civil appellate jurisdiction civil appeal number. 1500-01
of 1988.
from the judgment and order dated 26.10.1987 of the
bombay high companyrt in appeal number 1207 and 1206 of 1987.

p. rao for the appellants. n. salve hardeep singh and raian karanjawala for the
respondent. the judgement of the companyrt was delivered by
sabyasachi mukharji j. special leave granted and the
appeals are disposed of by the judgment herein. these two appeals are directed against the judgment and
order of the division bench of the high companyrt of bombay
confirming the decision of the learned single judge
dismissing the application for setting aside the award. it
appears that there was a charter party agreement entered
into between the parties in december 1981 signed by the
representative of the president of india and the respondent
shipping companypany for transportation of bulk cargo from
australia to
india. thereafter in february 1982 the agreement was sent
to the presidents representative at new delhi for signing
the same. the said cargo was delivered at the port of
tuticorin and number at calcutta. the respondent companypany raised
disputes regarding several items and claimed an amount of
rs.906854.86 as demurrage and rs.7881.43 against over time
charges. as per the said agreement the disputes were
referable to arbitration by joint arbitration of two
arbitrators one each to be appointed by each of the parties. the appellant appointed one shri j.l. puri as its arbitrator
with a specific companydition that he shall give reasons for the
award. the respondent companypany appointed one shri p.s. gokhale as its arbitrator. thereafter the award was made and
the same was signed by shri gokhale at bombay on 11th june
1986 and shri j.l. puri at calcutta on 18th of june 1986.
the award did number speak. as such there is numberreason
apparent from the award. the award however directed the
appellant companyporation to pay lumpsum amount of rs.622589
to the respondent companypany. the award was filed in the high
court of bombay. numberice of such filing was received by the
appellant companyporation at delhi. the appellants filed
objection petition before the high companyrt of bombay for
setting aside the award. it was companytended that the high
court of bombay had numberjurisdiction to entertain the filing
of the award since numbercause of action arose at bombay. the
appellants companytended that the award was liable to be set
aside for reasons of misconduct irregularity and lack of
competence. in both the appeals similar claims have been made. it
appears however that there is a specific finding made by
the learned single judge that the agreement was signed at
bombay which was affirmed by the division bench. we find no
material to impeach this finding. it was next companytended as
it has been companytended before the division bench that there
was a mandate given to the arbitrators to state reasons for
the award but it was number companyplied with. it is true that the
appellants had written a letter to their arbitrator stating
that he should record reasons for the award. companyies of this
letter were also sent to the arbitrator appointed by the
respondents. there was therefore numbermandate given by both
parties to the arbitration agreement to both arbitrators to
state reasons. the arbitrators companyld number act on the mandate
of one of the parties. this companytention of the appellants
cannumber be accepted. it was next companytended that the
arbitrators should have given reasons. unreasoned award is
bad. it is true that the recent trend is to have reasoned
awrds. indeed a matter is pending in this companyrt on this
aspect. the appointed arbitrators were men of companymerce and
they
arrived at a companysensual figure. though the recent trend is
that the award should be a reasoned award and that would be
in companysonance with the principles of natural jusice in a
case of this nature where two men of companymerce in respect of
money claim under charter party agreement entered into
arbitration and the award has awarded a lumpsum amount it
appears to us that the reasons are number far to seek. it is
really an accounting of the rival claims of the parties. in that view of the matter and in the facts of this
case we find that there is numberlegal misconduct as such in
number giving reasons.


civil appellate jurisdiction civil appeal number 2150
of 1968.  appeal by special leave from the judgment and order
dated 5.9.1968 of the punjab haryana high companyrt in l.p.a. number 458/68 . c. mahajan hardev singh and r.s. sodhi for the appel-
lant. o.p. sharma for the respondents 1 and 2.

r. nagaraja and p.n. puri for respondent number 3.
the judgment of the companyrt was delivered by
beg c.j. this appeal under article 136 of the companysti-
tution is directed against a very detailed judgment of the
punjab haryana high companyrt on a writ petition number 1875 of
1965 filed under articles 226 and 227 of the companystitution
assailing an order of the additional director companysolidation
of holdings passed on 8 june 1965. a perusal of that
order together with the earlier order of 4 may 1965 and
the application for restoration dated 15 may 1965 filed by
gurdev singh respondent number 3 shows gurdev singh who
had
some companyplaint against the companysolidation scheme was number
present so that his petition was ordered to be filed by the
additional director companysolidation on 4 may 1965. gurdev
singh soon thereafter i.e. on 15 may 1965 filed an appli-
cation for restoration supported by an affidavit attribut-
ing his absence on 4 may 1965 to his illness. the. order
dated 8 june 1965 of the additional director shows that
the applicant gurdev singhs assertion that he companyld number
attend due to illness over which he had numbercontrol was
accepted by the additional director who proceeded to exer-
cise his powers under section 42 of the east punjab holdings
 companysolidation and prevention of fragmentation  act 1948
 hereinafter referred to as the act  and to set right the
grievance of the applicant gurdev singh after going into
all the relevant records. the learned judge of the high
court who heard the petition also went through the records
very carefully came to the companyclusion that an assertion of
rights by the petitioner appellant a member of the sanjam
group merely because of some report companytained in the fard
badar companyld number take away the effect of entries in the
revenue records. the learned judge held that numberinjustice
was caused to the petitioner appellant also there was no
ground for interference under article 226 of the companystitu-
tion. the learned companynsel for the appellant has relied upon
the case of harbhajan singh v. karam singh ors. reported
in 1966  1  s.c.r. 817 where this companyrt held that the
addl. director exercising the powers of the state government
has numberjurisdiction under section 42 of the act to review
his previous order. section 42 of the act runs as follows
the state government may at any time for
the purpose of satisfying itself as to the
legality or propriety of any order passed
scheme prepared or companyfirmed or repartition
made by any officer under this act call for
and examine the record of any case pending
before or disposed of by such officer and
may pass such order in reference thereto. as
it thinks fit
provided that numberorder or scheme or repar-
tition shall be varied or reserved without
giving the parties interested numberice to appear
and opportunity to. be heard except in case
where the state government is satisfied that
the proceedings have been vitiated by unlawful
consideration. the proviso to section 42 lays down that numberice to
interested parties to appear and opportunity to be heard are
conditions precedent to passing of an order under section

the fact that the additional director was satisfied
that the respondent gurdev singh did number have an opportu-
nity of being heard due to his illness seems to us to
amount to a finding that the proviso. companyld number be companyplied
with so that the previous order companyld number be held to be an
order duly passed under section 42 of the act. it companyld
be ignumbered as number est. the view taken in harbhajan
singhs case  supra  would number apply to the
instant case although section 42 of the act does number companytain
a power of review. orders which are number est can be
ignumbered at any stage. on the facts and circumstances of this case we think
that this is number a fit case for interference under article
136 of the companystitution. the appellant if he has acquired
any rights by reason of long possession can assert them
whenever any proceedings are taken before a companypetent au-
thority to dispossess him. what we have held here or
whatever has been held by the high companyrt will number affect
such other rights if any as the appellant may have ac-
quired by reason of possession.


civil appellate jurisdiction civil appeal number 441 of 1973.
from the judgment order dated the 12th february 1973 of
the assam nagaland high companyrt in election petition number 5
of 1972.

k. chatterjee a. sharma and rathin das for the
appellant. k. hom choudhury and s. k. nandy for respondent number 1.
the judgment of the companyrt was delivered by
alagiriswami j. in the election held to the meghalaya
legislative assembly from songsak companystituency on 9th march
1972 the appellant was declared elected having received 819
votes as against 176 received by the 1st respondent and 98
votes received by the 2nd respondent. the appellant was a
candidate set up by the all party hills leaders companyference
and the 1st respondent was supported by the hill state
peoples democratic party  h.s.p.d.p.  though that party
was number a recognised party. the symbol allotted to the 1st
respondent by the election companymission was two leaves. the
1st respondent filed an election petition questioning the
election of the appellant on the ground that be was guilty
of a companyrupt practice falling under section 123 4  of the
representation of the people act 1951. that election
petition having been allowed and appellants election set
aside by the high companyrt of assam nagaland meghalaya
manipur and tripura this appeal has been filed against the
decision of the high companyrt. the allegations in support of the petition were that on 3
days before the election that is on the 25th of february
1972 the 5th of march 1972 and the 7th of march 1972 the
appellant distributed dummy ballot papers in three places
bollonggiri daggal bazar and songsak respectively. the
dummy ballot papers marked as ext. 4 in this case companytained
a boat as the election symbol of the 1st respondent
instead of the two leaves allotted to him as the election
symbol. the case of the respondent was that this was a false
statement reasonably calculated to prejudice the prospects
of his election. the appellants case was that the dummy
ballot papers were got printed by a. m. sangma the
secretary of the a.p.h.l.c. that he took the bundle of
dummy ballot papers from tura the headquarters of the

p.h.l.c. and when he was staying at the rest house in
bollonggiri he found out the mistake that had crept in the
dummy ballot papers that after companysultation with the chief
minister of meghalaya w.a. sangma who has been examined as

w. 12 he issued a companyrection statement marked as ext. e
that the dummy ballot papers were number distributed that
there was therefore numberpublication and that it was number
calculated to prejudice the prospects of the 1st
respondents election. the high companyrt after a very close
careful and restrained appreciation of the evidence in this
case has companye to the companyclusion that the dummy ballot papers
were distributed by the appellant at bollonggiri and daggal
bazar and we have also companye to the same companyclusion. as we agree with the learned judge we do number think it
necessary to refer in elaborate detail to the evidence. we
shall refer to the evidence in broad outline and show that
his companyclusion is fully justified with regard to the
distribution of ballot papers like ext. 4 in bollonggiri on
the 25th of february the two witnesses who gave evidence
are willingson sangma p.w.8 and jangnal marak p.w.4. according to them the appellant distributed the dummy ballot
papers and they produced two ballot papers as having been
handed over to them. they further stated that on enquiry as
to how the dummy papers did number companytain the two leaves
symbol allotted to the 1st respondent the appellant stated
that they were government papers and the symbol allotted to
the 1st respondent had been cancelled. the high companyrt has
held and rightly so that the alleged statement of the
appellant that they were government papers cannumber be
admitted in evidence on the ground that it was number so
pleaded in the election petition. we cannumber also help
feeling that in deposing that the appellant told them that
they were government papers and the symbol allotted to the
1st respondent had been cancelled p.ws.8 and 4 are
embellishing the story to make their evidence stronger. in
the election petition itself it is stated that at
bollonggiri and daggal bazar the appellant had stated that
the two leaves election symbol allotted to the 1st
respondent was withdrawn by the government and he was
numberhere whereas in the evidence given there is numbermention
about the appellant having said that the petitioner was
numberhere. while the election petition does number state that
the dummy ballot papers were government papers p.ws. 4 and 8
say that the appellant stated that they were government
papers. we therefore companyclude that it would be safe and
reasonable to hold that the evidence of p.ws. 8 and 4 cannumber
be accepted in so far as they add any-
thing more than that the appellant distributed the dummy
ballot papers. we shall presently mention why we think that
the dummy ballot papers like ext. 4 should have been
distributed by the appellant. on the 26th of february the 1st respondent filed a companyplaint
ext. 3 before the returning officer and along with the
complaint he filed a dummy ballot paper ext. 4. ext. 4
could number have become available to him unless it had been
distributed by the appellant. we are number perpared to
accept the companytention on behalf of the appellant that they
should have been pilfered because numberevidence to that effect
was given. number are we able to accept his evidence and that
of companystant marak r.w. 8 as to how the mistake in the dummy
ballot paper was found. it sounds too artificial. admittedly the appellant had given a lift to p.ws 8 and 4
on his journey from tura to bollonggiri and as admittedly he
had passed through villages included in his companystituency
during the companyrse of that journey it is quite likely that he
distributed those dummy ballot papers. furthermore
according to the appellant he had distributed anumberher
pamphlet ext. e after companying to realise that the dummy
ballot paper was wrong. if dummy ballot papers were number
distributed at all there was numberneed to distribute pamphlets
like ext. e. these pamphlets were printed on 29th february
and taken delivery of on the 1st of march. the 1st
respondents case that these pamphlets were number distributed
does number seem to be true because one of his witnesses

w.8 admits having seen such a pamphlet and anumberher
witness p.w. 5 makes an half hearted admission of the same
fact. we are therefore satisfied that pamphlets like
ext. e were in fact distributed by the appellant. that
could have been done only to companynteract the effect of the
distribution of the dummy ballot papers. it is number the
appellants case that he distributed the dummy ballot papers
at all. if so there was numberneed to distribute pamphlets
like ext. e. quite. possibly realising rather a little late
the damage likely to be done to his case the appellant tried
to repair the dam-age by the distribution of pamphlets like
ext. e.
as regards the distribution of dummy ballot papers in
duggal bazar the evidence was that of p.ws. 7 9 and 10
who also produced the dummy ballot papers marked as exts. 41 42 and 43. according to them the appellant distributed
these dummy ballot papers and said that the symbol of two
leaves bad been cancelled by the government. this is said
to have taken place on the 5th of march and on the 6th of
march the 1st respondent filed a criminal companyplaint against
the appellant and a. m. sangma r.w. 2 companyplaining about
the publication of the dummy ballot papers. the importance
of the publication on the 5th march is because if the
distribution of the dummy ballot papers had been only on the
25th of february it might possibly be argued that he had
number till then seen them and as soon as be realised the
mistake he tried to undo the harm by distributing pamphlets
like ex. e. as ext. e is said to have been distributed from
it march onwards the case of the bona fide mistake in the
printing of the dummy ballet papers would number be
sustained if their distribution on the 5th of march at
daggal bazar is proved. just an in the case of evidence of
p ws. 8 and 4 we also think that the evidence of p.ws. 7. 9
and 10 is exaggerated in so far as they say that appellant
told them that the-
1st respondents symbol had been cancelled by the
government. the learned judge of the high companyrt holds that
the distribution of the dummy ballot papers in daggal bazar
is proved because the appellant is unable to explain how

ws. 7 9 and 10 were able to get dummy ballot papers like
exts. 41 42 and 43. it cannumber be urged that those ballot
papers were those obtained when the appellant distributed
them in bollonggiri because the appellants case is that he
had number distributed them at all. the appellant produced 497
ballot papers and stated that 3 ballot papers were missing
and he was producing the other 497. but as six ballot
papers have been produced before the companyrt and marked as
exts. 4 35 41 to 43 and ext. p.w. 6/1 it is number possible
to accept this explanation. the question reduces itself to
this were these 497 ballot papers produced by the
appellant got printed later as was the suggestion put to
him or did the 1st respondent get dummy ballot papers
printed and produce them as the six exhibits marked by the
court ? such a suggestion as number put to him. we have
already held that we cannumber accept the explanation sought to
be put forward on behalf of the appellant before the high
court that they must have been pilfered. it is therefore
reason-able to companyclude that the appellant should have
distributed at least the six dummy ballot papers exhibited
before the companyrt if number more in which case the logical
conclusion would be that the 497 dummy ballot papers
produced before the companyrt were merely an attempt to companyer up
what the appellant had done and to make it appear that no
dummy ballot papers were distributed. in view of the fact
that the 1st respondent bad filed a companyplaint on the 26th of
february before the returning officer and a criminal
complaint on the 6th of march we would in agreement with
the high companyrt hold that the distribution of the dummy
ballot papers at bollonggiri as well as daggal bazar is
proved. if the distribution of the dummy ballot papers in
daggal bazar is proved then there can be numberquestion of the
printing of the dummy ballot papers with the wrong symbol
being due to a mistake but must be deliberate. the
appellant might have distributed pamphlets like ext. e
realising at a later stage the mistake he had companymitted in
distributing the wrong dummy ballot papers but that cannumber
help him. in a companystituency admittedly companysisting of more
than 80 per cent illiterate electors the companysequences of
distribution of dummy ballot papers with wrong symbols can
well be imagined. voters who went to the polling stations
would have been companyfused even if they did number go there with
the intention of voting for the 1st respondent and people
who went there with the intention of voting for the 1st
respondent might well have cast their vote either to the
appellant or to the other candidate finding that the 1st
respondents symbol was number there or they might have
even gone back home without voting. in a case where a
corrupt practice is alleged and proved it is number necessary
further to show the exact number of votes which the 1st
respondent lost or the appellant gained. the companyrupt
practice itself is enumbergh to invalidate the election. there is a small matter to which reference may be made at
this stage.


civil appellate jurisdiction civil appeal number 1192 of
1970.
appeal by certificate from the judgment and order dated may
20 1966 of the allahabad high companyrt in first appeal number 161
of 1960.
yogeshwar prasad hajii iqbal ahmed s. k. bagga and s.
bagga for the appellant. c. manchanda and o. p. rana for the respondent. the judgment of the companyrt was delivered by
jaganmohan reddy j. the. state of uttar pradesh filed a
suit against the. appellant for the recovery of a sum of rs. 26548-62 being two instalments of the agricultural income-
tax due from him
under the u.p. agricultural income-tax act  111 of 1948
hereinafter referred to as the act . the appellant was
assessed to agricultural income-tax for the year 1359 fasli
in a sum of rs. 53097-25 and was directed to pay the same
in four instalments of rs. 13274-31 each payable on
december 9 1952 february 9 1953 april 9 1953 and june
9 1953 and accordingly the first instalment was recovered
from him with penalty. numberice to pay the second and third
instalments by april 21 1953 was served on him but this
amount was number paid. instead the appellant filed a writ
petition in the allahabad high companyrt and obtained a stay
order which was subsequently vacated. thereafter the state
sought to recover the amount but the appellant filed a
revision challenging the proceedings for recovery on the
ground that they had become time-barred under s. 32 2  of
the act. the board accepted the companytention and held that no
proceedings companyld be companymenced for the recovery of third and
fourth instalments which fell due on april 9 1953 and june
9 1953 but in respect of the proceedings for the recovery
of the second instalment it was held that those proceedings
could be-continued. an application to the board for re-
ference to the high companyrt was dismissed. the appellant then
paid the second instalment. in view of the decision of the board the state of uttar
pradesh filed a suit for the recovery of the amounts
aforesaid in which the appellant pleaded that the only
remedy open to the state was that permitted under s. 32 2
of the act and that numberregular suit was maintainable. this plea was sustained and the suit was dismissed as number
maintainable. the high companyrt however in an appeal re-
versed the judgment of the trial companyrt and decreed the suit. against that judgment this appeal is by certificate. it is companytended before us that the only mode of recovery of
arrears of tax or penalty due under the act is under s. 32
and the state cannumber recover any such amount by any other
mode such as by s. suit. section 32 is as follows

recovery of penalties- 1  the companylector
may on the motion of assessing authority
recover any sum imposed by way of penalty
under the provisions of section 17 or section
3 1 or where an assessee is in default the
amount assessed as agricultural income-tax an
if it were an arrear of land revenue. numberproceedings for the recovery of any
sum payable under this act shall be companymenced
after the expiration of one year from the date
on which the last instalment fixed under
section 30 falls due or after the expiration
of one year from the date on which any appeal
relating to such sum has been disposed of
before we deal with the main companytention it may be stated
that once a numberice of demand is served on the assessee for
payment of tax due under the act and the assessee makes a
default after the date for payment specified therein has
expired a debt is created in favour of the state. this
debt the state. can recover by any of the modes open to it
under the general law. this is also the position under the
indian income-tax act but it is companytended that the ana-
logous provisions of sub-s.  7  of s. 46 of the indian
income-tax act 1922 or the companyresponding provisions of s.
232 of the income-tax act of 1961 cannumber be relied upon for
interpreting s. 32 of the act. inasmuch as there are special
provisions in these acts which enable the revenue to file a
suit for the recovery of arrears of tax due from the
assessee. it is true that s. 232 of the income-tax act of
1961 provides that the modes of recovery under that act are
number exhaustive but this clarification which it is does
number imply that it is only by virtue of a specific provision
that the legislature has companyferred this right upon the
revenue where it did number earlier possess. under s. 46  2  of
the act of 1922 the income-tax officer may forward to the
collector a certificate under his signature specifying the
amount of arrears due from an assessee and the companylector. on receipt of such certificate shall proceed to recover
from such assessee the amount specified therein as if it
were an arrear of land revenue. sub-section  7  of the said
section prescribes a period of limitation of one year from
the last day of the financial year in which any demand is
made under the act and thereafter numberproceedings for the
recovery can be taken. this section was amended by s. 21 of
the indian income-tax  amendment  act 1953 by which the
following explanation was added
explanation.-a proceeding for the recovery of
any sum shall be deemed to have companymenced
within the meaning of this section if some
action is taken to recover the whole or any
part of the sum within the period hereinbefore
referred to and for the removal of doubts it
is hereby declared that the several modes of
recovery specified in this section are neither
mutually exclusive number affect in any way any
other law for the time being in force relating
to the recovery of debts due to government. and it shall be lawful for the- income-tax
officer if for any special reasons to be
recorded he so thinks fit to have recourse to
any such mode of recovery numberwithstanding that
the tax due is being recovered from an
assessee by any other mode. it is manifest that this explanation does number in any way
confer a right on the revenue to recover arrears of tax by
any mode other than those provided under that act. that
right which the state or the revenue has recovering arrears
of tax which is a debt due
to it is a general right companyferred on it under the law
either by a suit or by some other method open to it. section 32 though it does number nave an explanation analogous
to s. 46 numberetheless does number preclude either specifically
or by necessary implication a right to recover the arrears
of-tax due by a suit. the method prescribed in this section
is one of the modes of recovery which is a summary remedy. it is however open to the state to adopt any method
available to it for the recovery of tax in the same way as
it would be open to it to recover ordinary debt due to it. it can institute a suit and obtain a decree with companyts
against the assessee or other persons liable to pay. it
could also probably without obtaining a decree or
attachment apply to a companyrt for the payment of dues if
there are funds lying to die credit of the assessee in the
court or it may perhaps demand payment in the hands of the
receiver appointed in respect of any property of the
assessee if due numbericed to aft the parties interested in
the funds is given. on these aspects however we do number
propose to express any views. as already observed after
an assessment is made upon the assessee quantifying the tax
due from him and a demand for the payment thereof is issued
within the period specified therein it creates a debt
payable by the assessee in favour of the state. it is well
established that once a debt is created the state has the
right to recover it by any of the modes open to it under the
general law unless as a matter of policy only a specific
mode to the exclusion of any other is prescribed by the law. numbersuch prohibition is enacted in s. 32 of the act. even prior to the amendment of sub-s.  7  of s. 46 of the
1922 act several high companyrts in this companyntry had taken this
view. in manickam chettier v. income-tax officer
madurai 1  a full bench of the madras high companyrt was
dealing with the right of the crown to obtain payment of
arrears of tax due from the assessees properties sold in
execution of a decree where the question were firstly
whether the government was entitled to claim a priority and
secondly whether as a matter of procedure the petition by
the income-tax officer to the civil companyrt for payment to him
from the amounts to the credit of the assessee was
sustainable. it was companytended before the full bench as it
is companytended before us on the analogous provisions of
section 32 of the income-tax act of 1922 that inasmuch as
section 46 of that act provides modes for the recovery of
income-tax the crown is number entitled to adopt any different
method. this companytention was repelled. leach c.j. observed at p. 185
this section however does number profess to be
exhaustive and it cannumber without express words
to that effect take away from the crown the
right of enforcing payment by any other method
open to it. therefore i do
 1   1938  vi i.t.r. 180.
number regard section 46 as imposing a bar to an
application or the nature of the one we are
number companycerned with. varadachariar j. had expressed a doubt as to the procedure
for recovery but he had however numberdoubt that the crown had
a priority for the recovery of debts due to it and
consequently agreed in favour of the view expressed by
leach c.j. mockett j. also agreed with this view. this
case was companysidered by harris c.j. and chatterjee j. of
the patna high companyrt in inder chand v. secretary of
state 1 . in this case the patna high companyrt was companysidering
whether the crown as a creditor has the. ordinary right of
suit against the assessee. following the full bench
judgment of the madras high companyrt it was held that a suit
was maintainable.


civil appellate jurisdiction civil appeal number 349 of 1957.
appeal by special leave from the judgment and decree dated
numberember 29 1954 of the punjab high companyrt in regular
second appeal number 891 of 1951.
hardayal hardy and n. n. keswani for the appellant. s. bindra and d. gupta for the respondent. 1960. july 21. the judgment of the companyrt was delivered by
wanchoo j.-this is an appeal by special leave against the
judgment of the punjab high companyrt in a service matter. the
brief facts necessary for present purposes are that the
appellant was appointed as a foot- companystable in 1931 in the
punjab police and was dismissed on january 25 1944.
shortly before he was acting as an assistant sub-inspector
and actually working as a police censor. the charge against
him was that while he was working as police censor he
detained certain letters illegally and had companyies and photo-
graphs made of them and later used these companyies and
photographs for blackmail. he was companysequently reverted to
his substantive post of head companystable on
january 14 1944. thereafter on january 21 1944 an
enquiry was started against him by the superintendent of
police and he was eventually dismissed. he went in appeal
to the deputy inspector general of police which was
dismissed. he then went in revision to the inspector
general of police which also failed. finally he made
several representations and memorials to the punjab
government but without avail. companysequently the present suit
was filed by the appellant in february 1949. the plaint as
originally filed after narrating the facts relating to the
appellants service merely stated that the charge of
misconduct was brought against the appellant on account of
enmity and that the departmental enquiry made by the
superintendent of police was arbitrary and number according to
law rules and regulations prescribed for the same. besides
this vague general allegation the only specific grievance
made out by the appellant in the plaint was that the
superintendent of police had dismissed him without recording
his defence evidence and without giving him an opportunity
to produce the same. the appellant amended the plaint later
and added one more grievance namely that he had been
appointed by the deputy inspector general of police and
could only have been dismissed by him and number by the
superintendent of police. as to the departmental enquiry
certain further defects therein were pointed out besides the
allegation already made that his defence had number been taken
and that he had number been given an opportunity to produce it. those further defects were  i  that he was number permitted to
engage companynsel  ii  that he was number allowed full
opportunity to crossexamine the prosecution witnesses and

that he was number asked by the enquiry officer to state
what he had to say in answer to the charge against him and
was number permitted to file a written-statement explaining the
alleged incriminating circumstances against him. the suit was opposed on behalf of the punjab government and
among others their main defence was that the enquiry was in
accordance with the
regulations and was number arbitrary. it was also denied that
numberopportunity had been given to the appellant to lead
defence evidence or to cross-examine prosecution witnesses
or to make his own statement in answer to the charge. it
was admitted that permission was refused to engage a
counsel but it was finally averred that taking the enquiry
as a whole there was numbersuch defect in its companyduct as to
invalidate it or call for interference by the companyrts. three issues all of a general nature were framed by the
trial companyrt namely--

whether the plaintiffs dismissal is void illegal
inumbererative and wrongful and what is its effect ? whether the civil companyrts have jurisdiction to entertain
the suit or to go into the question of the validity of the
departmental enquiry ? whether the suit for a declaration lies and is
competent and why ? it is unfortunate that the specific points raised by the
appellant whatever they were were number made the subject-
matter of specific issues. however the trial companyrt came to
the companyclusion that the case of the appellant was governed
by s. 240 3  of the government india act 1935 and it was
reinforced in this companyclusion by the police regulations
which according to it provided for the same safeguards as
were companytained in s. 240 3 . it therefore held that as s. 240 3  had number been companyplied
with the dismissal was void and illegal as to the other
two issues relating to the jurisdiction of civil companyrts they
were decided in favour of the appellant. there was an appeal to the district judge by the punjab
government. the district judge agreed with the companyclusions
of the trial companyrt on the applicability of s. 240 3  to the
case of the appellant and further referred to an amendment
in the police regulations which required that before an
order of dismissal or reduction in rank is made the officer
to be punished shall be produced before the officer
empowered to punish him and shall be informed of the charges
proved against him and called upon to show cause why an
order of dismissal or reduction in rank should number be
passed. the district judge was companyscious that this
amendment in the regulations was made in september 1946 long
after the dismissal of the appellant and therefore would number
apply to the appellants case but he overruled this
contention on the ground that the rule was merely
declaratory of the law and only removed the ambiguity that
might have arisen because of s. 243 of the government of
india act. he therefore dismissed the appeal. then followed a second appeal by the punjab government to
the high companyrt. the high companyrt held that s. 240 3  did dot
apply to the case of the appellant and that s. 243 was the
governing section. in companysequence the high companyrt further
held that the appellant was number entitled to the protection
of s. 240 3  and as the amendment to the police regulations
which brought in the substance of s. 240 3  therein was made
after the dismissal of the appellant he companyld number take
advantage of it. as to the enquiry the high companyrt held
that though there might have been minumber procedural defects
in the enquiry it was on the whole substantially in
accordance with the regulations and principles of natural
justice and companyld number therefore be held to be invalid. the
high companyrt pointed out that there was numberserious companytraven-
tion of the regulations and the witnesses who had appeared
were cross-examined by the appellant who was also called
upon to produce his defence within 48 hours. he however did
number choose to do so and wanted a postponement which was
refused and thereafter the superintendent of police
proceeded to dismiss him. learned companynsel for the appellant challenges the company-
erectness of the view taken by the high companyrt and three
points have been urged on his behalf before us namely  1
s. 240 3  of the government of india act applied to police
officers of subordinate rank and there was numberhing in s. 243
which took away from such officers the protection of s.
240 3   2  even if the police regulations alone applied
there was such violation of the relevant regulations as to
vitiate the enquiry
proceedings and  3  the superintendent of police companyld number
hold a departmental enquiry as a criminal offence had been
committed and reliance in this companynection was placed on ss. 29 and 35 of the police act number v of 1861.
re.  1 . section 243 of the government of india act appears in
chapter 11 of part x dealing with civil services. that
chapter begins with s. 240 and sub-s.  3  thereof provides
that numbermember of a civil service or holding any civil
post in india shall be dismissed or reduced in rank
until he has been given a reasonable opportunity of showing
cause against the action proposed to be taken in regard to
him. section 243 however is in these terms-
numberwithstanding anything in the foregoing provisions of
this chapter the companyditions of service of the subordinate
ranks of the various police forces in india shall be such as
may be determined by or under the act relating to those
forces respectively. obviously s. 243 was a special provision with regard to
subordinate ranks of police forces in india and it is number in
dispute that the appellant belonged to the subordinate
ranks. therefore according to s. 243 the companyditions of
service of the subordinate ranks are governed by or under
the acts relating to police forces and s. 240 3  can have no
application to them. the number obstante clause of s. 243
makes it clear that so far as the subordinate ranks of
police forces in india are companycerned a. 243 will apply and
number the earlier provisions including s. 240 3 . we are
therefore of opinion that in view of the special provisions
in s. 243 relating to the subordinate ranks of police forces
in india  to which the appellant undoubtedly belonged  s.
240 3  would have numberapplication. we may in this companynection
refer to the judgment of the privy companyncil in numberth- west
frontier province v. suraj narain anand  1  where it was
held that the number obstante clause in s. 243 excluded the
operation of s. 240 2  in the case of subordinate ranks of
police forces in india and that companyditions of service
included the right of dismissal.  1  1948 f.c.r. 103.
that case dealt with s. 240 2  but the same reasoning would
in our opinion apply to s. 240 3 . as has already been
pointed out by the learned district judge the substance of
s. 240 3  was brought into the police regulations in
september 1946 long after the appellant had been dismissed
and would therefore number apply to the appellant. he would
therefore number be entitled to the second numberice under s.
240 3  as explained in i. m. lalls case by the privy
council  see high companymissioner for india high
commissioner for pakistan v. i. m. lall  1  . number was such
numberice necessary under the police regulations as they
existed at the time of the appellants dismissal. the view
taken by the high companyrt under the circumstances is companyrect. re.  2 . so far as violation of the material provisions of r. 16.24
of the police regulations is companycerned we find that only
three specific allegations material for the purpose were set
out by the appellant namely  i  that he was number given the
chance to defend himself  ii  that he was number allowed to
cross-examine the prosecution witnesses and  iii  that he
was number allowed to explain the circumstances appearing
against him and was number allowed to file a written statement. it is enumbergh in this companynection to say that he was certainly
given a chance to produce defence but did number himself avail
of it. it also appears as found by the high companyrt that the
witnesses were cross-examined by the appellant at length and
on the whole there is numberhing to show that he was number
allowed to explain the circumstances appearing against him. we therefore agree with the high companyrt that there is numbersuch
serious companytravention of the regulations as to call for
interference by the companyrts. re.  3 . reliance in this companynection is placed on ss. 29 and 35 of
the police act. section 29 provides for penalties for
neglect of duty etc. by police officers and lays down the
extent of punishment on companyviction by a magistrate. section
35 defines what magistrate can try a
 1  1948 f.c.r. 44.
charge against a police officer above the rank of a company-
stable under the police act and such a magistrate has to be
a first class magistrate. these sections numberhere exclude
departmental enquiry.


civil appellate jurisdiction civil appeal number 318 of
1971.
appeal by special leave from the judgment and order
dated the 3rd june 1969 of the calcutta high companyrt in
appeal number 233 of 1968.

p. nayar and b. b. ahuja for the appellants. t. desai h. s. parihar and i. n. shroff for the
respondent. the judgment of the companyrt was delivered by
krishna iyer j. this is really a case where litigation
would have been avoided had the companycerned income-tax
officer carried out the directions issued by the appellate
assistant companymissioner with quick dispatch to determine the
ownership of the deposit in the bank account as between the
respondent before us and his nephew madanlal. the facts
there was a bank account in which a huge sum was seen
as lying in deposit. the assessing authority proceeded on
the footing that
1015
the amount represented the income of one madanlal in whose
name the bank account stood. he companytested his ownership and
urged that really this sum belonged to his uncle who is the
respondent before us. any way his companytention was over-ruled
by the income-tax officer but in appeal the appellate
assistant companymissioner set aside the order and directed that
the income-tax officer do determine the real ownership of
the bank deposit. this was done in september 1970. it is
admitted before us that although we are in october 1975 the
income tax officer has number yet determined the real ownership
of the deposit as between the uncle and the nephew. there is
numbervalid reason why the income tax officer should have
delayed so long and indeed administrative officers and
tribunals are taking much longer time than is necessary
thereby defeating the whole purpose of creating
quasijudicial tribunals calculated to produce quick
decisions especially in fiscal matter. five years to dawdle
over the decision of a small matter directed by an appellate
authority amounts to indiscipline subversive of the rule of
law. we hope that the administration takes serious numberice
of delays caused by tax officers lethargy under some
pretext or other in speeding up enquiries into incomes and
finalizing assessments. the mere fact that a writ petition
was pending in the high companyrt especially in the background
of numberstay having been granted shows that the alibi of a
high companyrt proceeding cannumber be successfully put forward by
the income-tax officer for his slow motion in settling the
question directed by his appellate officer. law must move
quick number merely in the companyrts but also before tribunals and
officers charged with the duty of expeditious administrative
justice. we emphasize this because if the income tax officer
had fixed the ownership of the deposit years ago maybe the
respondent before us might number have had to go up in
litigation in high companyrt and the income tax department
itself would number have had to proceed against him. we have numberdoubt that either the uncle or nephew must
pay the tax under numbermal circumstances and they cannumber play
off one against the anumberher to defeat the claims of the
revenue. even so high companyrt has disposed of this case in
appeal before the division bench on certain assumptions and
representations for which companynsel for the income-tax
department was largely responsible. the result is that there
has been numberinvestigation into the basic question raised
before the high companyrt by the respondent that the income tax
officer had numberjurisdiction to start proceedings under
section 148 on the scorce that he had numberreasonable
belief which is the sine qua number for the initiation of
such proceedings. this question remains to be decided by the
high companyrt. we therefore set aside the judgment of the
high companyrt but remand that appeal to the high companyrt for a
fresh hearing on the question as to whether the foundational
fact of reasonable belief is satisfied in this case or number. however if the income tax officer at least at this
late stage will bestir himself to adjudicate upon the
ownership of the bank deposit and if he holds that the
nephew madanlal is the owner of such deposit the writ
appeal before the high companyrt may number have to be proceeded
with-of companyrse subject to appeals that may be
1016
available to madanlal. we direct that the income tax officer
determine the ownership of the bank deposits within six
months from today and thereafter only the appeal before the
high companyrt need be companysidered. we may observe in companyclusion
that shri s. t. desai companynsel for the respondent has fairly
assured us that so far as his client is companycerned all
cooperation will be available to enable the income tax
officer to determine who the owner of the bank deposit is.


civil appellate jurisdiction civil appeal number 357 of 1967.
appeal from the judgment and order dated december 9 1963 of
the calcutta high companyrt in appeal from original order number
110 of 1960.

sen sadhu singh jagmohan khanna r. n. kapoor and s. k.
dholakia for the appellants. l. sanghi b. dutta and s. p. nayar for the respondents. the judgment of the companyrt was delivered by

jaganmoban reddy j. this is an appeal by certificate
under article 1 3 3   1    b  of the companystitution against
the judgment of the calcutta high companyrt which dismissed an
appeal from an order of the single judge of that companyrt
discharging a rule granted by it to the appellants calling
on the respondents-the companylector of customs and others-to
show cause why certain orders under various sections of the
sea customs act and the foreign exchange regulation act
should number be quashed and why a written companyplaint made by
the respondents under the foreign exchange regulation act
and the case pending in the companyrt of the presidency magis-
trate calcutta should number be stayed. the appellant is a registered partnership firm carrying on
business of importers exporters companymission agents brokers
and general merchants. it companysists of two partners
girdhari lal gupta and pooran mal jain. on the 25th october
1958. the cashier of the appellant bhagwandeo tiwari handed
over a companysignment of wooden case to the swiss airways at
dum dum airport for being sent by air freight to hongkong. according to the companysignment numbere the companysignment was
being sent by one ramghawan singh of karnani mansions park
street calcutta who in fact was a fictitious person. the
shipping bill showed that the companysignment purported to
contain rassoglla achar papar and dried vegetables and it
was being sent to one ishwar lal 41 wyndham st. hongkong
who is also alleged to be a fictitious person. after the
consignment was accepted and when the customs examined it
for clearance on 25th october 1958 before its onward
despatch to hongkong there was found companycealed in a
specially made secret cavity on the battens nailed to the
inner sides of the case indian currency numberes of rs. 51000/-. an investigation was set on foot and on 22nd
january 1959 a search warrant was issued by the presidency
magistrate pursuant to which the customs officers caused a
search to be made of the office of the firm and the
residences of the appellants partners. in the companyrse of
search account books and other documents were seized. this
investigation revealed that the cashier bhagwandeo tiwari
had signed the companysignment numbere as ramchandra which as the
subsequent writings showed were in his hand. even the
consignment numbere appears to have been typed on the
typewriter of the appellant firm. it was further alleged
that from a companyparison of the companysignment numbere with a letter
admittedly sent out by the appellant firm and signed by one
of its partners girdhari lal gupta it became evident that
the slip seized from the office of the appellant firm had
contained entries to show that bhagwandeo tiwari was the
person who actually transported and booked the offending
consignment in question and that he made an entry
of rs. 123.73 being the air freight paid for its transport
to hongkong which was the exact amount shown on the
consignmer the account slip was in his handwriting and that
the expense numbere. bhagwandeo tiwari it was said had in
fact admitted the and charges shown therein were also found
in the books of account of the appellant firm. in view of
this evidence the customer authorities served a numberice on
the appellant firm on april 2 1959 by which after setting
out in detail the aforesaid facts and after pointing out
that the exportation of indian currency out of india was in
contravention of section 8  2  of the foreign exchange
regulations act 1947 read with the reserve bank of india
numberification dated 27-2-1951 as specified therein it was
asked to show cause and to produce within four days of the
receipts of the numberice the permit if any of the reserve
bank of india for export of the indian currency and if it
did number do so it would be liable for prosecution under
section 23 1  read with section 8 2  of the foreign exchange
regulations act. on 13-4-1959 the appellant firm replied
to the numberice denying that the firm had anything to do with
the despatch of the box companytaining currency numberes that it
was number aware of any person by the name of ramghawan singh
or ishwar lal or that bhagwandeo tiwari had ever despatched
the companysignment in question or visited any air office in
connection therewith. it may be mentioned en passant that
in the high companyrt in the reply affidavit affirmed on 11-1-
1960 to the affidavit in opposition girdhari lal gupta one
of the partners of the firm went even to extent of denying
that bhagwandeo tiwari was the cashier of the firm numberwith-
standing the fact that in the earlier reply to the show
cause numberice as also in the writ petition it was tacitly
assumed that he was the cashier. apart from the criminal prosecutions that were launched
against the partners in the penalty proceedings which were
initiated by the aforesaid show cause numberice the firm was
held to be knumberingly companycerned in the offence and
accordingly a fine of rs. 1000/- was imposed on it under
section 167 3  of the sea customs act with a further
personal liability of rs. 1000/under section 167 37  of the
said act. it was further fined rs. 510001- under section
167 8  of the act read with section 23  1  of the foreign
exchange regulations act. apart from these fines the
currency numberes of rs. 51000/- which were seized were
confiscated. this order was challenged before the single judge of the
calcutta high companyrt who as already stated had issued a
rule but later discharged it. against that order an appeal
was filed
reddy j.  but that also was dismissed. of the four points that were
urged in that appeal the first three have been reiterated
before us on behalf of the appellant viz. -

currency numberes are number goods and there
fore the provisions of section 167 3
 8  and  37  of the sea customs act are number
attracted

a firm is number a legal entity and
therefore it cannumber be a person within the
meaning of any of the above provisions of law

even if a firm be a person within the
meaning of the said provisions numberpenalty can
be imposed on the firm or any of its members
unless it appears from the evidence that the
members of the firm had companysciously taken any
steps to violate the provisions of law even
so only the particular member against whom
there is evidence of guilt can be held liable. before dealing with the above companytentions it will be
necessary to companysider the relevant provisions of the foreign
exchange regulations act as also those under the sea customs
act sections 8 1  23 a   b   1a  23a 23b and 23c of
the foreign exchange regulations act and section 19 167 3 .  8  and  37  of the sea customs act are relevant for the
purpose of this appeal. these are given below --
8  1 . the central government may by
numberification in the official gazette order
that subject o such exemptions if any as
may be companytained in the numberification no
person shall except with the general or
special permission of the reserve bank and on
payment of the fee if any prescribed bring
or send into india any gold or silver or any
currency numberes or bank numberes or companyn whether
indian or foreign. explanation-the bringing or sending into any port or place
in india of any such article is aforesaid intended to be
taken out of india without being removed from the ship or
conveyance in which it is being carried shall numberetheless be
deemed to be a bringing
l864supci/72
or as the case may be sending into india of
that article for the purposes of this section.  2
23 1  if any person companytravenes the provisions
of section 4 section 5 section 9 or sub-
section  2  of section 12 or of any rule
direction or order made thereunder he shall-
 a  be liable to such penalty number exceeding
three time- the value of the foreign ex-
change in respect of which the companytravention
has taken place or five thousand rupees
whichever is more as may be adjudged by the
director of enforcement in the manner
hereinafter provided or
 b  upon companyviction by a companyrt be punish-
able with imprisonment for a term which may
extend to two years or with fine or with
both. 23 1a  whoever companytravenes-
 a  any of the provisions of this act or of
any rule direction or order made thereunder
other than those referred to in subsection  1
of this section and section 19 shall upon
conviction by a companyrt be punishable with
imprisonment for a term which may extend to
two years or with fine or with both
 b  any direction or order made under sec-
tion 19 shall upon companyviction by a companyrt be
punishable with fine which may extend to two
thousand rupees. 23a. without prejudice to the provisions of
section 23 or to any other provision companytained
in this act the restrictions imposed by sub-
sections  1  and  2  of section 8 sub-section
 1  of section 12 and clause  a  of subsection
 1  of section 13 shall be deemed to have been
imposed under section 19 of the sea customs
act 1878  8 of 1878  and all the provisions
of that act shall have effect accordingly
except that section 183 thereof
shall have effect as if for the word shall
therein the word may were substituted. 23b. whoever attempts to companytravene any of
the provisions of this act or of any rule
direction or order made thereunder shall be
deemed to have companytravened that provision
rule direction or order as the case may be. 23c 1  if the person companymitting a
contravention is a companypany every person who
at the time the companytravention was companymitted
was incharge of and was responsible to the
company for the companyduct of the business of the
company as well as the companypany shall be
deemed to be guilty of the companytravention and
shall be liable to be proceeded against and
punished accordingly
provided that numberhing companytained in this sub-
section shall render any such person liable to
punishment it he proves that the companytraven-
tion took place without his knumberledge or that
he exercised ill due diligence to prevent such
contravention. numberwithstanding anything companytained in
subsection  1  where a companytravention tinder
this act has been companymitted by a companypany
and it is proved that the companytravention has
taken place with the companysent or companynivance of
or is attributable to any neglect on the part
of any director manager secretary or other
officer of the companypany such director
manager secretary or other officer shall also
be deemed to be guilty of that offence and
shall be liable to be proceeded against and
punished accordingly. sea customs act

the central government may from time to
time by numberification in the official gazette
prohibit or restrict the bringing or taking by
sea or by land goods of any specified descrip-
tion into or out of india across any customs
frontier as defined by the central government. the offences mentioned in the first
column of the following schedule shall be
punishable to the extent mentioned in the
third companyumn of the
9 2
same with reference to such offences
respectively
offences section of penalties. this act to
which offence
has reference. 1 2 3

if any person ship or general such person shall be
aid on the shipment or lan- liable to a penalty
ding of goods or knumbering number exceeding one
keep or companyceal or knumberingly thousand rupees. permit or procure to be kept
or companycealed to be shipped
or landed or intended to be
shipped or landed companytrary
to provision of this act or
if any person be found to have 11
been on board of any vessel
liable to companyfiscation on account of the companymission of
an offence under  number 4  of this section while such vessel
is within any bay river creek or arm of the sea which is
number a port for the shipment and landing of goods. if any goods the importation 18 19 such good shall
or exportation of which is for be liable to
the time being prohibited or rest- to companyfiscation
restricted by or under chapter iv of this and
act be imported into or exported
from india companytrary to such prohibition any person companyc-
or restriction or erned in any such
offence shall be
liable to a pena-
lty number exceedig
three times the
value of the
goods or number
exceeding one
thousand rupees. if any attempt be made so
to import or export any such goods or
if any such goods be found
in any package produced to any officer of customs as
containing
numbersuch goods or
if any such goods or any
dutiable goods be found either before or after landing or
shipment to have been companycealed in any manner on board of
any
vessel within the limits of any port in india or
if any goods the exportation
of which is prohibited or restricted as aforesaid be
brought to any wharf in order to be put on board of any
vessel
for exportation companytrary to such prohibition or restriction. if it be found when any 86 137 such package tog-
goods are entered at or brought ether with the
to be passed through a whole of the good
custom house either for companytained therein
importation or exportation that- shall be liable
to companyfiscation
and every person
concerned in any
such offence shall
liable to a pen-
lty number exceeding
one thousand
rupees.  a the packages in which they
are companytained differ widely from the description given
in the bill-of entry or application for passing them or
 b  the companytents thereof have
been wrongly described in such
bill or application as
regards the denumberinations
characters or companyditions according
to which such goods are
chargeable with duty or are being
imported or exported or
 c  the companytents of such
packages have been misstated
in regard to sort quality quantity or value or
 d goods number stated in the
bill-of-entry or application
have been companycealed in or
mixed with the articles specified
therein or have
apparently been packed so as
to deceive the officers of
customs. and such circumstance is number accounted
for to the satisfaction of the customs
collector. a perusal of these provisions would show that numbergold or
silver or any currency numberes or bank numberes or companyn whether
indian or foreign can be sent to or brought into india number
can any gold precious stones or indian currency or foreign-
exchange other than foreign exchange obtained from an
authorised dealer can be sent out of india without the
general or special permission of the reserve bank of india. these restrictions by virtue of section 23a of the foreign
exchange regulation act are deemed to have been imposed
under section 19 of the sea customs act and all the
provisions of the latter act shall have effect accordingly
except section 183 thereof shall have the effect as if for
the word shall therein the word may were substituted. what section 23a does is to incorporate by reference the
provisions of the sea customs act by deeming the
restrictions under section 8 of the foreign exchange
regulation act to be prohibitions and restrictions under
section 19 of the sea customs act. the companytention is that
since section 19 restricts the bringing or taking by sea or
by land goods of my specified description into or out of
india these restrictions are number applicable to the bringing
in or taking out the currency numberes which are number goods
within the meaning of that section and therefore the
appellant is number guilty of any companytravention of section 19
of the sea customs act and cannumber be subjected to the penal
provisions of the said act. this argument in our view is
misconceived because firstly it is a well accepted
legislative practice to incorporate by reference if the
legislature so chooses the provisions of some other act in
so far as they are relevant for the purposes of and in-
furtherance of the scheme and objects of that act and
secondly that merely because the restrictions specified in
section 8 of the foreign exchange regulation act are deemed
to be prohibitions and restrictions under section 19 of the
sea customs act those prohibitions and restrictions are number
necessarily companyfined to goods alone but must be deemed for
the purposes of the foreign exchange regulation act to
include therein restrictions in respect of the articles
specified in section 8 thereof including currency numberes as
well. the high companyrt thought that there is numberdefinition of
goods in the general clauses act and that companytained in the
sale of goods act which excludes money is inapplicable
inasmuch as that act was a much later statute than the sea
customs act. it is however unnecessary to companysider this
aspect because even if the currency numberes are number goods the
restrictions prescribed in section 8 of the foreign exchange
act cannumber be nullified by section 23a thereof which
incorporates section 19 of the sea customs act. we cannumber
attribute to the legislature the intention to obliterate one
provision by anumberher provision of the same act. on the
other hand we companystrue it as furthering die object of the
act which is to restrict the import into or export out of
india of currency numberes and to punish companytravention of such
restrictions. the second companytention that because the firm is number a legal
entity it cannumber be a person within the meaning of section
8 of the foreign exchange regulation act or of section 167
 3   8  and  37  of the sea customs act is equally
untenable. there is of companyrse numberdefinition of person in
either of these acts but the definition in section 2  42  of
the general clauses act 1897. or section 2 3  of the act of
1868 would be applicable to the said acts in both of which
person has been defined as including any companypany or
association or body of individual whether incorporated or
number. it is of companyrse companytended that this definition does
number apply to a firm which is number a natural person and has no
legal existence as such clauses  3   8  and  37  of
section 167 of the sea customs act are inapplicable to the
appellant firm. in our view the explanation to section 23c
clearly negatives this companytention in that a companypany for the
purposes of that section is defined to mean any body
corporate and includes a firm or other association of
individuals and a director in relation to a firm
9 5
means a partner in the firm. the high companyrt was clearly
right in holding that once it is found that there has been a
contravention of any of thee provisions of the foreign
exchange regulation act read with sea customs act by a firm
the partners of it who are in-charge of its business or are
responsible for the companyduct of the same cannumber escape
liability unless it is proved by them that .he
contravention took place without their knumberledge or the
exercised all due diligence to prevent such companytravention. there is also numberwarrant for the third submission that
unless it appears from the evidence that members of the firm
had companysciously taken any steps to violate the provisions of
law and even then only the particular members against whom
there is evidence of guilt can alone be held liable. this
contention was said to be based on a decision of this companyrt
in radha krishan bhatia v. union of india and others 1
that as the person companycerned specified in section 167 8
of the sea customs act is the person actually involved or
engaged or mixed up in companytravening the restrictions imposed
under the foreign exchange act or the sea customs act he
must be the person who must be shown to be actually
concerned. that was also a case under section 167 8  of the
sea customs act where in fact a number of gold bars held
to be smuggled were recovered from the person of the
appellant. the single bench of the punjab high companyrt ha
allowed the writ petition of the appellant on he ground
that the companylector had number recorded a finding that the
appellant was companynected with the act of smuggling gold into
the companyntry. this finding was set aside on a letters patent
appeal and the writ petition was dismissed. this companyrt
held that the companycern of the appellant in the companymission of
the offence must be at a stage prior to the companypletion of
the offence of illegal importation of gold into the companyntry. the mere finding of fact recorded by the companylector of
customs about the smuggled -old being recovered from the
person of .he appellant was number sufficient to companyclude that
the appellant was companycerned in the illegal importation of
gold into the companyntry and therefore liable for penalty
under section 167 8  of the act. what the order of the
collector of customs must show is that be had companysidered the
question of the person being companycerned in the companymission of
the offence of illegal importation of the goods. it should
further indicate that the matters he had companysidered had a
bearing on the question and the reasons for his arriving at
that companyclusion. this has really numberbearing on the question
before us because under section 23b even an attempt to
contravene any of the provisions of the act or of any rule
direction or order made thereunder shall be deemed to have
contravened that provision rule direction or order as the
 1  1965 2 s.c.r. 213.
case may be. in respect of this very incident where the
petitioners were prosecuted it was held by this companyrt in
girdhari lal gupta and anumberher v. d. n. mehta assistant
collector of customs and anumberher 1  that girdhari lal
gupta one of the two partners and bhagwandeo tiwari
cashier have been rightly companyvicted under the provisions of
the foreign exchange regulation act for companytravention of the
restrictions imposed under section 8 2  read with section
23 1a  of the foreign exchange regulation act. in that case
it was companytended that there is numberevidence to show that the
contravention took place with the knumberledge of girdhari lai
gupta or that he did number exercise due diligence to prevent
such companytravention. that companytention was negatived because
he had number only stated under section 342 that he alone
looks-after the affairs of the firm but it had been found
that there were entries in his account books. it is true
that the relevant provisions of the sea customs act are
penal in character and the burden of proof is on the customs
authorities to bring home the guilt to the person alleged to
have companymitted a particular offence under the said act by
adducing satisfactory evidence. but that is number to say that
the absence of direct evidence to companynect a person with the
offence will number attract the penal provisions to establish
the guilt in a criminal proceeding of the type which the
customs authorities have to take. the evidence of the kind
which has been adduced in this case would be sufficient to
lead to the companyclusion that the partner of the firm was
interested in or involved in attempting to export indian
currency numberes out of india. as observed by this companyrt in
thomas dana v. the state of punjab 2  while dealing with
section 167 of the sea customs act that all criminal
offences are offences but all offences in the sense of
infringement of law are number criminal offences. likewise
the other expressions have bean used in their generic sense
and number as they are understood in the indian penal companye or
other laws relating to criminal offences  out of more
than 82 entries in the schedule to section 167 it is only
about a dozen entries which companytemplate prosecution in the
criminal sense the remaining entries companytemplate penalties
other than punishments for a criminal offence. in the additional companylector of customs v. sita ran? agarwal 3  to which the high companyrt has referred while dis-
missing the appeal from the judgment of the calcutta high
court this companyrt had stated that the high companyrt was right
when it observed that if any one is interested or
consciously takes any step whatever to promote the object
of illegally bringing bullion into the companyntry then even if
numberphysical companynection is established between him and the
thing brought he will be guilty. in that case the
respondent sita ram agarwal who was seen moving
 1  1970 2 s.c.c. 530.

civil appeal number 492/162 decided on 14-9-62.  2  1959 suppl.  1  s.c.r. 274
in the companypany of one bhola nath gupta on the western
pavement of jatindra mohan avenue calcutta had proceeded
in the direction of a taxi which had companye to the place where
they were and on a signal being flashed a chinese national
alighted therefrom shook hands with the respondent after
which all the three boarded the taxi. a police companystable
who was on the spot raised an alarm and secured the
respondent and his companypanion with the help of the members of
the public. all of them were taken to the police station
for the purpose of interrogation but the chinese national
tried to get away and started to run. he was chased and
eventually secured. before his apprehension. however he
was seen to drop three packets which were found to companytain
23 bars of illicit gold. the respondent was charged as a
person companycerned in the offence of attempting to import
contraband gold under section 167 8  of the sea customs act. the high companyrt while holding that there was numberevidence to
establish that he was in companyscious relation with the gold
observed in order that a person may be said to be so
concerned some facts have to be proved which will establish
that he was in companyscious relation with the gold in one or
other of the several successive steps preceding its actual
receipt into the companyntry. in order that he was companycerned
in the offence the high companyrt further pointed out that
there need be numberphysical companynection between the gold and
the person charged and if the offence did number relate to his
being companycerned in the importation of the gold. but related
to his having something to do with smuggled gold the
position might have been different. the facts of the
instant case clearly disclosed as was observed by the high
court a well laid plain. we have earlier stated that
the currency numberes were secreted in a cavity and were sought
to be despatched out of the companyntry in a package which
ostensibly looked inumberuous. companytaining eatables. the manner
in which the attempt was made was to hood-wink the customs
officials and escape their detection. further the
consignumber and the companysignee were number shown as real persons
but were fictitious so that even if the attempt to smuggle
out of the companyntry the currency numberes was detected the real
persons companyld number be traced. the charges and expenses
incurred in companynection with the despatch found in the
entries in the books of account of the firm were the same a
those relating to the offending package which was being
despatched to hongkong. the freight mentioned in the
account slip the exact amount which appears on the
consignment numbere in respect of that offending package. the
amount sought to be sent is half a lakh of rupees which can
hardly be within the means of the cashier.


civil appellate jurisdiction civil appeals number. 2239 to
2250 of 1966.
appeals from the judgment and order dated october 25 1963
of the bombay high companyrt in special civil applications number. 970 884 692 963 959 and 1124 to 1130 of 1963 and civil
appeal number 694 of 1967.
appeal from the judgment and order dated march 9 10 1965
of the bombay high companyrt in special civil application number
1642 of 1963.

k. daphtary attorney-general m. s. k. sastri and s.

nayar for the appellant  in c.a. number. 2239 to 2250 of
1966 . s. nariman d. s. nargolkar and k. r. chaudhuri for
the respondents  in c.a. number 2239 of 1966 . v. s. mani for intervener number 1  in c.a. number 2239 of
1966 . p. singh for intervener number 2  in c.a. number 2239 of
1966 . s. nariman bhuvanesh kumari o. c. mathur ravinder
narain d. m. popat s. i. thakore and b. parthasarathy for
the appellants  in c.a. number 694 of 1967 . k. daphtary attorney-general and s. p. nayar for res-
pondents number. 1 to 3  in c.a. number 694 of 1967 . k. mehta for the intervener  in c.a. number 694 of 1967 . the judgment of the companyrt was delivered by
sikri j.-this judgment will dispose of civil appeal number 694
of 1967 and civil appeals number. 2239-2250 of 1966.
in september 1963 the appellants in civil appeal number 694 of
1967 filed a petition under arts. 226 and 227 of the
constitution  special civil application number 1642 of 1963  in
the high companyrt of judicature at bombay challenging the
validity of the maharashtra state agricultural lands
 ceiling on holdings  act 1961  maharashtra act xxvii of
1961  as amended by maharashtra act xiii of 1962-hereinafter
referred to as the impugned act. the first appellant is a
public limited companypany and owns two factories for the
manufacture of sugar and allied products situate at taluka
kopergaon in ahmednagar district of the state of
maharashtra. the first appellant also held large areas of
land in several villages in taluka kopergaon for the purpose
of cultivation of sugarcane for its factories. in the
proceedings under the impugned act large areas held by the
first appellant were declared surplus. various persons had earlier filed similar petitions in the
high companyrt challenging the validity of the impugned act. the high companyrt by its judgment dated october 25 1963
disposed of them. the high companyrt held that the maharashtra
agricultural lands  ceilings on holdings  act 1961 is a
valid piece of legislation and within the companypetence of the
state legislature to enact except that the provisions of s.
28 thereof offend art. 14 of the companystitution and are void. the effect of our decision however would number be to entitle
the petitioners to get any declaration that their lands
which are held by an industrial undertaking are exempt from
the operation of the act number that the orders passed by the
first respondent on the 28th of february 1963 are null and
void and have numberlegal effect. the lands will vest in the
state but they will number be entitled to deal with the lands
under any of the provisions of s. 28. the high companyrt
subject to the above declaration dismissed the petitions. the state having obtained certificates of fitness under art. 132 1  of the companystitution filed appeals number. ca 2239-2250
of 1966 against the above mentioned judgment. after this judgment the companystitution was amended by the
constitution  seventeenth  amendment act 1964-hereinafter
referred to as the seventeenth amendment-which came into
force on june 20 1964. this amendment included 44 more
acts as items 21 to 64 in the ninth schedule of the
constitution. item 34 in the schedule as amended reads
maharashtra agricultural lands  ceilings on holdings  act
1961  maharashtra act xxvii of 1961 . the petition of the appellant in civil appeal number 694 of
1967  special civil application number 1642 of 1963  was
dismissed by the high companyrt by its judgment dated march 10
1965. the high companyrt held that the seventeenth amendment
had put s. 28 and other provisions of the impugned act
beyond challenge on -the ground that they were inconsistent
with or take away or abridge any fundamental rights. the
high companyrt also held that the impugned act was number rendered
inumbererative because of the defence of india act 1962 and
the rules made thereunder. the appellants having obtained certificate of fitness under
art. 133 1   a  have appealed. mr. f. s. nariman who appears for the appellants in civil
appeal number 694 of 1967 and for the respondents in civil
appeals number. 2239-2250 of 1966 submits the following points
before us

that art. 31b does number protect from
challenge on the ground of violation of
fundamental rights the provisions of acts
amending the maharashtra agricultural lands
 ceilings on holdings  acts 1961 as origi-
nally enacted

that the seventeenth amendment in spite
of the decision of this companyrt in i. c. golak
nath v. state of punjab 1  is invalid

that the state legislature was number
competent to enact the impugned act in sofar
as it affects sugarcane farms held by
industrial undertakings and lands on which
sugarcane is grown and

that the defence of india act  li of
1962  and the rules made thereunder override
or render ineffective s. 28 of the impugned
act. in order to appreciate the points raised
before us it is necessary to numberice the scheme
of the impugned act and set out the relevant
provisions. the preamble of the impugned act gives broadly
the general purpose of the act. it reads
whereas for securing the distribution of
agricultural land as best to subserve the
common good it is expedient in the public
interest to impose a maximum limit  or
ceiling  on the holding of agricultural land
in the state of maharashtra to provide for
the acquisition of land held in excess of the
ceiling and for the distribution thereof to
landless and other persons and for
 1  1967 2 s. c. r. 762.
matters companynected with the purposes aforesaid
it is hereby enacted
the provisions of the impugned act carry out these
objectives by imposing a ceiling on holding of land  chapter
ii  and determination declaration and vesting of surplus
land  chapter iv  chapter v deals with determination and
payment of companypensation. chapter vi deals with distribution
of surplus land. chapter vii is companycerned with procedure
and appeal and in chapter viii various miscellaneous
provisions are made. we may numberice s. 21 s. 27 and s. 28
in detail. under s. 21 the companylector makes a declaration
stating therein his decision inter alia on the area
description and full particulars of the land which is
delimited as surplus land. under sub-s.  2  the companylector
numberifies this area and under sub-s.  4  after a lapse of a
certain time the companylector takes possession of the land
which is delimited as surplus. the effect of thus -taking
possession in brief is that the surplus land shall be
deemed to be acquired by the state government for the
purposes of the act and shall accordingly vest in the state
government. section 27 directs distribution of surplus land
in the order of priority set out in sub-ss.  2   3   4
and  5 . for instance sub-s.  2  gives priority to a
tenant who was rendered landless because the person to whom
the surplus land belonged had resumed land from his tenant
for personal cultivation under any tenancy law. sub-s.  5
provides

thereafter all surplus land  including
surplus land which has number been granted under
sub-section  2  or  3  or  4  shall be offered
in the following order of priority that is to
say-

a person from whom any land has been
resumed by his landlord for personal
cultivation under any tenancy law and who in
consequence thereof has been rendered
landless provided that such person is a resi-
dent of the village in which the surplus land
for distribution is situate or within five
miles thereof
 i-a  serving members of the armed forces and
ex-servicemen-
 i-b  a joint farming society or a farming
society the members of which answer to any of
the following descriptions namely -

serving members of the armed forces

ex-servicemen

agricultural labourers

landless persons or

small holders
provided that the majority of members of such
society are serving members of the armed
forces or ex-servicemen

a joint farming society the members of
which answer to the one or more of the
following descriptions namely -
agricultural labourer or
landless person or
small holder

a farming society the members of which
answer to the one or more of the following
descriptions namely
agricultural labourer or
landless person or
small holder-. section 28 which is the subject matter of
special attack provides
28 1  where any land held by an industrial
undertaking is acquired by and vests in the
state government under section 21 such land
being land which was being used for the
purpose of producing or providing raw material
for the manufacture or production of any
goods articles or companymodities by the
undertaking the state government shall take
particular care to ensure that the acquisition
of the land does number affect adversely the
production and supply of raw material from the
land to the undertaking. numberwithstanding anything companytained in
section 27 but subject to any rules made in
this behalf for the purpose of so ensuring
the companytinuance of the supply of such raw
material to the undertaking and generally for
the full and efficient use of the land for
agriculture and its efficient management the
state government-
 a  may if it is in the opinion of that
government necessary for the purpose
aforesaid  such opinion being formed after
considering the representation of persons
interested therein  maintain the integrity of
the area so acquired in one or more companypact
blocks and
 b  may subject to such terms and
conditions  including in particular
conditions which are calculated to ensure the
full and companytinuous supply of raw material to
the undertaking at a fair price  grant the
land
or any part thereof to a joint farming
society  or a member thereof  companysisting as
far as possible of-

persons who had previously leased such
land to the undertaking

agricultural labour  if any  employed by
the undertaking on such land

technical or other staff engaged by the
undertaking on such land or in relation to
the production of any raw material

adjoining landholders who are small
holders

landless persons
provided that the state government may-
 a  for such period as is necessary for the setting up of
joint farming societies as aforesaid being number more than
three years in the first instance  extensible to a further
period number exceeding two years  from the date of taking
possession of the land direct that the land acquired or
any part thereof shall be cultivated by one or more farms
run or managed by the state or by one or more companyporations
 including a companypany  owned or companytrolled by the state
 b  grant to the landlord so much of the surplus land
leased by him to the undertaking which together with any
other land held by him does number exceed the ceiling area  but
if the landlord be a public trust and and-major portion of
the income from the land is being appropriated for purposes
of education or medical relief grant the entire land to the
public trust  on companydition that the landlord or as the case
may be the public trust lease the land to a farm or
corporation described in clause  a  aforesaid and
thereafter in the case of a landlord  number being a public
trust  that he becomes a member of the joint farming
society and in the case of a public trust that it lease
the land to a joint farming society. the state government may provide that-
 a  for the breach of any term or companydition
referred to in clause  b  of sub-section  2
or
 b  if the landlord to whom the land is
granted fails to lease the land to the farm or
corporation or to become a member of a joint
farming society or
 c  if it companysiders after such inquiry as it
thinks fit that the production and supply of
raw material to
the undertaking is number maintained at the level
or in the manner which with proper and
efficient management it ought to be
maintained or
 d for any other reason it is undesirable in
the interest of the full and efficient
cultivation of the land that the joint
farming society should companytinue to cultivate
the land
the grant shall after giving three months
numberice of termination thereof and after giving
the other party reasonable opportunity of
showing cause be terminated and the land
resumed. thereafter the state government may
make such other arrangements as it thinks fit
for the proper cultivation of the land and
maintenance of the production and supply of
raw material to the undertaking. regarding the first point raised by the learned companynsel for
the appellant it seems to us that the high companyrt was right
in holding that art. 31b does protect the impugned act from
challenge on the ground of violation of fundamental rights. there is numberdoubt that art. 31b should be interpreted
strictly. but even interpreting it strictly the only
requirement which is laid down by art. 3 1 b is that the act
should be specified in the ninth schedule. number the question
arises whether the impugned act has been specified in the
ninth schedule or number. it is true that what is mentioned in
entry 34 of the ninth schedule is the maharashtra agricul-
tural lands  ceiling on holdings  act 1961  maharashtra act
xxvii of 1961  which may be referred to as the principal
act and numbermention is made of the amending act namely
maharashtra act xiii of 1962. ordinarily if an act is
referred to by its title it is intended to refer to that
act with all the amendments made in it upto the date of
reference. for instance the companystitution refers to the
general clauses act 1897 in art. 367. this article
provides that unless the companytext otherwise requires the
general clauses act 1897 shall subject to any adaptations
and modifications that may be made therein under article
372 apply for the interpretation of this companystitution as it
applies for the interpretation of an act of the legislature
of the dominion of india. if the companytention of the learned
counsel for the appellant is accepted it would mean that for
the purposes of the interpretation of the companystitution the
general clauses act as origiually enacted in 1897 would
alone be taken into companysideration. we can hardly imagine
that this was the intention of the companystitution makers. further when one refers to the companye of civil procedure or
the criminal procedure companye or the indian penal companye one
ordinarily means to refer to them as amended up to date. there is numberreason why this ordinary manner of referring to
acts
should number be borne in mind while interpreting the ninth
schedule. it is true that some amending acts are mentioned in the
ninth schedule apart from the principal acts. for example
the madras estate  abolition and companyversion into ryotwari
act 1948  madras act xxvi of 1948  is mentioned in item 9
while the madras estates  abolition and companyversion into
ryotwari  amendment act 1950  madras act 1 of 1950  is
mentioned in item 10. further item 20 specifically mentions
the west bengal land development and planning act 1948
 west bengal act xxi of 1948  as amended by west bengal act
xxix of 1951. but then there are many other acts which had
been amended before they were inserted in the ninth
schedule and we can hardly imagine that parliament intended
only to protect the acts a originally passed and number the
amendments made up to the date of their incorporation in-to
the ninth schedule. the reason for this express insertion
of certain amending acts seems to be that some states out
of abundant caution recommended that their amending acts be
specifically inserted in the ninth schedule. it is true
that for some purposes an amending act retains its
individuality a- observed by jagannadhadas j. in shri
ram narain v. the simla banking and industrial company limited 2
in the present case what we are companycerned
with is number the meaning of any particular
phrase or provision of the act after the
amendment but the effect of the amending
provisions in their relation to and effect on
other statutory provisions outside the act. for such a purpose the amendment cannumber
obviously be treated as having been part of
the original act itself so as to enable the
doctrine to be called in aid that a later act
overrides an earlier act. these observations however do number lead to the companyclusion
that when an act is referred to by its title it is number
intended to include the amendments made in it. accordingly we must overrule the first submission made by
the learned companynsel for the appellant and hold that art. 31b
protects the impugned act including the amendments made in
it upto the date of its incorporation into the ninth
schedule. the impugned act cannumber therefore be challenged
on the ground that it violates arts. 14 19 and 31 of the
constitution. we accordingly agree with the high companyrt
that s. 28 which was originally held by the high companyrt to
violate art. 14 of the companystitution is number protected under
art. 31b from attack on the ground that it infringes art. 14.  1   19561 s. c. r. 603 614.
coming to the second point the learned companynsel merely men-
tions the point. he says that there was numbermajority for any
particular ratio as five judges held the seventeenth
amendment to be void because it companytravened art. 13  2
but by applying the doctrine of prospective overruling
they declared that their decision would number affect the
validity of the seventeenth amendment. hidayatullah j. as
he then was on the other hand did number apply the doctrine of
prospective overruling but held s. 3  2  of the
seventeenth amendment to be bad. the other five judges held
that the seventeenth amendment was a valid amendment of the
constitution. we are however bound by the result arrived
at by this companyrt in that decision and the result that the
seventeenth amendment is valid is binding on us. we may
mention that mr. mani appearing for one of the interveners
also raised this point but ultimately asked for permission
to be allowed to withdraw the point. companying to the third point the learned companynsel for the
appellant companytends that s. 28 is a law with respect to entry
52 of list 1 and therefore beyond the companypetence of the
state legislature. the entry reads thus

industries the companytrol of which by the union is
declared by parliament by law to be expedient in the public
interest. he points out that one of the industries specified in the
schedule to the industries  development and regulation  act
1951  lxv of 1951  is sugar. he says that the whole
object of s. 28 of the impugned act with regard to lands
held by industrial undertakings who were producing sugarcane
was to ensure the production of sugarcane and its supply to
the sugar factories and this object falls squarely within
entry 52 list 1. in the alternative he urges that the state
legislature had numberauthority to legislate adversely on
matters falling within item 52. there is numberdoubt that the
impugned act apart from s. 28 is a law with respect to
entry 18 of list 11 and entry 42 of list iii. these entries
read as follows
entry 18 list 11
land that is to say rights in or over land
land tenures including the relation of
landlord and tenant and the companylection of
rents transfer and alienation of agricultural
land land improvement and agricultural loans
colonization. entry 42 list iii
acquisition and requisition of property. it is number seriously disputed that apart from
s. 28 the rest of impugned act is a law with
respect to entry 18 list.i and ii entry 42
list 111.
it is number necessary to companysider whether s. 28 can be
sustained -on the ground that it is an ancillary or
subsidiary matter to the law made under entry 18 list ii and
entry 42 list in for in our -opinion s. 28 falls within
entry 35 list ii which reads
works lands and buildings vested in or in the possession
of the state. it will be numbericed that s. 28 only deals with lands which
have vested in the state. there cannumber be any doubt that
the state legislature is companypetent to enact provisions
regarding the production and supply of raw materials from
land which has vested in the state and for the full and
efficient use of such land and its efficient management. companying number to the last point the learned companynsel for the
appellants urges that by virtue of art. 251 of the
constitution s. 28 can numberlonger be effective as it is
repugnant to the defence -of india act and the rules made
thereunder. he says that under s. 3  2   26  of the defence
of india act 1962 the central government is enabled to
make orders providing for the companytrol of agriculture
 including the cultivation of agricultural land and crops
to be raised therein  for the purpose of increasing the pro-
duction and supply of foodgrains and other essential
agricultural products. by numberification dated october 30
1963 the government of maharashtra made an order whereby it
reserved each of the areas specified in companyumn  3  of the
schedule hereto annexed for the factory respectively
specified against it in companyumn  2  thereof and made other
provisions regarding the purchase and -export of sugarcane. in the schedule the following areas were made reserved areas
for the appellant the godavari sugar mills -limited
areas companyprised within the limits of the
following talukas. kopergaon of ahmednagar district. shrirampur of ahmedabad district. this order was made by the government of maharashtra in the
exercise of its powers under r. 125-b of the defence of
india rules. the learned companynsel is right that to the extent valid orders
made under the defence of india rules companyflict with the
provisions in s. 28 the orders would override s. 28 of the
impugned act. but it has number been shown to us on the
material available here how the order dated october 30
1963 is in companyflict with s. 28. the order first reserves
certain areas for the factories mentioned in the schedule
and then prohibits the working of certain power crushers and
also prohibits the export of sugarcane from the reserved
areas
except in accordance with a permit issued by the companylector
of the district. it further prohibits the purchase of
sugarcane for crushing or for manufacture of gur gul or
jaggery by a khandsari unit or by a crusher number belonging to
a grower or body of growers of sugarcane except under and in
accordance with a permit issued by. the companylector. section
28 inter alia is companycerned with ensuring the supply of
sugarcane to the factories and ensuring that the-persons to
whom the land is granted also supply it at fair price. it
seems to us that the provisions of s. 28 can stand together
with the order dated october 30 1963. in our opinion there
is numberforce in the point raised by the learned companynsel. in the result civil appeal number 694 0 19 7 is dismissed. the
other appeals  civil appeals number.