original jurisdiction writ petition  criminal  number
485 of 1988.  under article 32 of the companystitution of india . u. mehta and s.c. patel for the petitioner. a. shah mrs. h. wahi and m.n. shroff for the respondents. the judgment of the companyrt was delivered by

c. ray j. the petitioner has questioned in this writ
petition the legality and validity of the impugned order of
detention made on october 12 1988 by the respondent number 1
under sub. s. 1 of sec. 3 of the gujarat prevention of
anti-social activities act 1985 with a view to prevent him
from acting in any manner prejudicial to the maintenance of
public order in the area of ahmedabad city. the petitioner
was detained by the respondents and was served with the
grounds of detention alongwith the documents mentioned
therein on the very day of detention that is october 12
1988. the grounds of detention were in gujarati. the petitioner in the writ petition has stated that he
was previously detained under the national security act
1980 s.r. number pcb dtn pasa/37/85 on may 23 1985 and was
released on june 28 1985. the petitioner had been detained
under the gujarat prevention of anti-social activities act
1985 hereinafter referred to in short as pasa act. the
said order was challenged by writ petition before the guja-
rat high companyrt which quashed the same and the petitioner was
released from detention. the main thrust of challenge to the
impugned order of detention is that the detaining authority
in addition to new facts has taken into companysideration the
earlier two detention orders as well as the grounds of
detention referred to therein presumably for the purpose of
arriving at his subjective satisfaction that inspire of the
earlier detention order which was of companyrse quashed and set
aside the detenu has been persistently companytinuing his anti-
social activities and as such the order of detention was
clamped. this has vitiated the impugned order of detention. other challenges such as number-disclosure of names and ad-
dresses of four witnesses whose statements have been men-
tioned with the grounds of detention and have been served
alongwith the grounds as well as the vagueness of the state-
ments made in the grounds about the alleged criminal activi-
ties of the detenu has rendered the order illegal and bad as
the petitioner was prevented from making an effective repre-
sentation against the same. the relevant portion of the grounds are extracted hereunder
you are indulged into anti-social activities
by selling stocking and keeping in possession
of yourself or through other person the eng-
lish and deshi liquor of dariapur area in this
connection the offences under bombay prohibi-
tion act. 1949 are registered against you
wherein you were arrested the details of
which is as under

number police office section stock disposal
station regis- seized
ter number
dariapur 106/88 prohibition 7575 ml. under
act ss. 66 3  english investi-
65 a   e  68 5 lt. deshi gation
81 85 1  3  liquor. rs. 1971.
dariapur 120/88 prohibition 8640 mi. under
act secs. english investi-
66 3  65 a  liquor. gation.  e  68 81
85 1  3 . rs. 940. 137/88 prohibition 3 105 mi. act secs. english
66b 65 e  liquor. 81 rs. 940. 145/88 166 bottles. english
liquor. rs. 1300. 146/88 prohibition 82 lt.
act s. 66b english
65e. liquor. rs.800. accordingly upon careful perusal of the
complaint and papers enclosed with the propos-
al it appears that you are a prohibition
bootlegger and doing illegal activity of
selling english and deshi liquor. you and your
companions are beating and showing deadly
weapons like rampuri knife to
the innumberent persons passing through the said
locality on the promise of being batmidar of
police. and you are beating the person who
oppose your activity of liquor you are company-
pelling to bring stock of liquor to the motor
vehicles like auto rickshaw and upon denial to
do so you threat to kill him by rampuri knife
your customers who are drunken are teasing to
the women passing from there and if any one
oppose or request number to do so your threats
showing rampuri knife to kill to the innumberent
persons are and an atmosphere of danger and
violence is spread over because of your such
offensive activities and as you are doing acts
which are obstructive in maintaining public
administration. you are an obstruct in main-
taining public administration. you are an obstruct in maintaining
public administration in view of the fact and
result of your above stated anti-social activ-
ities and fact of such instances are also
stated by the peace loving people doing busi-
ness in the above area companyies of their state-
ments are given to you herewith. as your offensive activities are ob-
structive in public administration you were
detained under nasa 1980 by this office order
number pcb dtn nsa/37/85 date 23.5.85 and were
released from detention on 28.6.85.
and your offensive activities are ob-
structive to the maintenance to public admin-
istration that you were detained under pasa
act 1985 by this office order number
pcb dtn pasa/36/86 dt. 26.9.86 as you have
filed writ petition in the honumberrable gujarat
high companyrt against this order the honumberrable
high companyrt has on 25.6.87 passed an order to
release you from detention. accordingly looking to the overall
fact i am satisfied that you are prohibited
bootlegger and knumbern a headstrong and angry
person and an atmosphere of fear and violence
is spread over in residents of the said local-
ity because of your above anti-social activi-
ties such activities cannumber be refrained by
taking steps under the companymon law. the affidavit of reply affirmed by mr. s.n. sinha companymis-
sioner
of police ahmedabad city has been filed on december 7
1988. in paragraph 4 it has been stated that in fact the
petitioner belongs to the gang of abdul latif and has number at
all been falsely prosecuted in any case it has also been
submitted that the petitioner was number good and was involved
in activities which affect the society adversely. in para-
graph 9 of the said affidavit it has been denied that the
grounds are number relevant for the purpose and the present
detention order has been passed totally on a different and
fresh grounds. it has also been submitted therein that it is
absolutely wrong to say that the earlier two orders passed
against the petitioner were illegal in any manner. out of
the two detention orders order of 1985 was passed under the
national security act in view of the fact of public riots in
the ahmedabad city and order of 1986 was passed on the
ground of the petitioner .being bootlegger and dangerous
person on account of pendency of certain prosecution and
both of which were passed by his predecessor and therefore
the said orders have numberhing to do with the present orders. it has been further submitted that it is absolutely wrong to
say that the sponsoring authority has number submitted the
earlier order of release of the petitioner by the board and
the gujarat high companyrt. the grounds of detention make it
abundantly clear that this fact was clearly companysidered and
thereafter the detention order has been passed and there-
fore there is numbersubstance in the companytention that the
decision of detention would have been different if the
earlier orders of release would have been placed before him. the most important question that posed itself for company-
sideration in this case is whether the detaining authority
while companysidering the fresh facts disclosed in the grounds
of detention has taken into companysideration the earlier two
detention orders--one of 1985 under the national security
act and the other of 1986 under the pasa act in forming his
subjective satisfaction that the detenu inspite of the
passing of the earlier two detention orders has been per-
sistingly indulging in his anti-social activities and as
such in preventing such criminal activities which posed a
threat to the maintenance of public order the impugned order
of detention has been made by him. it is number well settled by
the decision of this companyrt while companysidering the scope of s.
15 of pasa act that the modification and revocation of
detention order by the state government shall number bar making
of anumberher detention order on fresh facts when the period of
detention has companye to an end either by revocation or by
expiry of the period of detention. reference may be made in this companynection to the decision
of this companyrt in abdul latif abdul waheb sheikh v.b.k. jha
and anr. 1987
2 scc 22 and in chhagan bhagwan kahar v. shri n.l. kalna
ors. jt 1989 1 sc 572 it is therefore clear that an order
of detention cannumber be made after companysidering the previous
grounds of detention when the same had been quashed by the
court and if such previous grounds of detention are taken
into companysideration while forming the subjective satisfaction
by the detaining authority in making a detention order the
order of detention will be vitiated. it is of numberconsequence
if the further fresh facts disclosed in the grounds of the
impugned detention order have been companysidered. in the present case admittedly in the grounds of deten-
tion specific reference has been made to the earlier two
orders of detention made in 1985 and 1986 against the peti-
tioner. it is also evident that in the schedule of documents
annexed to the grounds of detention number only the companyies of
the order of detention but also of the grounds of detention
in the earlier detention cases have been given to the peti-
tioner. it also appears from the statements made in the
grounds of detention that the detaining authority took into
consideration the previous grounds of detention as well as
the orders made therein even though the same were nullified
by the high companyrt as well as by the advisory body presuma-
bly for the purpose of showing that the detenu inspire of
those earlier orders of detention was companytinuing his boot-
legging activities. it has been tried to be companytended on
behalf of the detaining authority that though the earlier
two detention orders have been mentioned in the grounds of
detention and the companyy of the orders passed in the previous
detention cases as well as the grounds of detention were
supplied to the detenu yet these were number at all companysidered
by him in forming subjective satisfaction for clamping the
order of detention. this submission cannumber be sustained in
view of the statements made in the grounds of detention. the other grounds regarding the vagueness of the aver-
ments made in the grounds about the petitioner indulging in
criminal activities apart from the five criminal cases
lodged under the prohibition act and mentioned in the ground
of detention do number satisfy the requirements envisaged in s.
3 1  of the pasa act in as much as the said five specific
criminal cases have numberconnection with the maintenance of
public order. the aforesaid criminal activity does number
appear to have disturbed the even tempo of life of the
people of ahmedabad city or of the particular locality. further more the averments have been made in the grounds
are
accordingly upon careful perusal of company-
plaint and
papers enclosed with the proposal it
appears that you are a prohibition bootlegger
doing illegal activity of selling english and
deshi liquor. you and your companypanion are
bearing and showing deadly weapons like ram-
puri knife to the
innumberent persons passing through the said
locality on the promise of beating
batmider of police. and you are beating
innumberent persons who oppose your activity of
liquor etc. these statements are vague and without any particulars as to
what place or when and to whom the detenu threatened with
rampuff knife and whom he has alleged to have beaten. these
vague averments made in the grounds of detention hereinbe-
fore are bad in as much as the detenu companyld number make an
effective representation against the impugned order of
detention. as such the detention order is illegal and bad. it is pertinent to refer to the decision of this companyrt in
the case of writ petition  crl.  number 15/1989  judgment of
which has been pronumbernced today  on this score.


civil appellate jurisdiction civil appeal number 1554 of 1970.
appeal. by special leave from the judgment order dated the
19th august 1968 of the madras high companyrt in tax case number
18 of 1 965.

b. pai a. g. manessea d. c. mathur and k. k. john
for appellant. b. ahuja and s. p. nayar for the respondent. the judgment of the companyrt was delivered by
gupta j. this is an appeal by special leave from a judgment
of the madras high companyrt in a reference under section 66 1
of the income tax act 1922. the appellant numbersuch estate
limited is a public limited companypany incorporated in the
year 1924 under the companypanies act 1913. the appellant
referred to hereinafter as the companypany derives its income
from tea grown in its estate for which it is assessed to
income-tax. m s. harrisons and crosfield limited have been
the managing agents of the companypany from the beginning. the
following question relating to the assessment year 1959-60
was referred to the high companyrt
whether on the facts and in the circumstances
of the case the sum of rs. 97188/-
representing the managing agency remuneration
for the period 1-4-1956 to 30-6-1957 was
deductible in the companyputation of the income of
previous year ending on 30th june 1958
relevant for the assessment year 1959-60.
the relevant facts leading to the reference are these. the
managing agents of the companypany were entitled to companymission
at the rate of 11 per cent on all sales of tea and other
produces of the companypany and a further sum of rs. 12000/-
per annum for secratarial work. there was however no
written. agreement embodying the terms. after the companypanies
act 1956 came into force on april 1 1956 it was decided
that there should be a fresh managing agency agreement
between the companypany and its managing agents in companyformity
with the provisions of the said act. a fresh agreement
drawn up and submitted by the managing agents was approved
by the companypany. the new agreement proposed the
reappointment of m s. harrisons crosfield limited as the
managing agents of the companypany for a period of 10 years on a
remuneration of 5 per cent companymission on the net profits of
the companypany companyputed in the manner laid down in sections 349
to 351 of the companypanies act 1956 subject to a minimum
remuneration of rs. 12000/- per annum. the revised terms
were to take effect from april 1 1956. as required by sec. 326 of the companypanies act the new agreement was sent to the
central government for approval by a companymunication dated
august 3 1957 enclosing a formal application for the
purpose in form 25 on september 2 1957 by a letter
addressed to the companypany the government companyveyed its
approval to the appointment of m s. harrisons crosfields
ltd. as the managing agents for a period of 10 years
with effect from 1st april 1956 on a remuneration of 5 per
cent companymission on the net profits of the companypany companyputed
in the manner as laid down in sections 349 to 351 of the
companies act 1956 subject to a minimum remuneration of rs. 12000/-  rupees twelve thousand only  per annum payable to
the managing agents in the event of absence or inadequacy
of profits in any financial year. on receipt of the
approval the companypany by a resolution adopted at an
extraordinary general meeting of its shareholders held on
october 4 1957 reappointed m s. harrisons crosfield
limited on the terms stated above. in terms of the new
agreement the existing agency agreement between the parties
stood cancelled with the expiry of march 31 1956.
the companypany follows the mercantile system of accounting. for the period april 1 1956 to june 30 1956 the companypany
credited a sum of rs. 9320/- to the account of the managing
agents as their remuneration in accordance with the terms of
the proposed new agreement. this was disclosed in the
published accounts of the companypany for the year july 1 1955
to june 30 1956 relevant to the assessment year 1957-58.
for the purpose of assessment of income-tax however the
company added back the said sum of rs. 9320/- to its
taxable income. in the next accounting year ending on june
30 1957 relevant to the assessment year 1958-59 the same
process was followed with regard to the remuneration payable
to the managing agents. for the assessment year 1959-60 for
which the previous year was july 1 1957 to june 30 1958 a
total sum of rs. 97188/- was shown as managing agents
remuneration payable during that year. this amount was made
up as under
amount
.lm15
proportionate remuneration for 3 months at 5 per cent on
the net profits for the period ending on 30-6-1956 paid
during the year ending on 30-6-1958
9320
remuneration at 5 per cent on the net profit of the year
ending on 30th june 1957 paid during the year ending on
30-6-1958 71368
managing agents expenses for the year ending 30th june
1957 recouped during the year ending on 30th june
1958.13200
proportionate managing agents expenses for the year
ending on 30th june 1956 recouped during the year ending
on 30-6-19583300
97188.
though this sum did number pertain to the previous year
relevant to the assessment year 1959 60 the companypany claimed
it as deductible expenditure for that year on the ground
that the sum became payable only during that year when the
government accorded its approval to the new agreement. the
income-tax officer rejected this claim on the view that the
approval of the central government was necessary only for
actual payment and the assessee should have ascertained the
liability for each year and claimed it on the mercantile
basis which was the system adopted by the assessee companypany. the appellate assistant companymissioner and the tribunal also
took the same view. the high companyrt answered the question
referred to it against the assessee on the following
reasoning
   there was undoubtedly an
understanding between the managing agency and
the assessee as to the new terms of
remuneration which actually were given effect
to by making debit entries in the remuneration
account then and there. it is true that
at the time the debit entries were made
approval of the central government had number
come. but when it came actually later it
gave legal effect to the debit
entries number from the date of the approval but
from april 1 1956. that being the case the
refusal of the deduction in our opinion was
right. in our judgment the high companyrt was in error in answering the
question referred to it against the assessee. it appears
that the income-tax authorities the tribunal and the. high
court all laid special emphasis on the fact that the companypany
followed the mercantile system of accounting. the
distinction between the two methods of accounting one on
the cash basis and the other on the mercantile basis is
well-knumbern. in companymissioner of income-tax madras v. a.
gajapathy naidu 1  this companyrt explained the difference
between the two methods quoting with approval an extract
from a judgment of the allahabad high companyrt in companymissioner
of income-tax v. singari bai 2 . in
gajapathy naidus 1  case this companyrt said
it is companymonplace that there are two
principal methods of accounting for the
income profits and gains of a business one is
the cash basis and the other the mercantile
basis. the latter system of accountancy
brings into credit what is due immediately it
becomes legally due and before it is actually
received and it brings into debit expenditure
the amount for which a legal liability has
been incurred before it is actually
disbursed. however even an assessee following the mercantile system of
accounting is number entitled to claim a deduction until
liability for the sum for which deduction is claimed has
accrued. the reasons given by the high companyrt overlook the
plain terms of sec. 326 of the companypanies act 1956. sec. 326 so far it is material for the question involved in this
case is in these terms
sec. 326.  1  in respect of any
company
 a
 b  unless the approval of the central
government has been obtained for such
appointment or re-appointment. the central government shall number accord
its approval under sub-section  1  in any
case unless it is satisfied-
 a  that it is number against the public
interest to allow the companypany to have a
managing agent
 b  that the managing agent proposed is in
the opinion a fit and proper person to be appoi
nted or re-appointed as such and that
the companyditions of the managing agency
agreement proposed are fair and reasonable
and
 c  that the managing agent proposed has
fulfilled any companyditions which the central
government requires him to fulfil.  1  53 i.t.r. 114.  2  13 i.t.r. 224.
section 326 prohibits the appointment or re-appointment of a
managing agent unless the central government approved such
appointment or re-appointment. the central government would
number accord its approval unless the requirements specified in
clauses  a   b  and  c  of sub-section  2  of the section
have been fulfilled. therefore it cannumber be assumed that
the central government will approve every proposed
appointment or reappointment of a managing agent. thus in
the instant case it is only when the central government
conveyed its approval to the appointment of m s. harrisons
and crosfield limited as managing agents by its letter
dated september 2 1957 that the appointment became
effective and the companypanys liability to pay the
remuneration of the managing agents accrued. the position
here is number that the liability had arisen earlier and its
quantification only depended on the approval of the central
government. it is true that the liability became effective
from april 1 1956 a date anterior to the relevant previous
year but that is because the central government chose to
give its approval retrospective operation. the liability in
these circumstances cannumber be said to have arisen from any
date prior to september 2 1957 when the approval was given
as sec. 326 companytains an absolute prohibition against the
appointment or re-appointment of a managing agent before the
approval of the central government was obtained. in our
opinion the position is quite clear from the terms of sec.


civil appellate jurisdiction civil appeal number 642 of 1966.
appeal by special leave from the judgment and order dated
october 21 1962 of the punjab high companyrt  circuit bench  at
delhi in civil original number 11-d of 1960 read with judgment
and order dated october 26 1964 of the said high companyrt in

s.a. number 245-d of 1964.

s. bindra and d. d. sharma for the appellant. r. rajagopaul s. p. nayyar for r. h. dhebar for the
respondents. the judgment of the companyrt was delivered by
wanchoo c. j. the appellant obtained a decree for over rs. 41000 against modern electric iron and brass works delhi
which was the property of two partners namely mohd. sabar
and numberr mohd. butt. in january 1950. he also obtained an-
other decree for over rs. 95.000 against the same two
persons and one more to which proceeding the custodian of
evacuee property  hereinafter referred to as the custodian
had also been made a party. before. however the first
decree was obtained by the appellant. mohd. sabar and numberr
mohd. butt had in april 1947 executed two deeds of release
with respect to their property in favour of their wives. later mohd. sabar and numberr mohd. butt and their wives
migrated to pakistan and their properties were -declared
evacuee properties under the administration of evacuee
property act number 31 of 1950  hereinafter referred to as
the
1950-act . under s. 10 of the 1950-act the custodian had
the power to pay any debt due from the evacuee to any person
subject to rules framed thereunder. further under the rules
a person to whom an evacuee owed money companyld apply for
registration of his claim and the custodian companyld register
such claim but mere registration of a claim did number entitle
the claimant to payment and the custodian companyld refuse
payment for reasons to be recorded. the claim of the appellant based on the first decree passed
in his favour was registered by the custodian. but in june
1950 the custodian held that the evacuee property in
question in the present case belonged to the wives of the
judgment-debtors  namely mohd. sabar and numberr mohd. butt . he further directed the appellant to go to the civil
court to yet the release-deeds set aside. on numberember 28. 1955. the appellant filed the suit out of which the present
appeal has arisen in the companyrt of the subordinate judge
first class delhi claiming that the release-deeds in
question were of numbereffect a being in fraud of the
creditors. he claimed a declaration that the building in
suit belonged to mohd. sabar and numberr mohd. butt and number
to their wives and that the release-deeds of april 1947 were
fictitious and fraudulent and intended to defeat and delay
the creditors and were number binding on the appellant. he
also claimed that the custodian was bound to open the
account of the income of the said building in the names of
mohd. sabar and numberr mohd. butt and the proceeds of the
said building were bound to be adjusted against the claims
of the appellant. the suit was resisted by the custodian and the union of
india. their case firstly was that the civil companyrt had no
jurisdiction to entertain the suit. secondly it was
pleaded that the property in dispute which was a building in
the city of delhi had been acquired by the central
government in pursuance of a numberification issued on june 3
1955 under s. 12 of the displaced persons  companypensation and
rehabilitation  act. number 44 of 1954.  hereinafter referred
to as the 1954-act  and therefore the appellant companyld number
get a declaration to the effect that the proceeds of the
suit building should be adjusted against his claim. the
appellant had also pleaded in his plaint that the
acquisition of the building by the numberification of june 3. 1955 was subject to his rights and that in any case the
numberification and s. 12 of the 1954-act were ultra vires. originally the trial companyrt dismissed the suit holding that
as the property in suit had been acquired by the central
government by the numberification dated june 3 1955 the
appellant companyld number claim to proceed against the property or
its income. the appellant went in appeal and the appellate
court remanded the suit on the ground that the appellants
plea that the numberification
and s. 12 of the 1954-act were ultra vires had number been
decided. when the suit went back for re-trial on this
issue the appellant applied for transfer under art. of the
constitution to the high companyrt praying that the
constitutional issue be first determined by the high companyrt. this application was allowed and finally the companystitutional
question relating to the validity of s. 12 of the 1954 act
was companysidered by a division bench of the high companyrt. it
may be mentioned here that it had been decided by the
subordinate judge that the civil companyrt had jurisdiction and
that matter is number in dispute before us. when the matter
came to the high companyrt the appellant further challenged the
amendment made to the 1950-act by which cl.  m  of s. 10 2
was amended as ultra vires. reliance in this companynection was
placed on art. 19 of the companystitution and also on art. 14.
the high companyrt held against the appellant on both points and
sent the case back to the trial companyrt for further
consideration in the light of its judgment on the
constitutional issues that were raised. the appellant then
applied to the high companyrt for grant of a certificate to
appeal to this companyrt which was refused. thereupon the
appellant applied for and obtained special leave from this
court- and that is how the matter has companye up before us. the same two points which were urged before the high companyrt
have been raised before us on behalf of the appellant. so
far as the first point relating to the invalidity of the
amendment to s. 10 2  m  is companycerned the matter is number of
academic interest in view of the decision of this companyrt in
raja bhanupratap singh v. assistant custodian evacuee
property u.p. 1 . it was held by the companyrt that the power
to pay the evacuees debts was derived both under cls.  m
and  n  of s. 10 2 . therefore the deletion from cl.  m  of
the custodians power to pay the debts by the amending act
of 1956 and the companysequential deletion of r. 22 of the
rules framed under the act. by which a machinery was
provided for exercising that power did number affect the power
which is companyferred by s. 10 2   n  and by s. 10 1 . the
power to administer under s. 10 1  is number merely a power to
manage on behalf of the evacuee so as to authorise the
custodian only to recover and companylect the assets of the
evacuee it includes power to discharge his obligations as
well to pay such debts which in the opinion of the cus-
todian are binding upon the evacuee. this companyrt further
held that the decree of the civil companyrt was number decisive of
the question whether a person making a claim was entitled to
the money claimed by him it was for the custodian to
determine whether he was so entitled. in view of this
decision it is unnecessary to express any opinion as to the
invalidity of the amendment of cl.  m  of s. 10 2  for the
amendment made numberdifference to the legal
 1  1966 1 s.c.r. 304.
position as the power of the custodian to pay the debts of
the evacuee still remained unimpaired. if be was of
opinion that the debts were genuine he companyld pay them. this brings us to the main question that has been argued in
the present appeal namely that s. 12 of the 1954-act is
invalid because it is an infringement of the right to hold
property which the appellant has under art. 19 1  f  of the
constitution and is number saved as a reasonable restriction
thereon. the argument is put thus. the appellant had
advanced money to the two evacuees namely. mohd. sabar
and numberr mohd. butt. on the basis of the loan be had
obtained a decree in january 1950. he had the power to
execute that decree against the property of his judgment-
debtors. by taking away the property of the judgment-
debtors after they bad become evacuees and by vesting that
property free from all encumbrances in the central
government under s. 12 of the 1954-act the appellants right
to proceed against that property had disappeared. therefore
s. 12 of the 1954-act was violative of art. 19 1  f . as the
appellants holding of the decree had been rendered
illusory. reliance in this companynection is placed on four
decisions of the supreme companyrt of the united states of
america. namely  i  von hoffman v. the city of quincy 1

ranger v. city of new orleans 2   iii  peirce companymbes

milton e. getz 3  and  iv  w. b. worthen company v. mrs. w.

thomas 4
before we companysider the argument raised before us we may say
at once that the four cases on which reliance has been
placed on behalf of the appellant are entirely beside the
point and of numberassistance. these cases were based on a
provision in art. 1 s. 10 of the american companystitution
which inter alia lays down that numberstate shall pass
any law impairing the obligation of companytractsthere
is numbersuch provision in our companystitution and.therefore the
appellant cannumber be beard to say that as s. 12 of the 1954-
act impairs the obligation of the companytract between him and
the two evacuees the section is bad. number let us turn to the argument based on art. 19  1  f . it
is clear to us that the argument as put forward on behalf of
the appellant is fallacious and untenable. section 12 of
the 1954-act does number in any manner affect the decree held
by the appellant against mohd. sabar and numberr mohd. butt. all that it provides is that the property which upto the
time the act of 1954 was passed was in law the property of
the evacuees though it was under the administration of the
custodian and vested in him for that purpose under the 1950-
act would on a numberification issued under s. 12 of the 1954-
act become the property of the central
 1  18 l.ed. wallace 403.  2  26 u.s. s.c.r. 132.  3  76 l.ed. 866.  4  78 l.ed. 1344.
government and the right title interest of the evacuee in
such property would thereupon be extinguished and the
property shall vest absolutely in the central government
free from all encumbrances. at numbertime did the appellant
have any right whatsoever in the property which vested in
the central government on the issue of the numberification
under s. 12. it may be that if the owners had number become
evacuees and if the property had number been declared evacuee
property the appellant might have proceeded against that
property in execution of his decree. it may also be that he
cannumber do so number after the said numberification under s. 12.
but s. 12 does number in our opinion interfere with the
appellants right to acquire hold and dispose of his
property namely the decrees against mohd. sabar and numberr
mohd. butt. as the appellant had numberinterest in the
property in suit the fact that it was acquired by the
central government by a numberification under s. 12 of the
1954-act did number in any way affect the appellants right to
acquire hold and dispose of his property. in the
circumstances the appellant cannumber claim protection under
art. 19 1  f  at all with respect to the property in suit
and it is number necessary to companysider whether s. 12 companyld be
saved under art. 19 5 . we therefore agree with the high
court that the appellant cannumber claim that s. 12 is ultra
vires art. 19 1  f  and therefore the numberification made
thereunder affects his fundamental right to acquire hold
and dispose of property. further the argument that s. 12 is bad under art. 14 has
also numberforce. the companytention under this head is that the
creditors who have decrees against number-evacuees can execute
their decrees against the properties of number-evacuees but
the creditors having decrees against evacuees cannumber execute
them against their properties after they had vested in the
central government by a numberification under s. 12 of the
1954-act and this amounts to discrimination under art. 14.
but it is well-settled that the companystitution does number
contemplate equality of all laws or application of all laws
equally to every person. there is a clear classification
between evacuee property and number-evacuee property. there is
a clear nexus between the object to be achieved by the
enactment of the 1954-act namely rehabilitation of
evacuees from pakistan and the provision in s. 12 by which
the property of evacuees in india is to be utilised for such
rehabilitation. there is therefore. numberinfringement of art. 14 in the circumstances. lastly it is urged on behalf of the appellant on the basis
of the decision of this companyrt in raja bhanupratap singh 1
that the appellant was entitled to ask the custodian to
consider his case under s. 10 2   n  read with s. 10 1  of
the 1950-act and for that purpose it is necessary to decide
the main question raised in the suit namely that the
release-deeds of 1947 in favour of the wives
 1  1966 1 s.c.r. 304
were of numbereffect and therefore the property though evacuee
property was the property of the judgment-debtors of the
appellant namely mohd. sabar and numberr mohd. butt. it is
also pointed out that the numberification of june 3 1955 was
only with respect to immovable property and there was
numberhing to show that the central government had issued a
numberification under s. 14 1  b  of the 1954-act relating to
cash balance if any lying with the custodian on the date
the property was acquired. it is urged that all that the
numberification of june 3 1955 means is that as from that date
numberaction companyld be taken against the property in suit or its
income. but if there was any money with the custodian on
the date of vesting and if numberorder had been passed in
respect thereof under s. 14 1  b  the appellant would be
entitled to ask the custodian to companysider whether he should
be paid anything out of the moneys lying with the custodian
provided he companyld establish that the property was the
property of his judgment-debtors namely mohd. sabar and
numberr mohd. butt and number of their wives. the declaration
that the appellant sought was wide in terms in as much as he
claimed that he was entitled to have his claim adjusted
against the proceeds of the said building and these proceeds
will include any income of a period before the date of
vesting under the numberification under s. 12. it is urged
that as such it is necessary to decide the issue whether the
release deeds of april 1947 were fictitious and fraudulent
intended to defeat and delay the creditors and therefore the
property belonged to mohd. sabar and numberr mohd. butt. if
that is held in his favour by the civil companyrts he would be
entitled to go to the custodian and ask him to pass an order
in his favour under s. 10 2  n  read with s. 10 1  and pay
him out of the moneys lying with him on the date the
property vested in the central government under the
numberification under s. 12.
we are. of opinion that there is force in this companytention. though the appellant cannumber claim to proceed against the
property in suit or its income after the date on which it
vested in the central government by virtue of the
numberification under s. 12 he can ask- the custodian to pay
him out of the moneys lying with him on the date of such
vesting if he can satisfy him in the manner provided in s.
10 2  n  read with s. 10 1  of the 1950-act. we therefore
direct that when the case goes back to the trial companyrt as
ordered by the high companyrt the trial companyrt will decide the
issue whether the deeds of release of april 1947 are
fictitious and fraudulent intended to defeat and delay the
creditors and number binding on the appellant. if the trial
court decides in favour of the appellant it will then be
open to him to approach the custodian under s. 10 2  n  read
with s. 10 1  for such orders as the custodian thinks fit to
pass with respect to moneys if any lying with him on the
date of vesting. it may be mentioned that learned companynsel
for the appellant submitted that this property in fact
vested in the central government by some numberification in
1958 and number by the numberification dated june 3 1955 as
mentioned in the plaint. on the other side it has been
submitted that some orders have been passed by the central
government under s. 14  1  b . these are matters which may
require to be gone into by the trial companyrt and for that
purpose it may be necessary to amend the plaint and the
written statement and this we permit.


original jurisdiction petition number 438 of 1955.
petition under article 32 of the companystitution of india for
enforcement of fundamental rights. j. umrigar and n. h. hingorani for the petitioner. porus a. mehta b. ganapati iyer and r. h. dhebar for the
respondents. 1957. may 16. the judgment of the companyrt was delivered by
sarkar j.-by a numberification dated march 16 1953 the
government of india gave general permission to all persons
to import into india from certain companyntries any goods of any
of the descriptions specified in the schedule annexed to the
numberification. among the goods specified in the schedule
were the following
iron and steel chains of all sorts assessable under item 63
 28  of the indian customs tariff excluding chains for
automobiles and cycles whether cut to length or in rolls. 1153
the petitioner is an importer of goods. he states that
relying on the numberification mentioned above he placed an
order with a companypany in japan sometime in august 1953 for
the supply of certain goods called in the trade zip chains. the goods arrived in the port of calcutta in due companyrse and
the petitioners bank paid the price of the goods amounting
to rs. 11051-4-0. before the goods companyld be cleared from
the port of calcutta the petitioner received a
communication from the assistant companylector of customs for
appraisement calcutta dated numberember 19 1953 in which it
was stated that it had been found that the petitioner did
number possess valid import licence for the goods and requiring
him to show cause why the goods should number be companyfiscated
and action taken against the petitioner under s. 167 item
8 of the sea customs act. the companymunication also enquired
if the petitioner wanted to be heard in person. the
petitioner submitted in answer a written explanation stating
that the zip chains imported by him were chains of the kind
free import of which had been permitted by the numberification
of march 16 1953 and therefore numberlicence to import them
was necessary. he was thereafter again asked by the
customs-authorities whether he wanted a personal hearing to
which he replied that he did number. thereafter on december
25 1953 the companylector of customs made an order
confiscating the goods and imposing a penalty of rs. 1000
on the petitioner. this order bore an endorsement that it
had been despatched to the petitioner on february 1 1954.
it reached him on february 3 1954. the order stated that
an appeal would lie against it to the central board of
revenue new delhi within three months from the date of its
despatch as numbered on it. the petitioner preferred an appeal
and posted the memorandum of appeal on may 4 1954. the
memorandum reached the central board of revenue on may 6
1954 and was dismissed on the ground that it had been
preferred after the expiry of the time limited for the
purpose. the petitioner then made an application to the
government of india for revision of the order of the central
board of revenue but this application was
1154
rejected. the petitioner thereafter applied to the high
court of punjab under art. 226 of the companystitution for an
appropriate writ to quash the order companyfiscating his goods
and imposing the fine on him but this application too was
dismissed. the petitioner has number applied to this companyrt under art. 32
of the companystitution challenging the validity of the order
made against him. learned companynsel for the petitioner did
number challenge the decision of the customs-authorities that
the goods were number companyered by the numberification of march 16
1953. he companyceded that he companyld number do so in this
application. number did he challenge the customs-authorities
power to companyfiscate the goods. learned companynsel however
challenged the order of companyfiscation because it did number give
the petitioner an option to pay a fine in lieu of
confiscation. this companytention was based on s. 183 of the
sea customs act which provides as follows
whenever companyfiscation is authorised by this act the officer
adjudging it shall give the owner of the goods an option to
pay in lieu of companyfiscation such fine as the officer thinks
fit. this section undoubtedly requires an option to pay a fine in
lieu of companyfiscation to be given and this was number done. a
difficulty however is caused in the way of this argument by
s. 3 of the imports and exports  companytrol  act 1947. the
relevant portion of s. 3 is set out below
3.  1  the central government may by order published in
the official gazette make provision for prohibiting
restricting or otherwise companytrolling in all cases or in
specified classes of cases and subject to such exceptions
if any as may be made by or under the order-
 a  the import export carriage companystwise or shipment as
ships stores of goods of any specified description
 b

all goods to which any order under subsection  1
applies shall be deemed to be goods of which the import or
export has been prohibited or restricted under section 19 of
the sea customs act 1878  viii
1155
of 1878  and all the provisions of that act hall have
effect accordingly except that section 183 thereof shall
have effect as if for the word shall therein the word
may were substituted. it is admitted that the imports and exports  companytrol  act
applies to the goods with which we are companycerned and in this
case the action that was taken was by virtue of this act. that being so s. 183 of the sea customs act became
applicable because of the imports and exports  companytrol  act
and it companyld hence be applied only as modified by the latter
act. so applied the section did number make it obligatory on
the customsauthorities when ordering companyfiscation to give
an option to the owner to pay a fine in lieu of companyfiscation
but gave them a discretion whether to do so or number. the
order of companyfiscation was number therefore bad even though it
had number given the petitioner an option to pay a fine in lieu
of companyfiscation. learned companynsel for the petitioner then
contended that the portion of s. 3 2  of the act of 1947
which read except that section 183 thereof shall have
effect as if for the word shall therein the word may
were substituted  left an uncontrolled discretion in the
customs-authorities to give or number to give an option to pay
a fine in lieu of companypensation and companysequently offended
art. 14 of the companystitution. he therefore said that this
portion of the section should be struck out of it. he said
that after the offending portion was deleted from s. 3 2  of
the act of 1947 it would require s. 183 of the sea customs
act to be applied without any modification at all and
therefore it would be obligatory on the customs-authorities
when making an order of companyfiscation to give an option to
the petitioner to pay a fine in lieu of companypensation even
where the act of 1947 applied. learned companynsel said that as
this had number been done the order of companyfiscation made in
this case was bad. this argument is based on the companytention that a portion of
s. 3 2  of the act of 1947 offends art. 14 and has therefore
to be deleted. this companytention is wrong. by its own force
numberpart of s. 3 2  purports to give any discretion to the
customs-authorities at all. there
1156
is numberhing in it therefore to offend art. 14. the only
effect of s. 3 2  is to apply the sea customs act to certain
cases. it is impossible to say that a statute which only
makes anumberher statute applicable to certain cases offends
art. 14. such a statute has obviously numberhing to do with
art. 14. it is true that s. 3 2  of the act of 1947 makes
s. 183 of the sea customs act applicable with a
modification. it was said that s. 183 so modified offends
art. 14. assume that s. 183 as modified infringes art. 14.
what then? clearly on this assumption s. 183 as modified
becomes ultra vires and illegal and it goes out of the
statute book. but that does number affect the question before
us at all. it does number make the order of companyfiscation
without an option to pay a fine in lieu thereof bad. the
confiscation is number made under s. 183. it is made under
anumberher section of the sea customs act namely s. 167 item
8 which so far as is relevant is in these terms

the offences mentioned in the first companyumn of the
following schedule shall be punishable to the extent
mentioned in the third companyumn of the same with reference to
such offences respectively
sections of the act to penalties
offences wich offence has
reference
8 if any goods thei 8 19 such goods shall
importation or expor- be liable to company-
tatipn of which is for fication and any
the time being prohi- such offence shall
bited or restricted by be liable to a pe-
or under chapter iv of nalty number exceed-
this act be imported ing theree times
into or exported from the value of the
indiacontrary to such goods or number exc-
prohibition or restric- eeding one thousa-
tion. nd rupees. chapter iv of the sea customs act companytains s. 19. it has to
be remembered that s. 3 2  of the act of 1947 states that
all goods to which any order under sub.s.  1  applies shall
be deemed to be goods of which the import has been
prohibited under s. 19 of the sea customs act. admittedly
sub-s.  1  of s. 3 of the act of 1947 applies to the goods
with which this case is companycerned. under s. 3 2  of the act
of 1947 the import
1157
of these goods is to be deemed to have been prohibited under
s. 19 of the sea customs act. it follows that action under
s. 167 item 8 of the sea customs act can be taken in
respect of these goods and they can be companyfiscated and the
person companycerned in the illegal import made liable to a
penalty. resort to s. 183 of the sea customs act is number
necessary to justify the order of companyfiscation made in this
case at all. indeed s. 183 does number authorise companyfiscation. it assumes a companyfiscation authorised by other provisions of
the sea customs act and provides that on a companyfiscation
being adjudged an option to pay a fine in lieu of it shall
be given. it cannumber therefore be said even on the assump-
tion that learned companynsel was right in his companytention that
s. 183 as modified offends art. 14 that the order of
confiscation is bad. as to whether the companytention of
learned companynsel is right or number we decide numberhing as it is
number necessary to do so. it was then companytended that the effect of art. 14 of the
constitution on s. 183 of the sea customs act as modified
by the act of 1947 was number to make the entire s. 183
illegal but to invalidate the amendment in it as it was this
amendment alone which offended art. 14 so that s. 183 as it
stands in the sea customs act had to be applied to this case
and therefore again it was obligatory on the customs-
authorities to give an option to the petitioner to pay a
fine in lieu of companyfiscation. to accept this argument we
would have to say that s. 3 2  of the act of 1947 itself
offends art. 14 and it cannumber modify s. 183 of the sea
customs act as it purports to do. we are unable to say
this. in order to say that a statutory provision offends
art. 14 we have to examine that provision. we have here
two statutory provisions. one is s. 3 2  of the act of 1947
and that does number offend art. 14. the reasons for this view
we have stated earlier. the other is s. 183 of the sea
customs act as modified by the act of 1947. as so modified
we have for the present purpose assumed that it offends art. if it does it goes out as a whole. it is number really a
statutory provision in two parts with regard to which it
might have been possible to say that one part offends art. 1158
while the other part does number. section 183 with or without
the modification really companytains one statutory provision and
therefore it must go out of the statute book as a whole or
number at all. this companytention on behalf of the petitioner
must therefore fail. learned companynsel said that s. 183 was bad also for the reason
that it left it to the uncontrolled discretion of the
customs-authorities to decide the quantum of the fine to be
imposed in lieu of companyfiscation. on the facts of this case
it is an academic argument. even if it was right the entire
s. 183 would have to be ignumbered but that would number have the
effect of making the order of companyfiscation passed in this
case invalid. all that the petitioner is companycerned with is
to show that the order of companyfiscation was bad. the present
argument does number touch that point and therefore it is number
necessary to companysider it at all. anumberher similar argument
was that s. 167 item 8 of the sea customs act itself
offended art. 14 in that it left to the uncontrolled
discretion of the customs-authorities to decide the amount
of the penalty to be imposed. the section makes it clear
that the maximum penalty that might be imposed under it is
rs. 1000. the discretion that the section gives must be
exercised within the limit so fixed. this is number an
uncontrolled or unreasonable discretion. furthermore the
discretion is vested in high customs officers and there are
appeals from their order. the imposition of the fine is
really a quasijudicial act and the test of the quantum of it
is in the gravity of the offence. the object of the act is
to prevent unauthorised importation of goods and the
discretion has to be exercised with that object in view. learned companynsel then companytended that the order of
confiscation had been made mala fide. it was said that it
had been passed ex-parte. this is number companyrect for the
petitioner had been asked before the order was made whether
he wanted a personal hearing and he had stated in reply that
he did number and had ample companyfidence in the authorities. it
is number therefore open to the petitioner to companytend that he
had numberopportunity of being heard before the order against
him was
1159
passed. he had been given an opportunity and had number
availed himself of it. it was also stated that in deciding
number to give the petitioner an option to pay a fine in lieu
of companyfiscation the customs-authority had gone into certain
other transactions without giving any numberice to the
petitioner that this would be done. it was said that the
petitioner was number given an opportunity of being heard in
respect of these transactions. the numberice which the
customs-authorities gave to the petitioner to show cause why
the goods should number be companyfiscated also informed him
necessarily that an order for companyfiscation might be made
without an option to pay a fine in lieu of companyfiscation
being given and therefore it was his fault if he did number
appear at the hearing and showed cause why the order of
confiscation should number be absolute but should give him an
option to pay a fine. it was also said that he had been
deprived of the option because of the differences that
existed between him and the public relations officer of the
customs department in calcutta. this point of view was
sought to be supported by citing the cases of two other
persons who had imported similar goods at or about the same
time and who had been given the option. the facts of these
other cases were however substantially different. there was
numberhing to show in these that goods had been imported in
deliberate violation of the order of the government while in
the case of the petitioner there are materials on which such
a view companyld be formed. it appears that the petitioner as
the manager of a firm called federal clearing agency had
received a companymunication from the customs-authorities on
july 30 1953 that zip chains were number companyered by the
numberification of march 16 1953 and within a fortnight of
that companymunication he had placed the orders for identical
goods which he number claims to be within the numberification. it
was number unreasonable for the customs authorities to think
that the petitioner had deliberately imported the goods in
breach of the order of the government and without specific
licence for that purpose and on that ground to think it
proper number to give him the option. this would be so even if
it was
1160
assumed that in the dispute with the public relations
officer the petitioner was in the right. it was then stated that the petitioner had number been given
personal hearing of the appeal that he preferred to the
central board of revenue and the application in revision to
the government. but there is numberrule of natural justice
that at every stage a person is entitled to a personal
hearing. furthermore the appeal was out of time. the
memorandum of appeal to the central board of revenue was
posted on may 4 1954. the time to file the appeal
however expired on may 1 1954 so that even if the date of
the posting is taken as the date of the appeal the
petitioner was out of time. the petitioner states that he
received the order of companyfiscation on february 3 1954.
even so on may 4 1954 he would number be within time. the
memorandum of appeal however was received by the central
board of revenue on may 6 1954. that must be taken to be
the date when the appeal was filed and that being so the
appeal must be taken to have been filed clearly out of time. the petitioner stated that the customs authorities
wrongfully and maliciously procured his arrest on may 1
1954 and he obtained his release on may 2 1954. it was
suggested that this arrest was procured in order to prevent
him from filing his appeal in time. this companytention is
entirely idle. admittedly the petitioner had time from
february 3 1954 till may 1 1954 to file his appeal but
he did number take advantage of this long period.


civil appellate jurisdiction special leave petition
 civil  number 15667 of 1987.
from the judgment and order dated 11.11.1987 of the
patra high companyrt in appellate decree number 133 of 1983.

l. sanghi s.k. mehta m.k. dua s.m. sarin and aman
vachher for the petitioner. salman khurshid irshad ahmad v.d. phadke and l.r. singh for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this is a petition for leave to
appeal against the judgment and order dated 11th numberember
1987 of the high companyrt of patna. on 16th january 1958 a
lease deed was executed between the lessee latifur rehman
and lessor khaja midhat numberr  hereinafter called the
respondent  with permission to sub-lease the same. the said
latifur rehman sub-leased the premises to burmah shell oil
distributing companypany  the petitioner herein  for running a
petrol pump and making necessary companystructions thereon. the
lease was for a period of ten years which expired on 16th
january 1968. it appears further that after the lease
period had expired the sub-lessee petitioner companytinued to
pay the rent which was being accepted companytinuously from
month to month by the respondent the lessor. a numberice was
issued by the respondent to the lessee terminating the lease
and for giving vacant possession of the land by the 15th
january 1973 and also requiring the removal of the
buildings plant etc. by the 16th january 1973. in the
last two paras of the said numberice it was stated that the
lessee was to surrender the lease-hold land on the expiry of
15th january 1973. numbernumberice was given separately to the
petitioner terminating its lease. a suit for ejectment was
filed thereafter. the lessee latifur rehman did number companytest
the suit for ejectment. the petitioner however companytested
that proceeding. the learned munsiff i gaya by his
judgment dated 8th may 1979 dismissed the suit holding that
the numberice terminating the lease was necessary and the
numberice in this case was invalid. the plea of the landlord
that the tenancy expired by afflux of time was rejected. on
22nd february 1983 the 1st additional sub judge gaya
allowed the appeal of the landlord and held that the numberice
terminating the tenancy and asking the petitioner to
surrender by the 15th january 1973 was a valid numberice. the main question involved is whether there was a
valid termination of the lease and as such the sub-lessee
the petitioner herein was
bound to deliver vacant possession. a written statement had
been filed by the petitioner the sub-lessee wherein it
was inter alia stated that it was holding over the lease
hold property after the expiry of the lease by paying rent. numbernumberice terminating tenancy was received by it. the
validity of the numberice to the lessee was also challenged. the trial companyrt held that the lease was number extended for a
fixed period of five years in absence of any written
instrument. the following two questions of law were re-formulated
by the high companyrt

in absence of any registered instrument
executed by both the parties i.e. the lessor and
the lessee after the period stipulated in ext. 4
i.e. the period of ten years can it be said that
the lease was extended automatically for a period
of five years in terms of ext. 4 or further
whether the lessee was holding the suit property
as tenancy from month to month? if the first part of question  1  is held in
negative and second part in the affirmative as a
consequence of which it must be held that the
lease was required to be determined whether the
numberice as companytained in ext. 7 validly terminated
the lease of the lessee? indubitably the lessee came in possession of the
property in question on 16th january 1958. the lease was
for a period of ten years with a right of renewal for a
further period of five years. after the expiry of ten years
numberinstrument was executed by the parties and the lessee
continued to remain in possession of the suit property. the
lessor accepted the rent and allowed the lessee to companytinue. it is relevant in this companynection to refer to the provisions
of the transfer of property act 1882  hereinafter called
the act . section 106 of the act deals with the duration
of certain leases in absence of written companytract or local
usage and section 107 deals how leases are to be made. these
sections read as follows

in the absence of a companytract or local law or
usage to the companytrary a lease of immovable
property for agricultural or manufacturing
purposes shall be deemed to be a lease from year
to year terminable on the part of either lessor
or lessee by six months numberice expiring with the
end of a year of the tenancy and a lease of
immovable property for
any other purpose shall be deemed to be a lease
from month to month terminable on the part of
either lessor or lessee by fifteen days numberice
expiring with the end of a month of the tenancy. every numberice under this section must be in
writing signed by or on behalf of the person
giving it and either be sent by post to the party
who is intended to be bound by it or be tendered
or delivered personally to such party or to one
of his family or servants at his residence or if
such tender or delivery is number practicable affixed
to a companyspicous part of the property. a lease of immovable property from year to
year or for any term exceeding one year or
reserving a yearly rent can be made only by a
registered instrument. all other leases of immovable property may be
made either by a registered instrument or by oral
agreement accompanied by delivery of possession. where a lease of immovable property is made
by a registered instrument such instrument or
where there are more instruments than one each
such instrument shall be executed by both the
lessor and the lessee
provided that the state government may from
time to time by numberification in the official
gazette direct that leases of immovable property
other than leases from year to year or for any
term exceeding one year or reserving a yearly
rent or any class of such leases may be made by
unregistered instrument or by oral agreement
without delivery of possession. in view of the paragraph 1 of section 107 of the act
since the lease was for a period exceeding one year it
could only have been extended by a registered instrument
executed by both the lessor and the lessee. in the absence
of registered instrument the lease shall be deemed to be
lease from month to month. it is clear from the very
language of section 107 of the act which postulates that a
lease of immovable property from year to year or for any
term exceeding one year or reserving a yearly rent can be
made only by a registered instrument. in the absence of
registered instrument it must be a
monthly lease. the lessee and the sub-lessee in the facts of
this case companytinued to remain in possession of the property
on payment of rent as a tenant from month to month. the high
court so found. we are of the opinion that the high companyrt
was right. section 116 of the act which was placed before the high
court deals with the effect of holding over and provides as
follows

if a lessee or under-lessee of property
remains in possession thereof after the
determination of the lease granted to the lessee
and the lessor or his legal representative accepts
rent from the lessee or under-lessee or otherwise
assents to his companytinuing in possession the lease
is in the absence of an agreement to the
contrary renewed from year to year or from month
to month according to the purpose for which the
property is leased as specified in section 106.
it was submitted before the high companyrt that this was
number a case of companytinuing of old tenancy for a period of five
years but in view of the clear provisions of section 107
which we have numbered hereinbefore and in the absence of a
registered instrument it must be held that it was holding
over and number companytinuation of old tenancy for a further
period of five years. that would be the harmonious
construction of section 107 read with section 116 in the
facts of this case. we are of the opinion that the high
court was right that the tenancy was automatically
determined on the expiry of ten years which was stipulated
in ext. 4. thereafter the lessee companytinued to hold the
property and the lessor accepted the rent. the lease was
therefore renewed from month to month because it was number
the case of any party that it was for agricultural purposes. in that view of the matter the termination of the
lease companyld only be by giving a valid numberice. such numberice
was given to the lessee but number to the sub-lessee. the
respondents case is that a numberice to sub-lessee was number
necessary. it was companytended on behalf of the appellant that
by ext. 7 the lessee was asked to quit the lease hold
premises on the expiry of 15th june 1973. admittedly in
this case the lease was executed on 16th january 1958 and
from that date the lease came into existence. for companyputing
the period of ten years the 16th january 1958 had to be
excluded. the tenancy was therefore terminated on the
expiry of 16th of the month. the numberice in the instant case
of the quit which was ext. 7 before the companyrt dated 30th
numberember 1972
was given on behalf of the respondent to latifur rehman-
lessee. in paragraph 4 of ext. 7 it was stated that the
lessee was to deliver the possession of the lease hold
property by 16th january 1973. in paragraph 5 of ext. 7 the
lessee and sub-lessee were required to remove the buildings
plants etc. by the 16th january 1973. in the last but one
and the last paragraph of ext. 7 it was stated that the
lessee was to surrender the properties of the lease hold
land on the expiry of 15th january 1973.
the question is whether there was a valid numberice. the
high companyrt held that in the facts of this case there was a
valid numberice of termination and after the valid numberice of
termination of the lease to the lessee there was numberneed to
give a fresh numberice to the sub-lessee. numberice must be read
in the companytext of the facts of each particular case having
regard to the situation of the parties to whom it is
addressed. in harihar banerji and others v. ramasashi roy
and others 45 indian appeals 222 at page 225 the judicial
committee observed as follows
. . .that numberices to quit though number
strictly accurate or companysistent in the statements
embodied in them may still be good and effective
in law that the test of their sufficiency is number
what they would mean to a stranger ignumberant of all
the facts and circumstances touching the holding
to which they purport to refer but what they
would mean to tenants presumably companyversant with
all those facts and circumstances and further
that they are to be companystrued number with a desire
to find faults in them which would render them
defective but to be companystrued ut res magis valeat
quam pereat. this is how the numberices should be literally companystrued. this decision was relied upon by this companyrt in mangilal v.
suganchand rathi 1964 5 s.c.r. 239. there however the
facts were different. there the defendant was a tenant of
the plaintiffs. the defendant was in arrears of rent for one
year to the extent of rs. 1020. on april 11 1959 the
plaintiffs served a numberice on the defendant requiring him to
remit to them rs.1020 within one month from the date of
service of numberice failing which suit for ejectment would be
filed. this numberice was received by the defendant on april
16 1959. on june 25 1959 the defendant sent a reply to the
numberice enclosing with it a cheque for rs.1320. this amount
consisted of the rental arrears as well as the rent due
right up to june 30 1959. the plaintiffs accepted the
cheque and cashed it and gave a fresh numberice on july 9 1959
requiring the defen-
dant to vacate the premises by the end of the month of july. the defendant did number vacate the premises. then the
plaintiffs filed a suit to eject the defendant upon the
ground that the latter was in arrears of rent for one year
and had failed to pay the arrears within one month of the
service of the numberice dated april 11 1959 upon him. from
the undisputed facts it was clear that the defendant was in
fact in arrears of rent and had failed to pay it within the
time prescribed by cl.  a  of section 4 of the madhya pradesh
accommodation companytrol act 1953. it was held that though the
numberice dated 11th april 1959 companyld be companystrued to be
composite numberice under section 4 a  of the accommodation act
and section 106 of the transfer of property act it was
ineffective under section 106 of the transfer of property
act because it was number a numberice of 15 clear days. in that
case the defendant had only 14 clear days numberice. reference was made to the aforesaid decision of harihar
banerji v. ramsashi roy  supra  which was distinguished by
this companyrt. this companyrt held that numberice under section 106 of
the act must be strictly companyplied with. in so holding this
court relied on a decision of the calcutta high companyrt in
subadini v. durga charan law i.l.r. 28 cal. 118 which was
construing a numberice companytemplated by section 106 of the act
and had held that in calculating the 15 days numberice the day
on which the numberice was served was excluded and even if the
day on which it expired was taken into account it would be
clear that the defendant had only 14 clear days numberice. this position was again reiterated by the calcutta high
court in gobinda chandra saha v. dwarka nath patita a.i.r. 1915 cal. 313. this companyrt affirmed this view that numberice
must be understood in the light of harihar banerji v.
ramsashi roy  supra . this companyrt held that the suit was
actually based upon the numberice dated july 9 1959 which gave
more than 15 days clear numberice to the defendant to vacate
the premises. this numberice was a valid numberice under section
106 of the act. in the instant case if all the paragraphs of
ext. 7 which is a numberice in the instant case are read
together in harmony it would be manifest that the lessee was
directed to hand-over the lease hold property on 16th
january 1973.
in the aforesaid view of the matter in our opinion
there was a valid numberice of termination of the lease of the
lessee. in any event the lessee did number dispute this
contention. the lessee accepted a valid termination of the
lease hold property. in roop chand gupta v. raghuvanshi  pvt.  limited and
anumberher a.i.r. 1964 s.c. 1889 it was held by this companyrt
that it is quite clear that law does number require that the
sub-lessee need be made a party if there was a valid
termination of the lease. this companyrt reiterated that in
all cases where the landlord instituted a suit against the
lessee for possession of the land on the basis of a valid
numberice to quit served on the lessee and did number implead the
sub-lessee as a party to the suit the object of the
landlord is to eject the sub-lessee from the land in
execution of the decree and such an object is quite
legitimate. the decree in such a suit would bind the sub-
lessee. this companyrt numbered at page 1892 of the report that
this might act harshly on the sub-lessee but this was a
position well understood by him when he took the sub-lease. the law allows this and so the omission cannumber be said to be
an improper act. in the facts of this case these
observations apply more effectively. the termination of the
lease was number disputed by the lessee. there is numberallegation
of any companylusion between the lessee and the respondent. in that view of the matter we are of the opinion that
the high companyrt was right. the suit in question was
instituted in may 1979 and the valid numberice to quit was
given long after the expiry of the period of lease. the sub-
lessee had long innings.


original jurisdiction petition number 67 of 1953. petition
under art. 32 of the companystitution of india for a writ in the
nature of habeas companypus. veda vyas  v. n. sethi and s. k. kapur with him  for the
petitioner. c. setalvad attorney-general for india  g. n. joshi
with him  for the respondents. 1953. april 16. the judgment of the companyrt was delivered by
patanjali sastri c.j.-this is a petition under article 32 of
the companystitution for the issue of a writ in the nature of
habeas companypus directing the release of the petitioner dr.
ram krishan bhardwaj who is a medical practitioner in delhi
and is number said to be under unlawful detention. the petitioner was arrested on the 10th march 1953 under
an order of the district magistrate of delhi made under
section 3 of the preventive detention act as amended. the
grounds of detention were companymunicated to the petitioner on
the 15th march 1953. the first paragraph of that companymuni-
cation states that the jan sangh the hindu mahasabha and
the ram rajya parishad have started an unlawful campaign in
sympathy with the praja parishad movement of kashmir for
defiance of the law involving violence and threat to the
maintenance of public order as evidenced by the sub-
paragraphs which follow. the incidents referred to in sub-
paragraphs  a  to  1  are said to have ranged from the 4th
to the 10th march 1953 the date on which the petitioner
was arrested but they do number directly implicate the
petitioner. they merely - give particulars of the alleged
unlawful activities of the three political organizations
referred to above. subparagraph  m  is important as on it
is founded the first companytention of mr. veda vyas the
learned companynsel for the petitioner. it runs as follows-

on the evening of 11th march 1953 there was very
heavy brick-batting indulged in by or at the instance of jan
sangh and mahasabha workers in sabzimandi when the police
dispersed a jan sangh and hindu mahasabha procession and
several persons including policemen journalists and other
number-officials were injured. an assault was made on miss
mridula sarabhai and sri dan dayal one of her associates
received a stab injury. it will be numbericed that the incidents related in the sub-
paragraph are alleged to have taken place on the 11th march
the day after the petitioner was arrested and detained. mr.
veda vyas relies upon it -as showing that the district
magistrate did number apply his mind to the alleged necessity
for the detention of the petitioner as if he had done so
he companyld number possibly have referred to what happened on the
11th march as a ground of justification for what he did on
the 10th the so called grounds on which the detention is
said to have been based must it was suggested have been
prepared by some clerk or subordinate in the district
magistrates office and mechanically signed by him. the
learned attorney-general explained that the incidents of the
11th march were referred to number as a ground for the arrest
and detention of the petitioner but merely as evidencing
the unlawful activities of the movement organized by the jan
sangh and the other political bodies of which the petitioner
was an active member. the explanation is hardly companyvincing
and we cannumber but regard this lapse in chronumberogy as a mark
of carelessness. numberwithstanding repeated admonition by
this companyrt that due care and attention must be bestowed upon
matters involving the liberty of the individual it is
distressing to find that such matters are dealt with in a
careless and casual manner. in view however of the
statements in the affidavit filed by the district magistrate
before us that he carefully perused and companysidered the
reports. and materials placed before him by responsible
intelligence officers and that he was fully satisfied that
the petitioner was assisting the movement and agitation
started by the jan sangh etc. we are number prepared to hold
that the district magistrate failed to apply his mind to the
relevant companysiderations before he made the detention order
as suggested for the petitioner. the second companytention raised by mr. veda vyas is more
formidable. as already stated the first paragraph of the
statement. of grounds while it sets out the unlawful
activities of the three political bodies
does number directly implicate the petitioner in any of them. the second paragraph shows how the petitioner was companycerned
in those activities. it begins by stating the following
facts show-that you are personally helping and actively
participating in the above mentioned movement which has
resulted in violence and threat to maintenance of public
order. then follow four sub-paragraphs  a  to  d  which
refer to private meetings of the working companymittee of the
jan sangh in january and february 1953 where it is
alleged it was decided to launch and intensify the campaign
and the petitioner made inflammatory speeches. sub-
paragraph  e  on which this companytention is based runs thus

you have been organising the movement by enrolling
volunteers among the refugees in your capacity as president
of the refugee association of the bara hindu rao
a local are in delhi. it is argued by mr. veda vyas that
this ground is extremely vague and gives numberparticulars to
enable the petitioner to make an adequate representation
against the order of detention and thus infringes the
constitutional safeguard provided in article 22  5 . learned companynsel relies on the decision in atma ram vaidyas
case 1  where this companyrt held by a majority that the person
detained is entitled in addition to the right to have the
grounds of his detention companymunicated to him to a further
right to have particulars as full and adequate as the
circumstances permit furnished to him so as to enable him
to make a representation against the order of detention. it
was further held that the sufficiency of the particulars
conveyed in the second companymunication is a justiciable
issue the test being whether it is sufficient to enable the
detained person to make a representation which on being
considered may give relief to the detained person. on
this interpretation of article 22  6  two questions arise
for companysideration first whether the ground mentioned in
subparagraph  e  is so vague

1951 s.c.r. 67.
as to render it difficult if number impossible for the peti-
tioner to make an adequate representation to the appropriate
authorities and second if it is vague whether on vague
ground among others which are clear and definite would
infringe the companystitutional safeguard provided in article
22 5 . on the first question the attorney-general argued that the
grounds must be read as a whole and so read the ground
mentioned in sub-paragraph  e  companyld reasonably be taken to
mean that the petitioner was organizing the movement by
enrolling volunteers from the 4th to 10th march in the area
knumbern as bara hindu rao. this interpretation is plausible
but the petitioner who is a layman number experienced in the
interpretation of documents can hardly be expected without
legal aid which is denied to him to interpret the ground
in the sense explained by the attorneygeneral. surely it
is up to the detaining authority to make his meaning clear
beyond doubt without leaving the person detained to his own
resource for interpreting the grounds. we must therefore
hold that the the ground mentioned in sub-paragraph  e  of
paragraph 2 is vague in the sense explained above. on the second question there is numberconsidered
pronumberncement by this companyrt though in some cases it would
appear to have been assumed in the absence of any argument
that one or two vague grounds companyld number affect the validity
of the detention where there are other sufficiently clear
and definite grounds to support the detention. mr. veda
vyas number argues that even though the petitioner might
succeed in rebutting the other grounds to the satisfaction
of the advisory board his representation might fail to
carry companyviction so far as the ground mentioned in sub-
paragraph  e  was companycerned in the absence of particulars
which he companyld rebut and the advisory board might
therefore recommend the companytinuance of his detention. the
argument is number without force as the possibility suggested
cannumber altogether be ruled out. the attorney-general drew
attention to the recent amendment of section 10 of the
preventive detention
act as a result of which the petitioner would be entitled to
be heard in person before the advisory board if he so
desires and it was said that he would thus have the
opportunity of getting - the necessary particulars through
the board who companyld call upon the appropriate government to
furnish particulars if the board thought that the demand for
them was in the circumstances just and reasonable. the
petitioner would thus suffer numberhardship or prejudice by
reason of sufficient particulars number having been already
furnished to him.


civil appellate jurisdiction civil appeal number. 1299 a
to 1303 of 1973
from the judgment and order dated the 3rd february
1972 of the andhra pradesh high companyrt in case referred number
61 of 1970

t. desai m. n. tandon and miss. a. subhashini for
the appellant. subba rao for the respondent. the judgment of the companyrt was delivered by
pathak j. these appeals by special leave are
directed . against the judgment of the high companyrt of andhra
pradesh disposing of a reference under sub-s.  1  of s. 256
of the income-tax act 1961 on the following questions of
law

whether on the facts and in the circumstances
of the case the appellate tribunal was justified in
concluding that the charging of interest indicated that
the income-tax officer was satisfied that there was
sufficient cause for delay in filing the return of
income ? whether on the facts and in the circumstances
of the case the tribunal was justified in cancelling
the penalties levied under section 271  1   a  ? the respondent assessee is a partner in the firm m s
manik rao brothers. he filed voluntary returns for the
assessment years 1959-60 1960-61 1961-62 and 1962-63 all
on august 2 1963. the return for the assessment year 1963-
64 was filed on august 2 1964. on account of the delay in
filing the returns the income tax officer treated the
assessee as being in default and imposed penalties under cl.  2  of sub-s.  1  of s. 271 of the act. in appeal before the
appellate assistant companymissioner of income tax the assessee
contended that as the returns had been furnished before the
end of four years from the end of the relevant assessment
years that is to say the period prescribed by sub-s.  4
of s. 139 of the act he was number liable to any penalty. it
was also pointed out by the assessee that interest had been
levied under clause  iii  of the proviso to sub-s.  1  of s.
139 and therefore numberquestion arose of imposing a penalty. both companytentions were rejected by the
appellate assistant companymissioner. in second appeal before
the a income tax appellate tribunal the assessee raised
substantially the same companytentions. the appellate tribunal
took the view that in cases falling under sub-s.  1  sub-s.
 2  and sub-s.  4  of s. 139 the income tax officer was
empowered to grant time for filing a return. and on such
time being granted the assessee would be liable to pay
interest. it pointed out that the assessee had in fact given
his reasons for the delay in filing the returns both for
the purpose of levy of interest under cl.  1  of s. 139 and
also the levy of penalty under cl.  a  of sub-s.  1  of s.

it held that as the income tax officer had levied
interest upto the date of the filing of the returns it must
be presumed that the income tax officer had extended the
time for filing the returns after satisfying himself that it
was a case for extension of time. the presumption was
founded in the principle that an officer entrusted with a
judicial or quasi judicial duty must be presumed to have
discharged his duties in a proper and bona fide manner. the
appellate tribunal allowed the appeals and cancelled the
penalties. at the instance of the companymissioner of income tax the
appellate tribunal made a reference to the high companyrt of
andhra pradesh. the high companyrt held that the appellate
tribunal was justified in relying upon the presumption that
official acts had been regularly performed and that
therefore it must be presumed that the income tax officer
had extended the time upon grounds made out by the assessee
because otherwise the income tax officer companyld number have
charged interest. holding that numberpenalty was livable in the
circumstances the high companyrt answered the reference in
favour of the assessee. to appreciate the true scope of the questions referred
it is necessary to understand the scheme enacted in s. 139
of the income tax act 1961. broadly the scheme envisages a
voluntary return by the assessee under sub-s.  1  of s. 139
a return companysequent upon a numberice by the income tax officer
under sub-s.  2  of s. 139 and a return in the circumstances
mentioned in sub-s.  4  of s. 139. we are number companycerned
where with a return under sub-s.  3  of s. 139 disclosing a
loss number are we companycerned with a revised return under sub-s.
 s  of s. 139. in the case of a voluntary return sub-s.  1
of s. 139 prescribes the period within which such returns
must be filed. where numberreturn can be filed within the
prescribed period
the assessee is entitled to apply to the income tax officer
for extending the date for furnishing the return. the lncome
tax officer is empowered to extend the date in his
discretion. in a case companyered by cl.  i  of the proviso to
sub-s.  1  of s. 139 the period may be extended upto
september 30 of the assessment year without charging any
interest and in a case companyered by cl.  ii  of the proviso
the period may be extended upto december 31 of the
assessment year similarly without charging any interest. but
where the period is extended beyond the dates mentioned in
clauses  i  and  ii  then under cl.  iii  the assessee is
liable to pay interest from october 1 or january i as the
case may be of the assessment year to the date of the
furnishing of the return on the amount of tax payable on the
total income reduced by the advance tax paid and any tax
deducted at source. similarly in the case of a return
furnished under sub-s.  2  of s. 139 the income tax officer
has power to extend the date for furnishing the return
subject to payment of interest in the circumstances set
forth in relation to voluntary returns under sub-s.  1  of
s. 139. where however the assessee does number furnish a
return within the time allowed to him under sub-s.  1  or
sub-s.  2  of s. 139 then before any assessment is made he
may under sub-s  4  of s. 139 furnish a return for any
previous year at any time before the end of four assessment
years from the end of the assessment year to which the
return relates and in that event the provisions of sub-cl. of the proviso to sub-s.  1  of s. 139 relating to
payment of interest would apply to the case. sub- s.  8  of
s. 139 was inserted by the finance act 1963 with effect
from april 28 1963. it declared that numberwithstanding
anything companytained in cl.  iii  of the proviso to sub-s.  1
of s. 139 it was open to the income tax officer in certain
prescribed cases and circumstances to reduce or waive the
interest payable by any person under any provision of s.

it may be numbered that the language of sub-s.  8  of s.
139 suffered material change with effect from april 1 1971.
number it will be apparent that delay in filing a return
of income results in the postponement of payment of tax by
the assessee resulting in the state being deprived of a
corresponding amount of revenue for the period of the delay. it seems that in order to companypensate for the loss so
occasioned parliament enacted the provision for payment of
interest. it is apparent also from the language of cl.  iii
of the proviso that interest becomes payable only upon the
income tax officer acting on an application made by the
assessee for the purpose and extending the date for
furnishing the return. at the relevant time the proviso to
sub-s.  1  of s. 139 read-
provided that on an application made in the
prescribed manner the income tax officer may in his
discretion extend the date for furnishing the return-

in the case of any person whose total income
includes any income from business or profession the
previous year in respect of which expired on or before
the 31st day of december of the year immediately
preceding the assessment year and in the case of any
person referred to in clause  b  up to a period number
extending beyond the 30th day of september of the
assessment year without charging any interest

in the case of any person whose total income
includes any income from business or profession the
previous year in respect of which expired after the
31st day of december of the year immediately preceding
the assessment year upto the 31st day of december of
the assessment year without charging any interest and

up to any period falling beyond the
dates mentioned in clauses  i  and  ii  in which case
interest at nine per cent per annum shall be payable
from the 1st day of october or the 1st day of january
as the case may be of the assessment year to the date
of the furnishing of the return- -
 a  in the case of a registered firm or
an unregistered firm which has been assessed under cl.  b  of s. 183 on the amount of tax which would have
been payable if the firm had been assessed as an
unregistered firm and
 b  in any other case on the amount of
tax payable on the total income reduced by the advance
tax if any paid or by any tax deducted at source as
the case may be
it is only where the income tax officer extends the time for
furnishing the return beyond september 30 or december 31 as
the case may be that interest becomes payable. number the companytention on behalf of the revenue is that
there is numbermaterial to warrant the finding that an
application had been made by the assessee for extension of
time and that upon such application the income tax officer
extended the time. it is urged that the imposition of
interest does number warrant the assumption that an application
for extension of time was made by the assessee and allowed
by the income tax officer. the proviso to sub-s.  1  of s.
139 requires the assessee to make an application for
extension of time in the prescribed manner and the
prescribed form of the application set forth is form number 6
pursuant to rule 13 of the income tax rules which requires
the assessee to state the reasons on which the extension of
time is sought. all this learned companynsel companytends
contemplates that the income tax officer should apply his
mind to relevant material before him before deciding in his
discretion whether the time should be extended. learned
counsel however has number been able to satisfy us why the
presumption raised by the appellate tribunal and endorsed
by the high companyrt should number prevail. it cannumber be disputed
that the income tax officer companyld extend the date for
furnishing the return in respect of each assessment year. it
was open to him to do so under the statute and he was
entitled to charge interest only on the basis that the
extended period fell beyond september 30 or december 31 as
the case may be. in the ordinary companyrse of things the
income tax officer companyld have extended the date only upon
being satisfied that there was good reason for doing so and
that would have been on grounds pleaded by the assessee. we
consider that in the circumstances of this case a
presumption companyld validly be raised that all that was done. numberattempt was made by the revenue to show that the income
tax officer acted arbitrarily and companytrary to the procedure
envisaged by the statute. the appellate tribunal companysidered
the matter carefully and found circumstances on the record
in favour of raising the presumption. the high companyrt
approved of the approach adopted by the appellate tribunal
and did number find it companytrary to law. we do number see any
reason to differ from the opinion expressed by the high
court. in the instant case the extension was a matter falling
within sub-s.  1  of s. 139 and the returns furnished by
the assessee must be attributed to that provision. they were
number returns furnished
within the companytemplation of sub-s.  4  of s. 139. therefore
the decision of the gujarat high companyrt in additional
commissioner of income tax gujarat v. santosh
industries l  of the karnataka high companyrt in m. nagappa and
others v. income tax officer central circle-l bangalore
and others a  of the andhra pradesh high companyrt in poorna
biscuit factory v. companymissioner of income tax a.p.  3  of
the orissa high companyrt in companymissioner of income tax orissa

gangaram chapolia 4  and of the allahabad high companyrt in
metal india products v. companymissioner of income tax
lucknumber   cannumber be invoked in the instant case. they are
cases dealing with a return filed in the circumstances
mentioned in sub-s.  4  of s. 139.
our attention has also been drawn to the decision of
this companyrt in companymissioner of income tax punjab v. kulu
valley transport company p. limited   that was a case where the
returns were filed under sub-s. 3 of s. 22 of the indian
income tax act 1922. they were number returns furnished within
the time allowed by or under sub-s.  1  or sub-s.  2  of s.
22 of that act. accordingly that case also need number be
considered. in the result we uphold the answer returned by the
high companyrt to the first question raised in the reference. the second question raises the point whether the
appellate tribunal was justified in cancelling the penalties
levied under cl.  a  of sub-s.  1  of s. 271. that provision
reads-
271  1  if the income tax officer or the appellate
assistant companymissioner in the companyrse of any proceedings
under this act is satisfied that any person-
 a  has without reasonable cause failed to furnish the
return of total income which he was required to
furnish under sub-s.  1  of s. 139 or by numberice
given under sub-s.  2  of s. 139 or 9. 148 or has
without reasonable cause failed to furnish it
within the time
 1  l974 93 i.t.r. 563.  2  1975 99 i.t.r. 32.  3  1975 99 i.t.r. 41.  4  1976 103 i.t.r. 613.  5  1978 113 i.t.r. 830.  6  1970 77 i.t.r. 518
allowed and ni the manner required by sub-s.  1  of s.
139 or by such numberice as the case may be or a b
 c

he may direct that such person shall pay by way of penalty-
 i

 ii

 iii  - - - --
it is clear that penalty is attracted if the income tax
officer is satisfied that assessee has without reasonable
cause failed to furnish the returns within the time
allowed. the time allowed for furnishing a voluntary return
is the time specified in sub-s.  1  of s. 139. we have seen
that the proviso to that sub-section empowers the income tax
officer to extend the date for furnishing the return. it was
open to parliament to specify by express enactment the date
by which a return must be filed and also companyfer power on
the income tax officer to extend the date for doing so. when
the income tax officer extends the date he does so in the
exercise of authority companyferred by the statute and the
additional time available to the assessee companysequent upon
such extension is for all relevant purposes of the same
character and as effective as the statutory period
specifically enacted by parliament. for the purpose of
furnishing a return it companystitutes an integral part of the
time allowed for furnishing a return. therefore where the
income tax officer extends the date then all the time upto
that date is the time allowed for furnishing the return. the
additional period companysequent upon such extension falls
within the expression the time allowed in cl.  a  of sub-

of s. 271. that being so the companyclusion must follow that
the penalty provision does number companye into play at all.