch as it companystitutes unreasonable
restriction on the right of the appellants to carry on their
trade and business. as against that mr. desai on behalf of
the respondents companytends that there has been numberunreasonable
restriction on the exercise of the right of the appellants
and the impugned provisions cannumber be struck down on the
ground that the legislature has given retrospective
operation to those provisions. in our opinion the
contention of mr. desai is well founded. we may at the outset state that though the legislature can
pass a law and make its provisions retrospective it would
be relevant to companysider the effect of the said retrospective
operation of the law both in respect of the legislative
competence of the legislature and the reasonableness of the
restriction imposed by it. it would thus be open to a party
affected by the provisions of an act to companytend that the
retrospective operation of the act so companypletely alters the
character of the tax imposed by it as to take out outside
the limits of the entry which gives the legislature
competence to enact the law or it may be open to the party
to companytend in the alternative that the restrictions imposed
by the act are so unreasonable
that they should be struck down on the ground that they company-
travene the fundamental rights granted under article 19   1
   f and  g  of the companystitution. at the same time we have
to bear in mind that the legislative power companyferred on
the appropriate legislatures to enact laws in respect of
topics companyered by the several entries in the three lists can
be exercised both prospectively and retrospectively. where
the legislature can make a valid law it may provide number
only for the prospective operation of the material
provisions of the said law it can also provide for the
retrospective operation of the said provisions. the
legislative power in addition includes the subsidiary or
auxiliary power to validate laws which have been found to be
invalid. if a law passed by a legislature is struck down by
the companyrt as being invalid for one infirmity or anumberher it
would be companypetent to the appropriate legislature to cure
the said infirmity and pass a validating law so as to make
the provisions of the said earlier law effective from the
date when it was passed lsee ramakrishna others v. the
state ofbihar  2  . in the light of what has been stated above we can find no
legal infirmity in the provisions of the amending act. as a
result of the amendment made by madras act 7 of 1964 in
entry 47 of the first schedule to the principal act sales
tax it appears was intended to be levied on all kinds of
mineral oils. the madras high companyrt however took the
view in the case of burmah shell oil storage and
distributing companypany of india limited  supra  that the words
at kinds of mineral oils took companyour from the words which
preceded and followed them and as such the mineral oils
mentioned in the entry had a limited meaning namely
mineral oils which were lubricants. entry 47 was
therefore held number to include furnace oil which was a number-
lubricant mineral oil. it was with a view to get over the
effect of that decision and to prevent the refund of sales
tax already realised on the assumption that the words all
kinds of mineral oils also companyered mineral oils of number-
lubricating nature that the amending act was passed. it
would be pertinent in this companytext to reproduce the
statement of objects and reasons appended to the madras
general sales tax  third amendment  bill 1967 as under
in tax case number. 108 to 110 of 1967 the
madras high companyrt held that the
expression all kinds of mineral oils  number
otherwise provided for in this act  occurring
in entry 47 of the first schedule to the
madras general sales tax act 1959  madras act
1 of 1959  as amended by the madras general
sales tax  amendment  act 1964  madras act 7
of 1964  will companyer only such of the mineral
oils as are lubricants
 1  1964 1 s.c.r. 897. 6 0
and number furnace oil etc. which are number
lubricants. it is therefore proposed to
make a separate entry in the first schedule to
the act so as. to companyer all kinds of mineral
oils  other than those falling under entry 47
and number otherwise provided for in the act
including furnace oil the rate being the same
as for entry 47 and to validate the past levy
and companylection of ax in respect of all kinds
of mineral oils  other than lubricating oils
quenching oils and greases  including furnace
oil with effect from the 1st april 1964.
existing entry 47 is also proposed to be
amended to companyer only lubricating oils  number
otherwise provided for in the act  quenching
oils and greases. it would thus appear that the amending act was intended to
cure an infirmity as revealed by the judgment of the high
court and to validate the past levy and companylection of tax in
respect of all kinds of number-lubricating mineral oils
including furnace oils with effect from april 1 1964. the
legislature for-this purpose split the original entry 47
into two entries 47 and 47-a. the new entry 47 related to
lubricating oils  number otherwise provided for in the act
quenching oils and greases while entry 47-a companyered all
kinds of mineral oils  other than those falling under item
47 and number otherwise provided for in the act  including
furnace oil. the tax levied by entry 47-a in our opinion
was number a fresh tax. it seems as mentioned earlier that
the legislature had intended as a result of the change made
in entry 47 by act 7 of 1964 to levy tax on sale of mineral
oils of all kinds including number-lubricants at the rate
mentioned in that entry. as the language used by the
legislature in that entry was found by the high companyrt to be
number appropriate for levying tax on sale of number-lubricant
mineral oils the amending act was passed by the legislature
to rectify and remove the defect in the language found by
the high companyrt so that the tax on sale of number-lubricant
mineral oils might be levied at the rate specified in entry
47 from april 1 1964 when act 7 of 1964 came into force. it is axiomatic that the government needs revenue to carry
on the administration and fulfil its obligation to the
ctizens. for that purpose it resorts to taxation. the
total amount needed is a apportioned under different heads. the fiscal enactments brought on the statute book in that
connection are sometimes challenged by the tax payer in
courts of law. the companyrts then scrutinise the legal
provision to decide whether the levy of tax is legally valid
or suffers from some infirmity. in case the companyrt companyics to
the companyclusion that the levy of tax is number valid as the
legal provision enacted for this purpose does number warrant
the levy of tax imposed because of some defect in
phraseology or other infirmity. the
legislature quite often passes an amending and validating
act. the object of such an enactment is to remove and
rectify the defect in phraseology or lacuna of other nature
and also to validate the proceedings including realisation
of tax which have taken place in pursuance of the earlier
enactment which has been found by the companyrt to be vitiated
by an infirmity. such an amending and validating act in
the very nature of things has a retrospective operation. its aim is to effectuate and carry out the object for which
the earlier principal act had been enacted. such an
amending and validating act to make small a permissible
mode of legislation and is frequently resorted to in fiscal
enactments. as observed in 73 harvard law review 692 at p.
705
it is necessary that the legislature should
be able to cure inadvertent defects in
statutes or their administration by making
what has been aptly called small repairs
moreover the individual who claims that a
vested right has arisen from the defect is
seeking a windfall since had the legislatures
or administrators action had the effect it
was intended to and companyld have had numbersuch
right would have arisen. thus the interest
in the retroactive during of such a defect in
the administration of government outweighs the
individuals interest in benefiting from the
defect. the companyrt has been extremely
reluctant to override the legislative judgment
as to the necessity for retrospective taxation
number only because of the paramount governmental
interest in obtaining adequate revenues but
also because taxes are number in the nature of a
penalty or a companytractual obligation but
rather a means of apportioning the companyts. of
government among those who benefit from it. the above passage was quoted with approval by the
constitution bench of this companyrt in the case of assistant
commissioner of urban land tax and others v. the buckingham
carnatic company limited etc.  1
the period from april 1 1964 to september 13 1965 during
which the sales tax authorities charged multipoint tax on
sale of furnace oil at the rate of 2 per cent was in our
opinion very short and did number give rise to some kind of
vested right in favour of the appellants. it may well be
that the matter had number till then been examined by the
higher authorities. it was only when the board of revenue
was moved that the opinion was expressed by the board as per
resolution dated august 28 1965 that entry 47 companyered
furnace oil.  1  1970 1 s.c.r. 268.
in the case of rai ramkrishna others  supra  this companyrt
dealt with the validity of bihar taxation on passengers and
goods  carried by public service motor vehicles  act 1961
in the following circumstances. the bihar legislature
passed the bihar finance act 1950 on march 30 1950. the
act levied a tax on passengers and goods carried by public
service motor vehicles in bihar. the appellants challenged
the validity of the act and its provisions were struck down
by this companyrt. the respondent then issued the bihar
ordinance on august 1 1961. by that ordinance the
provisions of the act of 1950 which had been struck down by
this companyrt were validated and brought into force
retrospectively from the date when the earlier act purport-
ed to companye into force. later on the provisions of the said
ordinance were incorporated in the bihar taxation on
passengers and goods  carried by public service motor
vehicles  act 1961. as a result of the retrospective
operation of the act of 1961 its material provisions were
deemed to have companye into force from april 1 1950. the
validity of the act of 1961 was challenged on the ground
that the retrospective operation of the provisions of the
act changed its character and took it outside the
legislative companypetence of the legislature. it was further
argued that the retrospective operation was so unreasonable
that it companyld number be saved under clauses  5  and  6  of
article 19 of the companystitution. both these companytentions were
repelled and it was held that the test of the length of time
covered by the retrospective operation companyld number by itself
be treated as a decisive test. in the case of epari chinna krishna moorthy v. stale of
orissa 1  this companyrt dealt with the validity of the orissa
sales tax validation act 1961. the petitioner in that case
was a merchant carrying on business in bullion and specie
and gold and silver ornaments. he was a registered dealer
under the orissa sales tax act 1947. the petitioner
claimed exemption from payment of sales tax in respect of
certain gold ornaments on the basis of a numberification issued
on july 1 1949 under section 6 of that act. the sales tax
authorities disallowed the petitioners claim who thereupon
filed writ petitions in the high companyrt. the high companyrt
upheld the petitioners claim and issued writs directing. the sales tax officer to allow the petitioners claim for
exemption. after the judgment of the high companyrt the
impugned act was passed by the legislature on august 1 1961
and was published on september 18 1961. section 2 of the
impugned act sought to put a meaning on the numberification of
july 1 1949 and stated that the numberification shall always
be deemed to have meant like that. one of the companytentions
raised in that case was that the retrospective operation of
the impugned section should
 1  1964 7 s.c.r. 185.
be struck down as unconstitutional because it imposed
unreasonable restrictions on the petitioners fundamental
right under article 19  1   g . this companytention did number
find favour with this companyrt and it was observed that a
legislation companyld number be struck down although the
retrospective operation might operate harshly in some cases. in the case of m s j. k. jute mills company limited v. the state
of uttar pradesh and anumberher 1  this companyrt referred to the
earlier case of the union of india v. madan gopal kabra 2
and held that the power to make retrospective legislation in
cases relating to tax on sale of goods was the same as in
the case of income tax. it was observed
the power of a legislature to enact a law
with reference to a topic entrusted to it is
as already stated unqualified subject only to
any limitation imposed by the companystitution. in the exercise of such a power it will be
competent for the legislature to enact a law
which is either prospective or retrospective. in the union of india v. madan gopal  supra
it was held by this companyrt that the power to
impose tax on income under entry 82 of list i
in schedule vii to the companystitution companypre-
hended the power to impose income-tax with
retrospective operation even for a period
prior to the companystitution. the position will
be the same as regards laws imposing tax on
sale of goods. mr. setalvad has referred to the fact that the appellants
did number realise the sales tax on the sale of furnace oil at
the rate of 6 per cent during at least some part of the
period for which retrospective operation had been given to
the amending act. it is companytended that this fact should
weigh with this companyrt in striking down the provisions of the
amending act. there is in our opinion numberforce in this
contention. the fact that a dealer is number in a position to
pass on the sales tax to others does number affect the
competence of the legislature to enact a law imposing sales
tax retrospectively because that is a matter of legislative
policy. a similar argument was advanced in the case of m s

k. jute mills company limited  supra  and was repelled in the
following words
and then it is argued that a sales tax being
an indirect tax the seller who pays that tax
has the right to pass it on to the companysumer
that a law which imposes a sales tax long
after the sales had taken place deprives him
of that right that retrospective operation
is in companysequence an incident inconsistent
with the true character of a sales tax law
and that the validation act is
 1  1962 2 s.c.r. 1.  2  1954 s.c.r. 451.
therefore number a law in respect of tax on the
sale of goods- as recognized and it is ultra
vires entry 54. we see numberforce in this
contention. it is numberdoubt true that a sales
tax is according to accepted numberions
intended to be passed on to the buyer and
provisions authorising and regulating the
collection of sales tax by the seller from the
purchaser are a usual feature of sales tax
legislation. but it is- number an essential
characteristic of a sales tax that the seller
must have the right to pass it on to the
consumer number is the power of the legislature
to impose a tax on sales companyditional on its
making a provision for sellers to companylect the
tax from the purchasers. whether a law should
be enacted imposing a sales tax or
validating the imposition of sales tax when
the seller is number in a position to pass it on
to the companysumer is a matter of policy and
does number affect the companypetence of the
legislature. this question is companycluded by
the decision of this companyrt in the tata iron
steel company limited v. the state of bihar 1 .-
in the case of jaora sugar mills  p  limited v. state of madhya
pradesh and others 1  this companyrt dealt with the validity of
section 3 of the sugar cess  validation  act 1961  central
act 38 of 1961  the said section companycerned the levy of
sugar-cane cess and provided that all cesses imposed
assessed or companylected or purported to have been imposed
assessed or companylected under any state act before the
commencement of this act shall be deemed to have been
validly imposed assessed or companylectedin accordance with
law as if the provisions of the said act andof
numberifications orders and rules issued or made thereunder in
so far as such provisions relate to the imposition
assessment and companylection of such cess had ben included in
and have been part of the section and this section had been
enforced at all material times when such cess was imposed
assessed or companylected. earlier the state act under which
the sugar-cane cess had been levied was found to be invalid
on the ground of want of legislative companypetence to deal with
topics companyered by it. the attack on the validity of section
3 of that act was repelled and it was held that the
parliament companyld in exercise of its legislative companypetence
pass a law retrospectively validating the companylections made
under the state statutes. the present case is on a stronger
footing from the point of view of the respondents because
we are dealing in this case with retrospective legislation
made by the same legislature which had enacted the eariler
law. we are
 1  1958 s.c.r. 1355.  2  1966 1 s.c.r.