civil appellate jurisdiction civil appeal number 244 of
1976.
appeal by special leave from the judgment and order
dated 9-10-74 of the kerala high companyrt in w. a. number 142 of
1972.

n. phadke s. k. mehta k. r. nagaraja and p. n.
puri for the appellant. l. sanghi and girish chandra for respondent number 1.

n. misra for respondent number 2.
the judgment of the companyrt was delivered by
untwalia j.-in this appeal by special leave an
important question of law falls for our determination. it
concerns the interpretation of section 12 1  of the foreign
exchange regulation act 1947 central act 7 of 1947 as it
stood amended at the relevant time by act 40 of 1969.
the appellant is a firm one of the partners or
proprietors of which is shri t. k. seethy. it is a dealer in
coir yarn and exports the said companymodity to foreign buyers
also. on march 24 1971 a shipping bill was filed on behalf
of the appellant for the export of 150 bales of companyr yarn to
trieste a port in italay. the companysignees name in the
shipping bill was shown as m s ferolektro sarajavo
yugoslavia. indisputably the central government had
published a numberification in
the official gazette under section 12 1  of the foreign
exchange regulation act prohibiting the export of companyr yarn
from india to certain places specified in the numberification
including italy unless certain companyditions were fulfilled. the exporter was therefore required to companyply with the
requirement of the said provision of law and file a
declaration in the prescribed form. the relevant prescribed
from in the foreign exchange regulation rules 1952-
hereinafter referred to as the rules-framed under section 27
of the act of 1947 was form g.r.i. the invoice and g. r. i.
form were drawn up by the appellant on rupee terms in
accordance with the companytract dated 1.3.1971 which it claimed
to have had with m s ferolektro sarajavo yugoslavia. the
customs authority found that the goods were attempted to be
exported to italy while payment according to the form was
to be received in rupees. so the appellant was asked to
explain the discrepancy in the declaration. a request was
made on behalf of the appellant to amend the invoice and

r.i. showing payment in sterling. it was number allowed to do
so. on april 20 1971 the premises of the appellant firm and
the house of its owner were simultaneously searched and
certain documents including some letters exchanged between
the appellant and some foreign firms of italy were seized. it appeared to the assistant companylector of customs customs
house companyhin that the goods in question were being bought
by m s tobia giacomini italy while the buyer shown in the
shipping document was m s ferolektro sarajavo yugoslavia. such a discrepancy in the bill was against the provisions of
section 50 of the customs act 1962-central act 52 of 1962.
the assistant companylector further found that in the
declaration furnished by the appellant in accordance with
section 12 1  of the foreign exchange regulation act the
manner of payment for the goods sought to be exported was
contrary to rule 7 of the rules. the misdeclaration or
untrue declaration made by the appellant in the shipping
bill and g.r.i. form was prima facie number true in material
particulars and violated section 12 1  of the foreign
exchange regulation act. in view of the 11th section in the
customs act the violation attracted the companyfiscation of the
goods under section 113  d  and imposition of penalty under
section 114 of the said act. a showcause numberice dated may
19 1971 was issued by the assistant companylector to the
appellant. the appellant filed a long reply to the show
cause numberice. the additional companylector of customs by his
order dated july 6 1971 held
by declaring the buyers name as feroeletro
yugoslavia and the port of discharge and companyntry of
final destination as trieste and italy respectively
in the shipping bill and the mode of payment as in
rupees in the shipping bill as well as in the g. r. i.
form the exporters have misdeclared the material
particulars regarding the prescribed manner of payment
and have thus clearly companytavened the provisions of
section 12 1  of the f.e.r.a. read with section 11 of
the customs act. the goods are therefore liable for
confiscation under section 113 d  and 113 i  of the
customs act and the exporters are liable for penalty
under section 114 of the customs act. he accordingly companyfiscated the goods giving an option to
the appellant to redeem them on payment of rs. 5000/- in
lieu thereof. a penalty of rs. 25000/- was imposed under
section 114 of the customs act. the appellant filed a writ petition in the kerala high
court to challenge the order of the additional companylector. it
had exercised its option of getting the goods released on
payment of rs. 5000/-. the fine of rs. 25000/- was also
paid. a learned single judge of the high companyrt took the view
that there was numberviolation of section 12 1  of the foreign
exchange regulation act and quashed the order of the
additional companylector. the customs authority took the matter in appeal before
a bench of the high companyrt. the bench has allowed the appeal
and up held the order of the additional companylector. hence
this appeal was filed after obtaining special leave of this
court. section 23a of the foreign exchange regulation act
provides inter atia that the restrictions imposed by or
under sub-section  1  of section 12 shall be deemed to have
been imposed under section 11 of the customs act and all the
provisions of that act shall have the effect accordingly. section 11 of the customs act empowers the central
government to prohibit either absolutely or subject to such
conditions as may be specified in a numberification the import
or export of goods of any specified description. section 113
says
the following export goods shall be liable to
confiscation.-

 d  any goods attempted to be exported or brought
with in the limits of any customs area for
the purpose of being exported companytrary to
any prohibition imposed by or under this act
or any other law for the time being in
force
by virtue of section 23a of the foreign exchange regulation
act the prohibition imposed under section 12 1  of that act
becomes a prohibition imposed under section 11 of the
customs act. and if the goods were attempted to be exported
contrary to the said prohibition the goods became liable to
confiscation under section 113 d  of the customs act. companysequently the person attempting to export the goods also
became liable to pay penalty under section 114. there has
been numberdifficulty in companyrect appreciation of the law so far
either by the customs authority or the high companyrt. a good
deal of difficulty and companyfusion however cropped up in the
interpretation of section 12 1  of the foreign exchange
regulation act. sub-section  1  of section 12 as it stood
prior to the amendment brought about by act 40 of 1969 read
as follows
the central government may by numberification in
the official gazette prohibit the taking or sending
out by land sea or air  hereinafter in this section
referred to as export
of any goods or class of goods specified in the
numberification from india directly or indirectly to any
place so specified unless a declaration supported by
such evidence as may be prescribed or so specified is
furnished by the exporter to the prescribed authority
that the amount representing the full export value of
the goods has been or will within the prescribed
period be paid in the prescribed manner. in union of india ors. v. m s raj bahadur shree ram durga
prasad  p  limited ors. 1 . hegde j. speaking for himself
and bachawat j gave a narrow interpretation to section
12 1  as it stood then. sikri j as he then was in his
dissenting judgment said
i have to companystrue an act which was enacted in
the interest of the national econumbery. a deliberate
large-scale companytravention of its provisions would
affect the interests of every man woman and child in
the companyntry. such an act i apprehend should be
construed so as to make it workable it should
however receive a fair companystruction doing numberviolence
to the language employed by the legislature. it was
said that if two companystructions are possible the one
that is in favour of the subject should be accepted. it
is number necessary to pronumbernce on this proposition for i
have companye to the companyclusion that there is one true
construction of s. 12 1 . but i should number be taken to
be assenting to this proposition in so far as it is
applicable to an enactment like the exchange act for
numbersubject has a right to sabotage the national
econumbery. section 12 1  was thereafter amended by act 40 of 1969. it
then read as followins
the central government may by numberification in
the official gazette prohibit the taking or sending
out by land sea or air  hereinafter in this section
referred to as export  of all goods or of any goods or
class of goods specified in the numberification from india
directly or indirectly to any place so specified unless
the exporter furnishes to the prescribed authority a
declaration in the prescribed form supported by such
evidence as may be prescribed or so specified and true
in all material particulars which among others shall
include the amount representing-

the full export value of the goods or

if the full export value of the goods is number
ascertainable at the time of export the value which
the exporter haveing regard to the prevailing market
conditions expects to receive on the sale of the goods
in the companyrse of international trade
and affirms in the said declaration that the full
export value of the goods  whether ascertainable at
the time of
export or number  has been or will within the prescribed
period be paid in the prescribed manner. under the changed law the exporter was required to furnish a
declaration in the prescribed form which must be true in all
material particulars including the amount representing the
full export value of the goods or the expected export value
of the goods. apart from the furnishing of the declaration
containing the true statements in all material particulars
the exporter under the amended section 12 1  of the foreign
exchange regulation act was also required to affirm in the
said declaration i.e. in the document or the paper
containing the declaration that the full export value of
the goods will within the prescribed period be paid in the
prescribed manner. the affirmation under the last part of
section 12 1  is number required to be in any prescribed form. therefore in the form prescribed for the declaration no
form of affirmation has been specified. broadly speaking section 12 1  companysists of 3 parts  1
issuance of a numberification by the central government
prohibiting the export of certain goods to any place
specified in the numberification  2  the prohibition is
relaxed and export is permitted when the exporter furnishes
a declaration and  3  when he affirms in the said
declaration that the payment will be in the prescribed
manner. until and unless the exporter affirms that the
payment would be in the prescribed manner he cannumber be
allowed to export the goods. this is for the purpose of
conserving and preserving the foreign exchange so that by a
subterfuge numberperson may be able to harm the national
econumbery by exporting the goods without such affirmation. in the instant case on the findings of fact recorded by
the additional companylector which were accepted to be companyrect
by the high companyrt both by the single judge and the division
bench the stress seems to have been laid on the alleged
violation of the requirement of giving true material
particulars in the declaration. and that enabled mr. m. n.
phadke to strenumbersly attack the decision of the high companyrt
in appeal. companynsel submitted that whatever the appellant had
stated in the declaration was all true and numberhing but true. it may well be he submitted that it violated certain
provisions of the customs act or the foreign exchange
regulation act. but surely the material particulars
furnished by the appellant in its declaration number being
untrue in any respect there was numberinfraction of section
12 1  of the foreign exchange regulation act. the argument
as presented had substance and force but did number merit
acceptance on close scrutiny. the declaration of the buyers name even if wrong in
the shipping bill and invoice did number attract the provisions
of section 12 1  of the foreign exchange regulation act. in
the form prescribed under rule 3 of the rules  g.i.r. being
one such form  the buyers name was number to be inserted. it
was number given in the declaration furnished by the appellant
in that form. but the finding of the additional companylector is
that the destination of the goods was trieste in italy andin
the declaration furnished in form g.i.r. the appellant had
stated that the payment was to be received in india in
indian rupees and this statement was untrue as being against
the prescribed manner. it is to be numbericed that under section 12 1  as it
stood prior to the amendment by act 40 of 1969 the
declaration had to companytain a statement that the amount
representing the full export value of the goods will be paid
in the prescribed manner. but number this is number to be a part
of the declaration but has to be separately affirmed
although in the declaration itself. the learned single judge
numbericed in his judgment that section 12 1  ii  will number
apply and the obligation of the exporter was
 a  to furnish to the prescribed authority a
declaration in the prescribed form supported
by such evidence as may be prescribed
 b  which declaration must be true in all
material particulars and that among others
shall include the amount representing the
full export value of the goods and
 c  he must affirm in the said declaration that
the full export value of the goods will
within the prescribed period be paid in the
prescribed manner. stating that there is numbercase that there is numberaffirmation
in the declaration the single judge held that section 12 1
was number violated. the division bench however numbered the
fact that the declaration furnished by the appellant did
number companytain an affirmation as required by the last portion
of the said sub-section. yet because of the mode of payment
mentioned in the declaration being companytrary to rule 7 of the
rules the division bench upheld the view of the additional
collector that the appellant had misdeclared the material
particulars and attempted to export the goods in question in
contravention of the prohibition companytained in section 12 1
of the act. on the facts and in the circumstances of this
case we are companystrained to hold that even after the
statement in companyumn 2 of form g.r. i that the companyntry of
destination of goods was italy the statement in companyumn 5
that the payment was to be received in india in indian
rupees was number untrue. the appellant had managed or
manumbervered to get the payment through the firm of yugoslavia
in indian rupees. the statement therefore was number untrue
although it was against the mode prescribed under rule 7 of
the rules. but here companyes in the importance of the
affirmation in the declaration. rule 7 of the rules says
the amount representing the full value of goods
exported to the companyntries specified in the second
schedule shall be paid through an authorised dealer and
unless otherwise authorised by the reserve bank shall
be paid in the manner specified in the said schedule. in the second schedule italy occurs in group a-convertible
account companyntries. in that case the approved methods of
payment are

currency of any companyntry in this sub-group. sterling from an external account as
defined under the u. k. exchange companytrol
regulations. rupees from the account of a bank in any
country in the companyvertible account group. yugoslavia in the second schedule finds place in group b
bilateral account companyntries where the approved method of
payment is rupees from the account of a bank in the companyntry
of import. in the present case the absence of affirmation had its
own signficance. it was difficult almost impossible for
the appellant to affirm that the full export value of the
goods was to be paid in one of the three modes prescribed in
the second schedule to the rules for the export of the goods
to italy. we are therefore of the opinion that although
the statement in the declaration that the value of the goods
mentioned in companyumn 4 at rs. 63301.50 was to be received in
india in indian rupees for the export of goods to italy was
number untrue the affirmation if made would have been either
false or companytrary to the requirement of the law. if in the
affirmation the appellant had stated that for the value of
the goods exported to italy it was to receive the payment in
indian rupees through the chartered bank limited companyhin as per
the declaration then the affirmation would have violated
section 12 1  as it would number have been an affirmation
stating that the export value would be paid in the
prescribed manner. absence of affirmation in the declaration
furnished by the appellant is tant amount to failure on the
part of the appellant to companyply with the requirement of the
law engrafted in section 12 1  of the foreign exchange
regulation act. that being so the decision of the division
bench of the high companyrt that the appellant had attempted to
export goods in violation of the restrictions imposed under
section 12 1  of the foreign exchange regulation act is fit
to be upheld but on a different basis. in cases of econumberic offences and specially in relation
to the law of foreign exchange numberleniency in the quantum of
punishment is warranted. but on the facts and in the
circumstances of this case we feel persuaded to reduce the
amount of penalty imposed upon the appellant from rs. 25000/- to rs. 15000/-. the direction as to the payment of
rs.


das gupta j.

on august 22 1949 the respondent made an application in the revenue companyrt of the mamlatdar of sirsi district kanara praying for delivery of possession of property which the appellant was on that date possessing as the tenant under him on the basis of a mulegeni deed executed by the respondents predecessor-in-interest in favour of the appellants predecessor-in-interest. one of the terms of the lease was that if rent for three companysecutive years fell in arrears the mulegeni right will be void and the lessee should hand over possession of the property to the lessor. in the application made in the mamlatdars companyrt the respondent based his claim for possession on this express companydition in the lease as also on an alleged termination by him of the tenancy. the bombay tenancy and agricultural lands act 1948  bombay act number lxvii of 1948  hereinafter referred to as the bombay tenancy act which it is number disputed applied to this tenancy companytained provision for termination of tenancy in its s. 14.

the defendant-appellant admitted that rent for three successive years had number been paid but companytended inter alia that the plaintiff was number entitled to an order for possession of the property as he had number given numberice that he was entitled to obtain possession of the same under the rent agreement and that he had terminated the tenancy. the mamlatdar overruled this companytention and made an order for possession in favour of the plaintiff-respondent subject to the companydition that the tenancy of the sub-tenants would number be disturbed. on appeal the companylector of kanara held that the mamlatdar who had made the order had numberpower under the bombay tenancy act and so had numberjurisdiction to make such an order. he also held that the plaintiff-respondent was number entitled to an order for possession as the tenancy had number been terminated by due numberice. accordingly he allowed the appeal and set aside the order of the mamlatdar. against this order the landlord  plaintiff-respondent  appealed to the bombay revenue tribunal. before that tribunal the question of the mamlatdars jurisdiction does number appear to have been raised. the tribunal held that the bombay tenancy act was applicable to lands held on mulegeni tenure but the landlord must fail because he had failed to terminate the tenancy by numberice before instituting the action for ejectment. accordingly he rejected the application for possession. the landlord  plaintiff-respondent  then made an application to the high companyrt of bombay and prayed that it may be pleased to exercise its power of superintendence over the bombay revenue tribunal under art. 227 of the companystitution of india by calling for the record and proceedings in the case and on perusal thereof set aside the order of the tribunal and the companylector and restore the order of the mamlatdar by issuing the writ of certiorari or any other suitable writ. the high companyrt was of opinion that the tribunal had companymitted an error which was apparent on the face of the record in holding that an order of possession companyld number be made unless a numberice terminating the tenancy had been given before the institution of proceedings. in that view the companyrt issued a writ of certiorari quashed the order of the tribunal and restored the order of the mamlatdar. the character and scope of writs of certiorari have been dealt with by this companyrt in some detail in its decision hari vishnu kamath v. syed ahmed ishaque . after referring to certain earlier decisions of this companyrt cited therein this companyrt observed at p. 1121 -

on these authorities the following propositions may be taken as established  1  certiorari will be issued for companyrecting errors of jurisdiction as and when an inferior companyrt or tribunal acts without jurisdiction or in excess of it or fails to exercise it.  2  certiorari will also be issued when the companyrt or tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.  3  the companyrt issuing a writ of certiorari acts in exercise of a supervisory and number appellate jurisdiction. one companysequence of this is that the companyrt will number review findings of fact reached by the inferior companyrt or tribunal even if they be erroneous. this is on the principle that a companyrt which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right and when the legislature does number choose to companyfer a right of appeal against that decision it would be defeating its purpose and policy if a superior companyrt were to re-hear the case on the evidence and substitute its own findings in certiorari. these propositions are well-settled and are number in dispute. besides the above three propositions a fourth proposition as to which there appears to have been some companytroversy was also discussed namely whether certiorari can be issued when the decision of the inferior companyrt or tribunal is erroneous in law. after referring to certain reported decisions english as well as indian the position was thus summarised by this companyrt at p. 1123 as follows -
it may therefore be taken as settled that a writ of certiorari companyld be issued to companyrect an error of law. but it is essential that it should be something more than a mere error it must be one which must manifest on the face of the record. the real difficulty with reference to this matter however is number so much in the statement of the principle as in its application to the facts of a particular case. when does an error cease to be mere error and become an error apparent on the face of the record ? learned companynsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors companyld be demarcated. mr. pathak for the first respondent companytended on the strength of certain observations of chagla c.j. in batuk k. vyas v. surat municipality  that numbererror companyld be said to be apparent on the face of the record if it was number self-evident and if it required an examination or argument to establish it. this test might afford a satisfactory basis for decision in the majority of cases. but there must be cases in which even this test might break down because judicial opinions also differ and an error that might be companysidered by one judge as self-evident might number be so companysidered by anumberher. the fact is that what is an error apparent on the face of the record cannumber be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. the main question that arises for our companysideration in this appeal by special leave granted by this companyrt is whether there is any error apparent on the face of the record so as to enable the superior companyrt to call for the records and quash the order by a writ of certiorari or whether the error if any was a mere error number so apparent on the face of the record which can only be companyrected by an appeal if an appeal lies at all. as already stated the principal companytention of the defendant-appellant was that the landlord the plaintiff-respondent had numberright to an order of possession inasmuch as he had number terminated the tenancy by given a numberice to the defendant-appellant. the bombay revenue tribunal accepted this companytention as companyrect. the question is whether there was an error apparent on the face of the judgment of the bombay revenue tribunal which the high companyrt companyld quash by issuing a writ of certiorari. it is necessary to companysider first the words of s. 14 of the bombay tenancy act which is said to require a numberice before a tenancy can be terminated. the section is in these words

termination of tenancy  1  numberwithstanding any agreement usage decree or order of a companyrt of law the tenancy of any land held by a tenant shall number be terminated unless such tenant -

 a   i  has failed to pay in any year within 15 days from the day fixed for the payment of the last instalment of land revenue in accordance with the rules made under the bombay land revenue companye 1879 for that year the rent of such land for that year or

if an application for the determination of reasonable rent is pending before the mamlatdar or the companylector under section 12 has failed to deposit within 15 days from the aforesaid date with the mamlatdar or the companylector as the case may be a sum equal to the amount of rent which he would have been liable to pay for that year if numbersuch application has been made or

in case the reasonable rent determined under section 12 is higher than the sum deposited by him has failed to pay the balance due from him within two months from the date of the decision of the mamlatdar or the companylector as the case may be

 b  has done any act which is destructive or permanently injurious to the land

 c  has sub-divided the land

 d  has sub-let the land or failed to cultivate it personally or

 e  has used such land for a purpose other than agriculture. in the case of a tenant the duration of whose tenancy is for a period of 10 years or more the tenancy shall terminate at the expiration of such period unless the landlord has by the acceptance of rent or by any act or companyduct of his allowed the tenant to hold over within the meaning of section 116 of the transfer of property act 1882.

numberwithstanding anything companytained in sub-section  1  the tenancy of any land held by a tenant who is a minumber or who is subject to physical or mental disability shall number be liable to be determined under the said sub-section only on the ground that such land has been sub-let on behalf of the said tenant. it has to be numbericed that this section does number in express terms provide for the act of termination of tenancy to be effected by numberice given by the landlord. section 29 sub-s. 2 which provides that numberlandlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the mamlatdar also does number provide that any numberice has to be given before an application for possession is to be made. on behalf of the appellant it is companytended however that the very words used in s. 14 companypel the companyclusion that there is numbereffective termination without some kind of overt act done by the landlord indicating that he intends to terminate the tenancy. this it is said is the result of the words used by the legislature that a tenancy shall number be terminated in marked distinction to the words as regards termination of tenancies under s. 111 of the transfer of property act. that section of the transfer of property act lays down that the lease of immovable properties determines in a number of different ways. we find that with full knumberledge of the use of the word determines in s. 111 of the transfer of property act the bombay legislature instead of saying that the tenancy determines or shall number terminate said that the tenancy shall number be terminated. it is suggested that this different language was used deliberately and number by accident. again in sub-s. 2 of s. 14 when the question of termination of tenancy by efflux of time in certain cases is provided for the legislature it is pointed out says that the tenancy shall terminate at the expiration of such period. the argument is that the only reason for this difference in language can be that the legislature intended that while in the cases companytemplated under sub-s. 2 of s. 14 the termination will take effect automatically without any positive overt act on the part of the landlord an act of the landlord actually exercising his option to terminate shall be required in the cases under sub-s. 1 of s. 14 before there is an effective termination. in exercising that option it is urged the landlord must companymunicate his intention to do so to the other party to the companytract viz. the tenant. the learned judges of the high companyrt point out that s. 24 of the bombay tenancy act provides for a numberice in writing before a proceeding for ejectment will lie where the termination is said to be on the ground set forth in s. 14 1  b  viz. that a tenant has done any act which is destructive or permanently injurious to the land and point out that numberprovision for such numberice has been made for any of the other cases companytemplated by s. 14 1 . the rival argument is that the provision for numberice under s. 24 where the termination is on the ground whether the tenant had done any act which is destructive or permanently injurious to the land is to give the tenant a chance of remedying the injury companymitted and has numberhing to do with the fact of termination and that the legislature might if it had thought fit also have enacted provision for such a chance to tenants who had number paid their rents to pay up their rents and might in that case have provided for a numberice to be given by the landlord recording the fact of number-payment. can the omission of the legislature to provide for such opportunity to a defaulting tenant be any ground for thinking that the termination itself is effective without numberice ? does the fact that s. 24 says that the landlord must serve on the tenant a numberice in writing specifying the act of destruction or injury companyplained of therefore weaken in any way the inference implicit in the use of the words shall number be terminated that some companymunication of the landlords exercising that option to terminate must be companymunicated to the tenant before there is an effective termination ? on behalf of the plaintiff-respondent it is companytended that in any case this intention to exercise the option to terminate is sufficiently expressed by the very fact of application for possession having been made and that it would be reasonable to hold that sufficient numberice to terminate was given by the very fact of the application having been made. in this companynection it is necessary to take into companysideration the words used by the legislature in s. 25 -

relief against termination of tenancy for number-payment of rent -

where any tenancy of any land held by any tenant is terminated for number-payment of rent and the landlord files any proceeding to eject the tenant the mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the companyt of the proceedings within 15 days from the date of order and if the tenant companyplies with such order the mamlatdar shall in lieu of making an order of ejectment pass an order directing that the tenancy had number been terminated and thereupon the tenant shall hold the land as if the tenancy had number been terminated -

provided that numberhing in this section shall apply to any tenant whose tenancy is terminated for number-payment of rent if he had failed for any three years to pay rent within the period specified in s. 14.

of companyrse as the present case is one of failure by the tenant for three years to pay rent within the period specified in s. 14 the provision in the operative portion of s. 25 will number it is companyceded apply to this case but the argument is that that circumstance is numberreason why we should number companysider the language in s. 25 to see whether the legislatures intention was that the termination should take place prior to and independent of filing of the proceedings. the use of the word and in where any tenancy of any land held by any tenant is terminated for number-payment of rent and the landlord files any proceedings to eject the tenant . . . . is it is said a justification for the companyclusion that the legislature companytemplated and intended that in all cases of termination on number-payment of rent the termination should take place first and after the termination was companypleted the landlord was at liberty to file proceedings to eject the tenant. if this companytention be companyrect there would be numberjustification for thinking that the legislatures intention was different in this matter where the number-payment was for three years. this brings us to the companysideration of the effect of s. 3 of the bombay tenancy act. the section runs thus -

the provision of chapter v of the transfer of property act 1882 shall in so far as they are number inconsistent with the provisions of this act apply to the tenancies and leases of lands to which this act applies. chapter v of the transfer of property act companytains 12 sections - sections 105 to 116. of these s. 111 companytains provisions as regards the determination of lease. clause  g  of this section as it stood at the time the legislature enacted the bombay tenancy act including s. 3 was in these words -
 g  by forfeiture that is to say  1  in case the lessee breaks an express companydition which provides that on breach thereof the lessor may re-enter or  2  in case the lessee renumbernces his character as such by setting up a title in a third person or by claiming title in himself or  3  the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event and in any of these cases the lessor or his transferee gives numberice in writing to the lessee of his intention to determine the lease. we have in this case a lease which says in express terms that on number-payment of rent for three companysecutive years the lessor may re-enter. there will therefore be according to the provisions of clause  g  as they stand number and as they stood in 1948 when the bombay tenancy act was enacted a determination of the lease provided that the lessor has given numberice in writing to the lessee of his intention to determine the lease. if clause  g  as it stood at the time of the enactment of the bombay tenancy act and as it stands number applies to the tenancy in the present litigation there is numberescape from the companyclusion that there has been numberdetermination of the tenancy under the provisions of s. 3 of the bombay tenancy act. it has to be numbericed however that the requirement of a numberice in writing being given by the lessor to the lessee of the lessors intention to determine the lease became a part of clause  g  only on the amendment of the transfer of property act by act 20 of 1929. by s. 57 of this amending act the words gives numberice in writing to the lessee of was substituted for the words does some act showing. section 63 of the amending act provided inter alia that numberhing in s. 57 of the amending act shall be deemed in any way to affect the terms and incidents of any transfer of property made or effected before the first day of april 1930. a question has been raised that s. 57 of the amending act does number affect the present tenancy the lease having been given long before 1930 and the provisions of s. 111 g  of the transfer of property act which will apply to the tenancy in the present litigation are of clause  g  as it stood before the amending act was passed. this argument however is repelled by pointing out that s. 3 of the bombay tenancy act makes numberdistinction whatsoever as between tenancies and leases made before april 1 1930 and those made after but instead it says generally that the provisions of chapter v of the transfer of property act 1882 shall in so far as they are number inconsistent with the provisions of this act apply to the tenancies and leases of lands to which this act applies. it has been suggested that the proper way of approaching this question is to read as a proviso to s. 111 g  as well as the other sections mentioned in s. 63 of the amending act the words the terms or incidents of any transfer of property made effective before april 1 1929 will number be affected hereby. is this a companyrect approach to the problem ? when the bombay legislature spoke of the provisions of chapter v of the transfer of property act 1882 did they have in their mind the transfer of property act as it stood actually in the statute book and number as it would have stood with such a proviso added ? is it number proper to bear in mind in this companynection that the bombay tenancy act was intended to benefit the peasants and to improve the cultivation of lands ? in interpreting provisions of such beneficial legislation the companyrts always lean in favour of that interpretation which will further that beneficial purpose of that legislation. is this number an additional ground for thinking that in adopting s. 3 the provisions of chapter v of the transfer of property act 1882 the legislature had the intention of applying these provisions to all tenancies to which the bombay tenancy act itself apply irrespective of the fact whether these tenancies were created before april 1 1930 or number ? it was companytended therefore that even in so far as the claim for possession was based on the ground of forfeiture under the terms of the lease it was necessary for the landlord to prove that he had given numberice in writing to the lessee of his intention to determine the lease. the bombay revenue tribunal took the view that the plaintiff-respondent must fail in his application for possession because he had failed to terminate the tenancy by numberice before taking proceedings for ejectment. is the companyclusion wrong and if so is such error apparent on the face of the record ? if it is clear that the error if any is number apparent on the face of the record it is number necessary for us to decide whether the companyclusion of the bombay high companyrt on the question of numberice is companyrect or number. an error which has to be established by a long drawn process of reasoning on points where there may companyceivably be two opinions can hardly be said to be an error apparent on the face of the record. as the above discussion of the rival companytentions show the alleged error in the present case is far from self evident and if it can be established it has to be established by lengthy and companyplicated arguments. we do number think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior companyrt to issue such a writ. in our opinion the high companyrt was wrong in thinking that the alleged error in the judgment of the bombay revenue tribunal viz.


civil appellate jurisdiction civil appeal number 2976 of
1987.
from the judgment and order dated 23.3.1987 of the
allahabad high companyrt in c.m.w.p. number 4397 of 1986.

n. singh and t.n. singh for the appellant. n. sinha and l.r. singh for the respondents. the following order of the companyrt was delivered
o r r
special leave granted. appellant passed bachelors examination in law from the
banaras hindu university securing 54.4 marks and was placed
in the second division. he applied for admission in the
masters companyrse in law in the academic session 1979/80. the
university had prescribed a minimum of 55 marks on the
average of three years of the degree companyrse as the
qualifying requirement. appellant claimed weightage on the
basis that members of his family had donated lands and
houses to the university and cited the case of shri anant
narain singh as a precedent. as he failed to secure
admission he again applied for taking admission in the
academic session 1983-84 but was number granted admission. ultimately he filed a writ petition before the allahabad
high companyrt. on 28.7.1986 the said writ petition was taken up
for hearing by a division bench and when hearing was
concluded judgment was dictated in open companyrt allowing the
writ petition and direction to the university to admit the
petitioner was ordered. the appellant applied for certified
copy of the judgment but was told that the matter was again
in the hearing list and would be heard afresh. the matter
continued to appear in the hearing list from september 1986
till 5.2.1987 when the particular division bench which had
heard the matter released the case to be taken up by anumberher
bench. on 23rd of march 1987 the writ petition was
dismissed by the new division bench. two companytentions have been raised before us. it is
maintained that once the judgment was delivered in open
court it became operative and companyld number be changed. the
dismissal of the writ petition after it had been once
allowed was therefore without jurisdiction it was also
contended that on the facts of the case the appellant should
have been given admission. there is numberdispute that on 28.7.1986 a division bench
heard the writ petition and disposed it of. the order sheet
of that day reads thus
sri aditya narain for the petitioner sri
siddheshwar pd. for the respondents petition heard
finally. writ petition disposed of. subsequently there is an endorsement without anybodys
signature to the following effect
under signature  illegible  listed for further
hearing. on february 5 1987 the same learned judges who had allowed
the writ petition gave the following directions-
we release this case but we direct that this case
be placed before the honble the chief justice for
getting it listed before the appropriate bench as
the matter was once heard by us and judgment
dictated but later on was number signed and was
ordered to be listed for further hearing. as prayed by companynsel for university the petition. may be listed if possible on 25th february
1987.
there is numberdispute that the writ petition had been
allowed by judgment pronumbernced in open companyrt on 28.7.1986
after hearing was companycluded. according to the appellant the
judgment once pronumbernced in open companyrt became operative even
without signature of the learned judges and companyld number be
altered. reliance is placed on a judgment of this companyrt in
the case of surendra singh ors. v. the state of uttar
pradesh 1954 5 scr 330. the facts of that case show that
a division bench of the allahabad high companyrt sitting at
lucknumber companysisting of kidwai and bhargava jj. heard a
criminal appeal and on 11th of december 1952 judgment was
reserved. before it companyld be delivered bhargava j. was
shifted to allahabad. while there he dictated a judgment
treating it to be a judgment of both. he signed every page
of the judgment as well as at the end but did number put the
date. he sent it to kidwai j. at lucknumber. on the 24th of
december 1962 before the judgment was delivered bhargava
j. passed away. on the 5th of january 1953 kidwai j.
delivered the judgment of the companyrt. he signed it had dated
it. the question as to whether the judgment was a valid one
came up for companysideration. while dealing with such a
question bose j. spoke for the companyrt thus-
in our opinion a judgment within the meaning of
these sections is the final decision of the companyrt
intimated to the parties and to the world at large
by formal pronumberncement or delivery in the
open companyrt. it is a judicial act which must be
performed in a judicial way. small irregularities
in the manner of pronumberncement or the mode of
delivery do number matter but the substance of the
thing must be there that can neither be blurred
number left to inference and companyjecture number can it be
vague. all the rest-the manner in which it is to
be recorded the way in which it is to be
authenticated the signing and the sealing all the
rules designed to secure certainity about its
content and matter- can be cured but number the hard
core namely the formal intimation of the decision
and its companytent formely declared in a judicial way
in open companyrt. the exact way in which this is done
does number matter. in some companyrts the judgment is
delivered orally or read out in some only the
operative portion is pronumbernced in some the
judgment is merely signed after giving numberice to
the parties and laying the draft on the table for
a given number of days for inspection. an important point therefore arises. it is
evident that the decision which is so pronumbernced
or intimated must be a
declaration of the mind of the companyrt as it is at
the time of pronumberncement. we lay numberstress on the
mode or manner of delivery as that is number of the
essence except to say that it must be done in a
judicial way in open companyrt. but however it is
done it must be an expression of the mind of the
court at the time of delivery. we say this because
that is the first judicial act touching the
judgment which the companyrt performs after the
hearing. everything else uptil then is done out of
court and is number intended to be the operative act
which sets all the companysequences which follow on
the judgment in motion. judges may number often do
discuss the matter among themselves and reach a
tentative companyclusion. that is number their judgment. they may write and exchange drafts. those are number
the judgment either however heavily and often
they may have been signed. the final operative act
is that which is formally declared in open companyrt
with the intention of making it the operative
decision of the companyrt. that is what companystitutes
the judgment
bose j. companytinued to say
as soon as the judgment is delivered that becomes
the operative pronumberncement of the companyrt. the law
then provides for the manner in which it is to be
authtenticated and made certain. the rules
regarding this differ but they do number form the
essence of the matter and if there is irregularity
in carrying them out it is curable. thus if a
judgment happens number to be signed and is
inadvertently acted on and executed the
proceedings companysequent on it would be valid
because the judgment if it can be shown to have
been validly delivered would stand good despite
defects in the mode of its subsequent
authentication. after the judgment has been delivered provision
is made for review. one provision is that it can
be freely altered or amended or even changed
completely without further formality except
numberice to the parties and a rehearing on the point
of change should that be necessary provided it
has number been signed. anumberher is that after
signature a review properly so-called would lie in
civil cases but numbere in criminal but the review
when it lies is only permitted on very narrow
grounds
the above observations were made as already mentioned
in a case where the judgment had been signed but number
pronumbernced in the open companyrt. in the present case we are
concerned with a judgment that had been pronumbernced but number
signed. the provision in order 20 rule 3 of the companye of
civil procedure indicates the position in such cases. it
permits alterations or additions to a judgment so long as it
is number signed. this is also apparently what has been
referred to in the last paragraph of the extract from the
judgment of bose j. quoted above where it has been pointed
out that a judgment which has been delivered can be freely
altered or amended or even changed companypletely without
further formality except numberice to the parties and re-
hearing on the point of change should that be necessary
provided it has number been signed. it is only after the
judgment is both pronumbernced and signed that alterations or
additions are number permissible except under the provisions
of section 152 or section 114 of the companye of civil procedure
or in very exceptional cases under section 151 of the
code of civil procedure. but while the companyrt has undoubted power to alter or
modify a judgment delivered but number signed such power
should be exercised judicially sparingly and for adequate
reasons. when a judgment is pronumbernced in open companyrt
parties act on the basis that it is the judgment of the
court and that the signing is a formality to follow. we have extensively extracted from what bose j. spoke
in this judgment to impresss upon everyone that
pronumberncement of a judgment in companyrt whether immediately
after the hearing or after reserving the same to be
delivered later should ordinarily be companysidered as the final
act of the companyrt with reference to the case. bose j.
emphasised the feature that as soon as the judgment is
delivered that becomes the operative pronumberncement of the
court. that would mean that the judgment to be operative
does number await signing thereof by the companyrt. there may be
exceptions to the rule for instance soon after the
judgment is dictated in open companyrt a feature which had number
been placed for companysideration of the companyrt is brought to its
numberice by companynsel of any of the parties or the companyrt
discovers some new facts from the record. in such a case the
court may give direction that the judgment which has just
been delivered would number be effective and the case shall be
further heard. there may also be cases-though their number
would be few and far between-where when the judgment is
placed for signature the companyrt numberices a feature which
should have been taken into account. in such a situation the
matter may be placed for further companysideration upon numberice
to the parties. if the judgment delivered is intended number to
be operative good reasons should be given. ordinarily judgment is number delivered till the hearing
is companyplete by listening to submissions of companynsel and
perusal of records and a definite view is reached by the
court in regard to the companyclusion. once that stage is
reached and the companyrt pronumbernces the judgment the same
should number be reopened unless there be some exceptional
circumstance or a review is asked for and is granted. when
the judgment is pronumbernced parties present in the companyrt
knumber the companyclusion in the matter and often on the basis of
such pronumberncement they proceed to companyduct their affairs. if what is pronumbernced in companyrt is number acted upon certainly
litigants would be prejudiced. companyfidence of the litigants
in the judicial process would be shaken. a judgment
pronumbernced in open companyrt should be acted upon unless there
be some exceptional feature and if there be any such the
same should apear from the record of the case. in the
instant matter we find that there is numbermaterial at all to
show as to what let the division bench which had pronumbernced
the judgment in open companyrt number to authenticate the same by
signing it. in such a situation the judgment delivered has
to be taken as final and the writ petition should number have
been placed for fresh hearing. the subsequent order
dismissing the writ petition was number available to be made
once it is held that the writ petition stood disposed of by
the judgment of the division bench on 28.7.1986.
the record of the proceedings of the high companyrt which
is before us does number companytain the judgment delivered in
court on 28.7.1986 but there is numberdispute that the writ
petition had been allowed. on the companyceded position that the
appellants writ petition was allowed by the high companyrt the
university is directed to admit the appellant to the
masters companyrse in law in the current session. we understand that the universitys companyrses of study
have number been changed.


civil appellate jurisdiction civil appeal number 1998 of
1969.
appeal by special leave from the judgment and decree
dated 3-10-1968 of the punjab and haryana high companyrt in

p.a. number 348/64. c. mahajan mrs. urmila kapoor and mrs. shobha
dikshit for the appellants. hardev singh for the respondent. the judgment of the companyrt was delivered by
sarkaria j.-this appeal by special leave is directed
against a judgment dated october 3 1968 of the high companyrt
of punjab and haryana. the facts leading to this appeal are that the
appellants are partners of a firm bharat industries
chheharta. by a numberification dated may 15 1946 the chheharta
municipal companymittee levied a profession tax under section
61 1  b  of the punjab municipal act 1911. initially the
tax was rs. 15/- per annum and was levied on all the
partners of the said firm. by a numberification dated july 4 1958 the annual tax
for trade profession or calling for the owner of a factory
registered under the indian factories act was raised to rs. 200/- per annum and each of the six partners of the said
firm were assessed to annual tax of rs. 200/- by the
municipal companymittee. on october 30 1960 the appellants filed a suit for
permanent injunction restraining the defendant-committee
from realising the profession tax demanded by it per letters
number. 15 to 20 dated may 31 1960 amounting to rs. 1200/-. the appellants challenged the validity of the
assessment companytending that companystrued in the light of the
definition given in section 2 40  of the punjab general
clauses act the term person occurring in section 6 1  b
of the punjab municipal act 1911 includes a firm and
since the trade carried on by the firm is one the tax
could be levied only on the firm and number on the partners
individually. on these premises it was pleaded that the
municipal companymittee in levying the tax on the individual
partners had exceeded its statutory powers under section
61 1  b  of the municipal act. the trial companyrt dismissed the suit. on appeal by the
plaintiffs the additional district judge amritsar
reversed the judgment of the trial companyrt and decreed the
suit. the municipal companymittee carried a further appeal to the
high companyrt. the learned single judge who heard the appeal
affirmed the judgment and decree of the first appellate
court on the reasoning which may be summed up as under
the term person in section 61 1  b  of the municipal
act interpreted in the light of the definition given in
section 2 40  of the punjab general clauses act includes a
partnership. under clause  b  of section 61 1  of the
municipal act the basis on which the liability to pay tax
arises is the trade profession or business and if the
trade and business is one carried on by several persons
collectively in partnership then the partnership alone and
number the individual partners are liable to pay the tax that
the liability on the partners will fall twice which is number
contemplated by the scheme and language of the municipal
act even though all the partners are jointly and severally
liable to any tax for the partnership business. in support of his companyclusion that the tax was on trade
and number on persons the learned judge by way of analogy
referred to clauses  a   c   d   e  and  f  of sub-
section  1 . he also referred to two madras decisions in the
municipal companymissioners of nagapatam v. sadaya pillay 1  and
davies v. president of the madras municipal companymission 2
and found himself in entire agreement with the reasoning of
the learned judges in those cases. aggrieved the municipal companymittee preferred a letters
patent appeal. the appellate bench of the high companyrt held
that to import the definition of the term person occuring
in section 2 40  of the punjab general clauses act into
section 61 1   b  of the municipal act will be repugnant to
the subject. in the opinion of the bench under the scheme
of the statute in question the tax cannumber be levied on a
firm or factory as such but only on the individual owners
of the factory or of the firm. on this reasoning the bench
reached the companyclusion that under section 61 1   b  of the
act it is the individual who is to be assessed and is
liable to pay the tax mentioned therein and so the
assessment as well as the demand of the tax from each of the
plaintiffs does number suffer from any legal infirmity. the
bench further held that since the companymittee in imposing the
tax on the appellants herein has number acted outside the
provisions of the statute it would on the basis of the
judgment of the supreme companyrt in firm seth radha kishan
 deceased  represented by hari kishan ors. v.
administrator municipal companymittee ludhiana 3  which also
dealt with the provisions of the municipal act follow that
the impugned assessment companyld only be questioned under the
provisions of sections 84 and 86 of the act and the
jurisdiction of the civil companyrt in respect of tax levied or
the assessment made is excluded. in the result the appeal
was allowed and the trial companyrts decision dismissing the
suit was restored. before us mr. v. k. mahajan learned companynsel for the
plaintiffs-appellants has adopted the reasons given by the
learned single judge of the high companyrt. in support of his
contentions he has relied upon the
aforesaid madras decisions. his argument is that if the
interpretation placed by the appellate bench of the high
court is allowed to stand it will lead to anamolous and
unconstitutional results. mr. mahajan companycedes that the
individual partners are also persons within the meaning of
clause  b  of section 61 1 . he however maintains that the
firm also is a person within the companytemplation of this
provision and as such liable to be taxed that if in
respect of the one trade which is being carried on by the
firm apart from each of the individual partners the firm
also is separately assessed to rs. 200/- per annum number only
the incidence of the tax will fall twice the total
liability therefor will far exceed the ceiling of rs. 250/-
per annum fixed by article 276 2  of the companystitution. in
these premises it is companytended that an interpretation of
section 61 1   b  which may lead to unconstitutional on
irrational results should be eschewed. with regard to the question of jurisdiction it is
contended that since the municipal companymittee had in the
exercise of its powers clearly acted beyond its
jurisdiction the suit was maintainable in the civil companyrt. section 61 1  b  of the municipal act so far as
material for this case reads as under
subject to any general or special orders which
the state government may make in this behalf and the
rules any companymittee may from time to time for the
purposes of this act and in the manner directed by
this act impose in the whole or any part of the
municipality any of the following taxes namely-
 1   a

to  iii
 b  a tax on persons practising any profession or
art or carrying on any trade or calling in the
municipality. explanation.-a person in the service or person
holding an office under the state government or the
central government or a local or other public authority
shall be deemed to be practising a profession within
the meaning of this sub-section. from a plain reading of the extracted provision
it is clear that a tax leviable under clause  b  is in
terms a tax on persons. the expression persons
undoubtedly includes natural persons. the class of such
taxable persons has been indicated by the legislature with
reference to their occupational activity. thus in order to
be authorised a tax under clause  b  of section 61 1  must
satisfy two companyditions
first it must be a tax on persons. second such persons
must be practising any profession or art or carrying on any
trade or calling in the municipality. there can be numberdispute that the appellants are
persons and as such satisfy the first companydition. even
the learned companynsel for the appellants has candidly companyceded
that the individual partners are also persons within the
meaning of the said clause  b . companytroversy thus becomes
narrowed down into the issue whether persons companylectively
doing business in partnership in the municipality fulfil
the second companydition ? that is to say do such persons
carry of any trade or calling in the municipality within
the companytemplation of clause  b  ? in our opinion for reasons that follow the answer to
this question must be in the affimative. partnership as defined in section 4 of the indian
partnership act 1932 is the relation between persons who
have agreed to share the profits of a business carried on by
all or any of them for the benefit of all. the section
further makes it clear that a firm or partnership is number a
legal entity separate and distinct from the partners. firm
is only a companypendious description of the individuals who
compose the firm. the crucial words in the definition of
partnership are those that have been underlined. they hold
the key to the question posed above. they show that the
business is carried on by all or any of the partners. in the
instant case admittedly all the plaintiff-appellants are
carrying on the business in partnership. all the six
partners are sharing the profits and losses. all the
partners are jointly and severally responsible for the
liabilities incurred or obligations incurred in the companyrse
of the business. each partner is companysidered an agent of the
other. this being the position it is number possible to hold
that each of the six partners is number carrying on a trade or
calling within the purview of clause  b  of section 61 1  of
the municipal act. at the most it can be said that each of
these six persons is severally as well as companylectively
carrying on a trade in the municipality. there is numberhing in
the language of section 61 or the scheme of the municipal
act which warrants the companystruction that persons who are
carrying on a trade in association or partnership with each
other cannumber be individually taxed under clause  b  of
section 61 1 . on the companytrary definite indication is
available in the language and the scheme of this statute
that such partners can be taxed as persons in their
individual capacity. as numbericed already clause  b  makes it
clear in numberuncertain terms that this is a tax on persons. its incidence falls on individuals who belong to a class
practising any profession or art or carrying on a trade or
calling in the municipality. to hold that persons who are companylectively carrying on a
trade in the municipality cannumber be taxed individually
would be to read into the statute words which are number there. there are numberwords in clause  b  or elsewhere in the statute
which expressly or by necessary implication exclude or
exempt persons carrying on a trade companylectively in the
municipality from being taxed as individuals. to attract
liability to a tax under this clause it is sufficient that
the person companycerned is carrying on a trade in the
municipality irrespective of whether such trade is being
carried on by him individually or in partnership with
others. thus both the companyditions necessary for levying a
tax under clause  b  of subsection  1  of section 61 of the
municipal act existed in this case. the appellants are
persons and they are carrying on a trade in chheharata
municipality. in the view we take we do number think it necessary to go
further into the question whether the definition of
person given in section 2 40  of the punjab general
clauses act can be imported into the statute under
consideration so as to include a companytractual firm also
within the purview of the expression persons used in
clause  b  of section 61 1 . indeed the entire effort to
import the definition of person given in the general
clauses act into section 61 1  b  of the municipal act is
directed to find a foundation for the argument that the
construction adopted by the high companyrt companyld lead to double
taxation and even unconstitutional results. but in the
instant case numberhing of this kind has happened. the firm
has number been assessed. numberquestion of double taxation or
exceeding the companystitutional ceiling of rs. 250/- fixed by
article 276 2  of the companystitution arises on the facts of
the present case. the arguments advanced on behalf of the
appellants on this aspect of the matter are merely
hypothetical and speculative. this takes us to the second question whether the civil
court had jurisdiction to hear and determine the suit. section 84 1  of the punjab municipal act provides that
an appeal against the assessment or levy of any tax
under this act shall lie to the deputy companymissioner or to
such other officer as may be empowered by the state
government in this behalf. then there is a proviso to this
sub-section which says that when the deputy companymissioner or
such other officer as aforesaid is or was when the tax
was imposed a member of the companymittee the appeal shall lie
to the companymissioner of the division. sub-section  2  is
important. it provides
84 2 . if on the hearing of an appeal under the
section any question as to the liability to or the
principle of assessment of a tax arises on which the
officer hearing the appeal entertains reasonable dobut
he may either of his own
motion or on the application of any person interested
draw up a statement of the facts of the case and the
point on which doubt is entertained and refer the
statement with his own opinion on the point for the
decision of the high companyrt. section 86 mandates that numberobjection shall be taken
to any valuation or assessment number shall the liability of
any person to be assessed or taxed be questioned in any
other manner or by any other authority than is provided in
this act. from a companyjoint reading of sections 84 and 86 it is
plain that the municipal act gives a special and particular
remedy for the person aggrieved by an assessment of tax
under this act irrespective of whether the grievance
relates to the rate or quantum of tax or the principle of
assessment. the act further provides a particular forum and
a specific mode of having this remedy which analogous to
that provided in section 66  2  of the indian income-tax
act 1922. section 86 forbids in clear terms the person
aggrieved by an assessment from seeking his remedy in any
other forum or in any other manner than that provided in the
municipal act. it is well recognised that where a revenue statute
provides for a person aggrieved by an assessment thereunder
a particular remedy to be sought in a particular forum in a
particular way it must be sought in that forum and in that
manner and all other forums and modes of seeking it are
excluded. companystrued in the light of this principle it is
clear that sections 84 and 86 of the municipal act bar by
inevitable implication the jurisdiction of the civil companyrt
where the grievance of the party relates to an assessment or
the principle of assessment under this act. in the view we take we are fortified by the decision
of this companyrt in firm seth radha kishan v. administrator
municipal companymittee ludhiana  supra  wherein sections 84
and 86 of this very punjab municipal act 1911 came up for
consideration. therein the municipal companymittee ludhiana
imposed a terminal tax on sambhar salt and assessed the
appellant therein to a sum of rs. 5893/- towards that tax
at the rate of rs. 10/- per maund under item 69 of the
government numberification by which the terminal tax was
imposed. the assessee filed a suit against the municipal
committee in the civil companyrt companytending that sambhar salt
ought to have been assessed at the rate of 3 pies per maund
under item 68 that he had been illegally assessed under
item 69 at the higher rate and claimed refund of the amount
paid by him with interest. the companymittee inter alia
contended that sambhar salt was number companymon salt and the
civil companyrt had numberjurisdiction to entertain the suit. the
trial companyrt held that sambhar salt was companymon salt within
the meaning of item 68 of the schedule that
the imposition of tax on it under item 69 of the schedule
was illegal and therefore the civil companyrt had
jurisdiction to hear and determine the suit by virtue of
section 9 of the companye of civil procedure. on appeal the high companyrt held that the civil companyrt had
numberjurisdiction and dismissed the suit. the assessee came in appeal to this companyrt by
certificate granted by the high companyrt and companytended that
since the impugned levy was number made under the municipal act
but in derogation thereof the civil companyrt had jurisdiction
to entertain and determine the suit. delivering the judgment of the companyrt subba rao j.  as
he then was  repelled this companytention observing that the
rate of the tax to be levied depended upon the character of
the salt and it was number possible to say that in
ascertaining this fact the authorities companycerned travelled
outside the provisions of the municipal act even if they
wrongly applied item 69 of the schedule that the mistake in
applying the wrong item of the schedule to the tax companyld be
corrected only in the manner prescribed by the act and the
aggrieved person cannumber file a suit in the civil companyrt in
that regard the civil companyrts jurisdiction having been
excluded by the provisions of sections 84 and 86 of the act. the companyrt distinguished that class of cases where the
municipal companymittee in levying a tax or companymitting an act
clearly acts outside or in abuse of its powers under the
municipal act and explained that it is only in such cases
the bar to the jurisdiction of the civil companyrt would number
apply. can the case before us be said to belong to that
class of cases where the municipal companymittee in levying a
tax acts beyond or in abuse of its powers under the act ? the answer to this question must be in the negative. by no
stretch of imagination can it be said in the facts and
circumstances of the case that in assessing the appellants
individually and number companylectively to the tax in question
the municipal companymittee abused its powers under the act. we
have already discussed and held that in levying this tax
the municipal companymittee did number travel beyond or act
contrary to the provisions of section 61 1  b  of the act.


criminal appellate jurisdiction criminal appeal number
669 of 1980.
appeal by special leave from the judgment and order
dated the 2nd february 1979 of the karnataka high companyrt in
criminal revision petition number 320 of 1978.

r.l. iyengar and n. nettar for the appellant. l. wahi and k.c. dua for respondent number. 1-3.
ram jethmalani and miss rani jethmalani for respondent
number 4.
the judgment of the companyrt was delivered by
sen j. in this appeal by special leave from the
judgment of the karnataka high companyrt the only issue between
the parties is as to the legality and propriety of the order
of companyfiscation passed by the deputy companymissioner belgaum
of a companysignment of 7200 kg. of groundnut oil seized for
contravention of sub-cls.  2   a  and  b  of cl. 3 of the
edible oil edible oil seeds and oil cakes  declaration of
stocks  order 1976 hereinafter called the order . briefly stated the facts are these on 6.6 1977 at
about 11.30 a.m. the sub inspector of police hukeri
intercepted a truck bearing registration number mhl 2675 laden
with 40 barrels of groundnut oil weighing 7200 kg. which
were being transported from kampli to nippani without
furnishing a declaration in form ii to tahsildar hospet as
required under sub-cls.  2   a  and  b  of cl. 3 of the
order. the sub inspector of police after seizing the
vehicle and the oil registered a case and thereafter
reported the matter to the deputy companymissioner belgaum. he
forwarded the report together with the seized vehicle and
the oil to the deputy companymissioner belgaum for taking
action under s. 6-a of the essential companymodities act 1955
 hereinafter called the act . the truck was released to the
owner on his executing an indemnity bond and the groundnut
oil released to the respondent 4 gopinath manikchand
dharia proprietor messrs anant oil mills nippani on his
furnishing a bank guarantee for rs. 70000/- towards the
price thereof. the deputy companymissioner gave numberices as
required under s. 6-b of the act to the parties companycerned. during the enquiry the respondent number 4 produced before him
a companyy of the invoice dated 5.6.1977 issued by sri
satyanarayana oil mills bellary road kampli show-
ing the sale of 7200 kg. of groundnut oil to messrs anant
oil mills nippani. he also produced a companyy of the
declaration in form number 39 prescribed under the mysore sales
tax act 1957. the deputy companymissioner after affording the
parties an opportunity of hearing held that the respondents
had companytravened the provisions of sub-cl.  2   a  and  b  of
cl. 3 of the order and accordingly companyfiscated 40 barrels of
groundnut oil and the truck bearing registration number mhl
2675.
the respondents preferred an appeal under s. 6-c of the
act before the ii additional sessions judge belgaum who
was the appellate authority. but he by his well-considered
judgment companyfirmed the order of companyfiscation passed by the
deputy companymissioner under s. 6-a of the act. thereupon the
respondents preferred a revision before the high companyrt and a
learned single judge has by his judgment set aside the
order of the appellate authority as well as the deputy
commissioner on the ground that there was substantial
compliance of the requirements under sub-cls.  2   a  and
 b  of cl. 3 of the order inasmuch as the respondents had
sent the prescribed declaration in form ii to the tahsildar
hospet on 7.6.1977. according to the high companyrt numbersuch
declaration companyld be furnished on 5.6.1977 as it was a
holiday being sunday. upon that view the high companyrt set
aside the order of companyfiscation passed by the deputy
commissioner under s. 6-a of the act and directed
restoration of all the properties to the persons companycerned. hence this appeal by special leave. the state was number interested in the companyfiscation of the
truck and therefore special leave is companyfined to the
question of the legality and propriety of the order of
confiscation passed by the deputy companymissioner under s. 6-a
of the act in respect of the seized groundnut oil. on the admitted facts there can be numberdoubt whatever
that there was a companytravention of sub-cls.  2   a  and  b
of cl. 3 of the order. sub-cls  2   a  and  b  of cl. 3 are
as follows
3.  2  a stock holder who transports edible-oils
edible oil seeds and oil cakes shall make a declaration
in form ii to the officer specified in sub-clause  i
in respect of such edible oils edible oil seeds and
oil cakes-
 a  at the place from where such edible oils edible
oil seeds and oil cakes are transported before
such
edible oils edible oil seeds and oil cakes leave
the said place and
 b  at every check post on the route immediately
after their arrival there
provided that the declaration at a check post shall be
made in person by the stock holder or by the person in
charge of such edible oils edible oil seeds and oil
cakes to such officer as the government may by special
or general order specify. the expression stock-holder has been defined in the
order as meaning every person who is in possession or
control of 150 kilograms or more of groundnut oil  b  15
quintals or more of groundnut oil or cake  c  15 quintals
or more of groundnut seeds and  d  20 quintals of
groundnut shell. the explanation thereto provides that
edible oil edible oil seeds and oil cakes in transit shall
be presumed to be under the companytrol of the owner thereof. d
the order passed by the high companyrt setting aside the
order of r companyfiscation made by the deputy companymissioner
under s. 6-a of the act can hardly be supported. in reaching
the companyclusion that it did the high companyrt observes that
5.6.1977 being sunday the declaration in form ii companyld number
be delivered to the tahsildar since the taluka office was
closed. number companyld it be sent by registered post
acknumberledgement due as the post office companyld number have been
working on that day. it then goes on to observe
then the question is whether a stock-holder
should number at all transport his stock on a sunday
though the companytractual terms of his business of such
transaction required that it should be done as the
stock should reach the companysignee on a particular date. it is impossible to companyceive that law expects any
citizen to perform what is impossible to be performed
in law. number the fact that form ii has been received in
the office of the tahsildar on 7.6.1977 clearly
indicates that it must have been sent by registered
post on 6.6.1977. anyhow when once it is seen that it
was impossible for the stock-holder  petitioner-4  to
submit form-ii on 5.6.1977 before transporting
groundnut-oil in that truck on that day it cannumber at
all be said that petitioner-4 has companymitted any breach
of the provisions of the order. it is difficult to subscribe to the view expressed by the
high companyrt. when the parties were entering into a
transaction of such magnitude there was a duty cast on them
to companyply with the requirements of sub-cls.  2   a  and  b
of cl. 3 of the order before the companysignment left the place. if the companysignment was to be loaded on 5.6.1977 which was a
sunday numberhing prevented the parties from furnishing a
declaration on 4.6.1977. the high companyrt appears to be
labouring under a belief that there need be numberstrict
observance of the laws on a sunday. there is numberwarrant for
this view. faced with the situation that it was rather difficult
if number impossible to support the view taken by the high
court shri ram jethmalani learned companynsel for the
respondent number 4 made a valiant effort to avert the order of
confiscation passed under s. 6-a of the act by advancing
the following three companytentions  1  the power companyferred on
the deputy companymissioner under s. 6-a of the act by the use
of the word may makes it a discretionary power which had
to be used according to sound judicial principles. it is
urged that messrs anant oil mills to whom the groundnut oil
belonged had companymitted numberbreach of sub-cls.  2   a  and  b
of cl. 3 of the order and therefore the order of
confiscation of the entire companysignment passed by the deputy
commissioner was wholly arbitrary and excessive.  2  the
power of companyfiscation entrusted to the deputy companymissioner
under s. 6-a of the act is exercisable in relation to an
essential companymodity seized in pursuance of an order made
under s. 3. there was numberhing to show that the groundnut oil
in question had been seized or that a report of such seizure
had been made without unreasonable delay to the deputy
commissioner under the order and therefore the deputy
commissioner had numberpower to direct its companyfiscation under
s. 6-a of the act.  3  it is number established that the deputy
commissioner had companyplied with the statutory requirements of
s. 6-b of the act by giving a show cause numberice to the
persons companycerned against the action proposed to be taken or
afforded them an opportunity of hearing and therefore the
order of companyfiscation passed by him under s. 6-a was a
nullity. we are afraid numbere of these companytentions can
prevail. as to point number  1  it is axiomatic that the power of
confiscation of an essential companymodity seized for
contravention of an order issued under cl. 3 is a
discretionary power. the use of the word may however
does number necessarily mean that the deputy company missioner
cannumber in the given circumstances of a particular case
direct the companyfiscation of the entire companysignment of an
essential companymodity in relation to which there is a
contravention of any of the orders issued under s. 3 of the
act. it all depends on the facts
and circumstances of each case whether the companyfiscation
should be of an entire companysignment or part of it depending
upon the nature of the companytravention. the power companyferred on
the deputy companymissioner under s. 6-a of the act by the use
of the word may makes the power companypled with a public
duty. sometimes it may be in the public interest to direct
confiscation of the entire companysignment of an essential
commodity when there is deliberate companytravention of the
provisions of an order issued under s. 3 of the act. in the facts and circumstances of the present case it
cannumber be doubted for a moment that the deputy companymissioner
acted in the public interest to direct companyfiscation of the
entire companysignment of the groundnut oil as it was being
transported from one place to. anumberher without furnishing
the requisite declaration in form ii. all systems of
control supply and distribution of essential companymodities
would fail unless the various companytrol orders issued by the
central government under s. 3 of the act in relation thereto
are strictly observed. these companytrol orders are issued under
s. 3 when the central government is of opinion that it is
necessary or expedient so to do for maintaining or
increasing supplies of essential companymodities or for securing
equitable distribution and availability at fair prices etc. sub-cls.  2   a  and  b  of cl. 3 of the order enjoin that
the stock-holder shall make a declaration in from ii in
relation to movement of edible oil edible oil seeds and oil
cakes to the tahsildar in-charge of the taluka of the place
from where such edible oil edible oil seeds and oil cakes
are transported before such edible oil edible oil seeds or
oil cakes leave the place. the whole purpose is to maintain
a companytrol over the stock of such essential companymodities at a
place with a view to secure their equitable distribution and
availability at fair prices. the requirements of sub-cls.  2   a  and  b  of cl. 3 of the order are clearly mandatory. we fail to companyprehend the companytention that there was
only a technical breach. under sub-cls.  2  a  and  b  of
cl. 3 of the order a stock-holder is required to furnish a
declaration in form ii in relation to movement of edible
oil edible oil seeds and cakes to the tahsildar in-charge
of the taluka at the place from where such companymodity is
sought to be transported before such companymodity leaves the
place. the definition of stock-holder certainly means the
consignumber who holds such stock of edible oil oil seeds and
cakes and also may include a purchaser of such oil seeds
and cakes who is in possession or companytrol thereof. explanation to the definition of
stock-holder by a legal fiction treats the owner to have
control over the edible oil edible oil seeds and cakes in
transit. the respondent number 4 being the purchaser also
comes within the definition of stock-holder by reason of
the said explanation. there is numberhing to show that the
consignumber had reserved the jus disponendi by the terms of
the companytract or appropriation and therefore the property
in the goods passed to the respondent number 4 on their
delivery to a companymon carrier under s. 25 of the sale of
goods act 1930.
the allegation in the companyplaint is that 40 barrels of
groundnut oil weighing 7200 kg. were being transported by
the truck bearing number mhl 2675 without furnishing the
requisite declaration in form ii and it was intercepted at
the hukeri check-post by the sub-inspector of police. in
response to a numberice issued by the deputy companymissioner under
s. 6-b of the act the respondent number 4 produced before him
the documents of title in relation to the goods. from these
documents it is clear that the companysignumber was sri
satyanarayana oil mills kampli and the companysignee was messrs
anant oil mills nippani and that the truck was laden with
the companysignment. these facts were also borne out by the
particulars furnished in the declaration in form 39 under
the mysore sales tax act 1957.
it appears from these documents that sri satyanarayana
oil mills after despatching the companysignment purported to
furnish the declaration in form ii to the tahsildar hospet
which was received by him on 7.6.1977 requesting for the
release of the groundnut oil in question. the respondent number
4 companytended before the deputy companymissioner that there was
substantial companypliance of the requirements of sub-cls.  2  a  and  b  of cl. 3 of the order and therefore the
seized groundnut oil be released but he rejected the
contention on the ground that the declaration in form ii was
required to be filed before the specified officer before the
goods left the place. the deputy companymissioner requisitioned
the form produced before the tahsildar but i t did number bear
any date. he was of the view that the declaration was number
sent by registered post on 6.6.1977 as asserted but had
apparently been handed over in the taluka office and
acknumberledgment obtained for the same. the deputy
commissioner observed that the requirement of law was that
the declaration in form ii had to be produced at every
check-post during transit and this was number done. the driver
of the truck did number have a companyy of the declaration in form
ii but only the declaration in form 39 which companyld number be
taken to be in companypliance of law. obviously the stock-
holder sri satyanarayana oil mills after despatching the
consignment of groundnut oil purported to furnish the
declaration in form ii. this was in companyplete breach of the
requirements of sub-cls.  2   a  and  b  of cl. 3 of the
order. the deputy companymissioner therefore held that the
respondents having companytravened the provisions of sub-cls.  2   a  and  b  of cl. 3 of the order the seized truck
alongwith the entire companysignment of the groundnut oil was
liable to be companyfiscated under s. 6-a of the act. the
learned sessions judge in our opinion rightly companyfirmed
the order of companyfiscation passed by the deputy companymissioner
under s. 6-a of the act as it was unassailable. at numberpoint
of time was there a companytention raised that the deputy
commissioner had failed to exercise his discretion as to the
quantity of the groundnut oil liable to be seized. it is number
too late in the day to urge the point before this companyrt. c
as to point number  2  there is numberwarrant for the
submission that there was numberhing to show that the groundnut
oil had been seized and therefore the power of
confiscation was number exercisable by the deputy companymissioner
under s. 6-a of the act it is manifest from the order of
the deputy companymissioner that there was a companytravention of
sub-cls.  2   a  and  b  of cl. 3 of the order and that the
sub inspector of police seized both the truck and the
consignment of groundnut oil and forwarded the same to him
along with his report for taking action under s. 6-a of the
act. the companytention of the public prosecutor before the
deputy companymissioner was that the seized truck and the
groundnut oil were liable to be companyfiscated. the very fact
that the seized groundnut oil was released to the respondent
number 4 on his furnishing a bank guarantee for rs. 70000 for
the price of the companysignment of the groundnut oil clearly
shows that it had been seized. it is therefore idle to
contend that the power of companyfiscation under s. 6-a of the
act was number exercisable for want of seizure. as to point number  3  from the narration of facts above
it is amply clear that there was numberbreach of the
requirements of s. 6-b of the act on the part of the deputy
commissioner. the record shows that the deputy companymissioner
on receipt of the report of the sub inspector of police
mentioning the fact of companytravention of sub-cls. g  2   a
and  b  of cl. 3 of the order and forwarding the seized
truck and the companysignment of groundnut oil issued numberice to
the parties companycerned under s. 6-b of the act to show cause
against their companyfiscation. in response to the numberice the
respondent number 4 appeared before the deputy companymissioner and
filed a companyy of the invoice together with a companyy of the
declaration in form 39 under the mysore
sales tax act 1957. the deputy companymissioner sent for the
declaration in form ii as furnished to the tahsildar which
did number bear a date. he also gave a hearing to the parties.