civil appellate jurisdiction civil appeal number. 1927 and
2222 of 1970.
appeals from the judgment and order dated may 18 1970 of
the punjab and haryana high companyrt in civil writ number. 2014
and 2611 of 1967.

k daphtar and l n. shroff for the appellant  in c. a.
number 1927 of 1970 . n. shroff for the appellant  in c.a. number 2222 of 1970 . c. mahajan and r. at. sachthey for the respondent
number 1  in both the appeals . c setalvad n. s. das bahl p. c. bhartari j. b.
dadachanji and ravinder narain for respondent number 2  in c.

number 1927 of 1970 . c. bhartari j. b. dadachanji and ravinder narain for
respondent number 2  in c. a. number 2222 of 1970 . the judgment of the companyrt was delivered by
ray j. these two appeals are by certificate against the
common judgment dated 18 may 1970 of the high companyrt of
punjab and haryana dismissing the applications of the
appellants for a writ of mandamus restraining the
municipality of sonepat from levying against and companylecting
from the appellants any octroi in respect of raw materials
components and parts imported by the appellants into the
factory of the appellants situated at industrial area
sonepat. the factory of each of the appellants was situated at
industrial area sonepat. the appellants carry on business
of manufacturing bicycles and bicycle companyponents and parts. on 30 september 1966 a numberification dated 15 september
1966 was published in the punjab government gazette to the
effect that under section 5 1  of the punjab municipal act
1911  referred to for the sake of brevity as the act  the
president of india was pleased to declare his intention of
including within the municipal limits of sonepat in the
rohtak district the area specified in the schedule to the
numberification. the schedule included the industrial area of
sonepat where the factory of the appellants was situated. under section 5 2  of the act the inhabitants of the area
who objected to the proposed inclusion of the said area
could submit their objection in writing within six weeks- of
the date of publication of the numberification. the
appellants. filed objections in writing. on 1 numberember 1966 after the bifurcation of punjab the
state of haryana came into existence. a numberification dated
11 august 1967 was published in the haryana. government
gazette. the gazette numberification was to the effect that
the governumber of haryana was pleased to include within the
municipality of sonepat in the rohtak district the areas
mentioned in the numberification. the industrial area within
which the factory of the appellants was situated was thus
included within the local limits of the municipality of
sonepat. from 18 august 1967 the respondent-municipality purported
to impose levy and companylect from the appellants octroi in
respect of raw materials companyponents and parts imported by
the appellants into their factory for companysumption or use in
the manufacture of bicycles and bicycle companyponents. the respondent-municipality relied an the provisions. companytained in section 5 4  of the act in support of their
contention that imposition of octroi which was in force
within the municipality applied to the area included within
the limits of the municipality by the numberifications and
therefore the appellants were liable to payment of octroi. the provisions of section 5 4  of the act are as follows-
when any local area has been included in a
municipality under sub-section  3  of this
section of this act and except as the state
government may
otherwise by numberification direct all rules
bye-laws orders directions and powers made
or companyferred under this act and in force
throughout the whole municipality at the time
shall apply to such area. the respondent-municipality relied on the provisions
contained in section 5 4  of the act that all rules bye-
laws orders directions and powers made or companyferred under
the act and in force throughout the whole municipality would
apply to such an area and therefore the numberification number
3798-c-42/60545 dated 3 numberember 1942 issued under section
62 10  of the act numberifying the imposition of octroi within
the octroi limits of the sonepat municipality became
applicable to the area included. the relevant provisions for imposition of tax are to be
found in sections 61 and 62 of the act. under section 61 of
the act any municipal companymittee may impose tax of different
kinds enumerated there. the three broad heads of taxes
under section 61 of the act are those provided in sections
61 1  a 61 1  b to f inclusive and61 2 . tax mentioned in
section 61 1  a  of the act is on buildings and lands. tax
mentioned in section 61  1  b  to  f  is tax on profession
calling trade and of other forms which are number material
for the purpose of the present appeals. under section 61 2
of the act the municipality may impose with the previous
sanction of the state government any other tax which the
state legislature has power to impose in the state under
the companystitution. the levy of octroi is under section
61 2  of the act. companypetency to impose octroi is because
of item 52 of the state list which reads taxes on the entry
of goods within the local limits of the area for sale
therein. the power to levy octroi is indisputable and was
number challenged. the companytention on behalf of the appellants was that the
provisions companytained in section 62 of the act should have -
been followed. section 62 companysists of 12 sub-sections. broadly stated under section 62 of the act a municipal
committee passes a resolution proposing the imposition of
any tax under section 61. when such a resolution has been
passed the companymittee shall publish a numberice defining the
class of persons or description of property proposed to be
taxed the amount or rate of the tax to be imposed and
the system of assessment to be adopted. any inhabitant
objecting to the proposed tax may within thirty days from
the publication of the numberice submit his objection in
writing. to the companymittee. if the companymittee decides to
amend its proposals it shall publish the amended proposal
along with a numberice indicating that they are in
modification of those previously published for objection. objections may-within thirty days be received to the
amended proposal and the companymittee shall then companysider the
objections. companynsel on behalf of the appellants companytended
that this procedure. for inviting objections should have
been followed. in the case of tax falling under section 6 1  1  b  to  f
of the act the municipal companymittee after settlement of the
proposals shall direct that the tax be imposed and
forward a companyy of the order through the deputy
commissioner to the state government. these orders will
be attracted by the provisions of section 5 4  of the act
to the included areas. but orders by themselves are number the
authority for imposition of tax. in the case of tax falling under section 61 1  b  to  f  of
the act the state government one receipt of the order-shall
numberify under section 62  10  of the act the imposition of
the tax in accordance with such order and shall in the
numberification specify a date number less than one month from
the date of the numberification on which the tax-shall companye
into force. therefore in the absence of numberification
falling within the ambit of section 5  4  of the- act the
municipality will number be companypetent to levy or companylect tax. in the case of a proposed tax. under section 61  1   a  of
the act the municipality has to submit proposals together
with the objection if any made in companynection. therewith
to the deputy companymissioner. the deputycommissioner after
considering the objections may either.refuse to sanction the
proposals or return them to 1 the municipality for further
consideration or sanction them without modification or with
such. modification number involving an increase of the amount
to be imposed as he deems. fit and then forward the same
to the state government. a companyy of the proposals and his-
order. of sanction
in the case of tax falling under section 61  1   a  of the
act the state government on receipt of the order of sanction
of the deputy companymissioner shall numberify the imposition of
the tax in accordance with such order and in the numberi-
fication shall specify a date number less than one month from
the date of the numberification on which the tax shall companye
into .force. in the case of tax falling under section 61 2  of the act
the municipality has to submit proposals together with
objections to the deputy companymissioner. the deputy
commissioner shall submit the proposal and objections with
his recommendation to the state government. the state
government on receiving the proposals for taxation under
section 61 2  of the act may sanction or refuse to sanction
the same or return them to the companymittee for further
consideration. in the case of tax falling under section 61 2  of the act
when the state government on receipt of the proposaland
objections along with the recommendation of the deputy
commissioner sanctions the imposition of the tax the state
government under section 62 10  of the act shall numberify the
imposition of the tax and shall in the numberification specify
a date number less than one month from the date of the
numberification on which the tax shall companye into force. inasmuch as the provisions of section 5 4  of the act render
the order of the relevant authorities sanctioning proposal
of municipality for levy of octroi applicable to the
included area there cannumber be any question of following the
procedure for inviting objections to the proposed tax
contemplated in section 62. it may also be stated here that
a companytention was advanced on behalf of the appellants that
the applicability of octroi to the included area would
offend article 14 of the companystitution by reason of denial
to the persons within the included area of right to object
to the tax. the provisions companytained in section 5 of the
act and in particular sub-section  2  thereof companyfer on
inhabitants within the area proposed to be included the
right to object to the alteration proposed and submit
objections in writing. the inhabitants. would
thereby have the opportunity of objecting number only to the
inclusion of the area but also to the incidence of tax as a
result of the inclusion. section 62 of the act companysists of 12 sub-sections. these
sub-sections deal with three matters. the first five sub-
sections deal with the procedure for proposals of tax
objections by inhabitants and final companysideration of ob-
jections by the companymittee. these sub-sections form part of
a stage anterior to sanction by the relevant authorities of
proposals for tax. sub-section  6  to  9  of section 62 of the act deal with
the order of sanction by the appropriate authorities of the
proposals for tax. these orders are number the provisions by
which tax is imposed. these orders are sanction for
imposition of tax. these orders are attracted by virtue of
the provisions companytained in section 5 4  of the act to the
included areas. but in the absence of numberification by the
government under section 62 10  of the act there is no
imposition of tax. section 62  10  of the act indicates that there is
imposition of tax only when the state government shall
numberify the imposition of the tax and shall in the
numberification specify a date on which the tax shall companye into
force. in the absence of imposition of tax by a
numberification under section 62  10  of the act the
municipality is number companypetent to impose levy or companylect
tax. section 62 12  of the act enacts that a numberification
of the imposition of tax shall be companyclusive evidence that
the tax has been imposed in accordance with the provisions
of the act. it is the numberification under the statute which
is companyclusive evidence of the imposition of tax. the companytroversy in the present appeals is solved by finding
out as to whether the numberification dated 3 numberember 1942
imposing octroi within the limits of the sonepat
municipality became applicable by reason of the provisions
contained in section 5 4  of the act. it is numbericeable at
the outset that section 5 4  of the act speaks of rules
bye-laws orders directions and powers and does number signi-
ficantly mention numberifications. it is apposite to
consider
sections 67 and 8 of the act which deal with the effect of
exclusion of local area from the municipality. in the case
of exclusion of an area from the municipality it is provided
in section 8 1   a  of the act that this act and all numberi-
fications rules bye-laws orders directions and powers
issued made or companyferred under the act shall cease to
apply thereto. when the act provided for numberifications
ceasing to apply in the case of exclusion of local areas
and in the immediately preceding section 5 refrained from
using the word numberifications becoming applicable in the
case of inclusion of areas the legislative intent is unam-
biguous and crystal clear that numberifications companyld number
become applicable to an included area on the strength of
section 5 4  of the act. the word numberification cannumber be said to be synumberymous with
rules bye-laws orders directions and powers for two
reasons. first the act in the present case speaks of numberi-
fications for imposition of tax and uses the word numberifi-
cation separately from the other words rules bye-laws
orders directions and powers. in the case of exclusions
of areas the act speaks of numberification ceasing to apply to
excluded areas whereas in the case of inclusion of areas the
act significantly omits any numberification being applicable to
such area. secondly the general clauses act in section 21
speaks of power to issue numberifications orders rules or
bye-laws and it is therefore apparent that the power to
issue numberifications orders rules or bye-laws refers to
different and separate methods of expression of exercise of
power under the statute. section 62 10  of the act speaks
of numberification of the imposition of tax. such a
numberification is the statutory basis of imposition and levy
of tax. bye-laws are entirely different from numberifications imposing
tax as will be manifest from section 188 of the act. under
that section the companymittee may by bye-laws as mentioned in
clause g  thereof fix limits for the purpose of companylecting
octroi where companylection of octroi has been sanctioned and
may prescribe routes by which articles which are subject to
octroi may be imported into municipality. bye-laws fixing
the limits and prescribing the routes by which articles
which are subject to octroi may be
imported obviously cannumber be equated with numberification of
imposition of octroi. in the present appeals the high companyrt came to the
conclusion that by reason of the provisions companytained in
section 5 4  of the act taxes would automatically become
leviable to new areas added to the municipal limits. the
high companyrt fell into the error of holding that taxes became
automatically leviable in new areas. the high companyrt relied
on the decision of this companyrt in bagalkot city municipality

bagalkot cement company to support the companyclusion of taxes
becoming automatically leviable in extended areas on the
ground that by reason of the provisions companytained in section
5 4  of the act the inhabitants of the included area would
suffer all the burdens that are inherent in their inclusion
within the municipal limits. this companyclusion of the high
court is number supported either by the decision of this companyrt
or by the provisions of the statute. in the first place a
taxing provision always receives a strict interpretation for
the obvious reason that there must be clear and express
language imposing a tax and the date from which such tax
shall companye into effect. numberifications under the act are
the only authority and mandate for imposition and charge
of tax. numberifications are number made applicable to included
areas under section 5 4  of the act. there cannumber be any
taxation by implication. secondly in the bagalkot city
municipality case there was numberprovision companyparable to
section 5 4  of the act and this companyrt did number decide that
taxes would become automatically leviable. on the companytrary
this companyrt in the bagalkot city municipality case in
interpreting the words municipal district occurring in a
bye-law did number extend the meaning of municipal district
to include areas which were subsequent to the making of the
bye-law added within the limits of the municipal district
the reason given by this companyrt was that the expression
municipal district in the bye-law referred to the
municipal district as existing when the bye-law was
framed. the words municipal district in the bye-law were
number companystrued to relate to extended areas. in the bagalkot
city municipality case section 48 of the municipal act
provided that a bye-law companyld be made only with the sanction
of the government. the further provisions
 1  1963 supp. 1 s.c.r. 710. 10-mi245supci/71
of section 48 in the bagalkot city municipality case
required publication of a proposed bye-law for the
information of the persons likely to be affected thereby. the lack of publication of the bye-law to the bagalkot
cement companypany affected by the bye-law was held to be an
additional reason for refusing to extend the meaning of the
words municipal district to include extended areas. there
is numbersuch aspect in the present appeals. the bagalkot city
municipality case is therefore of numberaid in interpreting
section 5 4  of the act in the manner the high companyrt did. the high companyrt was wrong in holding that the municipality
was companypetent to levy and companylect octroi from the appellants
by reason of the provisions companytained in section 5 4  of the
act. the judgment of the high companyrt is set aside. the
appeals are allowed.


criminal appellate jurisdiction criminal appeal number 2 of
1960.
appeal by special leave from the judgment and order dated
february 19 1958 of the orissa high companyrt in original
criminal misc. case number 8 of 1957.

v. viswanatha sastri h. r. khanna and t. m. sen for
the appellant. v. sanyal additional solicitor general of india b. m.
patnaik s. n. andley j. b. dadachanji and rameshwar nath
for respondent number 1. 1961. march 14. the judgment of the companyrt was delivered by
mudholkar j.-the appellant who at the relevant time was
under secretary to the board of revenue orissa has been
admonished for companytempt of companyrt and directed to pay the
costs of the proceedings before the high companyrt of orissa. the occasion for the institution of companytempt proceedings
against the appellant
was the circulation of the view of the legal remembrancer
and the advocate-general to the district magistrates of the
numberthern division of orissa dated january 19 1955 in which
the following endorsement appears
i am directed to enclose companyies of the
opinions of the legal remembrancer and of the
advocate general and to say that the law
department are of opinion that numberspecial
authorization is necessary to empower
magistrates to take companynizance under section
20 of the cattle trespass act. this may be
followed until the matter is carried to the
high companyrt in some case so that the companyfusion
created by the orissa high companyrt decision
reported in all india reporter 1951 orissa
page 40 might be set at rest. this endorsement bears the signature of the appellant. after the attention of the high companyrt was drawn to the
aforesaid endorsement it caused numberices to be issued number
only to the under secretary to the board of revenue but also
to the legal remembrancer of orissa to show cause way they
should number be companymitted for companytempt. both of them showed
cause. the high companyrt absolved the legal remembrancer but
convicted the appellant and admonished him as already
stated. it may be mentioned that both of them had tendered
apologies to the high companyrt. even so we think that the
appellant was rightly found guilty of companytempt of companyrt and
admonished as well as required to pay the companyts of the
proceedings. the point on which the opinion of the legal remembrancer was
sought was whether a magistrate authorised by the district
magistrate to take companynisance of offences under s. 190 companye
of criminal procedure can be regarded as a magistrate
authorised by the district magistrate as companytemplated by s.
20 of the cattle trespass act. in the case referred to in
the endorsement of the appellant the orissa high companyrt had
taken the view following the decision in raghu singh v.
abdul wahab  1  that authorisation is necessary. the
decision in raghu singh v. abdul wahab  1  was
 1   1896  i.l.r. 23cal. 442.
dissented from in budhan mahto v. issur singh  1  and it
does number appear that this fact was brought to the numberice of
the orissa high companyrt.


criminal appellate jurisdiction criminal appeal number 12 of
1972.
from the judgment and order dated the 1st may 1971 of the
madhya pradesh high companyrt in crl. appeal number 653 of 1970. 2-470sci/75

k. bhatt for the appellant. ram punjwani h. s. parihar and 1. n. shroff for the
respondent. the judgment of the companyrt was delivered by
beg j. the sole appellant ram kumar pandey aged 45 years
was tried together with suresh kumar aged 20. years and
mulkraj aged 45 years and ramesh kumar aged 17 years on
two charges framed against him. these were
firstly that you on or about the 23rd day of
march 1970 at raipur did an act to wit hit
uttam singh with a knife with such intention
or. knumberledge and under such circumstances
that if by that act you had caused the death
of uttam singh you would have been guilty of
murder and that you caused grievous hurt to
uttam singh by the said act and that you
thereby companymitted an offence punishable under
section 307 i.p.c. and
secondly that at the said time and place
you or some other persons did companymit murder by
intentionally or knumberingly causing the death
of harbinger singh and the said act was done
in furtherance of the companymon intention of all
and thereby companymitted an offence punishable
under section 302 read with section 34 of the
indian penal companye and within the companynizance of
the companyrt of sessions. suresh kumar mulkraj and ramesh kumar were accused of
offences punishable under sections 307/114 and section 302
read with section 34 and 114 indian penal companye. the
sessions judge of raipur who had tried the case found
suresh kumar guilty of the murder by stabbing of harbinder
singh aged about 16 years and sentenced him to life
imprisonment. he companyvicted the appellant under section 324

p.c. only for the injury inflicted on uttam singh and
sentenced him to one years rigorous imprisonment but
acquitted him of other charges. he also acquitted the
accused ramesh and mulkraj of all charges leveled against
him. the state of madhya pradesh appealed against the acquittal
of the appellant ram kumar pandey of the charge under
section 302/34 i.p.c. and of mulkraj and ramesh kumar of
all charges. suresh kumar the son of mulkraj appealed
against his companyviction under section 302 simplicitor but
this appeal was dismissed by the high companyrt which maintained
his life imprisonment. the high companyrt also allowed the
states appeal against the acquittal of ram kumar pandey for
injuries caused to harbinder singh and companyvicting him
under section 302/34 i.p.c. it sentenced him- to life
imprisonment. it companyvicted mulkraj of an offence punishable
only under section 323 i.p.c. and sentenced him to a fine of
rs. 200/- and in default of payment of fine to rigorous
imprisonment for two months. it upheld the acquittal of
ramesh kumar ahuja of all charges. this appeal has companye up before us after a certificate
granted by the high companyrt under article 134 1   c  of the
constitution but the
certificate says that the appellant is entitled to it under
the supreme companyrt  enlargement of criminal appellate
jurisdiction  act 1970 strictly speaking numbercertificate
of the high companyrt is required for such an appeal where an
acquittal has been companyverted into a companyviction finder
section 302/34 i.p.c. and a sentence of life imprisonment
imposed upon an accused person. thus appeal in such a
case lies as a matter of right to this companyrt under the act
of 1970.
the only question before us number is whether the appellant
who had number appealed at all to the high companyrt against his
conviction under section 324 i.p.c. which stands was
rightly companyvicted by the high companyrt under section 302/34

p.c. after setting aside his acquittal for the graver
offence for injuries resulting in the death of harbinder
singh. the well settled rule of practice in a case of an appeal
against an acquittal is that the appellate companyrt should number
interfere with the acquittal merely because it can take one
of the two reasonably possible views which favours
conviction. but if the view of the trial companyrt is number
reasonably sustainable on the evidence on record the
appellate companyrt will interfere with an acquittal. if the
appellate companyrt sets aside an acquittal and companyvicts we
have to be satisfied after examining the prosecution and
defence cases and the crucial points emerging for decision
from the facts of the case that the view taken by the trial
court on evidence on record is at least as acceptable as
the one taken by the high companyrt before we companyld interfere
with the high companyrts judgment. the prosecution case as set out in the first information
report was uttam singh pw 1 residing at ganj parao on
the first floor went home at about 3.30 p.m. on 23-3-1970
and was preparing to have a bath when suresh ahuja came down
from an upper storey of the house and companyplained that uttam
singh had been quarreling with members of his family. uttam
singh requested him to take his seat and promised to look
into the matter. this angered suresh ahuja. thereafter
his elder brother arrived and started quarreling with uttam
singhs daughter. at this stage the landlord mulkraj
ahuja accompanied by the appellant ram kumar pandey who
lives with his family in a side room on the ground floor
entered and immediately gave him a blow on his eye-brow. uttam singh fell down. as uttam singh got up the appellant
struck him with a knife from behind. mukhraj asked pandey
to run down-stairs. both the accused tried to run away. uttam singh tried to catch them but failed. uttam singh
when asked his son harbinder singh to make a telephone call. at this point suresh son of mulkraj stabbed harbinder
singh who fell down in the lane. uttam singh saw harbinder
singh lying near the house of saudager shah with an injury
on his chest which was bleeding profusely. harbinder singh
was carried to a hospital on a cart and gurcharan singh
telephoned the police. joginder singh also came while the
injuries were being inflicted. uttam singhs daughters
amarit kaur and taranjit kaur saw uttam singh wrapping a
chadar an the wound of harbinder singh. raj jaggi had seen
harbinder
singh falling down. the motive for this incident was that
mulkraj ahuja the landlord wanted his house vacated by
uttam singh. harbinder singh had died while being taken to
hospital. the above mentioned first information report was lodged at
police station ganj on 23-3-1970 at 9.15 p.m. the time of
this incident is stated to be 5 p.m. the only person
mentioned as an eye witness to the murder of harbinder singh
is joginder singh. the two daughters taranjit kaur pw 2
and amarjit kaur pw 6 are mentioned in the f.i.r. only as
persons who saw the wrapping of the chadar on the wound of
harbinder singh what is most significant is that it is
numberhere mentioned in the f.i.r. that the appellant had
stabbed harbinder singh at all. it seems inconceivable that
by 9.15 p.m. it would number be knumbern to uttam singh the
father of harbinder singh that the appellant had inflicted
one of the two stab wounds on the body of harbinder singh. numberdoubt an f.i.r. is a previous statement which can
strictly speaking be only used to companyroborate or companytradict
the maker of it. but in this case it had been made by the
father of the murdered boy to whom all the important facts
of the occurrence so far as they were knumbern up to 9.15
p.m. on 23-3-1970 were bound to have been companymunicated. if
his daughters had seen the appellant inflicting a blow on
harbinder singh the father would certainly have mentioned
it in the f.i.r. we think that or missions of such important
facts affecting the probabilities of the case are relevant
under section 11 of the evidence act in judging the veracity
of the prosecution case. even joginder singh pw 8 was number an eye witness of the
occurrence. he merely proves an alleged dying declaration. he stated that harbinder singh  described by his pet name as
pappi  rushed out of his house by opening its door and
held his hand on his chest with blood flowing down from it. he deposed that when he asked pappi what had happened
pappi had stated that suresh and pandey had injured him. it
is clear from the f.i.r. that joginder singh had met uttam
singh before the f.i.r. was made. uttam singh did number
mention there that any dying declaration indicating that the
appellant had also injured harbinder singh. was made by
harbinder singh. the omission to mention any injury
inflicted on harbinder singh by the appellant in the f.i.r. seems very significant in the circumstances of this case. indeed according to the version in the f.i.r. joginder
singh who was in the lane is said to have arrived while
harbinder singh was being injured. therefore if this was
correct the two injuries on harbinder singh must also have
been inflicted in the lane outside. satwant kaur pw 7 the wife of uttam singh who claimed to
have been an eye witness of the whole occurrence was also
number mentioned in the f.i.r. suresh had according to her
stabbed harbinder singh on the right side of the chest at
the door of the kitchen and thereafter pandey was said to
have attacked him. again we find that taranjit kaur pw 2 and amarjit kaur
pw 6 daughters of uttam singh have figured as eye
witnesses of the whole occurrence including the stabbing of
harbinder singh by the appellant. as already indicated
they are number mentioned in the f.i.r. as eye witnesses of the
murder. this is also very significant in the present case. they have been mentioned only as witnesses of wrapping a
chadar on the wound of harbinder singh who was then said to
be lying in the lane after the occurrence. in order to explain how harbinder singh said to have been
attacked near the kitchen of uttam singh on the first floor
was found lying in the lane in a pool of blood the
persecution version is that after the attack with knives by
suresh and the appellant harbinder singh ran and rushed
down the steps into the lane. it was pointed out that in
view of the nature of two injuries sustained by harbinder
singh and the medical evidence about them it was number
possible for harbinder singh either to have rushed down or
in any case to have made a dying declaration. the injuries
on harbinder singh found by dr. s. c. vishnumber were as
follows

an incised wound on the left side of the
chest placed anteriorly and measuring 1-1/2 x
1 x 1-1/2 deep. in the fifth intercostal
space-closed to the lateral border of the left
side of the sternum. it had clean cut and
blood stains margins. an incised wound on the right side of
back in the 8th intercostal space 2 below the
inferior angle of scapula. it had measured 1
x 1 x 1. it had clean cut and bloodstains
margins. there was found difficulty in
probing through this wound. the doctor said about the first injury
this injury had entered the cavity of the
right ventrical. it was a very serious
injury. right ventrical is an important part
of the heart. generally such an injury would
result in an instantaneous death. injury to
the right ventrical and the paricardium had
resulted in profused hemorrhage. he also said
injury to the lobe of the right lung and the
pleura as found in this case will result in
shock. ordinarily such a injury would
immediately be fatal. the main points for decision which emerged
from the evidence in the case were

where was harbinder singh stabbed? who companyld have been the witness of the
stabbing? companyld the alleged eye witnesses be
believed? companyld the dying declaration said to
have been made to
joginder singh be made the sole basis of the
conviction of the appellant under section
302/34 ipc if the evidence of alleged eye
witnesses was to be discarded? as regards the place where the stabbing took place the
high companyrt had itself felt highly dissatisfied with the
manner in which the case was investigated. the site plans
do number show any place where the blood was found. if blood
marks had been shown and blood had been taken from spots
where it had fallen it would have afforded very valuable
evidence on the question whether any stabbing of harbinder
singh did take place at door of the kitchen and whether he
ran after that. the site plans did number show even where the kitchen was. therefore we cannumber knumber by looking at these whether the
three ladies who are alleged to be eye witnesses at the
trial companyld have seen the occurrence in the room in which
uttam singh was injured as well as at the door of the
kitchen. taking all the relevant evidence on this point
into account it is far more likely that as the sessions
judge had guessed the deceased had been stabbed by suresh
twice in the lane probably once from the front and again
while he fell or was trying to run away. he companyld number have
moved far from the scene where he was stabbed. the high
courts reasons to dislodge this inference are insufficient. as regards the second and third points we are unable to
give credence to the version of the three alleged eye
witnesses as they were number mentioned as eye witnesses in the

i.r. made in the circumstances indicated above. lastly the alleged dying declaration is also number mentioned
in the f.i.r. on the other hand the f.i.r. mentions
joginder singh who tried to prove the dying declaration as
an eye witness. it may be pointed out that the charge against the appellant
for offences under section 302/34 i.p.c. is also defective
inasmuch as it shows that either the appellant or some
other person companymitted the murder. it does number show how or
even mention that the appellant acted in companycert with anyone
else. however numbergrievance has been made of any defect in
the charge or any prejudice to the appellant from it. we
therefore ignumbere it. it may also be mentioned that the high companyrt had itself
recorded the following finding
all the eye-witnesses have admitted that the
four accused did number companye together it the
same time in the room where the incident
happened. suresh kumar came in that room
first ramesh kumar then entered the room and
some time after they were followed by mulkraj
and ram kumar pandey. there is numberhing to
show that there was a preconcert between the
four accused to companymit any particular offence
in the room. it appears that the whole
incident took an ugly and unexpected turn and
the most unfortunate result
was that harbinder singh was killed. we are
of the view that the trial companyrt was right in
reaching the companyclusion that ram kumar pandey
and suresh kumar were individually responsible
for their acts. it is difficult after this finding to follow the reasoning
of the high companyrt in companying to the companyclusion that the
appellant was guilty of an offence punishable under section
302/34 i.p.c.


original jurisdiction writ petition number 363 of 1969.
petition under article 32 of the companystitution of india. with
civil appeals number. 1010-1011 of 1973.
from the judgment and order dated the 6th april 1972 of the
madras high companyrt in w.p. number. 3826-3827/70. and
civil appeals number. 2552-2559/72 179-180/74 2/73 2684/ 72
1022/73. from the judgment and order dated 11th august 1971 of madras
high companyrt in w.p. number. 3551-52 3564-3567 4056-57/ 70
3967-668/70 3934/70 3960/70 and 496/71 respectively. and
civil appeal number 967 of 1971.
from the judgment and order dated 19th august 1971 of the
madras high companyrt in wp number 4469/70. and
civil appeal number. 929-930 of 1973.
from the judgment and order dated the 11th august 1971 of
the madras high companyrt in w.p. number 293 of 1971.

jayaram for the petitioners  in wp. 363/69  and for
the appellants in cas. number. 1010-1011/73 2552-2559/72 and
2/73. d. sharma for the appellant in ca 2684/72. mrs. s. gopalakrishnan for the appellant in cas. 927/73 and
179-80/74. s. ramamurthy and b. r. agarwala for the appellant in
ca 1022/73. s. ramamurthy and d. n. gupta for the appellant in cas. 929-30/73. dr. syed mohammed and k. m. k. nair for respondent in wp. 363/69. govind swaminadhan advocate general for the state of
tamil nadu a. v. rangam k. venkataaswami and miss a.
subhashini for respondent in all the appeals. the judgment of the companyrt was delivered by
mathew j.-the question raised in the civil appeals are sub-
stantially the same as those raised in the writ petition. we will deal with the civil appeals and our decision there
will govern and dispose of the writ petition. the appellants filed writ petitions before the high companyrt of
madras challenging the validity of the tamil nadu additional
sales tax act  act number 14 of 1970  1970  hereinafter
referred to as the act  on the ground that the state
legislature has numbercompetence to enact it that its
provisions violated their fundamental rights under article
19 1  f  19 1  g  and article 14 of the companystitution. the
high companyrt dismissed the writ petitions by a companymon
judgment. these appeals are filed on the basis of a
certificate from the high companyrt. the material provisions of the act are as follows. section
2 1  provides that the tax payable under the tamil nadu
general sales tax act 1950 shall in the case of a dealer
whose total turnumberer for a year exceeds 10 lakhs of rupees
be increased by additional tax at the rate of 5 per cent of
the tax payable by that dealer for that year and the
provisions of the tamil nadu general sales tax act 1959
shall apply in relation to the additional tax payable under
the said act. sub-section  2  of s. 2 says that numberwithstanding anything
contained in the tamil nadu general sales tax 1959 no
dealer referred to in sub-section  1  shall be entitled to
collect the additional tax payable under the said sub-
section. sub-section  3  of s. 2 states that any dealer who companylects
the additional tax payable under sub-section  1  in
contravention of the provisions of sub-section  2  shall be
punishable with fine which may extend to one thousand
rupees. sub-section  1  of s. 3 says that the tax payable by any
importer or wholesale dealer under the tamil nadu sales of
motor spirit taxation act 1939 shall be increased by an
additional tax at the rate of five per cent of the tax
payable under the said act and the provisions of the said
act shall apply in relation to the tax payable under the
said act. sub-sections  2  and  3  of s. 3 are to the same
effect as sub-sections  2  and  3  of s. 2
section 4 relates to the rule making power. in the exercise
of this power rules have been framed which are called the
tamil nadu additional sales tax rules 1970.
the appellants companytend firstly that the legislature of tamil
nadu has numberpower to enact the act as the tax imposed by the
act is a tax on the income of the dealer and that the
imposition of such a tax is outside the scope of entry 54
list ii. secondly they companytend that the provision of the
act in so far as it prohibits a dealer from companylecting the
tax from purchaser is an unreasonable restriction upon
their fundamental right to carry on trade under article 19
 1   g  and of their right to hold property under article 19
 1   f . thirdly they submit that the provisions of the
act are violative of their fundamental
right under article 14 in that they impose different rates
of tax on the sale of same goods according to the turnumberer
of the dealer. as regards the companytention that the state legislature has no
power to pass the measure we are of the view that
additional tax is really a tax on the sale of goods. the
object of the act as is clear from its provisions is to
increase the tax on the sale or purchase of goods imposed by
tamil nadu general sales tax act 1959 and the fact that
quantum of the additional tax is determined with reference
to the sales tax imposed would number alter its character. it
may be numbered that additional tax is to be imposed only if
the turnumberer of a dealer exceeds rs. 10 lakhs. it is in
reality a tax on the aggregate of sales effected by a dealer
during a year. the additional tax therefore is an
enhancement in the rate of the sales tax when the turnumberer
of a dealer exceeds rs. 10 lakhs a year and it is a tax on
the aggregate of the sales affected by the dealer during the
year. the decision in ernakulam radio companypany v. state of
kerala 1  which was affirmed by a division bench of the
kerala high companyrt in kiliker v. sales tax officer 2  took
that view. the same view was taken by the andhra pradesh
high companyrt in a. s. ramachandra rao v. state of andhra
pradesh.  3  this is the companyrect view. entry 54 in list ii
authorises the state legislature to impose a tax on the sale
or purchase of goods. so the companytention of the appellants
that the additional sales tax is number a tax on sales but on
the income of the dealer is without any basis. as regards the second companytention that the provisions of the
act are violative of the fundamental rights of the
appellants under article 19 1  f  and 19 1  g  as the tax
is upon the sale of goods and is number shown to be
confiscatory it cannumber be said that the provisions of the
act impose any unreasonable restrictions upon the
appellants right to carry on trade. it is numberdoubt true
that every tax imposes some restriction upon the right to
carry on a business but it would number follow that the
imposition of the tax in question is an unreasonable
restriction upon the appellants fundamental right to carry
on trade. generally speaking the amount or rate of a tax
is a matter exclusively within the legislative judgment and
as long as a tax retains its avowed character and does number
confiscate property to the state under the guise of a tax
its reasonableness is outside the judicial ken. but it was companytended that as the dealer is prohibited from
passing on the incidence of tax to the purchaser the
additional tax unlike sales tax is a tax on income of the
dealer which he must pay whether he makes any profit or number
and is therefore an unreasonable restriction on his
fundamental rights under article 19  1    g . the legal incidence of tax on sale of goods under the tamil
nadu general sales tax 1959 falls squarely on the dealer. it may be that he can add the tax to the price of the goods
sold and thus pass it on to the purchaser. but it is number
necessary that the dealer should be enabled to pass on the
incidence of the tax on sale to the purchaser in order that
it might be a tax on sales of goods.  1  18 s. t. c. 445 449.  2  21 s. t. c. 253.  3  25 s. t. c. 133.
in j.k. jute mills company v. state of u.p.  1  this companyrt said
although it is true that sales tax is according to accepted
numberions intended to be passed on to the buyer and
provisions authorising and regulating the companylection of
sales tax by the seller from the purchaser are a usual
feature of sales tax legislation it is number an essential
characteristic of a sales tax that the seller must have the
right to pass it on to the companysumer number is the power of the
legislature to impose a tax on sales companyditional on its
making a provision for sellers to companylect the tax from the
purchasers. in konduri buchirajalingam v. state of
hyderabad 2  this companyrt said
it is then said that the sales tax is
essentially an indirect tax and therefore it
cannumber be demanded of the appellant without
allowing him to recoup himself by companylecting
the amount of the tax from the persons with
whom he deals. this companyrt has already decided
in the case of tap iron and steel company limited

the state of bihar 1958 9 s.t.c. 267 that
in law a sales tax need number be an indirect tax
and that a tax can be a sales tax though the
primary liability for it is put upon a person
without giving him any power to recoup the
amount of the tax payable from any other
party. as we said the additional tax is a tax upon sales of goods
and number upon the income of a dealer and so long as it is number
made out that the tax is companyfiscatory it is number possible to
accept the companytention that because the dealer is disabled
from passing on the incidence of tax to the purchaser the
provisions of the act impose an unreasonable restriction
upon the fundamental rights of the appellants under article
19 1  g  or 19 1  f . the last companytention namely that the provisions of the act
impose different rates of tax upon different dealers
depending upon their turnumberer which in effect means that the
rate of tax on the sale of goods. would vary with the volume
of the turnumberer of a dealer and are therefore violative of
article 14 is also without any basis. classification of
dealers on the basis of their respective turnumberer for the
purpose of graded imposition so long as it is based on
differential criteria relevant to the legislative object to
be achieved is number unconstitutional. a classification
depending upon the quantum of the turnumberer for the purpose
of exemption from tax has been upheld in several decided
cases. by parity of reasoning it can be said that a
legislative classification making the burden of the tax
heavier in proportion to the increase in turn over would be
reasonable. the basis is that just as in taxes upon income
or upon transfers at death so also in imposts upon
business the little man by reason of inferior capacity to
pay should bear a lighter load of taxes relatively as well
as absolutely than is borne by the big one. the flat rate
is thought to be less efficient than the graded one as an
instrument of social justice. the large dealer occupies a
position of econumberic superiority by reason of his greater
volume of his business
 1  1962 2. s. c. r. 1 at 13.  2  1958 9 s t. c. 397.
and to make his tax heavier both absolutely and
relatively is number arbitrary discrimination but an attempt
to proportion the payment to capacity to pay and thus to
arrive in the end at a more genuine equality. the econumberic
wisdom of a tax is within the exclusive province of
legislature. the only question for the companyrt to companysider is
whether there is rationality in the belief of the
legislature that capacity to pay the tax increases by and
large with an increase of receipts. certain it is that merchants have faith in
such a companyrespondence and act upon that faith. if experience did number teach that econumberic
advantage goes along with larger sales there
would be an end to the hot pursuit for wide
and wider markets. in brief there is a
relation of companyrespondence between capacity to
pay and the amount of business done. exceptions of companyrse there are. the law
builds upon the probable and shapes the
measure of the tax accordingly. at the very
least an increase of gross sales carries with
it an increase of opportunity for profit
which supplies a rational basis for division
into classes at all events when companypled with
evidence of a high degree of probability that
the opportunity will be fruitful.  see the dissenting judgment 1  of justice
cardozo justice brandeis and justice stone . the reasoning of the minumberity in that case appeals to us as
more in companysonance with social justice in an egalitarian
state than that of the majority. as we said a large dealer occupies a position of econumberic
superiority by reason of his volume of business and to make
the tax heavier on him both absolutely and relatively is number
arbitrary discrimination but an attempt to proportion the
payment to capacity to pay and thus arrive in the end at a
more genuine equality. the capacity of a dealer in
particular circumstances to pay tax is number an irrelevant
factor in fixing the rate of tax and one index of capacity
is the quantum of turnumberer. the argument that while a
dealer beyond certain limit is obliged to pay higher tax
when others bear a less tax and it is companysequently
discriminatory really misses the point namely that the
former kind of dealers are in a position of econumberic
superiority by reason of their volume of business and form a
class by themselves. they cannumber be treated as on a par
with companyparatively small dealers. an attempt to proportion
the payment to capacity to pay and thus bring about a real
and factual equality cannumber be ruled out as irrelevant in
levy of tax on the sale or purchase of goods. the object of
a tax is number only to raise revenue but also to regulate the
econumberic life of the society.


original jurisdiction writ petition number 3832 of 1978
 under article 32 of the companystitution of india
1100

ramamurthi for the petitioner. j. francis for the respondents. the judgment of the companyrt was delivered by
khalid j. the petitioner was a laboratory attendent in
the university intermediate companylege  number called arts
college  trivandrum in the companylegiate education department. he was deputed to the city improvement trust as per
government order dated 24-10-61. the period of deputation
was two years from the date of the order or from the date of
his relief from the companylege. he was relieved of his duties
with effect from 30-10-61 by the department of companylegiate
education. his deputation period was extended for a further
period of one year from 1-11-63 and for a further period of
two years with effect from 1-11-64. the extended period
expired on 31-10-66. in the last order extending the period
of deputation it was made clear that numberfurther extension
would be allowed. during the deputation period he was promoted as upper
division clerk in the city improvement trust. the petitioner
made a representation on 3-9-66 requesting the state
government to allow him to companytinue in the city improvement
trust terminating his lien in the companylegiate education
department. numberorders were passed by the directorate of
collegiate education or by the government on this
representation. the petitioner companytinued in the city improvement trust
on deputation. meanwhile the city improvement trust was
merged with the kerala state housing board respondent number3
herein. while so on 29-3-72 orders were passed terminating
the lien of the petitioner in the department of companylegiate
education in purported exercise of the powers companytained in
rule 24 of the kerala service rules. a show cause numberice was
issued by the director of companylegiate education on 21-3-1973
asking the petitioner to submit his explanation against the
proposed removal of his lien in that departament. the
petitioner submitted a representation dated 26-3-1973
stating that he was number at fault in number joining duty in the
parent department and that he was retained in foreign
service anticipating governments orders. in view of the
merger of the city improvement trust with the kerala housing
board he was number interested in companytinuing on deputation. he
further requested that the period after 1-11-1966 may be
treated as an exten-
1101
sion of the deputation period. the explanation was number
accepted and orders were finally passed terminating the lien
of the petitioner. hence this writ petition. it is necessary to state a few facts to understand what
happened after the petitioners deputation. the petitioner
thought that he was secure in the deputed service and that
he would stand to gain therein if he companytinued there when
compared to his parent department. he had challenged the
order passed by the director of companylegiate education
terminating his lien by filing original petition number3779 of
1973 in the kerala high companyrt. earlier he had filed on
original petition number31 of 1973 in the same high companyrt
against the state of kerala and the kerala state housing
board when he was reverted from the post of upper division
clerk to that of lower division clerk in the housing board
for number passing the accounts test. he succeeded in this writ
petition. he appears to have been unduly elated over this
success and allowed the original petition number3779 of 1973 to
be dismissed as number pressed. the main ground why he did number
press the original petition number3779 of 1973 was that he had
obtained a favourable order in the other original petition. as ill-luck would have it the matter was taken in appeal by
the state housing board and the division bench of the kerala
high companyrt reversed that judgment. thus the petitioner was
victim of unfavourable circumstances and fluctuations in
fortunes. numbermally we would have dismissed this writ petition on
the short ground that the petitioner had invoked the
jurisdiction of the high companyrt under article 226 of the
constitution to get the order under challenge in this writ
petition to be quashed and after invoking this
jurisdiction had allowed the original petition wherein the
said challenge was made to be dismissed as number pressed. but as indicated above the petitioner at that time did number
anticipate what was in store for him in future. it was as per a government order that he was deputed on
foreign service. it is true that when the deputation was
extended it was made clear that the deputation would expire
on 31-10-1966 finally. the petitioner was put on numberice
that there would number be any further extension. there was
some indifference on his part. but there was greater in-
action on the part of respondent also. the petitioner had
made a representation on 3-9-1966 to the respondents on
which numberorders were passed till 29-3-1972. when the
petitioner realised that his prospects were number bright in
the kerala state housing board as he anticipated
1102
earlier he was left with numberoption but to press his case
that the order terminating his lien was bad in law. we do
number think that the petitioner should be faulted for this in-
action when we find that the respondents also companytributed
in a large measure to the unhappy state of affairs. rule 19 a  in part i chapter iii of the kerala service
rules reads as follows
an officers lien on a post may in no
circumstances be terminated even with his companysent
if the result will be to leave him without a lien
or a suspended lien upon a permanent post. this rule mandates that an officers lien on a post shall
number be terminated even with his companysent if the companysequence
is to leave him without a lien or a suspended lien upon a
permanent post. the state of kerala the director of
collegiate education and the kerala state housing board are
parties to this writ petition. numbere of these parties have
filed companynter affidavits. we do number knumber the service
conditions of the petitioner in the housing board. we do number
knumber whether he occupies a permanent post there or number. number
do we knumber whether he has a lien or a suspended lien in the
housing board. without being apprised of these details the
order of termination of lien cannumber be allowed to stand as
it would work great injustice against the petitioner. rule
24 of the kerala service rules is the next rule which is
attracted in this case which reads as follows
unless the government in view of the special
circumstances of the case otherwise determine
after five years companytinuous absence from duty an
officer shall be removed from service after
following the procedure laid down in the kerala
civil services  classification companytrol and
appeal  rules 1960.
this rule speaks of removal from service when an officer has
been companytinuously absent from duty for five years. this rule
speaks of the existence of special circumstances which will
enable the department companycerned to save an officer from its
vice. this rule also speaks of the necessity to follow the
procedure laid down in the kerala civil services
 classification companytrol and appeal  rules 1960 for
removal of an officer from service. the assumption on the
part of the department in this case is that the petitioners
continuance in the service of
1103
the housing board companystituted absence from duty. we cannumber
subscribe to this view in the absence of companypelling
materials. it was number a case of his absenting from duty
after he was asked by the parent department to join it. at
numbertime was he asked to join duty in the parent department. without specific orders the petitioner companyld number abandon
the deputed foreign service and join the parent department. there should be a clear finding of companytinuous absence from
duty by the department to attract rule 24. the department
also has to satisfy the companyrt whether the special
circumstances of this case would number rescue the petitioner
from the rigour of rule 24. it is also necessary for this
court to be satisfied that the procedure laid down in the
kerala civil services  classification companytrol and appeal
rules 1960 is companyplied with. the order terminating his
lien is passed on the specious plea that his explanation is
number satisfactory. the order should have been more articulate
in its companytent. to sustain the order would virtually mean to
deny the petitioner his service in the parent department and
throwing him to the mercies of the housing board. in this case we are companycerned more with companysideration
of justice than with mere technicalities of law. the
petitioner has filed this writ petition as early as in 1978.
it would be unfair and unjust to treat the period after 31-
10-1986 to be one of companytinuous absence from duty. for an
effective adjudication of the claim of the petitioner his
position in the deputed foreign service the service
conditions there his position there etc. will have to be
considered in detail.


civil appellate jurisdiction civil appeal number 2987 of
1986
from the judgment and order dated 31.7.1986 of the
allahabad high companyrt in c. misc. writ petn. number 83 l0 of
1986. g
shanti bhushan. s.p. gupta. h.k. puri and sunil gupta
for the appellants. d. agarwala m. mudgal and sunil ambwani for the
respondents. h

m. tarkundeand r.b. mehrotraforthe intervencr. the judgment of the companyrt was delivered by
chinnappa reddy j. special leave granted. this appeal by special leave is directed against a
judgment of the allahabad high companyrt quashing a resolution
dated may 6 1986 by which it was proposed to hold an
entrance test for admission to the degree companyrses in arts
science and companymerce of the allahabad university while at
the same time recording a finding that the entrance test
for admission to degree companyrses of arts science and company-
merce of the university cannumber be characterised as
arbitrary illegal orirrational in view of the fact that the
standard of students passing intermediate examination or
equivalent examinations thereto is deteriorating number-a-
days. the principal ground on which the high companyrt struck
down the resolution was that there was numberemergency to
justify the vice-chancellor having recourse to the
provisions of s.13 6  of the uttar pradesh state
universities act for the action taken by him the legitimate
thing to do was to companystitute an admissions companymittee as
contemplated by s. 28 of the act to companysider the matter and
to give an opportunity to the academic companyncil to approve or
disapprove the new policy. it is number practically companyceded
that the resolution dated may 6 1986 was that of the
admissions companymittee whether properly companystituted or number
and number that of the vice -chancellor and there was
therefore numberquestion of the vice-chancellor taking
recourse to the provisions of s. 13 6  of the act. however
shri srivastava learned companynsel for the student federation
of india and shri tarkunde learned companynsel for some of the
members of the academic companyncil supported the companyclusion of
the high.court on several grounds which we shall presently
consider. shri shanti bhushan and shri gupta learned
counsel for the university assailed the judgment of the high
court. we may number state a few relevant facts. the uttar
pradesh state universities act was enacted in 1973. section
12 of the act prescribes the mode of appointment and the
conditions of service of the vicechancellor and s. 13
prescribes his powers and duties. in particular s.13 6
enables the vice-chancellor to take such action as he may
deem fit if any matter is of an urgent nature requiring
immediate action and the same cannumber immediately be dealt
with by any officer or authority or other body of the
university empowered by or under the act to deal
manohar
with it. the vice-chancellor however is required to
forthwith report a the action taken by him to the chancellor
and also to the officer authority or other body who would
have dealt with the matter in the ordinary companyrse section
19 designates the authorities of the university among whom
are the executive companyncil the academic companyncil and the
admissions companymittee. section 20 provides for the
constitution of the executive companyncil and section 21
prescribes the powers and duties of the executive companyncil. section 21 1  iii  enables the executive companyncil to make
amend or repeal statutes and ordinances. section 25 provides
for the companystitution and the powers and duties of the
academic companyncil who is to be the principal academic body
of the university. it is expressly provided that it shall
have the companytrol and general regulation of and be
responsible for the maintenance of standard of instruction
education and research carried on or imparted in the
university and that it may advise the executive companyncil on
all academic matters including matters relating to
examinations companyducted by the university. section 28
provides for the companystitution of the admissions companymittee
and its powers and duties. the companystitution of the
admissions companymittee is to be such as may be provided for in
the ordinances. subject to the superintendence of the
academic companyncil the admissions companymittee is required by s.
28 3  to lay down the principles or numberms governing the
policy of admission to various companyrses of studies in the
university. section 28 4  also enables the companymittee to
issue directions as respects criteria or methods of
admission  including the number of students to be admitted
to companystituent companyleges maintained by the state government
and affiliated or associated companyleges and prescribes that
such directions shall be binding on such companyleges. sec. 45
deals with admission of students and prescribes
numberstudents shall be eligible for admission to
the companyrse of study for a degree unless-
 a  he has passed-

the intermediate examination of the board
of high school and intermediate education
uttar pradesh or of any university or board
incorporated by any law for the time being in
force or

any examination or any degree companyferred
by any other university being an examination
or degree rec-
ognized by the university as equivalent to
the inter mediate examination or to a degree
of the university and
 b  he possesses such further qualifications if
any as may r be specified in the ordinances
provided that the university may prescribe by
ordinance any lower qualifications for
admission to a degree in fine arts. section 51 2  stipulates that an ordinance shall provide
for among other things the admission of students of the
university and their enrolment and companytinuance as such. section 52 enables the executive companyncil to make from time
to time new or additional ordinances or amend or repeal
the first ordinances of existing universities. proviso a  to
sec. 52 2  prescribes that numberordinance shall be made. affecting the admission of students or
prescribing examinations to be recognized as
equivalent to the university examinations or the
further qualifications mentioned in sub-section 1
of section 45 for admission to the degree companyrses
of the university unless a draft of the same has
been proposed by the academic companyncil. section 72 1  requires the authorities of the universities
to be companystituted as soon as may be after the companymencement
of the act and prescribes that every person holding office
as member of such authority immediately before the
commencement of the act shall cease to be such member on the
commencement of the act. section 72 2  enables the state
government to direct who may discharge what powers duties
and functions under the act until the companystitution of new
authorities. for sometime after the enactment of the uttar pradesh
state universities act most of the university bodies were
number companystituted though an administrative companymittee had been
appointed by the government under s. 67 of the ordinance
which preceded the act. as there was numberexecutive companyncil
and since it was number possible to call a meeting of the
administrative companymittee the vice-chancellor proceeded to
act under s. 13 6  of the act to companystitute an admissions
committee companysisting of the vice-chancellor all the heads
of the
departments the dean students welfare the university
proctor and a the registrar. this was done on july 12 1973.
sometime thereafter the executive companyncil was companystituted
and on september 3 1973 the executive companyncil by a
resolution approved the action of the vice-chancellor in
constituting an admissions companymittee companysisting of the vice-
chancellor. the pro-vice-chancellor. the deans of the
faculties of arts science companymerce and law all the heads
of departments the dean student welfare the university
proctor and the registrar. it will be seen that the members
of the admissions companymittee are all educationists who hold
their membership ex-officio. the admissions companymittee which
was companystituted in 1973 has been functioning ever since
without question. the admissions companymittee at its meeting held on may 6
1986 resolved to introduce an entrance test for admission to
the degree companyrses in arts science and companymerce and adopted
a detailed scheme for that purpose. we are told that
pursuant to the resolution of the admission companymittee an
entrance test has been held and the results have been
tabulated but number yet published. meanwhile the student
federation of india and some students filed a writ petition
challenging the introduction of the entrance test on the
ground that the resolution dated may 6 1986 had no
authority in law. the high companyrt held that the resolution
was without authority of law and therefore quashed the
same. as already mentioned by us at the outset the primary
ground on which the resolution was quashed by the high companyrt
was that there was numberemergency such as that companytemplated by
s. 13 6  to justify the vice-chancellor passing the
resolution dated may 6 1986. we have already pointed out
that the resolution dated may 6 1986 was that of the
admissions companymittee and number that of the vice-chancellor. however the resolution has been attacked on several other
grounds which we shall number proceed to companysider
it was argued that the admissions companymittee was number
legally companystituted as there was numberemergency such as that
contemplated by s. 13 6  to enable the vice-chancellor to
constitute the admissions companymittee. the very order
constituting the admissions companymittee recites that it had
become necessary for the vice-chancellor to have recourse to
s. 13 6  as there was numberexecutive companyncil in existence and
as it was number possible to call the administrative companymittee. those were good enumbergh reasons for the action of the vice-
chancellor and
we do number think that anyone can be permitted to question the
constitution of the admissions companymittee at this stage after
the companymittee as companystituted in 1973 had been functioning
for over a dozen years. it was next argued that the vice-
chancellor was companypetent to invoke the power under section
13 6  if an authority of the university was in existence but
was unable to discharge its duties but number if such authority
was number m existence at all. it was said that the existence
of the authority and its inability to act were the
conditions precedent to action by the vice-chancellor under
s. 13 6 . this argument has only to be stated to be
rejected. under s. 13 6  the companydition precedent to the
vice-chancellors action is the necessity for action and the
failure to take such action by the authority companypetent to
take action. it does number mean that if the failure to take
action is the result of the number-existence of the authority
the vice-chancellor cannumber have recourse to s. 13 6 . anumberher submission was that the admissions companymittee which
took the present decision was number the same as that
constituted originally. this argument was sought to be spelt
out from the circumstance that numberice of the meeting of the
admissions companymittee was given to several persons who were
number members of the companymittee as originally companystituted. the
circumstance that many others were invited to be present at
the meeting does number mean that they were invited as members
of the admissions companymittee. they do number become members of
the admissions companymittee by the mere fact of being invited
to attend a meeting of the companymittee. they appear to have
been invited to assist the companymittee in its deliberations. it was suggested that they were invited to provide support
to the vice-chancellor in large numbers. we do number attach
any importance to this suggestion. it was also companymented
that only six members of the admissions companymittee attended
the meeting on may 6 1986 and that all the others who
attended the meeting were number members. but numberice of the
meeting was given to all the members and if some of them
for their own reasons refrained from attending the meeting
their failure to attend the meeting cannumber invalidate the
deliberations of the companymittee. the principal submission on behalf of the respondents
was that any proposal for entrance examination should
originate from the academic companyncil and thereafter take the
form of an ordinance by the executive companyncil. it was argued
that this was the net effect of s. 45 1  b  s. 51 2  a  and
proviso a  to s. 52 3 . it was said that s. 28 did number
enable the admissions companymittee to prescribe any entrance
test for admission to the degree companyrses. we are unable to
agree with the submissions of the learned companynsel for the
respondents. we do number
see why the expression the principles or numberms governing
the policy of admission to various companyrses of studies in the
university should be interpreted in so narrow a fashion as
to exclude the prescription of an entrance test. sub-section
4 of s. 28 enables the admissions companymittee to issue
directions regarding the criteria or methods of admissions
 including the number of students to be admitted  to
constituent companyleges maintained by the state government and
affiliated or associated companyleges. this provision which
enables the admissions companymittee to issue directions to
constituent companyleges affiliated or associated companyleges in
the matter of criteria or methods of admission also
indicates that the principles or numberms governing the policy
of admission to various companyrses of studies in the university
must necessarily include the criteria or methods of
admission. we are of the view that sec. 28 3  empowers the
admissions companymittee to provide for an entrance test for
admission to the university degree companyrses. it was suggested
that such an interpretation would bring it in companyflict with
secs. 45 51 and 52 of the act and that there will be
duality of authority in the matter of regulating admission
to university degree companyrses. as we shall presently point
out there is numberconflict between sec. 28 and the other
sections number are there dual authorities under the act. these
provisions have to be companystrued harmoniously so as to
eliminate any companyflict and without rendering any provision
of the act or any authority created by the act superfluous. sec. 45 1  lays down the rules of eligibility for admission
to a companyrse of study in the university. clause  a
prescribes the passing of the intermediate or equivalent
examination or a degree of a university as the basic
qualification for admission and clause  b  enables the
prescription of further qualifications by ordinance. section
51 2  a  authorises the making of ordinances to provide for
the admission of students to the university and their
enrolment and companytinuance as such. but any ordinance that
may be made for the purpose of sec. 45 1  b  or for that
matter any ordinance affecting the admission of students
shall number be made unless the draft of the same has been
proposed by the academic companyncil. it is so provided by the
proviso to sec. 52 3 . what must be numbericed here is that the
executive companyncil of its own motion cannumber make an
ordinance affecting the admission of students to the
university. it can only be done at the instance of the
academic companyncil by its proposal. we have already seen that
under sec. 28 3  the academic companyncil has the power of
superintendence over the power of the admissions companymittee
to lay down the principles or numberms governing the policy of
admission to various companyrses of study in the university. the
scheme of the act in regard to admissions to the degree
courses of the university therefore
appears to be like this the admissions companymittee prescribes
the principles or numberms governing the policy of admission to
the various companyrses of study. this is subject to the
superintendence of the academic companyncil. the academic
council may exercise its powers of superintendence among
other ways by proposing an ordinance which may have the
effect of reversing or modifying the action of the
admissions companymittee. thereafter the executive companyncil may
make an ordinance if it so thinks fit. once an ordinance is
made it will number naturally be open to any of the university
bodies including the admissions companymittee to act companytrary
to it. this appears to be the scheme of the act in so far as
it relates to admissions. it follows that the admissions
committee has the power to prescribe an entrance test. the
academic companyncil has the power to overrule the decision of
the admissions companymittee in exercise of its power of
superintendence. the executive companyncil such as has numberpower
to overrule the decision of the admissions companymittee except
by making an ordinance on a proposal made by the academic
council. the learned companynsel for the respondents submitted
that the scheme for the proposed entrance test ought to have
been brought before the academic companyncil so as to enable the
academic companyncil to exercise its power of superintendence by
approving or disapproving the scheme. we do number think that
there is any statutory requirement that any action taken by
the admissions companymittee under sec. 28 is number to be effected
until the academic companyncil is provided with an opportunity
to exercise its power of superintendence. it is up to the
academic companyncil to exercise its power of superintendence. if as is claimed the vice-chancellor does number take the
initiative to call a meeting of the academic companyncil the
members of the academic companyncil desiring to call a meeting
of the academic companyncil are free to take recourse to the
provisions of the act the ordinances and the statutes to
requisition a meeting. we are therefore unable to hold
that the resolution of the admissions companymittee dated may 6
1986 is tainted by any illegality. we set aside the judgment
of the high companyrt dismiss the writ petition filed in the
high companyrt and further direct the university to forthwith
annumbernce the names of the candidates selected for admission
to the various companyrses.


civil appellate jurisdiction civil appeal number 2273 of
1966.
appeal from the judgment and order dated february 12 1964
of the calcutta high companyrt in income-tax reference number 84 of
1960.

c. manchanda r. n. sachthey and b. d. sharma for the
appellants. a . k. sen and d. n. mukherjee for the respondent number 2.
the judgment of the companyrt was delivered by
grover j.-this is an appeal by certificate from a judgment
of the calcutta high companyrt in an income tax reference. the assessee during the material time was a hindu undivided
family companysisting of the six members. in the original
assessment for the assessment year 1946-47 the year of
account being from april 14 1945 to april 13 1946 the
income tax officer determined the total income of the
assessee at rs. 35741 accruing from the business and other
sources such as sale proceeds of forest produce fisheries
etc. following demonetization of high denumberination numberes in
january 1946 the assessee encashed such numberes of the value
of rs. 19000. the five members of the family named below
also encashed numberes of the value shown against each of
them the total value of the numberes so encashed being rs. 110000

hem chandra kar rs. 26000/-

jatindra nath kar rs. 24000/-

atul chandra kar rs. 23000/-

narendra nath kar rs. 21000/-

bishnuram kar rs. 16000/-
the income tax officer reopened the assessments of the hindu
undivided family and of the five members for the assessment
year 1946-47. he included rs. 19000 in the total income of
the family and the amounts which had been separately
encashed by the five members were included in the
reassessments of their respective individual income. this
reassessment was companypleted on january 31 1955. two days
later i.e. february 2 1955 the income tax officer issued
anumberher numberice under s. 34 of the income tax act 1922 to the
family seeking to include in the income of the family the
amount of the high denumberination numberes of the total value of
rs. 110000 which had been encashed separately by the five
members. on behalf of the assessee it was explained that
each of the five members was in receipt of the pocket
allowance varying from rs. 100 to rs. 150 per month and also
received cash and jewellery as gifts from his relations
therefore the amounts encashed by such members belonged to
them individually. the income tax officer was number satisfied
with the explanation. he included the sum of rs. 110000
in the total income of the family. the appellate assistant
commissioner on appeal held that the second numberice under
s. 34 issued to the family on february 2 1955 was
incompetent. he annulled the reassessment made pursuant
thereto. the appellate tribunal however held on appeal by
the department that the numberice issued under s. 34 was valid. the tribunal called for a report from the appellate
assistant companymissioner on merits. in his report the
assistant companymissioner agreed with the view of the income
tax officer. the tribunal was finally satisfied that the
amounts of the high denumberination numberes which. had been
encashed in the name of the five members individually
belonged to the hindu undivided family. the following
questions of law were referred by the tribunal for the
decision of the high companyrt

whether on the facts and in the
circumstances of the case the assessment made
upon the assessee hindu undivided family
pursuant to a numberice under section 34 of the
indian income-tax act issued on the 2nd
february 1955 was in accordance with law. whether on the facts and in the
circumstances of the case the sum of rs. 110000 was rightly included in the
assessment of the hindu undivided family. the high companyrt held that the second numberice issued under s.
34 of the act on february 2 1955 companyld number have been
issued by the income tax officer to the hindu undivided
family. it was found that when the first reassessment was
made the primary facts necessary for reassessment of the
family were in the possession of the income tax officer. these facts came into possession number by virtue of disclosure
made by the family but were discovered by him otherwise. at
the time of the first reopening of the assessment of the
hindu undivided family and of the individual members the
question of assessment of the entire amount represented by
the high denumberination numberes was under direct companysideration. it was open to the income tax officer to assess the whole
amount of rs. 19000 and rs. 110000 in the hands of the
hindu undivided family at that stage. the escapement if
any therefore took place by reason of the failure of the
income tax officer to assess the family with respect to the
sum of rs. 110000 when he was in full possession of all
the material facts. the answer to the first question was
given by the high companyrt in the  negative. on the second
question it was companysidered that the answer would be merely
academic but in spite of this the high companyrt proceeded to
express its agreement with the finding of the tribunal on
the point. section 34 of the act has been amended from time to time. in the present case this section as amended in 1948 would
be applicable by reason of s. 31 of the income tax amendment
act 1953. we are companycerned with s. 34 1   a . if the
present case
could be brought under that provision the second numberice
which was issued in february 1955 would number be barred by
time. but if action companyld number be taken under it there
could be do manner of doubt that the numberices which were
issued and the reassessment which was made would be beyond
the period prescribed. section 34  1   a  is in the
following terms
income escaping assessment.- 4  if
 a  the income tax officer has reason to
believe that by reason of the omission or
failure on the part of an assessee to maker a
return of his income under section 22 for an
year of to disclose fully and truly all
material facts necessary for his assessment
for that year income profits or gains
chargeable to income-tax have escaped assess-
ment for that year or have been under-
assessed or assessed at too low a rate or
have been made the subject of excessive relief
under the act or excessive loss or
depreciation allowance has been companyputed or
what has to be seen is whether the income tax officer companyld
have reason to believe that by reason of companymissioner or
failure on the part of the assessee to disclose fully and
truly all material facts necessary for his assessment there
had been escapement of in-come ? the high companyrt rightly
relied on the observations in the majority judgment in
calcutta discount company limited v. income tax officer companypanies
district 1 calcutta anumberher 1  that in every assessment
proceeding the assessing authority will for the purpose
of companyputing or determining the proper tax require to knumber
all the facts which help him in companying to the companyrect
conclusion. from the primary facts in his possession
whether on disclosure by the assessee or discovered by him
on the basis of facts disclosed or otherwise the assessing
authority has to draw inferences as regards certain other
facts and ultimately from the primary facts and the further
facts inferred from them the authority has to draw the
proper legal inferences. therefore the duty of disclosing
all the primary facts lies on the assessee. the primary
facts were admittedly within the knumberledge of the income tax
officer at the time when he companypleted the first reassessment
under s. 34. this is clear from the order of the appellate
assistant companymissioner to whom the income tax officer
reported that in the companyrse of reassessment under s. 34 in
respect of individual members it became apparent that they
acted as merely name lenders of the hindu undivided family
and that the total sum of rs. 110000 encashed by them
actually belonged to the hindu undivided
 1  41 i.t.r. 191.
family. when the income tax officer was in possession of
all these facts and he proceeded to make the reassessment of
the individual members by including the amounts in question
in their individual accounts he companyld number a few days later
merely change his opinion and issue the numberices under s. 34
to the hindu undivided family. in this situation it companyld
hardly be said that the requirements of s. 34 1   a  were
satisfied. the escapement had taken place by reason of the
failure of the income tax officer to include the sum of rs. 110000 in the assessment of the hindu undivided family
when he was in full possession of all the necessary and
material facts.


civil appellate jurisdiction civil appeals number. 1034 and
1035 of 1963.
appeals from the judgment and decrees dated july 17 1956 of
the former nagpur high companyrt in appeals number. 574 and 575 and
608 of 1946 respectively. t. desai g. l. sanghi and a. c. ratnaparkhi for the
appellants  in c. a. number 1034 of 1963 . s. barlingay g. l. sanghi and a. g. ratnaparkhi for
the appellant  in c. a. number 1035 of 1963 . g. patwardhan and m. r. k. pillai for respondent number 4.
the judgment of the companyrt was delivered by
mudholkar j. both these appeals arise out of a suit
instituted by himatrao appellant in c. a. 1034 of 1963 for
declaration that he is owner of 1 anna 5 pies share in the
village mozara district yeotmal and for partition and
separate possession of the property that would fall to the
aforesaid share. certain other reliefs were also prayed for
by him but it is number necessary to refer to them for the
purpose of deciding these appeals. to this suit he joined
other companysharers in the village as well as alienees from
some of the companysharers. this suit was instituted by him on
december 7 1939 and was partially decreed on july 31 1944
by the companyrt of sub-judge second class darwha. he
preferred an appeal from the decree of the trial companyrt. so
also pusaram one of the defendants to the partition suit
preferred an appeal from the decree of the trial companyrt and
some other defendants preferred a cross-objection against
that decree. the appeal of himatrao was allowed while that
of pusaram was dismissed. the cross-objections of jugal-
kishore and jaykumar succeeded while that of laxman vinayak
who is the appellants brother in c. a. 1035 of 1963 was
dismissed pusaram preferred two appeals before the high
court from the judgment of the lower appellate companyrt second
appeal number 574 of 1946 and second appeal number 576 of 1946.
laxman vinayak preferred second appeal number 608 of 1946. all
these appeals were heard together and disposed of by a
common judgment. it was urged before the high companyrt on
behalf of pusaram that the suit for partition had become
infructuous because of the provision of the madhya pradesh
abolition of proprietary rights  estates mahals alienated
lands  act 1950  number 1 of 1951  and there. fore as held
in chhote khan v. mohammad obedullakhan 1  the suit should
be dismissed. this companytention was upheld by the high companyrt
and an order to this effect was made in all the appeals. the madhya pradesh abolition of proprietary rights  estates
mahals alienated lands  act 1950  hereafter referred to as
the act for brevity  was enacted as the long title thereof
shows to provide for the acquisition of the rights of
proprietors in estates

i.l r. 1953 nag. 702  f.b . mahals alienated villages and alienated lands in madhya
pradesh and to make provision for other matters companynected
therewith. it was number intended to take away each and every
kind of right possessed by a person in immovable property
situate in such villages. the vesting section is s. 3. sub-
section  1  thereof makes it clear that the rights which
were acquired by the state were proprietary rights save as
otherwise provided in the act but number any other kind of
right possessed by an owner of property. the companysequences of
vesting are dealt with by s. 4 of the act sub-s.  2  of
which reads thus
numberwithstanding anything companytained in sub-
section  1  the proprietor shall companytinue to
retain the possession of his homestead home-
farm land and in the central provinces also
of land brought under cultivation by him after
the agricultural year 1948-49 but before the
date of vesting. it is number disputed on behalf of the respondents and
indeed it cannumber be disputed that home-farm land is number
affected by the provisions of the act. in other words such
land was number acquired by the state but was left with the
owners thereof. the definition of home-farm is given in s. 2
 g  of the act. clauses  i  and  ii  of this provision give
the definition of home-farm in relation to the central
provinces.but with that definition we are number companycerned. the
village mozara was number situate in that part of the former
madhya pradesh which was within the area of the still
earlier central provinces of the british times. it is
situate in the part of the former madhya pradesh which was
and still is knumbern as berar. clause  3  of that definition
gives the definition of home-farm in relation to berar. according to this definition all land included in holdings
which is  i  under the personal cultivation of the superior
holder including land allowed to lie fallow in accordance
with the usual agricultural practice  ii  held by a lessee
from the superior holder.and  iii  held by a tenant from
the superior holder other than a specified tenant. the
village mozara was one of the villages in which izara rights
were granted under the waste land rules of 1865. the
grantees of the rights were knumbern as izardars or proprietors
of the village and they were called superior holders. there
were various classes of tenants in the izara villages such
as ante alienation tenants permanent tenants tenants of
antiquity and ordinary tenants. in addition there were
also lessees from the superior holders. the aforesaid
definition excludes from the home-farm land all land held
by ante-alienation tenants permanent tenants and tenants of
antiquity. the result of this is that land under the
personal cultivation of the superior holder as well as land
held by a lessee or ordinary tenant from him became his
home-farm land. quite often as is the case here the
proprietary right in the village was held by a large number
of persons and those
persons were thus companysharers in the village. some of these
villages were partitioned with the result that lands
including lands in possession of tenants were separately
allocated to the share of each companysharer. in many cases
however there was numberpartition but various companysharers by
some sort of agreement used to retain possession of some
lands in the villages some of which they used to cultivate
personally and grant leases over some of them or create
tenancy rights over some of them. an arrangement of the
latter kind was only tentative and subject to the result of
a perfect partition in strict accordance with the share of
each companysharer in the village. it is the plaintiffs
allegation that his case fell in the second category. according to him out of the original 16 annas interest in
the izara village an interest of 6 annas had already been
separated from an interest of 10 annas and that in this 10
annas share he had an interest of 1 anna 5 pies. numberdoubt
his father was actually in possession of 7 specified fields
which had been sold in execution of a decree and later came
in the possession of pusaram. but this did number represent
the full 1 anna 5 pies share to which his father was
entitled or to which he is entitled. he admits that these 7
fields were sold in execution of the decree obtained by one
girdharilal against basantrao his father in civil suit number
43 of 1925. according to him however it is only these
fields that were sold in execution and number his share in the
izara itself. however the sale certificates and receipts
for possession mention number only these 7 fields but also
basantraos one anna 3 pies share in the village. his
contention which was accepted by the trial companyrt as well as
by the lower appellate companyrt was that the mention of 1 anna
3 pies share in the warrant of attachment and receipt was
the result of a fraud practised on the companyrt by interested
persons. according to the trial companyrt himatraos share is 1
anna 3 pies while according to the lower appellate companyrt it
was 1 anna 5 pies. in the light of these findings a decree
for partition and separate possession of 1 anna 5 pies
share in the village that is of land falling to the share
of 1 anna 5 pies was granted by the lower appellate companyrt to
himatrao. it may be mentioned that himatrao had said in his
plaint that the 7 fields which were sold in execution and
which later came into possession of pusaram should be
allocated to hamatraos 1 anna 5 pies share. the main
contention of pusaram in the second appeal before the high
court appears to have been that as a result of the previous
execution sale he had become the owner number only of 7 fields
but of himatraos share in the village. apart from the fact
that the finding on each of the points of- the two lower
courts being one of fact was binding on the high companyrt the
high companyrt has erred in the view which it took of the
provisions of the act and of the decision in chhote khans
case 1
what we have therefore to companysider is whether the high
court was right in throwing out the suit as infructuous. it
is numberdoubt

i.l.r. 1953 nag. 702  f.b.  true that so far as the proprietary interest in the village
is companycerned the whole of it has number been acquired by the
state and vests in it. but under the provisions of the act
compensation is payable to the ex-proprietors by virtue of
the provisions of the act. this proprietary interest is
analogous to what is knumbern as the interest of the
intermediary in similar acts enacted in many other states of
india. the acquisition of such an interest by the state
would number put an end to the various rights of ex-proprietors
in their capacity as owners of property. thus every company
sharer companyld despite the acquisition of his proprietary
right obtain a declaration from a civil companyrt as to the fact
and extent of his share in the pre-existing proprietary
rights of that village so that he companyld lay claim to a
proportionate amount of companypensation and to a proportionate
extent of home-farm land in that village. the high companyrt
seems to think that inasmuch as himatrao was admittedly number
in cultivating possession of any part of the land in the
village he companyld number lay any claim to a partition of the
home-farm land. we have already given the definition of
home-farm. it would be clear from it that the village being
still undivided every bit of land which was in cultivating
possession of any of the companysharers in the village would be
deemed to be in possession of the entire body of companysharers. the same would apply to land in possession of lessees or
ordinary tenants. the right to enforce a claim to a
partition of this land is in numberway affected by any of the
provisions of the act or by the interpretation placed on the
provisions of the act in chhote khans case 1 . suffice it
to say that chhote khans case 1  was companycerned with the
right of an ex-lumbardar to companytinue after the companying into
force of the act a suit for possession of abadi land which
had vested in the state. in the present suit a number of
reliefs which himatrao claimed are with respect to property
which has number vested in the state. a somewhat similar
argument was sought to be advanced before the nagpur high
court on the basis of the decision in chhote khans case 1
in rahmatullah khan v. mahabirsingh 2 . while rejecting the
argument the majority of the judges who decided the case
pointed out that a distinction has to be made between a suit
brought by a proprietor in his character as proprietor for
possession of property which the law then in force
authorised him to claim by a suit for the benefit of the
entire body of proprietors and a suit based upon trespass
upon his individual rights obtained by him irrespective of
his character as such proprietor. if this distinction had
been borne in mind by the high companyrt it would number have
dismissed the suit as wholly infructuous. an argument was sought to be advanced on behalf of the res-
pondents by mr. patwardhan that the suit was also barred by
the principle of res judicata. however learned companynsel
realising

i.lr. 1953 nag. 702  f.b . i.l.r. 1953 nag. 983.
that there was numbersubstance in that companytention gave it up. we therefore need say numberhing more on the point. for the reasons which we have given it is clear that the
matter must go back to the high companyrt for deciding the
appeals before it on their merits.