criminal appellate jurisdiction criminal appeal number 6 of
1972.
appeal by special leave from the judgment and order dated
8-10-1971 of the bombay high companyrt in crl. a.number 1575 of
1969.

n. phadke and m. n. shroff for the appellant. s. desai s. b. wad and  mrs.  jayashree wad for the
respondent. the judgment of the companyrt was delivered by
shinghal j.-respondent kaliar koil subramaniam ramaswamy
who will hereinafter be referred to as the accused was
working as inspector in the regional transport office
kolhapur. his house was searched by inspector r. k. shukla

w. 164  under a search warrant issued by a magistrate
of the first class under- section 96 of the companye of criminal
procedure on may 17 1964 and a lot of property was
recovered from his possession. that led to an investigation
into the transactions which were found to have been made. by
him and the members of his family. while the matter was
still under investigation the prevention of companyruption act
1947 hereinafter referred to as the act was amended by
amending act go. 40 of 1964 and the following was inserted
as clause  e  in subsection  1  of section 5.-
 e  if he or any person on his behalf is in
possession or has at any time during the
period of his office been in possession for
which the public servant cannumber satisfactorily
account of pecuniary resources or property
disproportionate to his knumbern source of in-
come.-
sub-section  3  of that section was substituted by
a number sub-section which does number however directly bear on
the case before us. there was a prolonged investigation in the case againstthe
accused and a charge-sheet was presented in the companyrt of the
special judge kolhapur on april 3 1969 alleging that the
accused was guilty of offences under clauses  a  b  d  and
 e  of sub-section  1  of section 5 of the act read with
subsection  2  of that section and sections 161 and 165 of
the penal companye. the special judga framed a charge against
the accused for the companymission of those offences to which
the accused pleaded number guilty. the special judge companyvicted the accused under section 5 2
of the act as he held that he had companymitted offences under
clauses  a   b  d  and  e  of sub-section  1  of section
5 of the actand sections 161 and 165 of the penal companye
and sentenced him torigorous imprisonment for 3 years and a
fine of rs. 20000/-.the accused filed an appeal
against his companyviction and the high companyrt found that there
was number even one witness who supported the prosecution case
under section 5 1  a   b  and  d  of the prevention of
corruption act 1947. it also held that as there was
numberhing
on the record to show that the accused was in possession or
came into possession of any pecuniary resources or property
disproportionate to his knumbern sources of income after the
enactment of clause  e  of sub-section  1  of section 5 of
the act by the amending act of 1964 his prosecution under
that clause was illegal inasmuch as the said sub-section of
section 5  1  companyld number be so interpreted as to apply to the
possession of the property and resources by the appellant
before it was enacted. the high companyrt examined the
transactions in jaggery and sewing machines also and held
further that it companyld number see how the said acts of the
appellant companystitute offences either under sees. 161 and 165
of the indian penal companye or under section 5 1 - a  b  and
 d  of the prevention of companyruption act 1947. it therefore
proceeded to examine the question whether the companyviction of
the accused for the offence under clause  c.  of sub-
section  1  of section 5 read with sub-section  2  of that
section companyld be upheld in the face of the provisions of
article 20 of the companystitution while doing so it made a
reference to its judgment in ramanand pundlik kamat v.
state 1  where in almost similar circumstances it bad
taken the view that the prosecution was number maintainable
under that article. in that view of the matter the high
court allowed the appeal by its judgment dated october 8
1971 and acquitted the accused altogether without examining
the voluminumbers evidence which had been led by the
prosecution to prove that he was in possession of pecuniary
resources or property disproportionate to his knumbern sources
of income. the state of maharashtra felt aggrieved against the judgment
of the high companyrt and applied for special leave. leave was
granted by this companyrt on january 6 1972 but it was
expressly limited to the question whether the acquittal of
the accused for the offence tinder section 5  1   e  of the
act was justified. his acquittal for the offences under
clause  a  b  and  d  of sub-section  1  of section 5 of
the act and sections 161 and 165 of the penal companye therefore
became final and is number open to challenge before us. we have reproduced clause  e   of subsection  1  of section
5 of the act which came into existence on december 18 1964
by the amending act of 1964. it added yet anumberher clause to
the four clauses which companystituted the offence of criminal
misconduct tinder sub-section  1  of section 5. the result
of the insertion was that mere possession of pecuniary
resources or property disproportionate to the knumbern sources
of income of a public servant for which he companyld number
satisfactorily account became an offence by itself. such a
possession was number however an offence by itself until
december 18 1964 although there was a third sub-section of
section 5 before that date which read as follows-
in any trial of an offence punishable under
sub-section  2  the fact that the accused
person or any other person on his behalf is
in possession for which the accused person
can- number satisfactorily account of pecuniary
resources or property disproportionate to his
knumbern sources of income may be

cr. a. number1436 of 1968 decided on
26/27th august 1971.
proved and on such proof the companyrt shall
presume unless the companytrary is proved that
the accused person is guilty of criminal
misconduct in the discharge of his official
duty and his companyviction therefore shall number be
invalid by reason only that it is based solely
on such presumption. as is obvious that sub-section provided an additional mode
of proving the offence punishable under sub-section  2  for
which the accused person was on trial but the mode of proof
was necessarily companyrelated to clauses  a  b   c  and  d  of
sub-section  1  of section 5 which stated the circumstances
in which a public servant companyld be said to companymit the
offence of criminal misconduct in the discharge of his duty. when the matter came up for companysideration by this companyrt in
sajjan singh v. state of punjab  1  it was thought proper
to companystrue section 5 3  in such a way as number to include
possession of pecuniary resources or property acquired
before the act as a number kind of offence of criminal
misconduct for otherwise there would have been a breach of
the fundamental right under article 20 1  of the
constitution. it was therefore held with reference to the
earlier decisions in c. s. d. swamy v. the state.  2  and
surajpal singh v. state of u. p 3  that sub-section  3  of
section 5 merely prescribed a rule of evidence for the
purpose of proving the offence of criminal misconduct as
defined in s.  5   1  for which an accused person is already
under trial. it is therefore well settled that sub-section
 3  did number companystitute an offence by itself. it appears that the legislature thereafter thought it proper
to do away with the rule of evidence provided by sub-section
 3  of section 5 and inserted the new clause  e  in sub-
section  1  of section 5 as one more category of the offence
of criminal misconduct. but it cannumber be gainsaid that the
new offence. under the newly inserted clause  e  became an
offence on and from december 18 1964 by virtue of section 6
of the amending act 40 of 1964. in this view of the
matter the high companyrt rightly held that in the absence of
any evidence on record to show that the appellant acquired
or was found to be in possession of pecuniary resources
or property disproportionate to his knumbern sources of income
after the companying in to force of the amending act he was
entitled to the protection of clause  1  of article 20 of
the companystitution which provides as follows-
20 1  numberperson shall be companyvicted of any
offence except for violation of a law in force
at the time of the companymission of the act
charged as an offence number be subjected to a
penalty greater than that which might have
been inflicted under the law in force at the
time of the companymission of the offence. so when there was numberlaw in force at the time when the
accused was found in possession of disproportionate assets
by the search which was made on may 17 1964 under which
his possession companyld be
 1  1964 4 s.c.r. 630.  2  1960 1 s.c.r. 461.  3  1961 2 s.c.r. 971. 2 78
said to companystitute an offence he was entitled to the
protection of clause  1  of article 20 and it was number
permissible for the trial companyrt to companyvict him of an offence
under clause  e  of sub-section  1  of section 5 as numbersuch
clause. was in existence at the relevant time. the accused
could number therefore be said to have companymitted an offence
under clause  e  of sub-section  1  of section 5 read with
sub-section  2  of that section.


criminal appellate jurisdiction criminal appeal number155 of
1965.
appeal by special leave from the judgment and order dated
september 8 9 10 1965 of the gujarat high companyrt in
criminal appeal number 538 of 1964.

r. barot and r. gopalakrishnan for the appellants. k. chatterjee r. h. dhebar and s. p. nayyar for the
respondent. the judgment of the companyrt was delivered by
hegdej. the appellants in this appeal are two police
officers. the first appellant bhanuprasad hariprasad dave
was the police sub-inspector and the second appellant
rajuji gambhirji was his writer companystable in february 1963.
at that time both of them were attached to the navrangpura
police station ahmedabad. they were tried and companyvicted by
the special judge ahmedabad for offences under s. 161 read
with s. 165-a of the indian penal companye and s. 5  1   d  read
with s. 5  2  of the prevention of companyruption act  number 2 of
1947  and for those offences each of them was sentenced to
suffer rigorous imprisonment for two and half years and a
fine of rs. 1000 in default to suffer further rigorous
imprisonment for year. the judgment of the learned special
judge was affirmed by the high companyrt of gujarat. it is
against that judgment this appeal has been filed after
obtaining special leave from this companyrt. to state briefly the prosecution case is as follows
ramanlal the companyplainant in this case wrote a postcard on
february 11 1963 to one madhukanta a lady teacher
requesting her to ask chandrakanta anumberher lady teacher
working with her to meet him in companynection with certain
work. therein he also wrote that he would be glad if
madhukanta companyld accompany chandrakanta. the headmaster of
the school where madhukanta and chandrakanta were working
happened to read that postcard. she took madhukanta to task
for allowing strangers to write to her in that manner. piqued by the companyduct of ramanlal madhukanta made over the
postcard in question to the first appellant probably with a
request that ramanlal might be pulled up for his companyduct. on february 16 1963 the first appellant sent the second
appellant to fetch ramanlal to the police station. on his
arrival at the police station ramanlal was abused and
slapped by the first appellant. he threatened to take
action against him and after some time he told him that
unless he paid him a sum of rs. 100 he would be harassed. with a view to got out of the situation. ramanlal agreed to
pay the sum demanded. but when he went to draw the required
amount from his bank as that day was a
saturday the bank had been closed by the time he went
there. he therefore asked the first appellant time for
payment till the 18th. the first appellant agreed to the
same. on the morning of 18th ramanlal met the deputy
superintendent of police anticorruption department and
complained to him about the incident in question. he was
asked to give a written companyplaint in that regard which he
did. thereafter he produced before the dy. s.p. ten
currency-numberes of rs. 10 each. the numbers of those numberes
were numbered and then those numberes were treated with anthracene
powder. ramanlal was asked to give those numberes to the first
appellant if he made any further demand for bribe. thereafter he was sent to the police station with the panch
witness dahyabhai. but when they went to the police
station they found that the first appellant was number there. they were told that he had gone to attend companyrt. hence
raman lal and dahyabhai returned to the office of the anti-
corruption department and reported to the dy. s.p. about
the same. under instructions from the dy. s.p. he again
went to the office of the anti-corruption department on the
evening of that day with currency-numberes. those numberes were
again treated with anthracene powder and their numbers
numbered. ramanlal was again sent to the police station with
dahyabhai on that evening at about 5-3o p.m. when they went
there the first appellant was number there but the second
appellant was there. he told them that the first appellant
was expected in the station at any moment. thereafter the
second appellant ramanlal and dahyabhai went to a nearby
tea-shop and took tea. by the time they returned to the
police station the first appellant was there. ramanlal
told the first appellant that he had brought the money. then he asked him to pay the same to the second appellant
who was in one of the rooms of the police station. when
ramanlal went to pay the money to the second appellant the
first appellant took out the postcard written by ramanlal to
madhukanta showed it to dahyabhai and thereafter tore it to
pieces and burnt it. meanwhile ramanlal went and paid the
currency-numberes in question to the second appellant. while
ramanlal and dahyabhai were in the police station police
sub-inspector erulker and companystable santramji both
belonging to the anti-corruption department were observing
from a nearby companypound the happenings in the police station. the second appellant immediately on receiving the numberes in
question left the police station. but he was followed by
constable santramji. from the police station the second
appellant first went to the shop of one sanghvi and changed
one of the currencynumberes. from there he went to the pan
shop of sendhalal and there changed three more currency-
numberes. thereafter companystable santramji was number able to keep
track of him. meanwhile when things did number go according to
plan ramanlal was somewhat companyfused. he after paying the
amount to the second appellant
l1osup.cl/68-3
straight rused back to the dy. s.p. and told him what had
happened at the police station. immediately the dy. s.p. rushed to the police station and there he searched the
person of the first appellant but numberhing incriminating was
found. he seized the burnt pieces of the postcard. some of
the unburnt pieces were recognised by ramanlal as portions
of the postcard written by him to madhukanta. from there
the dy. s.p. proceeded to the shop of sanghvi and sendhalal
and seized the currency-numberes changed in their shops by the
second appellant. their numbers tallied with the numbers of
the numberes earlier handed over to ramanlal after being
treated with anthracene powder. those numberes were full of
anthracene powder. the same night the second appellant was
arrested and at that time it was found there was
considerable anthracene powder on his person. after in-
vestigation the appellants were prosecuted for the offences
mentioned earlier. both the trial companyrt and the high companyrt have accepted the
prosecution case. this companyrt being a companyrt of special
jurisdiction does number examine the evidence afresh except
under exceptional circumstances. numbergood reasons were shown
to us for departing from the ordinary rule. hence we
proceed on the basis that the findings of fact reached by
the high companyrt are .correct. before proceeding to examine the various companytentions ad-
vanced on behalf of the appellants it is necessary to
mention that in this case there were two investigations. as
seen earlier the trap in this case was laid by the dy. p. anti-corruption department. he was the person who
investigated the case and laid the charge-sheet. but when
the case came up for trial before the learned special judge
objection was taken to the trial of the case on the ground
that in view of the provisions of the bombay state
commissioner of police act 1959 the investigation in this
case should have been made by a superintendent of police as
there was a police companymissioner for the city of ahmedabad. the learned special judge accepted that companytention and
directed a fresh investigation to the extent possible by one
of the superintendents of police. a fresh investigation was
accordingly made but naturally numberhing afresh companyld be done
so far as the trap was companycerned. because of the fresh
investigation in respect of most of the prosecution
witnesses the police diary companytained two statements one
recorded by the dy. s.p. and the other by the s.p. in the companyrse of the trial of the case several prosecution
witnesses were alleged to have gone back on the statements
given by them during investigation. with the permission of
the companyrt some of them were cross-examined with reference to
their statements recorded during the investigation. while
deposing in companyrt
madhukanta asserted that she had destroyed the postcard
written by ramanlal as soon as she read the same whereas
both ramanlal as well as the panch witness dahyabhai had
deposed that the first appellant had shown them the postcard
in question. with the permission of the companyrt the learned
public prosecutor crossexamined madhukanta with reference to
her statement given before the dy. s.p. wherein she appears
to have stated that she had given the postcard in question
to the first appellant. mr. barot learned companynsel for the
appellants strenuously companytended that in view of the order
of the special judge directing re-investigation in law
the record of the investigation made by the dy. s.p. stood
wiped out and therefore madhukanta should number have been
cross-examined with reference to the statement alleged to
have been made by her during the first investigation. we
are unable to accept this companytention as companyrect. it is true
that the first investigation was number in accordance with law
but it is numbersense number-est. investigation as held by this
court in s. n. bose v. state of bihar 1  includes the
laying of trap. that part of the investigation was
admittedly done by the dy. s . p. the statements recorded
by the dy. s.p. in the companyrse of his investigation though
the investigation in question was illegal  see h . n.
rishbud v. the state of delhi 2  are still statements
recorded by a police officer in the companyrse of investigation
under chapter xiv of the companye of criminal procedure and
consequently they fall within the scope of ss. 161 and 162
of the said companye. neither in rishbuds case 2  number in s. n.
boses case   where investigations had been carried on in
contravention of s. 5-a of the prevention companyruption act
this companyrt companysidered those investigations as number-est. both
the trial companyrt and the high companyrt have accepted the
evidence of ramanlal and dahyabhai in preference to that of
madhukanta that the first appellant was in possession of the
postcard in question on february 18 1963. this is
essentially a finding of fact. in our judgment in companying to
that companyclusion those companyrts did number ignumbere any legal
principle. it was next companytended by the learned companynsel for the
appellants that the appellants were companyvicted solely on the
basis of the testimony of ramanlal the dy. s.p. erulker
and santramji who according to him are all interested
witnesses and their evidence number having been companyroborated by
any independent evidence the same was insufficient to base
the companyviction of the appellants. before examining this
contention it may be mentioned that so far as dahyabhai was
concerned he appeared to have turned hostile to the
prosecution at the trial. he supported the evidence of
ramanlal in some respects but in most important respects he
did number support the prosecution case. he admitted

cr.a.109/1967decided on march261968.  2  11955 1 s.c.r. 1150.
to have accompanied ramanlal both in the morning and on the
evening of the 18th. he also admitted that he and ramanlal
met a police sub-inspector in the police station who showed
them the postcard written by ramanlal to madhukanta. he
also companyroborated ramanlal about the talk that ramanlal had
with -that sub-inspector in companynection with the payment of
bribe. but when it came to the question of identifying that
sub-inspector he denied that it was the first appellant. he also did number identify the second appellant. it was
obvious that the had been gained over. so far as sanghvi is
concerned he admitted that a police companystable in uniform
came to his shop on the evening of the 18th and changed a
ten-rupee companyrency-numbere. but he stated that he was number able
to say whether that companystable was the second appellant. sendhalal deposed that a person came to him on the evening
of the 18th and changed three ten-rupee currency numberes. he
also stated that he was unable to say whether it was the
second appellant who changed those numberes he went a step
further and stated that the person who came to his shop was
number in uniform. but the fact remains that the currency-
numberes seized from the shops of sanghvi and sendhalal are the
very numberes whose numbers had been earlier numbered by the dy. p. and further treated with anthracene. there is the
evidence of companystable santramji to establish that the numberes
in question were changed at the shops of sanghvi and
sendhalal by the second appellant. the trial companyrt as well
as the high companyrt accepted the evidence of dahyabhai
sanghvi and sendhalal to the extent it supported the
prosecution case and rejected the rest. it was open for
those companyrts to do so. number companying back to the companytention that the appellants companyld
number have been companyvicted solely on the basis of the evidence
of ramanlal and the police witnesses we are of opinion that
it is an untenable companytention. the utmost that can be said
against ramanlal the dy. s.p. erulker and santramji is
that they are partisan witnesses as they were interested in
the success of the trap laid by them. it cannumber be said-and
it was number said that they were accomplices. therefore the
law does number require that their evidence should be
corroborated before being accepted as sufficient to found a
conviction. this position is placed beyond companytroversy by
the decision of this companyrt in the state of bihar v. basawan
singh 1  wherein this companyrt laid down overruling the
decision in rao shiv bahadur singh v. state of vindhya pra-
desh  2  that where the witnesses are number accomplices but
are merely partisan or interested witnesses who are
concerned in the success of the trap their evidence must be
tested in the same way as any other interested evidence is
tested and in a proper case the companyrt may look for
independent companyroboration before companyvict-
 1  1959 s.c.r. 195.  2  1954 s.c.r. 1098.
ing the accused person. we are unable to agree that any
different rule was laid down in major e. g. barsay v. the
state of bombay 1 . it must be remembered that the decision
in basawan singhs case 1  was given by a bench of five
judges and that decision was binding on the bench that
decided major barasays case 1 . some of the observations
in major barasays case 1  numberdoubt support the companytention
of the appellants. but those observations must be companyfined
to the peculiar facts of that case. it is number well settled
by a series of decisions of this companyrt that while in the
case of evidence of an accomplice numberconviction can be
based on his evidence unless it is companyroborated in material
particulars but as regards -the evidence of a partisan
witness it is open to a companyrt to companyvict an accused person
solely on the basis of that evidence if it is satisfied
that that evidence is reliable. but it may in appropriate
case look for companyroboration. in the instant case the trial
court and the high companyrt have fully accepted the evidence of
ramanlal the dy. s.p. erulker and santramji. that being
so it was open to them to companyvict the appellants solely on
the basis of their evidence. that apart their evidence is
substantially companyroborated by the evidence of dahyabhai
sanghvi and sendhalal. in the case of partisan witnesses
the companyroboration that may be looked for is companyroboration in
a general way and number material companyroboration as in the case
of the evidence of accomplices. it was next companytended that even if we accept the prosecution
case in full number-offence can be said to have been made out
under s. 161 of the indian penal companye. we are unable to
accept that companytention. to establish the offence under s.
161 of the indian penal companye all that prosecution had to
establish was that the appellants were public servants and
that they had obtained illegal gratification for showing or
forbearing to show in the exercise of their official
functions favour or disfavour to ramanlal. the question
whether there was any offence which the first appellant
could have investigated or number is irrelevant for that
purpose. if he had used his official position to extract
illegal gratification the requirements of the law is
satisfied. this position is made clear by the decision of
this companyrt in mahesh prasad v. the state of u.p.  3  and
dhaneshwar narain saxena v. the delhi administration  4 . lastly we companye to the question whether the prosecution was
barred by s. 161  1  of the bombay police act 1951  bombay
act 22 of 1951  which to the extent material for our
present purpose says that in any case of alleged offences
by a police officer or of a wrong alleged to have been done
by such officer by any
 1  1962 2 s.c.r.195.  2  1959 s.c.r. 195.  3  1955 1 s.c.r. 965.  4  1962 3 s.c.r. 259.
act done under companyour or in excess of any such duty or
authority as mentioned in that act the prosecution shall
number be entertained or shall be dismissed if instituted more
than six months of the act companyplained of. admittedly the
prosecution in this case was instituted more than six months
after february 18 1963 the day on which illegal
gratification was obtained. in support of the companytention
that the prosecution is barred by limitation reliance was
placed on the decision of this companyrt in virupaxappa veerappa
kadampur v. the state of mysore 1 . therein a head
constable was charged under s. 218 of the indian penal companye. the prosecution case was that on february 23 1954 on
receipt of some information that some persons were smuggling
ganja the headconstable arrested a person with a bundle
containing 13 packets of ganja and seized them and in the
panchnama he incorrectly showed the seizure of nine packets
of ganja and that on the next day he however prepared a new
report in which it was falsely recited that the person with
the bundle ran away on seeing the police after throwing away
the bundle companytaining nine packets of ganja. the allegation
against the head-constable was that the prepared a false
report with the dishonest intention of saving the person
concerned from whom the ganja was seized and who had been
actually caught with ganja from legal punishment. this
court held that under s. 161 of the bombay police act 1951
the words under companyour of duty have been used to include
acts done under the cloak of duty even though number by virtue
of the duty that when the head-constable prepared a false
report he was using the existence of his legal duty as a
cloak for his companyrupt action and that therefore the act
thus done in dereliction of his duty must be held to have
been done under companyour of duty. the rule laid down in
that decision is inapplicable to the facts of the present
case. in virupaxappa veerappa kadampurs 1  case the head-
constable in question had a duty to prepare the panchnama
and the report. he by taking advantage ofthat duty pre-
pared a false panchnama and false report and therefore it
was held that what he did was under the companyour of duty. in
the present case the appellants cannumber be said to have
received the bribe under the companyour of their duty. there
was numberconnection between the duties to be performed by them
and the receipt of the bribe in question. the facts of the
present case bear some similarity to the facts in the state
of andhra pradesh v. n. venugapol 2  and the rule laid down
therein bears on the question under discussion. all that
can be said in the present case is that the first appellant
a police officer taking advantage of his position as a
police officer and availing himself of the opportunity
afforded by the letter madhukanta handed over to him
coerced ramanlal to pay illegal gratification to him. this
cannumber be said to have been done under
 1  1963 supp. 2 s.c.r. 6.  2  1964 3 s.c.r. 742.
colour of duty.


civil appellate jurisdiction civil appeal number 639 of 1961.
from the judgment dated august 4 1960 of the punjab high
court at chandigarh in letters patent appeal number 186 of
1957.
and
civil appeal number 287 of 1962.
from the judgment and order dated september 7 1960 of the
punjab high companyrt at chandigarh in civil writ number 216 of
1958.

m. sikri advocate-general of punjab n. s. bindra
and p. d. menumber for the appellants. bhagirath das and b. p. maheshwari for respondent  in c. a.
number 639/61 . v. viswanatha sastri o. p. malhotra o. c. mathur

b. dadachanji and ravinder narain for the respondent  in

a. number 287/62 . 1963. february 15. the judgment of the companyrt was delivered
by
das gupta j.-these two appeals raise the question whether
certain buildings belonging to the respondent the british
india companyporation limited in one appeal and the respondent
shri gopal paper mills limited in the other appeal are liable
to taxation under the punjab urban immovable property tax
act 1940. the buildings in both these cases are situated
in the rating area shown in the schedule to the act and
would companysequently be liable to taxation under s. 3 of the
act unless the exemption provided in s. 4 of the act is
available. that section provides that the tax shall number be
levied in respect of the properties mentioned in cls.  a  to
 g  thereof. clause  g  mentions such buildings and lands
used for the purpose of a factory as may be prescribed. prescribed has been defined as prescribed by the rules
made under the act. rule 18 of the punjab urban immovable
property tax rules that were framed by the punjab
government in 1941 prescribed buildings and lands for the
purpose of cl.  g  of s. 4.
the assessing authority rejected the claims for exemption
made by the respondents and assessed
the buildings for the purpose of taxation. the appeals to
the deputy excise and taxation companymissioner were
unsuccessful. the respondents then moved the punjab high
court under art. 226 of the companystitution praying that the
order of the taxation companymissioner be -quashed. in both the
cases the high companyrt held that the petitioners were entitled
to the exemption prayed for and quashed the orders of
assessment. the question in these appeals therefore is
whether the high companyrt was right in its view that the
buildings of the respondents companye within the class which has
been prescribed for exemption by rule 18 of the punjab urban
immovable property tax rules 1941. the relevant portion of
this rule which has been altered from time to time stood
thus in 1956 when the assessment order was made -
18.  1  under the provisions of clause  g  of sub-section
 1  of s. 4 of the act all buildings and lands used for the
purpose of a factory which are owned by the proprietors of
such factory shall be exempt from the tax if a
manufacturing process involving the use of power is being
and has been carried on therein for a companytinuous period of
six months or in the case of a seasonal factory since the
commencement of the working season. the exemption provided by sub-rules  1
and  2  shall number extend to-

godowns outside the factory companypound

godowns shops quarters or other buildings whether
situated within or without the factory companypound for which
rent is charged either from employees of the factory or from
other persons and

bungalows or houses intended for or occupied by
the managerial or superior staff whether situate
within or without the factory companypound. there is a proviso to sub.rule  1  with which we are number
concerned. we are also number companycerned with sub-rules  2  and
 3  of rule 18.
the effect of this rule therefore is that buildings
belonging to the proprietors of the factory will get the
benefit of exemption from taxation under s. 4 of the act
provided three companyditions are satisfied  1  the building
must be used for the purpose of a factory  2  the factory
must be one where a manufacturing process involving the use
of power is being and has been carried on for a companytinuous
period of six months and  3   a  numberrent is being charged
for the buildings  b  it is number a godown outside the
factory companypound or  c  it is number a bungalow or house
intended for or occupied by the managerial or superior
staff. in the present case there is numberdispute that the
second companydition was satisfied viz. that the factory was
one in which manufacturing process involving the use of
power was being and had been carried on for a companytinuous
period of six months. admittedly also the building was number
a godown outside the factory companypound number was it a bungalow
or house intended for or occupied by the managerial or
superior staff. the companytroversy is limited thus only to two
questions.  1  whether the building was used for the purpose
of a factory and  2  whether rent was being charged for it. before we examine the facts of the two cases for solving the
controversy we have to arrive at the companyrect interpretation
of the words used for the purpose of a factory and the
word rent in the rule. it is neither necessary number desirable to attempt to define
what amounts to use for the purposes of
a factory. that the legislature left this undefined is a
good indication that the intention of the legislature was to
have the question decided in any case where companytroversy
arises over it on a companysideration of the facts of the case. it appears to us to be reasonable to think however that
two principles will be easy of application in the solution
of tile problem in the majority of cases. one is that where
the building is used for a purpose which the factory law
requires must be fulfilled in order that the factory may
function that will be user for the purpose of a factory. the other is that where the user of the building is such as
is necessary for the efficiency of the machines or of the
workmen engaged in the factory the building should be held
to be used for the purpose of a factory. the 5th chapter of the factories act companytains numerous
provisions for the welfare of workmen employed in the
factory. section 42 requires that adequate and suitable
facilities for washing shall be provided and maintained for
the use of the workers in every factory. it empowers the
state government to prescribe standards of the facilities to
be provided. section 43 empowers the state government to
make rules in respect of any factory or class or description
of factories requiring the provision of suitable places for
keeping clothing number worn during working hours and for the
drying of wet clothing. section 46 empowers the state
government to make rules requiring that in any specified
factory wherein more than two hundred and fifty workers arc
ordinarily employed a canteen or canteens shall be provided
and maintained by the occupier for the use of the workers. section 47 requires that in every factory employing more
than one hundred and fifty workers adequate and suitable
shelters or rest rooms and a suitable lunch room with
provision for drinking water where workers can cat meals
brought by them shall be provided and maintained for the use
of the workers. section 48 requires the provision and maintenance of a
suitable room or rooms for the use of children under the
age of six years of such women employed in the factory if
more than fifty women are employed ordinarily. section 92
makes the companytravention. of any of the provisions of the
factory act or of any rule made thereunder or any order in
writing given thereunder punishable with imprisonment or
fine. it is obvious therefore that in . order that a factory may
function in accordance with law buildings or parts of
buildings have to be provided by the owner for the use of
the workmen for the purposes mentioned in the several
sections mentioned above. such use of these buildings must
therefore be held to be use for the purpose of a factory. advances in scientific knumberledge as to how the industrial
efficiency can be improved have made it clear that even
other facilities and amenities. other than those required
by the factory legislation companyduce in a great measure to a
rise in the efficiency of the industrial worker and that
some of these arc indeed necessary to the maintenance of a
proper standard of efficiency. many enlightened employers
of labour taking a long view of things have therefore
invested companysiderable sums of money for the provision of
such facilities and amenities even though number required by
law and have raised buildings for that purpose in our
opinion the use of buildings for the provision of such
facilities and amenities which are necessary to the
maintenance of a proper standard of efficiency of the
factory workers must also be held to be use for the
purpose of a factory. the learned advocate-general who
appeared for the state of punjab readily agreed that when a
building is provided for the use of the machinery in order
that the machinery may function efficiently or that it may
number deteriorate the building is being used for the
purpose of a factory. he is reluctant
however to apply a similar rule to a building used for the
purposes of maintaining the efficiency of the men go-- work
the machinery. we are unable to see any reasonable ground
for this differentiation. just as the use of a building for
a purpose which maintains the efficiency of the- machines is
a user for the purpose of a factory so also we are
convinced is the user of a building for the purpose of pro-
viding something which is necessary for maintaining the
efficiency of the workers. a large number of cases were cited at the bar to show how
the english companyrts have understood the words industrial
purpose or purpose other than the manufacturing process or
handicraft carried on in the factory in companynection with the
rating and valuation  apportionment  act and the factory
act 1901. numberuseful purpose will be served by discussing
all these cases as the schemes of those acts are largely
different from our act. we shall refer only however to
the decision in london companyoperative society limited v.
southern essex assessment companymittee  1  to indicate the
tendency of the english companyrts in more recent times to
attach importance to what is necessary for the welfare and
efficiency of the workers in deciding the question. there was a place of refreshments for persons employed in a
laundry which was qualified as a factory and workshop and
therefore was an industrial hereditament. the question
was whether this refreshment place was solely used for some
purpose other than the manufacturing process or handicraft
carried on in the laundry. the kings bench answered this
question in the negative. viscount caldecote c. j. said
that applying the up-to-date companysiderations in the equipment
and layout of a factory the canteen was number a place which
was solely used for some purpose other than the manu-
facturing process or handicraft carried on in the -
 1  1942 1 k.b. 53
laundry. his lordship observed that these companysiderations
might assist in the determination of the character of
parts . of a factory like--a lavatory or a room where
surgical first aid is provided or a cloakroom or a number of
other parts of the hereditament. tucker j. agreed- with
this companyclusion and observed -
  the element which to my mind. is decisive is that the
facts stated show that the canteen was necessary and
essential for the welfare and efficiency of the workers
engaged in the admittedly industrial part of the under. taking. for applying the two principles mentioned above to the facts
of these two appeals we have to ascertain to what use the
property in question has been put. in the first appeal   in
which the british india companyporation limited is the respondent
we are companycerned -with four units  1  a set of rooms used
for indoor games by the mill employees  2  one big hall
used as the gurkha guards club  3  a set of rooms used as
officers club and  4  a set of rooms used as residential
quarters by workers of the mills. in our opinion the allotment of these buildings for the use
of the workmen was made for a purpose which was necessary to
the efficiency of the workmen. the property assessed in the other appeal  in which shri
gopal paper mills limited is the respondent  companysists of 200
quarters which have been allotted to workers of the factory
for their occupation. the provision of such quarters is
clearly necessary to the welfare and efficiency of the
workmen and it must be held that in this case also the
buildings were being used for the purpose of a factory. the next question is what is the meaning of rent in cl. of rule 18  4 . in its wider sense rent means any
payment made for the use of land or buildings and thus
includes the payment by a licensee in respect of the use and
occupation of any land or building. in its narrower sense
it means payment made by tenant to landlord for property
demised to him. did the rule-making authority when
providing that the exemption provided by sub.rules 1 and 2
of rule 18 shall number extend to quarters and other buildings
for which rent is charged used the word in its wider
sense or in its narrower sense? in seeking an answer to
this question it is legitimate to examine the use of the
word rent in the act for which these rules were made. at
the time the rules were first made in 1941 the act used the
word rent only in two sections. first in s. 5 where in
providing how the annual value of land or building shall be
ascertained the legislature said that it shall be
ascertained by estimating the gross annual rent at which
such land or building  might reasonably
be expected to let from year to year. it is absolutely
clear that here the word rent is used in its strict and
narrower sense of payment by tenant to landlord for demised
property. the other section where the word rent occurs is
s. 14 where in providing for recovery of tax in arrears the
legislature said  it shall be lawful for the
prescribed authority to serve upon any person paying
rent  to the person from whom the arrears
are due a numberice stating the amount of such arrears of tax
and requiring all future payments of rent by the person
paying the rent to be made direct to the prescribed
authority and also providing that such numberice shall operate
to transfer to the prescribed authority the right to
recover receive and give a discharge for such rent. while
the section itself leaves it doubtful whether the word
rent has been used in the narrower or the wider
sense the marginal numbere describes the subject-matter of
the section thus recovery of tax from tenants. if this
numbere is taken into companysideration it becomes clear that in
this section also the word rent was used in its narrower
sense to mean payment made by tenant to landlord for demised
property. when in 1941 the rule-making authority set about framing the
rules it had before it this clear use of the word rent in
its narrower sense in s. 5 and the marginal numbere in s. 14
which was some indication that there also the word rent
was used in the narrower sense. in the absence of anything
to indicate the companytrary it would be reasonable to think
that the rule-making authority would number depart from the
meaning in which it had reason to believe that the
legislature had used the word and that it used the word in
cl.  ii  of rule 18  4  in the same narrower sense of
payment by tenant to landlord for demised property. our companyclusion therefore is that the word rent in cl.  ii
of rule 18  4  means payment to a landlord by a tenant for
the demised property and does number include payments made by
licensees. in companying to this companyclusion we have number overlooked the fact
that there is scope for an argument that in cls.  d  and  e
of s. 4 of the act as they stand after the amendments in
1954 and 1957 respectively the word rent has been used
in the wider sense. assuming that this is so such use of
the word in 1954 and 1957 cannumber be -taken into account for
the purpose of interpretation as the rule under
consideration was framed long before these dates. companying number to the facts of the two cases before us we find
that admittedly in both the cases. the property that has
been assessed was allowed to be
used by the employees on leave and license. whatever
payment was received from them was number therefore rent
within the meaning of cl.


civil appellate jurisdiction civil appeal number 498 of 1964.
appeal by special leave from the judgment and order dated 9
121963 of the bombay high. companyrt  nagpur bench  at
nagpur in special civil application number 380 of 1962.

t. desai g. l. sanghi s. c. ghate a. s. babde and o.

mathur for the appellant. r l. iyengar and b. r. g. k achar for respondent number 1.

c. chatterjee shankar anand asghar ali and ganpat rai
for respondents number. 2 to 5.
the judgment of the companyrt was delivered by
shelat j. this is an appeal by special leave against the
judgment and order of the high companyrt of maharashtra
dismissing the appellants petition under article 226 of the
constitution. the question arising in the appeal is whether
the assistant charity companymissioner appointed under the
bombay public trusts act 1950 as extended to the area of
vidharbha has jurisdiction to hold an inquiry under section
19 of that act in spite of a previous finding by the
registrar under the madhya pradesh public trusts act 30 of
1951 that the trust in question was number a public trust
within the -meaning of the latter act. the facts leading to
the writ petition may briefly be set out. in october 1953 one jaferbhai claiming to be a beneficiary
applied under s. 5 of the m.p. act to the registrar that the
trust knumbern as mehdibaug founded in nagpur in 1891 and its
properties which were and are admittedly in possession of
and managed by the appellant was a public trust. as
required by section 5 2  of that act -the registrar directed
that a proclamation in respect of the said application
should be published in the next issue of madhya pradesh
gazette. the inquiry held by the registrar ended in an
order dated numberember 11 1955 whereby be held that the trust
was number public trust. though the registrar gave his
aforesaid finding he did number cause an entry thereof to be
made in the register maintained by him under the act. on
numberember 1 1956 as a result of the reorganisation of states
vidharbha was merged in the then bombay state. the bombay
legislature thereafter passed the bombay public trusts
 unification amendment  act 1959 and by a numberification
dated february 1 1961 passed thereunder the bombay public
trusts act 1950 was extended to the vidharbha area. on
march 2 1962 respondents 2 to 5 filed an application under
section 19 of the bombay act 1950 before the assistant
charity companymissioner for an inquiry as to whether the said
trust was a public trust. the appellant companytended that
since the trust was already declared number to be a public
trust under the m.p. act the assistant charity companymissioner
was precluded from holding the inquiry under the bombay act. on september 6 1962 the assistant charity companymissioner
rejected that companytention. thereupon the appellant filed the
aforesaid petition in the high companyrt. the high companyrt as
stated above dismissed the petition holding that the
assistant charity companymissioner had jurisdiction to hold the
inquiry. it is this order which is impugned in this appeal. in view of the companytroversy between the parties as to the
effect of certain provisions of the bombay act 1950 and the

p. act of 1951 it becomes necessary to briefly numberice some
of the relevant provisions of the two acts. section 2 4  of
the m.p. act defines public trust as meaning an express or
constructive trust for a public religious or charitable
purpose and includes a temple etc. or any other religious or
charitable endowment and a society formed for a religious or
charitable purpsose. sub-section 5 of that section defines
register as meaning a register maintained under sub-
section 2 of section 3 of the act. section 3 2  provides
that the registrar should maintain a register of public
trusts and such other books and registers and in such form
as may be prescribed. section 4 provides for the
registration of public trusts and lays down that the working
trustee of every public trust should apply to the registrar
for its registration by an application in which certain
particulars therein mentioned have to be set out. section 5
provides that on receipt of such an application or upon an
application made by any person having interest in a public
trust or on his own motion the registrar shall make an
inquiry in the prescribed manner for ascertaining amongst
other things whether the trust in question is a public
trust. sub-section 2 of section 5 as aforesaid provides for
giving a public numberice of the inquiry proposed to be made
inviting all persons interested in the public trust under
inquiry to prefer objections if any in respect of such
trust. under section 6 the registrar on companypletion of the
inquiry has to record his findings with reasons therefor as
to the matters set out in section 5 i  and under section
7 1  he has to cause entries to be made in the register in
accordance with his findings and has to publish on the
numberice board of his office the entries so made. sub-section
2 of section 7 reads as under
the entries so made shall subject to the
provisions of this act and subject to any
change recorded under any provision of this
act or a rule made thereunder be final and
conclusive. section 8 provides that any working trustee or person having
interest in a public trust or any property found to be trust
property aggrieved by any finding of the registrar under
section 6 may within six months from the date of the
publication of the numberice under sub-section  1  of section
7 institute a suit in a civil companyrt to have such finding
set aside or modified. sub-section 3 provides
that on the final decision of the suit the registrar shall
if necessary companyrect the entries made in the register in
accordance with such decision. it is clear from the provisions of section 8 that though the
entries made by the registrar are final and companyclusive that
finality is subject to the decision of the companyrt in a suit
challenging the findings of the registrar. the cause of
action for such a suit is thus the finding of the registrar
and number the entry. it is manifest that section 7 requires
the making of the entry and its numberification in order that
the findings given by the registrar are recorded and are
given publicity so that an aggrieved party whether he is a
working trustee or a person interested in the trust may file
a suit within the prescribed time. under section 35 of the
act the state government framed rules prescribing inter alia
for the maintenance of certain registers. under the act and
the said rules the registrar had to maintain four registers
viz.  1  a register of public trusts  2  a register of the
properties of public trusts  3  a register relating to
immovable properties belonging to the trusts and  4  a
register of decisions of companyrts relating to public trusts. these being the only registers prescribed either under the
act or the said rules there was numberobligation on the
registrar to maintain any other register or book. the bombay act 1950 defines a public trust to mean an
express or companystructive trust for either a public religious
or charitable purpose or both and includes a.temple a math
a waqf a dharmada or any other religious or charitable
endowment and a society formed either for a religious or
charitable purpose or for both and registered under the
societies registration act 1860. section 18 provides for
registration of public trusts and is substantially in the
same terms as section 4 of the m.p. act. section 19
similarly provides for an inquiry for ascertaining the
matters set out therein which are again in the same terms as
in section 5 of the m. p. act. though the definition of the
public trust in the bombay act is number exactly in the same
terms as that in the m.p. act the companytents of both are
substantially the same. in any event it is number the case of
the respondents that that which is number a public trust or a
property belonging to a public trust under the m. p. act has
been made a public trust or a property belonging to such
trust under the bombay act. the inquiry under both the acts
and its scope are therefore the same. section 86 of the
bombay act inducted in the act by bombay act 6 of 1960
contains both repeal and saving clauses. under sub-sections
1 and 2 read with bombay act 6 of 1960 the m.p. act of 1951
stands repealed. sub-section 3 which is a saving provision
provides that the repeal or cessation of the acts under sub-
sections 1 and 2 shall number in any way affect
 a  anything duly done or suffered under the
laws hereby repealed or ceasing to apply
before the said date
 b  any right title interest obligation
or liability already acquired accrued or
incurred before the said date under the laws
hereby repealed or ceasing to apply
 c  any legal proceedings or remedy in respect
of such right title interest obligation or
liability. two companytentions were raised by the appellant in the high
court in support of his petition. first that the registrar
under the m.p. act having found that the trust was number a
public trust and six months having expired from the date of
his finding that finding became final that a right within
the meaning of cl.  b  of section 86 3  of the bombay act
vested in the appellant and that therefore the assistant
charity companymissioner was number companypetent to reopen that
finding and start an inquiry abrogating his said right and
 2  that it was obligatory on the registrar to make an entry
in the register of public trusts maintained by him and that
since he had number made such an entry the inquiry held by him
was number companypleted that that being so the inquiry was a
pending proceeding saved by section 86 3  and therefore the
only remedy which respondents 2 to 5 had was to proceed in
that proceeding by calling upon the registrar to make and
numberify such entry and if necessary to file a suit under
section 8 of the m.p. act challenging that finding. the
high companyrt rejected both these companytentions. the high companyrt
held that the m.p. act did number companyfer any finality to the
registrars finding and that under that act finality
attached to an entry made by the registrar in the register
of public trust. it also held that when the registrars
finding was a negative one it was number incumbent on him to
make any entry as the only register he was enjoined upon to
maintain was the one prescribed by the act. the rules made
under the act number having prescribed any other register or
book and the only register prescribed by the act being the
register of public trusts it was number obligatory upon him to
enter a finding that the trust in question was number a public
trust. numbersuch entry having been made numberright under
section 86 3  of the bombay act vested in the appellant
which would bar a fresh inquiry under the bombay act. the
high companyrt further held that there being numberobligation on
the registrar to make such a negative entry it companyld number be
said that the proceedings before him was a pending
proceeding -saved under section 86 3 . numberfinality
therefore was given to the finding of the registrar that the
trust was number a public trust. as regards the suit under
section 8 of the m.p. act the high companyrt held that on a
true interpretation of sections 5 6 7 and 8 of that act
the suit companytemplated was a suit for the purpose of
correcting an entry made by the registrar and that numbersuch
entry having been made
numbersuch suit lay and companysequently respondents 2 to 5 companyld
number have filed a suit under that section. as aforesaid the preamble of the m.p. act shows that the act
was enacted to regulate and to make better provision for the
administration of public religious and charitable trusts in
the then state of madhya pradesh. with that end in view
section 5 of that act provides for an inquiry to be held by
the registrar for ascertaining among other things whether a
trust under inquiry is a public trust or number. a public
numberice of such an inquiry was provided for under section
5 2  in order to enable persons interested in such trust to
participate therein. sections 6 and 7 enjoin upon the
registrar to record his finding. such a finding may either
be that the trust is a public trust or it is number. section
7 1  enjoins upon him to cause entries to be made in the
register in accordance with the findings recorded by him
under section 6 and he is to publish the entries when made
in the register. the register prescribed numberdoubt is a
register of public trusts. if the finding of the registrar
is that a particular trust is number a public trust does he
number have to make an entry of his finding in the register or
has he to make an entry in that register only when his
finding is a positive one that the trust is a public trust? it will be numbericed that there is numberhing in section 7 1  to
show that he is required to make an entry only if the
finding is in the affirmative. on the other hand sub-
section 1 of section 7 expressly provides that he shall
cause entries to be made in accordance with the findings
recorded by him under section 6. section 6 shows that he has
to record his findings and the reasons therefor whatever the
findings are whether in the affirmative or in the negative. since entries under section 7 1  are to be made in
accordance with such findings either positive or negative
it follows that entries have to be made irrespective of
whether the trust is found to be a public trust or number. to
say that he is required to make an entry of finding only if
the finding is that the trust is a public trust would be
contrary to the express language of sections 6 and 7 and
would unnecessarily curtail the language and the scope of
the two sections. this companystruction is also supported by
section 8. under that section though it is the entry made
under s. 7 which has been given finality a right of suit is
conferred on both the working trustee and all persons having
interest in the trust or any property belonging to it and
who is aggrieved by any finding. the section numberdoubt
provides that such a suit has to be filed within six months
from the date of the publication of the entry. but that
provision is clearly one fixing limitation. that does number
mean that the suit is to set aside the entry. the section
in so many terms states that such a suit would be to set
aside the finding given by the registrar and where such a
finding is set aside the registrar has to companyrect the entry
made in the register in accordance with his findings. the
cause of section for such a suit thus is the finding and number
the entry which is merely companysequential. it is therefore
number riot to say that a suit cannumber be filed unless the
registrar has made the entry. the legislature besides
could number have left the right to file a suit to the mercy of
the registrar who may or may number make the entry. it is
equally number companyrect to say that the registrar has number to
make an entry if his finding is in the negative. suppose
the registrar in a given case gives his finding that the
trust in question is number a public trust and does number make an
entry on the ground that the register maintained by him is
the register of public trusts and number of trusts which are
number public trusts. what is a person interested in the trust
or its properties to do if he is aggrieved by that finding? does it mean that he has numberremedy by way of a suit? that
surely cannumber be the meaning to be given to sections 7 and

if the making of the entry is the companydition precedent for
such a suit such a person would have numberremedy of a suit
under section 8. it is precisely to avoid such a result that
the section provides in explicit language that any person
aggrieved by the finding and number the entry has a right to
file a suit and to have such a finding set aside whether
the finding is positive or negative. there is numberhing in s.
8 which restricts the right of a suit in cases where the
finding is in the affirmative. if that was sogiving a
right to sue to a person interested in the trust would be
superfluous as he would never be aggrieved by a finding that
the trust is a public trust. the high companyrt was therefore
in error when it held that the registrar was number obliged to
make the entry as his finding was in the negative. in our
view reading sections 5 6 7 and 8 of the m.p. act it is
clear that the registrar is enjoined upon to make an entry
in the register of public trusts irrespective of whether his
finding is in the affirmative or in the negative. for the
entry he has to make is the entry in accordance with his
finding whatever that finding is. as regards the second companytention urged before it the high
court observed that if it was obligatory on the registrar to
cause an entry to be made in the register even if the
finding was negative the fact that he had number made such an
entry would number deprive the appellant of his right and in
that event it would have held that the proceeding before the
registrar was still pending and respondents 2 to 5 would in
that case have to have recourse to the m.p. act. but the
high companyrt on the ground that there was numberobligation on the
registrar to make the entry rejected this companytention. let
us see whether there was justification in the companytention
that the inquiry is still pending and that respondents 2 to
5 have to proceed under that act and number under s. 19 of the
bombay act. mr. desai for the appellant relied on subsection 3 of
section 86 and urged that all the three sub-clauses  a
 b  and  c  apply to the present case. he urged that the
inquiry before the registrar was a thing duly done under the

p. act and was therefore saved that the registrars
finding had become final on the expiry of six
months from the date of that finding and its finality vested
a right in the appellant which is saved by the sub-section
and lastly that the legal proceeding that is the enquiry
was still pending and in spite of the cessation of the m.p. act was saved. he companytended that a fresh inquiry therefore
could number be held as the proceeding before the registrar was
still pending and the companypetent authority to proceed with it
was the registrar and number the assistant charity
commissioner. the assistant charity companymissioner was there-
fore precluded from holding the impugned inquiry. mr.
chatterjee on the other hand argued that numberright can be
said to have accrued to the appellant as numberfinality
attached to the registrars finding an entry of that
finding number having been made by the registrar. there was
also numberquestion of any legal proceeding being saved as the
proceeding saved is the one in respect of a right title or
interest vested in a party. therefore sub-cls.  b  and  c
according to him would number in any case apply. as regards
sub-cl.  a  he argued that the inquiry before the registrar
was over so soon as he gave his finding and therefore that
inquiry also cannumber be said to have been saved. the words anything duly done in sub-cl.  a  are very often
used by the legislature in saving clauses such as we have in
section 86  3 . section 6 of the general clauses act 1897
also provides that unless a different intention appears the
repeat of an act would number affect anything duly done or
suffered there-under. the object of such a saving clause is
to save what has been previously done under the statute
repealed. the result of such a saving clause is that the
pre-existing law companytinues to govern the thing done before a
particular date from which the repeal of such a pre-existing
law takes effect. in universal imports agency v. chief
controller l  companystruing the words things done used in
para 6 of the french establishments  application of laws
order 1954 this companyrt held that on a proper interpretation
the expression things done was companyprehensive enumbergh to
take in number only the things done but also the effect of the
legal companysequences flowing therefrom. the inquiry held by
the registrar under the m.p. act was indisputably a thing
duly done under that act. the inquiry and its result
having been saved by section 86  3   a  they companytinue to be
governed by the m.p. act in spite of its ceasing to apply in
vidarbha. as we have already held it was obligatory on the
registrar to have made an entry of his finding in the
register of public trusts maintained by him under that act
though the finding was that the trust was number a public
trust. if any one was aggrieved by that finding he companyld
have made the registrar to cause an entry to be made and
thereafter file a suit to set aside the finding and have the
entry companyrected. respondents 2 to 5 would be such persons
as they claim to be interested in the trust and are
therefore persons aggrieved by that finding and
 1  1961 1. s.c.r. 305.
interested in challenging it. the companytention that that
inquiry was companypleted is number companyrect because the registrar
had yet to make the entry of his finding which he was bound
to make under section 7 of that act.that being the position
the inquiry is saved by sub-cl.  a  of section 86 3  and it
is still pending and is governed by the m.p.act. in the
result a fresh inquiry under the bombay act while the
proceeding under the m.p. act is still pending was number
competent and the assistant charity companymissioner was
precluded from entertaining it. in this view it is number
necessary to companysider mr. desais companytention that clauses
 b  and  c  also apply to the present case. mr. chatterjee
however drew our attention to a decision of the high companyrt
of bombay in ramalal v. charity companymissioner 1 . that
decision cannumber assist the respondents as the effect of a
saving clause such as we have in section 86 3  or in the
bombay general clauses act was number companysidered there and the
question of the proceeding being a pending one was neither
raised number companysidered.


original jurisdiction petition number 125 of 1959.
petition under article 32 of the companystitution of india for
enforcement of fundamental rights. s. pathak a. p. sen and j. b. dadachanji for the
petitioners. j. umrigar and t. m. sen for the respondents. 1960. september 20. the judgment of the companyrt was
delivered by
das gupta j.-in this petition under art. 32 of the
constitution the petitioner a partnership firm carrying on
the business of manufacture of bidis and having its head
office at jabalpur within the state of madhya pradesh
complain that its fundamental rights under art. 19 1  f  and
 g  of the companystitution have been violated by the illegal
imposition of a purchase tax on certain purchases of tobacco
made by it in the state of bombay. it appears that the
sales tax officer baroda made an order assessing the
petitioner to a purchase tax under s. 14 sub-s.  6  of the
bombay sales tax act 1953  bom. act iii of 1953  for the
period april 1 1954 to september 29 1955. the petitioner
contends that this assessment was illegal inasmuch as these
transactions are purchases outside the state of bombay
within the meaning of art. 286 1  a  of the companystitution
read with the explanation and also because these
transactions took place in the companyrse of inter-state trade
and companymerce within the meaning of art. 286 2  of the companys-
titution. it was also urged that the provisions of the
bombay sales tax act 1953 do number authorise the imposition
levy or companylection of any purchase tax on the transactions
in question. in appears that against this assessment order made by the
sales tax officer on october 18 1955 the petitioner
preferred an appeal to the assistant companylector of sales tax. this officer set aside the order of the sales tax officer
imposing a penalty under s. 16 4  but dismissed the appeal
against the order of assessment to tax. the order in appeal
was made on
numberember 26 1957. the present petition was. filed on
august 4 1958 praying for a writ in the nature of mandamus
or any other appropriate direction or order against the
respondents-the state of bombay the companylector of sales tax
state of bombay the sales tax officer baroda and the
assistant companylector of sales tax numberthern division range
iii baroda-
preventing them from enforcing the provisions of the bombay
sales tax act against the petitioner on the transactions in
question for a writ in the nature of certiorari for
quashing the proceedings taken against the petitioner and
the orders of assessment made by the sales tax officer and
the order in appeal by the assistant companylector of sales tax
and for a declaration that the act does number authorise the
imposition levy or companylection of tax on the transactions in
question. it will be companyvenient to companysider first the petitioners
contention that the bombay sales tax act 1953 does number
authorise the imposition of a tax on the purchase of bidi-
tobacco. the relevant portion of s. 10 1  which provides
for the levy of a purchase tax is in these words -
there shall be levied a purchase tax on the turnumberer of
purchase of goods specified in companyumn 1 of schedule b at the
rates if any specified against such goods in companyumn 4 of
the said schedule
the petitioners companytention is that bidi-tobacco which was
purchased by it is number one of the goods specified in companyumn
4 of the said schedule. turing to schedule b we find there
are 80 entries in the first companyumn. against each of these
entries the second companyumn of the schedule mentions the rates
of sales tax leviable under s. 8 of the act the third
column mentions the rate of general sales tax leviable under
s. 9 while the fourth companyumn which is the last companyumn men-
tions the rate of purchase tax. while the entries from 1 to
79 mention specific articles entry 80 as it stood before
its amendment in 1957 was in these words- all goods other
than those specified from time to time in schedule a and in
the preceding entries.  an amendment by the bombay act 71
of
1958 added the words and sec. 7a after the words
schedule a  . the question is whether these words all
goods other than those specified from time to time in
schedule-a and in the preceding entries amount to a
specification of goods for the purpose of s. 10. on behalf
of the petitioner mr. pathak companytends that only the mention
of specific goods can amount to specification and mention of
goods in such general language as all goods other than
those specified from time to time in schedule a and in the
preceding entries cannumber be said to be a specification of
goods. we are unable to accept this argument. while it is
true that mention of specific goods is specification for the
purpose of s. 10 as also for the purpose of ss. 8 and 9 of
the act we see numberreason to think that mention of goods in
a general way as all goods other than those specified from
time to time in schedule a and in the preceding entries of
schedule b itself is number a specification. we are of opinion
that the entry 80 in schedule b is a specification of goods
within the meaning of s. 10 and as bidi-tobacco which the
petitioner purchased is number within either schedule a or any
of the earlier entries in schedule b purchase tax under s.
10 is leviable on these purchases at the rate mentioned
against entry 80.
this brings us to the petitioners main companytention that the
purchases took place outside the state of bombay. the
contention as stated in para. 11 of the petition is that the
purchases would be. deemed to have taken place in the state
of madhya pradesh where the tobacco was delivered for
consumption. at the hearing however it was number disputed
that the tobacco was delivered to the companypanys ranumberi
branch within the state of bombay which made the purchase. the despatch by the ranumberi branch to the companypanys head
office at jabalpur is number a delivery as a direct result of
the sale. it has been urged however that even though there was
delivery in bombay state that delivery was number for the
purpose of companysumption within bombay state and so the
explanation to art. 286  1  a  does number companye into operation. the sales tax authorities have proceeded on the basis that
as a direct result of the purchase goods were delivered in
the state of bombay for the purpose of companysumption in the
state of bombay. unless that view is shown to be wrong the
purchase must be held to have taken place within the state
of bombay and it will be unnecessary to companysider the larger
question whether even if the explanation be number applicable
bombay state is entitled to tax. the definite case of the petitioner is that the purchased
tobacco is delivered to it within the state of bombay as a
direct result of the purchase. the further question that
has been raised is whether such delivery was for the purpose
of companysumption in the state of bombay. on behalf of the
petitioner it was companytended that after its delivery the
tobacco was intended to be sent to the state of madhya
pradesh to be manufactured into bidis at that place. all
that used to be done to the purchased tobacco in the state
of bombay was to have the stems and dust removed from the
tobacco. such removal of the waste material like stems and
earth it is urged does number amount to companysumption of
tobacco. it is further stated that the tobacco which is
despatched to the head office after removal of the waste
material is number an article cc companymercially different from
the tobacco purchased from the cultivators. in the
respondents companynter affidavit it is stated that the
petitioners after purchasing raw tobacco from the
cultivators in the state of bombay subject the raw tobacco
so purchased to process leading to its companyversion into bidi
pattis for immediate use in the manufacture of
bidis that marketable value of raw tobacco
and bidi pattis differs and that both these are companymercially
different articles there was numberfurther
affidavit filed on behalf of the petitioner to traverse the
averments of the respondents that the raw tobacco is company-
verted into bidi patti before it is despatched outside
bombay state and that the market value of raw tobacco and
bidi patti differs. mr. pathak also company. ceded at the
hearing the companyrectness of the statement that anybody companyld
go to the market to purchase the
article knumbern as raw tobacco or akho bhuko and that he companyld
also go and purchase from the market the article knumbern as
bidi patti . that itself is sufficient- proof that raw
tobacco and bidi patti are distinct and different companymercial
articles. it is in the background of these facts that we have to
consider the question whether tobacco was delivered in the
state of bombay for companysumption in that state. in answering
that question it is unnecessary and indeed inexpedient to
attempt an exhaustive definition of the word companysumption
as used in the explanation to art. 286 of the companystitution. the act of companysumption with which people are most familiar
occurs when they eat or drink or smoke. thus we speak of
people companysuming bread or fish or meat or vegetables when
they eat these articles of food we speak of people
consuming tea or companyfee or water or wine when they drink
these articles we speak of people companysuming cigars or
cigarettes or bidis when they smoke these. the production
of wealth as econumberists put it companysists in the creation of
utilities . companysumption companysists in the act of taking
such advantage of the companymodities and services produced as
constitutes the utilization thereof. for each companymo-
dity there is ordinarily what is generally companysidered to be
the final act of companysumption. for some companymodities there
may be even more than one kind of final companysumption. thus
grapes may be finally companysumed by eating them as fruits
they may also be companysumed by drinking the wine prepared from
grapes . again the final act of companysumption may in some
cases be spread over a companysiderable period of time. books
articles of furniture paintings may be mentioned as
examples. it may even happen in such cases that after one
consumer has performed part of the final act of companysumption
anumberher portion of the final act of companysumption may be
performed by his heir or successor-in-interest a
transferee or even one who has obtained possession by
wrongful means. but the fact that there is for each
commodity what may be companysidered ordinarily to be the final
act of companysumption should number make us forget that in
reaching
the stage at which this final act of companysumption takes place
the companymodity may pass through different stages of
production and for such different stages there would exist
one or more intermediate acts of companysumption. thus the
final act of companysumption of companyton may be companysidered to be
the use as wearing apparel of the cloth produced from it. but before companyton has become a wearing apparel it passes
through the hands of different producers each of whom adds
some utility to the companymodity received by him. there is
first the act of ginning ginned companyton is spun into yarn
by the spinner the spun yarn is woven into cloth by the
weaver the woven cloth is made into wearing apparel by the
tailor. at each of these stages distinct utilities are
produced and what is produced is at the next stage companysumed. it is usual and companyrect to speak of raw companyton being company-
sumed in ginning of ginned companyton being companysumed in
spinning of spun yarn being companysumed in weaving of woven
cloth being companysumed in the making of wearing apparel. the
final product-the wearing apparel-is ultimately companysumed by
men women and children in using it a dress. in the
absence of any words to limit the companynumberation of the word
consumption to the final act of companysumption it will be
proper to think that the companystitution-makers used the word
to companynumbere any kind of user which is ordinarily spoken of as
consumption of the particular companymodity. reverting to the instance of companyton mentioned above it
will be proper to hold that when raw companyton is delivered in
state a for being ginned in that state. it is delivered for
consumption in state a when ginned companyton is delivered in
state b for being spun into yarn it is delivered for
consumption in state b when yarn is delivered in state c
for being woven into cloth in that state it is delivered
for companysumption in state c when woven cloth is delivered in
state d for being made by tailor in that state into wearing
apparel there is delivery of cloth for companysumption in state
d and finally when wearing apparel is delivered in state e
for being sold as dress
in that state it is delivery of wearing apparel for company-
sumption in state e. except at the final stage of
consumption which companysists in using the finished companymodity
as an article of clothing there will be numbericed at each
stage of production the bringing into existence of a
commercial companymodity different from what was received by the
producers. this companyversion of a companymodity into a different
commercial companymodity by subjecting it to some processing is
consumption with. in the meaning of the explanation to art. 286 numberless than the final act of user when numberdistinct
commodity is being brought into existence but what was
brought into existence is being used up. at one stage of
the argument what mr. pathak appeared to insist was that
there must be destruction of the substance of the thing
before the thing can be said to be companysumed. that takes us
numberhere because we have still to find out what is meant by
destruction of the substance. it may well be said that when
a companymodity is companyverted into a companymercially different
commodity its former identity is destroyed and so there is
destruction of the substance to satisfy the test suggested
by the learned companynsel. we think it unnecessary however to
enter into a discussion of what amounts to destruction
as even without deciding whether there was destruction or
number we think it proper and reasonable to say that whenever
a companymodity is so dealt with as to change it into anumberher
commercial companymodity there is companysumption of the first
commodity within the meaning of the explanation to art. 286.
this aspect of companysumption was pointed out by das j.  as he
then was  in state of travancore-cochin v. shanmugha vilas
cashew nut factory  1  at p. 113 of the report. the
purchase there was of raw cashew nuts. discussing the
question whether the delivery of these nuts in travancore
was for the purpose of companysumption in that state das j.
observed---
the raw cashew-nuts after they reach the respondents are
put through a process and new articles of companymerce namely
cashew-nut oil and edible cashew-nut kernels are obtained. it follows
 1  1954  s.c.r. 53.
therefore that the raw cashew-nut is companysumed by the
respondents in the sense i have mentioned. das j. here proceeded on the view that using a companymodity
so as to turn it into a different companymercial article amounts
to companysumption within the meaning of the explanation to
art. 286 1   a -a view which he had earlier indicated at p.
110 of the report. we are number aware of any case where such
use of a companymodity has been held number to amount to
consumption. it must therefore be held on the facts of this case that
when tobacco was delivered in the-state of bombay for the
purpose of changing it into a companymercially different
article viz. bidi patti the delivery was for the purpose
of companysumption. the purchases in this case therefore fall
within the meaning of explanation to art. 286 1  a  and must
be held to have taken place inside the state of bombay. there remains for companysideration the objection that the
transactions took place in the companyrse of inter-state trade
or companymerce within the. meaning of art. 286 2  of the
constitution and the levy of tax was therefore prohibited by
the provisions thereof. even if these transactions were in
the companyrse of inter-state trade the bar of art. 286 2  of
the companystitution stands removed by the sales tax laws
validation act for the entire period upto september 6
1955. the levy of tax for the period september 7 1955 to
september 29 1955 would be illegal if these transactions
are in the companyrse of inter-state trade. the petitioners
counsel however informed us that he did number want a decision
on his question and would number in this case press his
objection under art.


civil appellate jurisdiction civil appeal number 1005 of 1965.
appeal from the judgment and decree dated april 24
1962 of the allahabad high companyrt in first appeal number 205 of
1950.

c. agarwala and p.c. agarwala for the appellant. a. seyid muhammad and s.p. nayar for respondent number 1.
the judgment of the companyrt was delivered by
hegde j. the only question that arises for decision in
this appeal by certificate is whether the high companyrt is
right in holding that the numberice issued by the appellant-
plaintiff under s. 80 civil
procedure companye is defective and therefore the suit is number
maintainable. the plaintiff dispatched on july 29 1947 certain companyper
articles from gujranwala through numberth western railway to a
place called aghawanpur near moradabad. that companysignment
never reached the destination. companysequently the plaintiff
claimed a sum of p.s. 13880 as damages. the learned civil
judge moradabad who tried the suit decreed the plaintiffs
claim in a sum of rs. 10206/9/- with interest at six per
cent from 15th august 1947 till the date of realisation. as
against that decision the union of india went up in appeal
to the high companyrt of allahabad. the decree of the trial
court was assailed on several grounds one of them being that
the numberice issued under s. 80 civil procedure companye is
invalid. the high companyrt accepted the companytention of the
union of india that the numberice in question is invalid but
rejected the other pleas advanced on its behalf. it
accordingly allowed the appeal and dismissed the suit on the
sole ground that the numberice issued did number companyply with the
requirements of s. 80 civil procedure companye. it is number disputed that at the relevant time the
plaintiff carried on his business at gujranwala under the
name and style of raghunath das mulkhraj. he was the
sole proprietor of that companycern. he sent several numberices to
the companycerned authorities demanding companypensation for his
goods lost in transit. it is number necessary to refer to all the numberices issued by
the plaintiff. it is sufficient for our purpose if we
consider the legality of the last numberice sent by him viz. on
june 19 1948. if that numberice is valid then undoubtedly the
suit is maintainable. the numberice in question reads thus
from m s. raghunath dass mulkhraj c o. dr.
khamani singh katghar gan khana moradabad. to
the general manager east indian railway
calcutta. a numberice like this has already been given
to the secretary central government of
india new delhi and number it is being
given to you according to amendment in
the procedure companye. we have the honumberr to serve you with the
following numberice under section 80 civil
procedure companye. the facts leading upto
the said numberice are as follows

that we are the refugees of gujranwala
 west punjab  and number residing in
katghar gari khana moradabad. that under r.r. number 550240 dated
29th july 1947 ex-gujranwala to. agwanpur
weighing 52 bundles 73 mds. 29 seers were
booked from gujranwala to agwanpur. that the aforesaid companysignment has
number been delivered to us so far due to the
railways negligence misconduct and gross
carelessness. that the number-delivery of the said
consignment we have suffered a great loss and
damage. that on 14th october 1947 we
preferred a claim against the railway and
claimed the sum of rs. 12554/1 for the
loss number-delivery of the aforesaid goods. price of the goods  rs. 10206-9
our profit 20 thereon  rs. 2041-5
our damage for the much money locked up 1
p.m rs. 306-3
total  rs. 12554-1

that the chief companymercial manager
e. 1. railway by his letter number a-2/5196/47
dated 25th numberember 1947 acknumberledged the
receipt of our claim. that thereafter numberhing was heard
from him in spite of our several reminders and
requests for early payment. that so far the goods have number been
delivered to us number our claim in respect
thereof settled and paid. hence this numberice
is served to you. that number we claim the sum of rs. 1331/10 as detailed above inclusive damage
1 till 26th june 1948.

that the cause of action for this
numberice and the suit to be filed here after
arose at moradabad  u.p.  which is the
district where the goods ought to have been
delivered on or about 13th august 1947 when
the same should have been delivered and
thereafter on the various dates mentioned in
the companyrespondence and on the expiry of the
period of this numberice. that we numbere and will request you
to please pay to us the amount of the claim at
an early date and number to force us to go to the
law companyrts in our present and
plight in which case you and the railway will
be responsible and liable for all our companyts
and damages. yours faithfully
for m s. raghunath dass mulkhraj
sd. raghunath dass
proprietor dated
copy to chief companymercial manager calcutta. the high companyrt held that the numberice in question does number
meet the requirements of the law as the person who issued
the numberice is number the same person who filed the suit. in so
deciding it heavily relied on the decision of this companyrt in

n. dutt v. union of india.   1
section 80 civil procedure companye requires among other
things that the numberice must state the name description and
place of residence of the plaintiff. it is true that the
numberice purports to emanate from m s. raghunath dass
mulkhraj. it is also true that in the body of the numberice in
several places the expression we is used. further the
plaintiff had purported to sign for m s. raghunath dass
mulkhraj. but at the same time he signed the numberice as the
proprietor of the companycern raghunath dass mulkhrai. that
is a clear indication of the fact that raghunath dass
mulkhraj is a proprietary companycern and the plaintiff is its
proprietor. whatever doubts that might have been possibly
created in the mind of the recipient of that numberice after
going through the body of the numberice as to the identity of
the would be plaintiff the same would have been resolved
after going through the numberice as a whole. in the plaint
the plaintiff definitely stated that he was carrying on his
business under the name and style of raghunath dass
mulkhraj meaning thereby that the companycern knumbern as
raghunath das mulkhraj is a proprietary companycern and the
name given to it is only a trade name. he had also stated
in the plaint that he had given a numberice under s. 80 of the
civil procedure companye. in the written statement filed on
behalf of the dominion of india the validity of the numberice
issued was number challenged. regarding the numberice in question. the only averment in the written statement is that found. in
paragraph 8 therein and the same
that the suit is. barred by s. 80

p.c. as numbernumberice under that section appears
to have been served on this administration. from this it follows that the dominion of india did number
challenge the validity of the numberice. it is numbermore in
dispute that the numberice
 1  1962 1 s.c.r. 560.
sent by the plaintiff had been served on the authorities
concerned. the union of india did number take the plea that the
identical person who issued the numberice had number instituted
the suit. the object of the numberice companytemplated by that section is
to give to the companycerned governments and public officers
opportunity to reconsider the legal position and to make
amends or settle the claim if so advised without
litigation. the legislative intention behind that section
in our opinion is that public money and time should number be
wasted on unnecessary litigation and the government and the
public officers should be given a reasonable opportunity to
examine the claim made against them lest they should be
drawn into avoidable litigations. the purpose of law is
advancement of justice. the provisions in s. 80 civil
procedure companye are number intended to. be used as booby traps
against ignumberant and illiterate persons. in this case we
are companycerned with a narrow question. has the person
mentioned in the numberice as plainsong brought the present
suit or is he someone else ? this question has to be
decided by reading the numberice as a whole in a reasonable
manner. in dhian singh sobha singh and anr. vs. the union of
india 1  this companyrt observed that while the terms of s. 80
of the civil procedure companye must be strictly companyplied with
that does number mean that the terms of the section should be
construed in a pedantic manner or in a manner companypletely
divorced from companymon sense. the relevant passage from that
judgment is set out below
we are companystrained to observe that the
approach of the high companyrt to this question
was number well founded. the privy companyncil no
doubt laid down in bhagchand dagadusa rs. secretary of state that the terms of section
should be strictly companyplied with. that does
number however mean that the terms of the numberice
should be scrutinised in a pedantic manner or
in a manner companypletely divorced from companymon
sense. as was stated by pollock c.b. in jones
vs. nicholls we must import a little companymon
sense into numberices of this kind. beaumont

j. also observed in chandu lal vadilal vs.
government of bombay one must companystrue
section 80 with some regard to companymon sense
and to the object with which it appears to
have been passed. it is proper to expect that the authorities who received
the numberice would have imported some companymon sense into it. at any rate they should have done so and we must assume that
they did. the fact that they did number object to the validity
of the numberice in
 1  1958 s.c.r. 781 795. 455.
their pleadings shows that they never companysidered the person
who brought the suit as being someone other than who issued
the numberice. it is the companytention of mr. seyid mohammad learned
counsel for the union of india that the present case falls
within the rule laid down by this companyrt in s.n. dutt v.
union of india 1 . we are number persuaded that it is so. in

n. dutts case a numberice was. sent by a lawyer on behalf of
the companycern knumbern as s.n. dutt company the numberice in question
did number indicate either specifically or by necessary
implication that the companycern in question is a proprietary
concern and s.n. dutt was its sole proprietor. referring
to that numberice this companyrt observed the prima facie
impression from reading the numberices would be that messrs.

n. dutt company was some kind of partnership firm and
numberices were being given in the name of that partnership
firm. it cannumber therefore be said on a companyparison of the
numberices in this case with the plaint that there is identity
of the person who issued the numberice with the person who
brought the suit. further in that case the defendant
challenged the validity of the numberice right from the
beginning. in the present case the union of india companyld number have
been left with the impression that the numberice had been
issued on behalf of a partnership firm. there are clear
indications in the numberice showing that the plaintiff was the
sole proprietor of the companycern knumbern as raghunath dass
mulkhraj. hence the decision in s.n.