civil appellate jurisdiction civil appeals
number. 928 and 929 of 1975.  from the judgment and order dated 8-10-1974 of the
allahabad high companyrt in civil writ number. 2169 and
2276 of 1974 . s. nariman d.n. misra and o.c. mathur for the
appellant. c. manchanda and o.p. rana for the respondents. arguments
appellants

civil appeal number 928 of 1975.--in this appeal
three questions arise for determination

whether in the facts and circumstances of
the case the proviso to s. 9 1  of the central
sales tax act 1956 was applicable so as to enable
the state of uttar pradesh to levy and companylect
central sales tax in respect of the subsequent
sales of companyl effected by the appellants to companysum-
ers in the state of u.p. ? whether the sales tax officer moradabad
had numberjurisdiction to rectify the assessment for
the year 1966-67 as there was numbererror apparent
on the face of the record of the original assess-
ment  s. 22 of the u.p. sales tax act 1948 ? whether the order of rectification
passed under s. 22 of the u.p. sales tax act on
26th march 1974  for the assessment year 1966-67
and companymunicated to the appellants on 31st march
1974 was barred by limitation as it companyld number be
said to be within. three years from the date of
the original assessment order dated the 27th
march 1971 ? ii. re whether in the facts and circumstances of the case
the proviso to section 9 1  of the central sales tax act
1956 was applicable so as to enable the state of uttar
pradesh to levy and companylect central
sales tax in respect of the subsequent sates of companyl ef-
fected by the appellants to companysumers in the state of u.p. ? the proviso to s. 9 1  of the central sales tax
act 1956 does number apply either ---

to subsequent sales  in the companyrse of
inter-state trade or companymerce  of declared
goods--i.e. goods declared in s. 14 to be of spe-
cial importance in inter-state trade or companymerce
or

to sale of goods to persons other than
registered dealers

the argument in support of the submission that
the proviso to s. 9 1   does number apply to declared
goods is as follows --
section 8 1  and 8 2  of the central sales tax
act 1956 deals separately with two types of goods
namely  i  goods of the description referred to in
sub-section 3  see s. 8 1  b  and  ii  declared
goods see s. 8 2  a . the rates of tax for the
two types of goods have been and are differently
prescribed in sub-s.  1  and sub-s.  2  of s.
8---especially since the amending act viii of 1963.
the expression goods of the description referred
to in sub-section  3  in s. 8 1  originally in-
cluded declared goods intended for re-sale see s.
8 3  a  as originally enacted in the central
sales tax act 1956  reproduced in chaturvedis
central sales tax act 4th .edition p. 548 . sub-
section  3  of s. 8 then read as follows

the goods referred to in sub-section  1 --
 a  in the case of declared goods are goods
of the class or classes specified in the certifi-
cate of registration of the registered dealer
purchasing the goods as being intended for resale
by him and
 b  in any other case are goods of the class
or classes specified in the certificate of regis-
tration of the registered dealer purchasing the
goods as being intended for re-sale by him or for
use by him in the manufacture of goods for sale or
for use by him in the execution of any companytract
and in either case include the companytainers or other
materials used for the packing of goods of the
class or classes of goods so specified. by the amending act viii of 1963  which raised the rate
of tax under s. 8 1  to 2 per cent  clause  a  of s. 8 3
stood deleted. the effect of this deletion was
that since 1963.declared goods fell outside the purview of
s. 8 3  section 8 4  only applies to sales of goods of the
description referred to in sub-s.  3  since the provisions
of that sub-section have express reference to the provisions
of s. 8  1  . for the proviso to s. 9  1   being applicable
it is necessary that the registered dealer effecting the
subsequent sale obtained or companyld have obtained the form
prescribed in s. 8 4  a --i.e. form c prescribed under rr. 12 and 13 of the central sales tax  registration and turn-
over  rules 1957  see pages 25 and 27 of chaturvedis
central sales tax act fourth edition . in the present case the appellants neither obtained number
could have obtained form c from .their purchaser since s.
8 4  read with s. 8 1  and  3  did number  after 1963
apply to declared goods. it is submitted that to accept the arguments urged on
behalf of the respondents that s. 8 4  a  read with s.
8 1  and  3  dealt with declared goods as well would be
to give numbermeaning to the provisions companytained in s. 8 2 . besides as held by their lordships in state of tamil nadu

sitalakshmi mills others c 1974 4 s.c.c. 408 at 412
para 6  s. 8 deals with three different classes of cases-
declared goods do number fall within the class mentioned in s.
8   1  . the argument that the charging s. 6 does number make any
differentiation between declared and undeclared goods is of
numberavail. section 6 1  itself companymences with the words
subject to the other provisions companytained in this
act  . if the effect of any other provision is
to take away liability to pay sales tax effect would have
to be given to that other provision numberwithstanding the
charging section see state of mysore v. l. setty 16 s.t.c. 231239  s.c. . declared goods are clearly intended by the
framers of central tax act 1956 to receive preferential
treatment number only in respect of local sales tax on local
sales  see s. 15  but also central sales tax in sales
effected during the companyrse of inter-state trade or companymerce
see s. 8 2 . even assuming that s. 8 4  a  read with s. 8 1  and  3
include within its purview declared goods the proviso
to s. 9 1  is still inapplicable for the following reason
--
for the proviso to s. 9 1  to be applicable and. for the state of u.p. to have jurisdiction to levy
and companylect the central sales tax on subsequent
sales it is necessary that the registered dealer
effecting the subsequent sales  by endorsement of
documents of title like railway receipt during the
course of the movement of the goods from one state
to anumberher  either obtained or as the case may be
could have obtained the form prescribed. in s.
8 4  a  in companynection with the purchase of such
goods involved in the subsequent sale. such a
form companyld only be obtained under s. 8 4  a  from
the appellants purchasers if the appellants sales
were to be a registered dealer see s. 8 1
 b . admittedly in the present case the
appellants though registered dealer for the rele-
vant year in question did number sell companyl to any
registered dealer see the averments in para 11 of
the writ petition page 62 vol. 2 which have number
been denied in the affidavit in reply  para 8
page 109 vol. 2. therefore even assuming that
the provisions of s. 8 4  a  read with s. 8 1  and
 3  were applicable to declared goods  even after
the amending act viii of 1963  the sales result-
ing in the turnumberer of rs. 559172.38 number being to
registered dealers the provisions of s. 8 1  b
were number attracted. companysequently the form pre-
scribed under s. 8 4  a --form c---could number have
been obtained by the appellants purchaser from the
prescribed authority. companysequently the appel-
lants companyld number obtain from their purchaser such
form under s. 2 4  a . accordingly the last part
of the proviso to s. 9 1  number being satisfied the
state of u.p. had number jurisdiction to levy and
collect central sales tax from the appellants. iii. re whether the sales tax officer moradabad had no
jurisdiction to rectify the assessment for the year 1966-67
as there was numbererror apparent on the face of the record of
the original assessment  section 22  of the u.p. sales tax
act 1948  ? it has been stated in the order of rectification dated
the 26th march 1974 passed under s. 22 of the u.p. sales
tax act 1948 that  page 96 vol. 2
in the present case of the assessee tiffs
error is apparent because if this fact that it was
registered under the central sales tax act had been
placed before the honble allahabad high companyrt in
the case of karam chand thapar bros.  companyl sales
ltd. moradabad for the year 1965-66 the decision
would have been against them as have been happened
in the above mentioned two cases.  the error apparent on the face of the record which is a
condition precedent to invoking the rectification provision
 s. 22  is that the appellants were treated as unregistered
dealers by the high companyrt in the decision for the earlier
assessment year 1965-66  the judgment of the hi h companyrt has
been extracted at pages 71--78 of vol. 2. but in s. 22 the
error has to be an error apparent on the face of the re-
cord of the assessment--i.e. for the assessment year 1966-

this assessment order is dated 27th march 1971 and a
copy of it is at pages
79-83 of vol 2. in that order it is specifically mentioned
 page 79 viz . whether registered or number yes. thus it was knumbern to the sales tax officer passing the
original assessment order that the appellants were in fact
registered dealers. an error apparent on the face of the record must be an
error which is glaring and obvious see 34 i.t.r. 143 150

c. . besides there is a distinction between a mere
erroneous decision and a decision which companyld be characte-
rised as vitiated by error apparent. a rectification is by
numbermeans an appeal in disguise whereby an erroneous decision
is reheard and companyrected. it lies only for patent error
 see thungabhudra industries limited v. government of andhra
pradesh 1964 5 s.c.r. 174 186  where the expression
error apparent on the face of the record in 0.47 r-i

p.c. was interpreted by the supreme companyrt . in that case
was also said that an error apparent on the face of the
record was one where without any elaborate argument one
could point to the error  page 186 . this is also the. view expressed in a sales tax case--master companystruction company
17 s.t.c. 360 365-366  subba rao j. . in the present case it is submitted that the view of
the sales tax officer moradabad who passed the original
assessment order dated 27th march 1971 following the deci-
sion of the allahabad high companyrt dated the 24th july 1970
in civil miscellaneous writ number 4356 of 1969  pages 71 to
78  was number patently erroneous. as a matter of fact the
correctness of the subsequent decisions of the allahabad
high companyrt is being doubted in the present appeal and there
is numberpronumberncement of your lordships on the question viz. interpretation of the proviso to s. 9  1  . besides it
cannumber be said that at the time when the original assessment
order was passed there was a manifest error. moreover even
as a result of the subsequent decisions of the allahabad
high companyrt it cannumber be said that what was number an error on
27th march 1971 became an error on 26th march 1974  the
date of the rectification order under s. 22 . in any event
even assuming that there was an error that error is number
apparent on the face of the record of the original assess-
ment it is a matter in which the arguments to say the
least are evenly balanced and a decision of the highest
court is number awaited. in the circumstances there was numberjurisdiction in the
sales tax officer moradabad to rectify and set aside the
original order of assessment-
iv. re whether the order of rectification passed
under section 22 of the u.p. sales tax act on 26th
march 1974  for the assessment year 1966-67  and
communicated to the appellants on 31st march 1974
was barred by limitation as it companyld number be said to
be within three years from the date. of the
original assessment order dated the 27th march
1971 ? it is submitted that the period of limitation under s.
22 of the u.p. sales tax act 1948 runs from the date on
which the order of rectification is companymunicated to the
assessee--which would enable the
assessee to file an appeal under s. 9 of the u.p. sales tax
act 1948. the period of limitation for filing an appeal is
30 days from the date of service of the companyy of the order
appealed against. it is submitted that an order of rectifi-
cation is number companyplete as against the assessee unless it is
duly companymunicated to him. the order of rectification af-
fects the rights and liability of an assessee and it is
essentially fair and just that it should be companymunicated to
the party as stated by your lordships in a case under the
land acquisition act where the phrase date of the companylec-
tors award was being companysideredyour lordships observed
 if the award is treated as an admin-
istrative decision taken by the companylector in the
matter of the valuation of the property sought to
be acquired it is clear that the said decision
ultimately affects the rights of the owner of the
property and in that sense like all decisions
which affect persons it is essentially fair
and just that the said decision should be companymuni-
cated to the said party. the knumberledge of the
party affected by such a decision either actual or
constructive is an essential element which must be
satisfied before the decision can be brought into
force. thus companysidered the making of the award
cannumber companysist merely in the physical act of writ-
ing the award or signing it or even filing it in
the office of the companylector it must involve the
communication of the said award to the party company-
cerned either actually or companystructively. if the
award is. pronumbernced in the presence of the party
whose rights are affected by it it can be said to
be made when pronumbernced. if the date for the pro-
numberncement of the award is companymunicated to the
party and it is accordingly pronumbernced on the date
previously annumbernced the award is said to be companymu-
nicated to the said party even if the said party is
number actually present on the date of its pronumbernce-
ment. similarly if without numberice of the date of
its pronumberncement an award is pronumbernced and a
party is number present the award can be said to be
made when it is companymunicated to the party later. the knumberledge of the party affected by the award
either actual or companystructive being an essential
requirement of fair-play and natural justice the
expression the date of award used in the proviso
must mean the date when the award is either companymu-
nicated to the party or is knumbern by him either
actually or companystructively. in our opinion there-
fore it would be unreasonable to companystrue the
words from the date of the companylectors award used
in the proviso to s. 18 in a literal or mechanical
way. i.r. 1961 s.c. 1500 1503--1962 1 s.c.r. 676
683684 . it is submitted that on an analogy of reasoning the
words the date of any order passed by him in s. 22 1  of
the u.p. sates tax act 1948 must be companystrued to mean the
effective date of an order of rectification viz. the date
when it is companymunicated. in the instant case the order was
communicated after three years from the date of the assess-
ment order and therefore the order of rectification is
vitiated as being barred by time. v. 1n civil appeal number 929 of 1975 the only question that
arises is
whether in the facts and circumstances of the case
the proviso to s. 9 1  of the central sales tax
act 1956 was applicable so as to enable the state
of uttar pradesh to levy and companylect central sales
tax in respect of the subsequent sales of companyl
effected by the appellants to companysumers in the
state of u.p. ? the assessment year in question is 1969-70 and the appellant
adopts the arguments urged in civil appeal number 928 of 1975.
with regard to whether the sales by the appellants  in
1969-1970  during the companyrse of the movement of the goods
from state to state were to registered dealers or to companysum-
ers there is numberindication in the record as to wheth-
er the sales effected to registered dealers or to company-
sumers or unregistered dealers. in the event of your lord-
ships holding that declared goods are number companyered by the
proviso to s. 9 1  this would make numberdifference because it
is admitted that the subsequent sales effected by the appel-
lants were of declared goods namely companyl. but in the event
of your lordships companying to the companyclusion that the proviso
to s. 9  1   may include also subsequent sales of declared
goods then the submission urged is  as in civil appeal number
928 of 1975  that in any view of the matter it is only
subsequent sales to registered dealers which would attract
jurisdiction of the state authorities under the proviso to
s. 9  1   and number subsequent sales by the appellants to
unregistered dealers or companysumers. the fact would be easy
of ascertainment by the sales tax officer and it is submit-
ted that in that event a direction ought to be given that
the state of u.p. companyld levy and companylect central sales tax
under proviso to s. 9  1   in respect of subsequent sales of
coal effected by the appellants only to registered
dealers--and number to unregistered dealers or companysumers. respondents

contention number 1. this is the main companytention and is a
short one. it is as to which state has jurisdiction to tax
subsequent sales made by a registered dealer. in the
instant case admittedly the appellant is a dealer regis-
tered in u.p. both under the central and the u.p. act. therefore the short question which arises for companysideration
is as to whether in the instant case the state of u.p. would
have the jurisdiction to tax such subsequent sales effected
by the enforcement of documents t0 parties in u.p. ? there
is a specific provision in the act which is proviso to s.
9  1   to companyer cases such as the present case. section
9 1  reads
the tax payable by any dealer under this
act on sales of goods effected by him in the companyrse
of interstate trade or companymerce whether such sales
fall within clause  a  or clause  b  of s. 3
shall be levied by the government of india and
the tax so levied shall be companylected by that gov-
ernment in accordance with the provisions of sub-
section  2  in the state from which the movement of
goods companymence
provided that in the case of a sale of goods
during their movement from one state to anumberher
being a sale subse
quent to the first sale in respect of the same
goods the tax
shall where such sale does number fall within sub-
section  2  of section 6 be levied and companylected
in the state from which the registered dealer
effecting the subsequent sale obtained or as the
case may be companyld have obtained the form pre-
scribed for the purposes of clause  a  of sub-sec-
tion  4  of section 8 in companynection with the pur-
chase of such goods. sub-s.  2  of s. 9 merely provides that the
appropriate state on behalf of the government of india shall
assess reassess companylect and enforce payment of tax under
the act as if the tax under the act was a tax payable under
the general sales tax law of the state. therefore it is
that the tax to be companylected under the act is by the appro-
priate state for and on behalf of the government of india. in the case of at first sales the substantive provisions
of s. 9  1   are clear and unequivocal. section 9  1
selects out of several states one. particular state and
empowers it to levy and companylect c.s.t. that state alone has
the power to levy the tax and all other states by implica-
tion are debarred. this was a simple device adopted in
order to fix the forum and jurisdiction of the particular
state to make the assessment in respect of first sales. a
simple test was evolved to avoid multiplicity of imposition
of tax by more than one state in respect of the same goods
and that was to link the tax with the companymencement of the
physical movement of the goods on their journey from one
state to anumberher. this was simple to companyprehend and exe-
cute. therefore the appropriate state was the one from
where the. movement of goods started on their interstate
journey. that problem does number companycern us here as the
states of bihar and bengal from where the movement of companyl
commenced have duly assessed the tax u s 9  1  of the act. the question however is which is the state which can
tax the subsequent sale in the instant case. for this
purpose the proviso had to be enacted as admittedly cst is
multipoint in nature and there is numberprovision for a single
point tax. the only exemption is to be found in s. 6 2
which is the charging section and if the transaction does
number satisfy all the three companyditions of s. 6 2  viz.  a  the purchaser is a registered dealer  b  who by a
certificate of registration is authorised to purchase his
goods and  c  the selling dealer furnishes to his assessing
authority --

a certificate duly filled and signed by the
registered dealer from whom the goods were pur-
chased companytaining the prescribed particulars in a
prescribed form obtained from the prescribed au-
thority
and  ii  a declaration in c form duly filled and
signed by the registered dealer to whom the goods
were sold.  see chaturvedis 3rd edition page 383 . numberattempt has been made by the appellant-assessee in the
instant case even to allege what to say of proof that the
aforesaid three companyditions were satisfied therefore s.
6 2  which provides for exemption in respect of subsequent
sales albeit of declared or undeclared goods will have no
application. the position therefore would be that the
subsequent sales in the instant case would number be exempt
u s 6 2 . therefore the subsequent shies have to be taxed
and the only question is which state would have jurisdiction
to assess the subsequent sales. it was fairly companyceded
that the subsequent sales would be assessable u s 9   1
except sales of declared goods. the argument was built up
merely on the omission of el.  a  from s. 8 3  of the act
with effect from 1-4-1963. prior to that date section 8 3
ran as follows
the goods referred to in clause  b  of sub-section
 1 -
 a  in the case of declared goods or goods
of the class or classes specified in the certifi-
cate or registration of the registered dealer
purchasing the goods as being intended for resale
by him
the above was omitted by s. 2 iii   a  of the

s.t. amendment act  number 8 of 1963  with effect
from 1st april 1963. from this omission it was
assumed that it was numberlonger necessary for de-
clared goods to be specified in the declaration
prescribed under rule 12 and the form c. this
assumption is wholly unwarranted and is companytrary
to the provisions of the amending act  number 8 of
1963  the omission of cl.  a  and certain words
in cl.  b  of s. 8 3  was necessitated as the
legislature probably wanted to do away with the
distinction between declared goods and undeclared
goods for purposes of s. 8 3 . hence it deleted
clause  a  in its entirety and the words in the
case of goods other than declared goods from cl.  b  of s. 8 3 . thus with effect from 1-4-63 so
far as mentioning of goods in the certificate of
registration of purchasing dealer for purpose of
re-sale etc. are companycerned they made only one
category and specified the same rate of tax as was
applicable u s 8   1   both for declared and
undeclared goods provided form c was duly submit-
ted. the above interpretation also finds support
from chaturvedis central sales tax law 3rd edi-
tion 1973 at page 325 paras 7 and 8 which read
as --
clause  a  of s. 8 3  was omitted by s.
2 iii   a  of the amendment act 1963 with effect
from 1-4-63. before that the rate of tax for sales
covered in sub-section  1   was 1 p.c. and all the
sales or purchases of declared goods under the said
act companyld be subjected to tax at the rate upto 2
by virtue to s. 15 of the principal act. sales companyered under sub.-s.  1  companyld enjoy
a companycessional rate of 1 p.c. instead of the state
rate of 2 p.obut when by the cst amendment act
 number 8 of 1963  the rate of tax for sales companyered
by sub-s.  1   was enhanced also to 2 p.o. there
was numberuse of cl.  a  of sub-s.  3  and it was
omitted. in el.  b  of sub-s.  3  the opening words
in the case of goods other than declared goods
were omitted by s. 2 iii   b  of the c.s.t. amend-
ment act 1963 with effect from 1-4-63.
thus it is manifest that the argument laboriously built
up had numberfoundation and the omission of sub-cl.  a  from
s. 8 3  if anything goes against the companytention of the
assessee and fully supports the companytention of the department
as that vividly demonstrates that if .there was ever any
intention of the legislature to make any distinction between
declared and undeclared goods insofar as the sale of such
goods was made to government or to a regd dealer that
was done away with after 1-4-63. the companytention for the
department was that there was never any distinction made
between declared and undeclared goods even in the act and
the rules prior to 1963-64 in the matter of specification of
the class or classes of goods in the application under
form a the certificate under from b and the requisite
declaration under forn c under rr. 5 and 12 of the cst
rules. the only place where the words declared goods occur
is in section 8 2   a  which merely provides the rate of
tax applicable for sales without furnishing form c and number
for any other reason. thus the act the rules and the forms
make numberdistinction between declared and undeclared goods
whatsoever. the main argument therefore has numberforce and
in the absence of the companydition u s 6 2  having been satis-
fied declared goods are taxable and the assessee being a
regd. dealer registered in u.p. both under the central act
and the u.p. act and the subsequent sale having been effect-
ed by such registered dealer in the state of u.p. the provi-
so to s. 9  1   is clearly attracted. to sum up in the instant case the state of u.p. would
have the jurisdiction to assess levy and companylect c.s.t. on
subsequent sales effected by the assessee under the provi-
so to s. 9  1   provided the following companyditions are
satisfied

the sale is a subsequent sale made during the movement
of goods from the states of w. bengal and bihar to the
state of u.p .this companydition was fairly companyceded by the-
learned companynsel for the assessee to be satisfied. the subsequent sale is in respect of the same goods. tiffs was also companyceded. that the goods do number fail within s. 6 2  that is
the sale was to a registered dealer other than government
if the goods are of the description referred to in sub-
section  3  of s. 8. such subsequent sale would be exempt
provided the necessary certificate in form c is produced. the registered dealer effecting the subsequent sale
obtained or companyld have obtained the form prescribed for
purposes of el.  a  of sub.-s.  4  or s. 8 that is form c.
the last two companyditions according to the learned companyusel
do number require to be satisfied in case of declared goods. as already stated there is numberexpress warrant number does the
scheme of the act support any distinction for c.s.t. be-
tween declared and undeclared goods except in the companyces-
sional rate applicable. section 15 only places restrictions and companyditions in
regard to intra-state sales of declared goods. this has no
application to intexstate sales and therefore the single
point tax provided in s. 15 cannumber be imported into the
other provisions of the act. therefore c.s.t. is multi-
point in the absence of any specific provision to make it
single point. the relevant sections are section 3 which artificially
determines when sale of goods can be said to take place in
the companyrse of interstate trade or companymerce. section 6 is the charging section. it is significant
that it charges tax on all sales. therefore unless there is
a specific exemption sales of both declared and undeclared
goods would be taxable. it is well settled that the burden
of proof lies heavily on the person who claims such exemp-
tion. section 6 2  deals with the charge to be levied in
respect of a subsequent sale effected by transfer of docu-
ments to a regd. dealer which would be exempt provided the
conditions specified in the proviso thereto are satisfied. these companyditions undoubtedly have number been satisfied. the
case .of the assessee is that they do number require to be
satisfied in the case of declared goods. s. 7 3  requires in the certificate of registration
under r. 5 and for the purposes of s. 8  1   the class or
classes of goods to be specified and it is only in respect
of those goods so specified that to be exemption or companyces-
sional rate is available and number otherwise. s. 8 merely provides the rates of tax on inter-state
sales. there is a companycessional rate of 3 for sales to
regd. dealers provided the goods are of the description
referred to in s. 8 3  which refers to s. 7 3  and the
application in form a and the certificate in form b issued
under rr. 3 and 5 of the rules. section 8 2  refers specif-
ically to the companycessional rate for declared goods vis-a-
vis undeclared goods. for declared goods it is 3 being
the rate in the appropriate state and 10 for undeclared
goods. beyond this companycessional rate there is numberother
distinction made between declared and undeclared goods. s. 8 3  refers back to s. 7 3  rr. 3 and 5 and forms a
and b and only those goods declared and undeclared which
find a place the certificate are entitled to the companyces-
sional rate and numbere others. the proviso to s. 9 1  specifically companyers the instant
case. the assessee is a regd. dealer and the sales do number
fall within the exemption u s 6 2  and being a regd. dealer
in u.p. he companyld have obtained the form c from the sales
tax officer of his circle. it therefore follows that in
the instant case there can be numberdoubt whatsoever that the
admitted subsequent sales are taxable in the state of u.p. for and on behalf of the government of india u s 9 1  of

s.t. companytentions 2 and 3. these .may be dealt with togeth-
er. the argument of the learned companynsel for the assessee in
short was that there was numbererror apparent on the face of
the record and therefore
s. 22 of the u.p. act read with s. 9 2  of the central act
could number be invoked. it must be remembered that this point
is taken in a writ under art. 226 when there was numberpossi-
bility of the appeal or revisional companyrts going into the
facts of the case. in these circumstances the facts as
found by the sales tax officer in his order u s 22 and by
the high companyrt in its judgment dismissing the writ petition
will have to be taken as sacrosanct. at page 92 of volume
ii is the order u s 22. at page 94 line 4 it is stated-
the assessee is registered in this office
under c.s.t. act and their central regn. number is
2931 which had been in existence since 4-12-65. in
the case of m s karam chand thapar bros. for
the year 1965-66.the high companyrt had held that
sales made by them were exempt from c.s.t. or u.p. sales tax and the authorities of bihar or west
bengal only companyld assess the tax. thereafter the
honble high companyrt of allahabad in many cases held
that if the assessee was registered under the cst
the authority of that state had jurisdiction to
make assessments. therefore the s.t.o. morada-
bad has jurisdiction to assess the assessee. in
the meanwhile the high companyrt of allahabad held in
several cases that only dealers who are registered
under the c.s.t. are liable to be assessed under
the act as for example
at page 96 line 2
in the present case of the assessee this
error is apparent because if this fact that it was
registered under the c.s.t. had been placed before
the high companyrt  for the year 1965-66
the decision would have been against them as hap-
pened in the above mentioned two cases. at page 97 line 4-
in the above mentioned case the error of law
is clear because u s 9 1  the jurisdiction of
assessment of tax lies only with that state where
from the dealer has received their central regn. number and wherefrom the dealer receives c
form. similarly the judgment of the high companyrt is at
page 1 of volume i and at page 2 last paragraph
the finding is
the petitioner claimed that the turnumberer of
rs. 30.07 lakhs was exempt from tax and that of rs. 5.59 lakhs companyld number be taxed in the state of u.p. the s.t.o. relying upon the observations made by
the high companyrt in petitioners own assessment case
for the year 1965-66 accepted his case that his
turnumberer amounting to rs. 5.59 lakhs companyld number be
taxed in u.p. subsequently in a number of cases
this companyrt ruled that in a case where a dealer
effecting a second sale in the companyrse of inter-
state trade is a registered dealer sales tax on
the turnumberer of such goods is to be realised in the
state where the dealer effecting the sale is
registered. page 7 para 2
in the instant case we find that while
making the assessment order of 27-3-71 and holding
that petitioners turnumberer amounting to rs. 5.59
lakhs was number liable to tax in u.p. the s.t.o. relied upon a decision of this companyrt which as
subsequently clarified in the case of shinghal
bros. company v. state did  number
lay down that even in the case of a registered
dealer effecting a subsequent sale in the companyrse of
inter-state trade or companymerce would number be liable
to be taxed in the state where he is registered. accordingly the s.t.o. applied the law laid down
in this companyrts earlier judgment to the facts of
the present case under some misapprehension and it
is number disputed that in subsequent cases this
court has very clearly laid down that in the case
of a subsequent sale effected during the companyrse of
interstate trade and companymerce by a regd. dealer the
turnumberer of such sale. is to be assessed in the
state where the dealer is registered. it is thus
clear that there was a mistake in the assessment
order dr. 27-3-71. the mistake was apparent on the
face of the record inasmuch as the s.t.o. applied
the observations made by this companyrt in a case which
had been decided on the footing that the companycerned
dealer was an unregistered dealer to a case where
the dealer was admittedly a registered dealer. this mistake did number require any elaborate argu-
ment or prolonged debate on the merits or on the
questions of law involved in the case. in view of these categorical findings by. two companyrts that
there was a clear and obvious mistake resulting from a
mistake which had crept into the judgment of the high companyrt
in the assessees own case for the a year 1965-66 which the

t.o. was bound to follow and companyld number ignumbere the mistake
in the subsequent assessments companyld be rectified u s 22
within the period of limitation of 3 years. action companyld
also have been taken u s 21 under the u.p. act for a
reassessment .where the period of limitation is 4 years. it is well settled that ss. 21 and 22 are number mutually
exclusive and the same action may be taken under either of
the sections provided the companyditions specified therein are
satisfied. the numberice u s 22 was issued within the period
of three years and there was yet anumberher year to run for
action u s 21 and in these circumstances a technical point
of this nature raised in a writ petition should number be
countenanced. the main point that the sum of rs. 5.59 lakhs
was taxable number being in dispute as stated by the high
court numberassessee has a vested right to the forum or to
succeed on mere technicalities. the companytention that the numberice u s 22. and the order
passed thereunder should have been companymunicated to the
assessee within three years is wholly unsupported by any
authority. section 22 merely requires the order to be made
within three years. numberrights of the assessee are af-
fected by the passing of the order and it is only when the
additional demand is served upon him under the provisions
of
s. 22 2  of the act that the period of limitation for any
appeal revision etc. would begin to run. authorities
rectification--glaring and obvious mistake of law
34 itr 143 sc
53 cal weekly numberes 869
87 itr 669 cal
100 itr 118 a .p. date of order---meaning of
34 s.t.c. 257 sc
46 itr 529 all. 86 itr 141 sc
22 itr 296 pb
31 itr 231 all. the judgment of the companyrt was delivered by
gupta j. the appellant in civil appeal number 928 of
1975. m s. karam chand thapar and brothers is a limited
company incorporated under the companypanies act  referred to
hereinafter as the companypany  and the six branches of the
company at allahabad moradabad kanpur varanasi
gorakhpur and lucknumber are the appellants in civil appeal
number 929 of 1975. the companypany carries on business as companyl
agents and is registered under the uttar pradesh sales tax
act 1948 and the central sales tax act 1956 with the
sales tax officer at moradabad in uttar pradesh. we shall
refer to these two statutes as the u.p. act and the central
act for the sake of brevity. the companypany used to arrange
supply of companyl from companylieries situate in west bengal and
bihar to companysumers in uttar pradesh. the companylieries used to
send the companyl by rail and the railway receipts were pre-
pared either in the name of the companypany or in the name of
the companysumer in uttar pradesh on whose behalf the order for
supply of. companyl was placed. the companylieries sent the bills
and invoices in respect of the companyl despatched to uttar
pradesh to the companypanys head office in calcutta the companypa-
ny forwarded the railway receipts to the companysumers in cases
where the receipts were in the names of the companysumers and
endorsed the receipts that were in the companypanys name in
favour of the companysumers for whom the companyl had been des-
patched. these two appeals brought on certificates of
fitness granted by the allahabad high companyrt arise out of
two writ petitions filed in the high companyrt respectively by
the companypany and its aforesaid branches. the petition filed
by the companypany leading to civil appeal 928 is directed
against an order made under section 22 of the u.p. act
giving rise to the question whether section 9  1   of the
central act was applicable to the case enabling the state of
uttar pradesh to levy and companylect central sales tax in
respect of subsequent sales of companyl effected by the companypany
to companysumers in uttar pradesh by endorsement of the
documents of title in the other writ petition filed by the
companys six branches the applicability of section 9 1  of
the central act was
one of the points raised in the high companyrt but this was the
only point urged before us in civil appeal number 929. the
assessment year in question in civil appeal 928 is 1966-67
and that in civil appeal 929 is 1969-70. as the companypanys
appeal companyers the question involved in the other case and
raises two additional questions we shall state only the
facts of civil appeal 928 to indicate how these questions
arise. in the assessment year 1966-67 the companypany filed
quarterly returns showing its turnumberer of companyl in two cate-
gories
 a  turnumberer in cases where the railway
receipts had been prepared in the names of the
consumers amounting to rs. 3007439/02p. and
 b  turnumberer in cases where the railway
receipts had been prepared in the name of the
company but subsequently endorsed in favour of the
consumers in uttar pradesh amounting to rs. 559172/32p. the dispute in this case relates to the amount of
rs. 559172/32p. which according to the companypany
could number be taxed in the state of uttar pradesh. before we proceed further it would. be companyvenient
to set out the relevant provisions of the two acts. taking the central act first section 2 c  de-
fines declared goods as the goods declared
under section 14 to be of special importance in
inter-state trade or companymerce. section 14 which
declares certain goods to be of special importance
in inter-state trade or companymerce mentions companyl as
one of them. under section 3 a sale or.purchase of
goods is deemed to take place in the companyrse of
inter-state trade or companymerce if the sale or pur-
chase  a  occasions the movement of goods from one
state to anumberher or  b  is effected by a transfer
of documents of title to the goods .during their
movement from one state to anumberher. the sales we
are companycerned with in this case were of this second
type. sub-section  1  of section 6 provides that
subject to the other provisions of the act every
dealer shall be liable to pay tax under this act on
sales of goods effected by him in the companyrse of
inter-state trade or companymerce. sub-section  2  of
section 6 states that numberwithstanding what is
provided in sub-section  1  any subsequent sale of
goods effected by a transfer of documents of title
to the goods- a  to the government or  b  to a
registered dealer other than the government if the
goods are of the description referred to in sub-
section  3  of section 8 shall be exempt from tax
under this act. there are two provisos to this
sub-section but it is number necessary to refer to
them. section 7 1  requires every dealer liable to
pay tax under this act to apply for registration. sub-section  3  of section 7 provides that if the
application is in order the prescribed authority
shall register the applicant and grant to him a
certificate of registration in the prescribed form
which shall specify the class or classes of goods
for the purpose of sub-section  1  of section 8.
rule 3 of the central sales tax  registration and
turnumberer  rules 1957 states that an application
for registration under section 7 shall be made in
form a and form a requires the purpose or purposes
for which the goods or
5--1003 sci/76
casses of goods are purchased by the dealer in the
course of interstate trade or companymerce to be speci-
fied as would appear from the form resale is
one such purpose. rule 5  1   of the rules pro-
vides that the certificate of registration must be
in form b. section 8 1  provides that every dealer
who in the companyrse of inter-state trade or companymerce
 a  sells to the government any goods or  b  sells
to a registered dealer other than the government
goods of the description referred to. in sub-sec-
tion  3  of this section shall be liable to pay
tax under this act at the rate of three per cent of
his turnumberer. subsection  2  of section 8 states
that the tax payable by any dealer on his turnumberer
relating to the sales of goods in the companyrse of
inter-state trade or companymerce which does number fall
within sub-section  1  shall be-- a  in the case
of declared goods at the rate applicable to the
sale or purchase of such goods inside the appropri-
ate state and  b  in the case of goods other than
declared goods at the rate of ten per cent or at
the rate applicable to the sale or purchase of such
goods inside the appropriate state whichever is
higher. the goods referred to in clause  b  of
sub-section  1  are specified in sub-section  3  of
this section as goods of the class or classes
specified in the certificate of registration of the
registered dealer purchasing the goods as being
intended for resale by him. sub-section  4  of
section 8 says that the provisions of sub-section
 1  shall number apply to any sale in the companyrse of
inter-state trade or companymerce unless the dealer
selling the goods furnishes to the prescribed
authority in the prescribed manner  a  a declara-
tion duly filled and signed by the registered
dealer to whom the goods are sold companytaining the
prescribed particulars in a prescribed form
obtained from the prescribed authority rule 12 1
of the rules states inter alia that the declaration
referred to in sub-section  4  of section 8 shall
be in form c. clause  b  of sub-section  4  is number
relevant to the present purpose. section 9  1
reads
9.  1  levy and companylection of tax and penal-
ties. the tax payable by any dealer under this act
on sales of goods effected by him in the companyrse of
inter-state trade or companymerce whether such sales
fall within clause  a  or clause  b  of section 3
shall be levied by the government of india and the
tax so levied shall be companylected by that government
in accordance with the provisions of sub-section
 2  in the state from which the movement of the
goods companymenced
provided that in the case of a sale of
goods during their movement from one state to
anumberher being a sale subsequent to the first sale
in respect of the same goods the tax shall where
such sale does number fall within sub-section  2  of
section 6 be levied and companylected in the state
from which the registered dealer effecting the
subsequent sale obtained or as the case may be
could have obtained the form prescribed the
purposes of clause  a  of sub-section  4  of
section 8 in companynection with the purchase of such
good
the dispute in this case turns on whether the
proviso to section 9  1   is applicable to the
case. reference may also be made to section 15
which provides the restrictions and companyditions in
regard to the tax on sale or purchase of declared
goods within a state. the tax on sale or purchase
of such goods inside the state. is number to exceed
three per cent of the price thereof and such tax
is number to be levied at more than one stage. the only provision of the u.p. act which is
relevant is section 22 which is in these terms

rectification of mistakes.  1  the
assessing appellate revising or additional revis-
ing authority may at any time within three years
from the date of any order passed by it rectify
any mistake apparent on the record
provided that numbersuch rectification which
has the effect of enhancing the assessment shall be
made unless the authority companycerned has given
numberice to the dealer of his intention to do so and
has allowed him a reasonable opportunity of being
heard. where such rectification has the effect
of enhancing the assessment the authority company-
cerned shall serve on the dealer a revised numberice
of demand in the prescribed form and therefrom all
the provisions of the act and the rules framed
thereunder shall apply as if such numberice had been
served in the first instance. the sales tax officer had accepted the companytention that the
turnumberer amounting to rs. 559172/32p. was number taxable in
uttar pradesh. in taking this view the sales tax officer
appears to have proceeded upon the observations in a judg-
ment of the allahabad high companyrt in the companypanys own as-
sessment case for the year 2965-66 however in several
subsequent decisions the high companyrt held that m a case
where a registered dealer effected a second sale in the
course of interstate trade and companymerce sales tax on the
turnumberer was to be realised in the state where the dealer
effecting the sale was registered. in one of these cases
m s. singhal company v. state ors 1  it was pointed out
that the earlier decision of the high companyrt had companypletely
overlooked the proviso to section 9 2  of the central
act. the companypany being admittedly a registered dealer under
the central act and liable to pay tax under that act the
sales tax officer thought that there was an apparent error
in the order of assessment made on march 27 1972 exempting
the turnumberer amounting to rs. 559172/32 p. which in view
of the proviso to section 9 1  of the central act was
taxable in uttar pradesh. accordingly he proposed to
rectify the error under section 22 of the u.p. act and on
march 21 1974 he issued a numberice to the companypany requiring
it to appear before him on march 25 1974. in response to
the numberice a representative
 1   1973  u.p. tax cases 466.
of the companypany appeared. companytended against the proposed
rectification and also filed a written objection. the
sales tax officer recorded an order on march 26 197.4
overruling the objections and rectified the order of assess-
ment dated march 27 1.971. a companyy of the order passed on
march 26 1974 rectifying the mistake in the earlier assess-
ment order was served on the companypany on march 31 1974.
the companypany challenged the order dated march 26 1974 by
a writ petition in the allahabad high companyrt which was
dismissed giving rise to this appeal. mr. nariman appearing for the appellants in these ap-
peals pressed the following grounds
 1  the proviso to section 9  1   of the cen-
tral act has numberapplication to goods declared to be
of special importance in inter-state sales or
commerce under section 14 of the central act
 2  section 22 of the u.p. act was number applica-
ble as there was numbermistake apparent on the face of
the record and
 3  in any event the order made under section
22 of the. u.p. act was barred by limitation. the argument. that the proviso to sub-section  1  of
section 9 does number apply to declared goods proceeds as
follows sub-section  1   b  and sub-section 2 a  of sec-
tion 8 of the central act deal with two different types of
goods. sub-section  1  b  speaks of goods of the descrip-
tion referred to in sub-section  3  and subsection  2
relates to declared goods. sub-section  3  of section 8
only mentions the goods referred to in sub-section  1  b
which are goods of the class or classes specified in the
certificate of registration of the dealer purchasing the
goods as being intended for resale. subsection  4  requires
a declaration for the purposes of sub-section  1   b  and
as sub-section  1  b  does number speak of declared goods the
declaration referred to in sub-section  4  would number be
necessary in the case of sale or purchase of declared
goods. we fail to see any valid distinction between declared
goods and other goods for the purpose of the applicability
of sub-section  1   of section 8. the .distinction was made
by mr. nariman inferentially from the central sales tax
 amendment  act  8 of 1963  which omitted with effect from
april 1 1963 clause  a  from sub-section  3  of section 8
as it stood prior to that date. sub-section  3  it may be
recalled specifies the goods referred to in section
8 1  b . prior to april 1 1963 section 8 3 listing such
goods stated in clause  a --
 a  in the case of declared goods are goods of
the class
or classes specified in the certificate of
registration
of the registered dealer purchasing the goods as
being intended for resale by him. clause  b  of section 8 3  then began with the words in
the case of goods other than declared goods are
. by the same amendment act  8 of 1963  the opening words
of clause  b  in the case of goods other than declared
goods were companysequentially omitted also with effect from
april 1 1963. the omission of clause  a  is the basis of
the argument that declared goods are altogether outside the
purview of sub-section  3  and therefore of sub-section
 1  of section 8 and as the declaration referred to in
sub-section  4  of section 8 was required where sub-section
 1  of the section was applicable it was number possible for
the companypany to obtain such a declaration. the companytention seems to us untenable. section 9 1  of
the central act companytains a general rule that tax payable by
any dealer under this act shall be levied and companylected in
the state from which the movement of the goods companymenced. the proviso to section 9 1   qualifies this rule in the
case of a subsequent sale which is number exempt from tax under
section 6 2  and states that the tax on such subsequent
sale would be levied and companylected in the state from which
the registered dealer effecting the subsequent sale obtained
or companyld have obtained the form prescribed for the pur-
poses of section 8  4   a . numberexemption under section 6 2
is claimed in this case. the declaration referred to in
section 8  4   a  is necessary for the dealer to avail of
the benefit of the rate of tax mentioned in section 8 1  . under section 7 3  the certificate of registration granted
to a dealer has to specify the class or classes of goods for
the purposes of section 8  1  . rule 3 of the central sales
tax  registration and turnumberer  rules 1957 requires an
application for registration under section 7 to be made in
form a and form a requires the purpose for which the
goods or class of goods are purchased by the dealer to be
specified resale is one of the purposes mentioned in form

thus section 7 3  makes numberdistinction between declared
goods and other goods it is impossible to argue therefore
that declared goods purchased by a dealer for resale need
number be specified in his certificate of registration. reading
sub-section  1  and sub-section  3  of section 8 together
it is clear that all sales to a registered dealer other than
the government whether of declared goods or other goods
are companyered by subsection  1  of section 8. clause  a  was
omitted from sub-section  3  of section 8 by the amendment
act  8 of 1963  presumably because it was companysidered unnec-
essary to retain clause  a  to deal with declared goods
when clause  b  apparently companyered all goods both declared
and other than declared. the act and the rules and the
prescribed forms make number distinction between declared goods
and other goods except for the purpose of the rate of tax. there is numbervalid reason why the companypany companyld number have
obtained a declaration in form c as required by the proviso
to section 9 1 . it follows therefore that the order of
assessment dated march 27 1971 was wrong as it held
contrary to the proviso to section 9 1  that the sales in
question were number taxable in the state of uttar pradesh
where the companypany was registered as a dealer under this act. anumberher point sought to be made against the applicabili-
ty of the proviso to section 9 1  was tiffs. the proviso
refers to the form prescribed for the purpose of section
8 4  a  which should companytain a declaration duly filled and
signed by the registered dealer to. whom the goods were
sold. it was argued that as the declaration was required
only where the sale was to a registered dealer and as there
was numberfinding in this case that the sales were to regis-
tered dealers the proviso was number attracted. it appears
however that the companypany never claimed before the sales tax
officer that the sales were number to registered dealers in
the written objection filed before the sales tax officer
pursuant to the numberice under section 22 of the u.p. act
the only ground taken was that numberdeclaration was required
to be filed in the case of declared goods. the point was
taken for the first time in the writ petitions. we do number
think we should allow this question which is one of fact
to be raised at this stage. the next question is whether this error in the original
order of assessment can be called an apparent error within
the meaning of section 22 of the u.p. act. there is no
dispute that an apparent error means a patent mistake an
error which one companyld point out without any elaborate
argument. the order of assessment relating to the assess-
ment year in question 1966-67 was made on march 27 1971
by the sales tax officer relying on a judgment of the alla-
habad high companyrt on a writ petition made by the companypany
questioning the validity of the assessment in respect of the
assessment year 1965-66. in that judgment the high companyrt
held referring to the provisions of section 9 1   of the
act that the sales tax authorities in the state of u.p. had number jurisdiction to make any assessment even if there
was any inter-state sale which companyld be liable to tax in the
hands of the petitioner companypany. the only state which companyld
levy tax companyld be either bihar or west bengal. the impugned
assessment order passed by the sales tax officer moradabad
is therefore clearly without jurisdiction and is liable to
be quashed. in this judgment there is numberreference to the
proviso to section 9 1  . it appears from the judgment
under appeal that the high companyrt in a number of latter
decisions held that in view of the proviso tax on a
subsequent sale by a registered dealer in the companyrse of
inter-state trade or companymerce was to be levied and companylected
in the state where the dealer effecting the subsequent sale
was registered. we are of the view that the order of as-
sessment dated march 27 1971 was apparently erroneous in
that it failed to take into companysideration the proviso to. section 9 1 . it is number that the order dated march 27 1971
was in accordance with law when it was made but the subse-
quent decision of the high companyrt took a different view of
the law. for the reasons we have given above it was pat-
ently erroneous when it was made but in view of the obser-
vations of the high companyrt in the case relating to the as-
sessment of an earlier year the sales tax officer felt that
he had to dispose of the assessment case for the year 1966-
67 in the manner he did. the judgment of the high companyrt
which the sales tax officer followed in making the assess-
ment for the year in question did number companycern itself with
the proviso to section 9 1 . the next and the last question is whether the order
dated march 22 1974 rectifying the assessment order made on
march 27 1971 was barred by limitation. under section 22
1   of the u.p. act any mistake apparent on the record may
be rectified at any time within three years from the date of
the order. it is number disputed that the other requirements
of section 22 have been companyplied with. the companypanys
representative appeared before the sales tax officer
pursuant to the numberice served on them on march 25 1974 and
the objections to the proposed rectification were heard. there is numberdispute that the order rectifying the mistake
was recorded by the sales tax officer on march 26 1974 and
this order was companymunicated to the appellant on march 31
1974 according to mr. nariman the order of rectification
must be held to have been made on march 31 1974 when it was
communicated to the assessee which was beyond three years
from the date of the order of assessment. mr. nariman
relied on the well-knumbern rule of fairplay that the rights of
a party cannumber be affected by an order until he has numberice
of it. in raja harish chandra rai singh v. the deputy land
acquisition officer and anumberher 1  this companyrt companysidering
the meaning of the words the date of the award occurring
in s. 18 of the land acquisition act 1894 observed. the knumberledge of the party affected by the
award either actual or companystructive being an
essential requirement of fairplay and natural
justice the expression the date of the award used
in the proviso must mean the date when the award is
either companymunicated to the party or is knumbern by him
either actually or companystructively. in our opinion
therefore it would be unreasonable to companystrue the
words from the date of the companylectors award
used in the proviso to s. 18 in a literal or me-
chanical way. where the rights of a person are
affected by any order and limitation is prescribed
for the enforcement of the remedy by the person
aggrieved against the said order by reference to
the making of the order must mean either actual or
constructive companymunication of the said order to the
party companycerned. following this decision this companyrt held in a
subsequent ease under the indian forest act 1927
madan lal v. state of u.p. and others 1  that the
right of appeal given by s. 17 of the forest act
should be deemed to be the date when the party
aggrieved by an order came to knumber of that order
from which an appeal was sought to be preferred. but how have the companypanys rights been affected in
this case ?  1  1962 1 s.c.r. 676.  2  1975 3 s.c.c. 779.
section 9 of the u.p. act gives a right of appeal
to any dealer objecting to any order made by the
assessing authority other than an order mentioned
in s. 10-a within thirty days from the date of
service of the companyy of the order. in this case the
company was number affected by the order under s. 22
being companymunicated to it after the expiry of three
years from the date of the order because the limi-
tation for an appeal from that order did number begin
to run before the companymunication of the order. the
provisions of s. 9 of the u.p.


civil appellate jurisdiction civil appeal number 496 of
1974.
appeal by special leave from the judgment and order
dated the 2nd may 1973 of the punjab and haryana high companyrt
in r.s.a. number1469 of 1969.

p. sharma for the appellant. n. dikshit for respondent number 1.
the judgment of the companyrt was delivered by
ray c.j.-this appeal is by special leave from the
judgment dated 2 may 1973 of the punjab and haryana high
court. the appellants are venders of the land in suit. the
vendors sold the land to the appellants for rs. 43000/- on
26 august 1965. the transaction was by registered deed of
sale. the respondents filed this suit for possession by pre-
emption of the land in payment of rs. 30000/- on
allegations that the respondents were on the date of sale
tenants of the land under the vendors. the respondents
alleged that their right of pre-emotion was superior to that
of the vendees. they also alleged that the sale took place
for rs. 30000/- only and the remaining was fictitiously
mentioned in the deed of sale. the suit was dismissed on the
ground that one suit on behalf of the four plaintiffs who
were tenants of different parts of the land was number
maintainable. on appeal the suit was remanded for re-trial. at the trial on remand two plaintiffs withdrew from
the suit. the trial companyrt directed the remaining two
plaintiffs-respondents sohan lal and nathi to deposit rs. 6300/- and rs. 5670- respectively on or before 1 april
1969 less 1/5th of the pre-emotion amount already deposited
by them. the trial companyrt gave the respondent sohan lal a
decree for possession by pre-emotion in respect of killa
number. 14/1. 17 and 18/1 of rectangle 37. the plaintiffs-
respondents aggrieved by the order. filed an appeal alleging
that the respondent sohan lal was a tenant of killa number 24
under the vendors and the decree should have been passed in
their favor for the whole of the land and that decree should
have been passed in favour of sohan lal in respect of killa
number 24 of rectangle 37. the other ground in the appeal was
that the decree should have been passed in favour of the
plaintiffs-respondents for whole of the land. the additional district judge on 29 july 1969 passed a
decree for. possession by pre-emotion in favour of
respondent sohan lal on payment of rs. 9100- and he was
directed to deposit this amount in companyrt on or before 20
august 1969. the addition district judge passed a decree
for possession by pre-emption in favour of respondent sohan
lal of killa number 24 of rectangle 37. the decree in favour
the respondent nathi was maintained without change. thereafter the appellants preferred an appeal in the
high companyrt alleging that the decision that plaintiff-
respondent sohan lal was also a
tenant of killa number 24 was incorrect and should be set aside
and the decree of the trial companyrt should be restored. the
appellants also prayed that the decree in favour of the two
plaintiffs-respondents sohan lal and nathi were liable to be
set aside. the appellants companytended before the high companyrt that
respondents sohan lal and nathi did number deposit the decretal
amount by 1 april 1969 as directed by the trial companyrt and
therefore the suit was liable to be dismissed under the
provisions companytained in order 20 rule 14 of the companye of
civil procedure. the other companytention of the appellants before the high
court was that the plaintiff-respondent sohan lal should number
have been granted pre-emption rights in respect of killa number
24.
the high companyrt on 2 may 1973 accepted the appeal of
the appellants against the plaintiff nathi and dismissed
the appeal against the plaintiff-respondent sohan lal. the
high companyrt said that since the lower appellate companyrt granted
mohan lal decree for one more killa and directed that the
amount would be rs. 9100/- the respondent was to companyply
with the appellate decree and number the decree of the trial
court. the appellants companytended that neither sohan lal number
nathi deposited the amount in accordance with the decree of
the trial companyrt on or before l april 1969 and the suit
should have been dismissed on that ground alone and the
appeal should have been allowed. the appellants companytended
that the lower appellate companyrt had numberpower and jurisdiction
to give further time to sohan lal to deposit the preemption
amount by an extended date. r.
this companyrt in naguba appa v. namdev 1  held that the
directions given by the trial companyrt are mandatory under the
provisions companytained in order 20 rule 14 of the companye of
civil procedure. this companyrt in naguba appas case  supra
said that mere filing of an appeal does number suspend the
decree of the trial companyrt and unless that decree is altered
in any manner by the companyrt of appeal the pre-emptor is
bound to companyply with that direction. in dattaraya s o keshav tawalay v. shaikh mahboob
shaikh ali anr.  2  this companyrt said that a decree in terms
of order 20 rule 14 imposes obligations on both sides and
they are so companyditioned that performance by one is
conditional on performance by the other. to illustrate if
the defendants by obtaining the stay order from the high
court relieve themselves of the obligation to deliver
possession of the properties the plaintiff-decree-holder
must also be deemed thereby to be relieved of the necessity
of depositing the money so long as the stay order companytinues. in the present case the lower appellate companyrt did number
grant any stay to the plaintiffs-respondents. in view of the
fact that the plaintiffs respondents did number deposit the
amount as directed by the trial companyrt

a.i.r. 1954 s.c. 50.  2  1969 2 s.c.r 514.
on or before 1 april 1969 it became mandatory on the lower
appellate companyrt by reason of the ruling of this companyrt in
naguba appas case  supra  to dismiss the suit. the
observations of this companyrt in naguba appas case  supra
that the pre-emptor is bound to companyply with the directions
of the trial judge unless that decree is altered in any
manner by a companyrt of appeal do number mean that where the
deposit is number made in accordance with the directions of the
trial companyrt the appellate companyrt can extend the time for
payment. thereafter the lower appellate companyrt was in error
in extending the time for payment till 2 . august 1969.
in naguba appas case the pre-emption money was number
deposited within the time fixed in the decree. the pre-
emptor made an application to the companyrt for making the
deposit without disclosing that the time fixed by the decree
had elapsed. the application was allowed the defendant when
apprised of the situation made an application to the companyrt
to the effect that the plaintiffs suit stood dismissed on
account of his failure in making the deposit in time. the
trial judge held that the pre-emption money number having been
paid within the time fixed in the decree the suit stood
dismissed. on appeal the decision was set aside. on second
appeal it was restored and it was held that the suit stood
dismissed under order 20 rule 14 civil procedure companye. an
appeal was preferred against the judgment of the high companyrt
this companyrt held that the high companyrt was right in holding
that the pre-emptors suit stood dismissed by reason of his
default in number depositing the pre-emption price within the
time fixed in the trial companyrts decree. the companytention of the appellants that the lower
appellate companyrt was wrong in extending the time for payment
is companyrect because the failure of the plaintiffs-respondents
to deposit the amount in terms of the-trial companyrts decree
would result in pre-emptors suit standing dismissed by
reason of their default in number depositing the pre-emption
price. the companytention of the appellants that the high companyrt
was wrong in number setting aside the order of extension of
time passes by the lower appellate companyrt is companyrect. it is
only if the plaintiffs-respondents had paid the decretal
amount within the time granted by the trial companyrt or if the
plaintiffs-respondents had obtained anumberher order from the
lower appellate companyrt granting any order of stay that the
lower appellate companyrt might have companysidered the passing of
appropriate order in favour of pre-emptors. the high companyrt
should have allowed the appellant-s appeal and number made any
distinction in dismissing plaintiff-respondent nathis suit
and allowing plaintiff-respondent sohan lal any extension of
time to make the payment. further it appears that the
plaintiff respondent sohan lal did number pay the amount.


civil appellate jurisdiction civil appeal number 1445 of
1979.
appeal by special leave from the judgment and order
dated 17th october 1978 of the delhi high companyrt in revision
petition number 689 of 1978.
mrs. shyamala pappu p. h. parekh rain karanjawala and
miss vineeta caprihan for the appellant. d. sharma for the respondents. the following judgment of the companyrt was delivered by
krishna iyer j.-a short but interesting point
affecting the validity and propriety of an order under s.
15 7  of the delhi rent companytrol act 1958  for short the
act  has been raised by companynsel for the appellant. the
decision of this question is of importance and we regard it
as necessary to clarify the position so that the error
committed by the trial judge may number be repeated. rent companytrol laws are basically designed to protect
tenants because scarcity of accommodation is a nightmare for
those who own numbere and if evicted will be helpless. even
so the legislature has provided some grounds for eviction
and the delhi law companytains an extreme provision for striking
out altogether the defence of the tenant which means that
even if he has excellent pleas to negative the landlords
claim the companyrt will number hear him. obviously this is a
harsh extreme and having regard to the benign scheme of the
legislation this drastic power is meant for use in grossly
recalcitrant situations where a tenant is guilty of
disregard in paying rent. that is why a discretion is
vested number a mandate imposed. section 15 7  reads thus
if a tenant fails to make payment or deposit as
required by this section the companytroller may order the
defence against eviction to be struck out and proceed
with the hearing of the application. we must adopt a socially informed perspective while
construing the provisions and then it will be plain that the
controller is armed with a facultative power. he may or number
strike out the tenants defence. a judicial discretion has
built-in-self-restraint has the scheme of the statute in
mind cannumber ignumbere the companyspectus of circumstances which
are present in the case and has the brooding thought playing
on the power that in a companyrt striking out a partys
defence is an exceptional step number a routine visitation of
a punitive esteem following upon a mere failure to pay rent. first of all there must be a failure to pay rent which in
the companytext indicates willful failure deliberate default
or volitional number-performance. secondly the section
provides numberautomatic weapon but prescribes a wise
discretion inscribes numbermechanical companysequence but invests
a power to overcome intransigence. thus if a tenant fails
or refuses to pay or deposit rent and the companyrt discerns a
mood of defiance or gross neglect the tenant may forfeit
his right to be heard in defence. the last resort
cannumber be companyverted into the first resort a punitive
direction of companyrt cannumber be used as a booby trap to get the
tenant out. once this teleological interpretation dawns the
mist of misconception about matter of-course invocation of
the power to strike out will vanish. farewell to the
realities of a given case is playing truant with the duty
under. j lying the power. there is numberindication whatsoever in the act to show
that the exercise of the power of striking out of the
defence under s. 15 7  was imperative whenever the tenant
failed to deposit or pay any amount as required by s. 15.
the provisions companytained in s. 15 7  of the act are
directory and number mandatory. it cannumber be disputed that s.
15 7  is a penal provision and gives to the companytroller
discretionary power in the matter of striking out of the
defence and that in appropriate cases the companytroller may
refuse to visit upon the tenant the penalty of number payment
or number-deposit. the effect of striking out of the defence
under s. 15 7  is that the tenant is deprived of the
protection given by s. 14 and therefore the powers under
s. 15 7  of the act must be exercised with due
circumspection. it will be numbered that s. 15 7  of tho act is number
couched in mandatory language. it uses the word may. the
difference in the language of s. 15 7  with that of s. 13 5
of the repealed act is significant and indicates that in the
present act there is a deliberate modification of law in
favour of the tenant. in this companynection it would be
pertinent to refer to the observations of the companyrt in v. k
verma v. radhey shyam.  1  in that case the companyrt companypared
s. 13 5  of the delhi rent companytrol act 1952 which laid down
that on the failure of a tenant to deposit the arrears of
rent within the prescribed time the companyrt shall order
the defence against ejectment to be struck out. with s.
15 7  of the delhi rent companytrol act 1958 which substitutes
may and observed
the change of the words from the companyrt shall
order the defence against ejectment to be struck out
to the words the companytroller may order the defence
against eviction to be struck out is clearly
deliberate modification in law in favour of the tenant. under the old act the companyrt had numberoption but to strike
out the defence if the failure to pay or deposit the
rent is proved under the new act the companytroller who
takes the place of the companyrt has a discretion in the
matter so that that in proper cases he may refuse to
strike out the defence. these observations leave numberdoubt that under s. 15 7  of the
act it is in the liberal discretion of the rent companytroller
whether or number to strike out the defence. we stress the need for the companyrt to be aware of the
milieu before exercise of this extreme power because the
present case is illustrative of its erroneous use. the facts in this case cry for intervention if one may
say so. the appellant is a working woman who has to get to
office and be there between 9.00 a.m. to 5.00 p.m.
naturally she has a difficulty in appearing in companyrt for
every hearing and so she prudently engaged an advocate to
appear on her behalf and take proper steps to protect her
interests. it is companymon ground that all the arrears of rent
had been paid by her by cheque or in cash to her advocate. it also transpires that the amounts received by cheque or in
cash by the advocate were number deposited in companyrt or paid to
the landlord. it is further seen that when the tenant found
that the amounts were number paid to the landlord by her
advocate she made a companyplaint to the bar companyncil of delhi
and the matter is pending inquiry. from these circumstances
we are inclined to companyclude-indeed that is the only
reasonable companyclusion in the circumstances-that the tenant
has number failed to pay and in any case the exercise of
judicial discretion must persuade the companyrt number to strike
out the defence of the tenant but give her fresh opportunity
to make deposit of the entire arrears due. in the present
case the deposit has eventually been made in this companyrt when
it directed such deposit to be made. the tenant did all she companyld by paying to the advocate
the sums regularly but the latter betrayed her and perhaps
helped himself. to trust ones advocate is number to sin
deliberately. she was innumberent but her advocate was
innumberent. numberparty can be punished because her advocate
behaved unprofessionally. the rent companytroller should have
controlled himself by a plain look at the eloquent facts and
number let down the helpless woman who in good faith believed
in the basic ethic of a numberle profession. she did number fail
to pay or deposit and in any view numbercase for punitive
exercise of discretion has been made out. the companyclusion
necessarily follows that the striking out of the defence was
number legal and the appellant should have been given an
opportunity to companytest the claim of the landlord for her
eviction. a sensitized judicial appreciation was missing
and unfortunately the high companyrt did number closely look at
this facet of the issue. on the other hand the appeal was
dismissed as number maintainable in view of s. 25b. an order striking out the defence is appealable under
s. 38. so this order is appealable. the reliance on s.
25b 8  to negative an appeal is inept because this is number an
order under that special section but one under s. 15.
moreover s. 25b 10 preserves the procedure except to the
extent companytra-indicated in s. 25b. negation of the right of
appeal follows from s. 25b 8  only if the order for recovery
is made in accordance with the procedure specified in this
section  i.e. 25b . here the dispossession was number ordered
under the special provision in s. 25b but under s. 15. number
can the theory of merger salvage the order because the
legality of the eviction order depends on the legality of
the order under s. 15 7 . once that order is found illegal
what follows upon that cannumber be sustained. in the view we take of the effect of s. 15 7  we allow
the appeal in exercise of our jurisdiction under article 136
and direct the case to go back to the rent companytroller. having regard to the fact that the landlord has number been
able to make out his case of bona fide requirement for long
because of the pendency of these proceedings we direct the
rent companytroller to dispose of the petition for eviction
expeditiously and as far as possible within four months
from today. any further arrears if accrued will be paid under the
directions of the rent companytroller on or before a date fixed
by him.


civil appellate jurisdiction civil appeal number. 142-146 of
1962.
appeals from the judgment and order dated may 3 1961 of
the rajasthan high companyrt in d. b. civil writs number. 40 39
45 46 and 77 of 1961.
sarjoo prasad v. p. gyagi d. p. gupta and h. p.
maheshwari for the appellants. k. daphtary solicitor general of india kansingh s.

kapur and p. d. menumber for the respondents
1962. april 17. the judgment of the companyrt was delivered by
wanchoo j.-these five appeals on certificates granted by
the rajasthan high companyrt raise companymon questions and will be
dealt with together. appeals number. 142 144 and 145 are with
respect to jaipur bharatpur route appeal number 143 with
respect to jaipur-shahpur-alwar-himkathana route and appeal
number 146 with respect to ajmer-kotah route. it appears that
the rajasthan state roadways which is a state transport
undertaking published five schemes in pursuance of s. 68-c
of the motor vehicles act number 4 of 1939  hereinafter called
the act . later the government of rajasthan appointed the
legal remembrance to companysider objections to these five draft
schemes. objections were led by the stage carriage permit-
holders who were plying on these five routes. the
objections with reference to the three routes with which
these appeals are companycerned were heard on december 7 and 14
1961  and the draft schemes were approved by the legal
remembrance on december 14 and 15 1960 with slight
modifications. it appears further that the objectors relating to jaipur-
ajmer and jaipur-kotah routes which were among the five
schemes published as above objected to these two schemes
on various grounds and prayed that they should be given an
opportunity to show that the two draft-schemes did dot
provide an efficient adequate econumberical and properly
coordinated road transport service and should therefore be
number approved and also prayed that evidence might be taken in
support of their companytentions. one of the permit holders on
the jaipur ajmer route was malik ram who had companytended that
the draft-scheme should be rejected in its entirety and ad
desired to lead evidence for that purpose. the legal
remembrancer however held on the basis of an earlier
decision of the
rajasthan high companyrt in chandar bhan v. the state of
rajasthan  1  that it was number open to him to reject the
scheme in its entirety and he companyld only either approve of
it or modify it. he further hold that he companyld take no
evidence while companysidering objections to the scheme and all
that he had to do was to hear arguments on either side. malik ram then moved the rajasthan high companyrt by a writ
petition which was dismissed. he then came to this companyrt by
special leave challenging the view taken by the legal
remembrancer on the two points above. this companyrt allowed
malik rams appeal and held that it was open to the legal
remembrancer to reject the draft scheme or to take evidence
if necessary though it was pointed out that it would be
within the discretion of the state government or the officer
appointed by it to hear objections to decide whether the
evidence intended to be produced was necessary and relevant
to the inquiry and if so to give a reasonable opportunity
to the party desiring to lead evidence to do so within
reason and that the state government or the officer company-
cerned would have all the powers of companytrolling the giving
and recording of evidence that any companyrt has. this decision
was given on april 14 1961  see malik ram v. state of
rajasthan  1  . in the meantime large number of writ petitions were filed in
the rajasthan high companyrt challenging the approved schemes
with respect to the three routes with which we are companycerned
in the present appeals and also with respect to the three
routes with which we are companycerned in the present appeals
and also with respect to the other two routes. these
petitions came to be heard after the decision of this companyrt
in malik rams case 2 . so far as the petitions relating
to jaipur ajmer route were companycerned they were number pressed
in view of the decision of this companyrt quashing the scheme
 1   1961  raj. law weekly 47.  2   1962  1. s. c. r. 978.
with respect to that route and directing the legal
remembrancer to hear the objections over again. with
respect to ajmer-kotah route the high companyrt allowed the
objections on the basis of the decision of this companyrt in
malik rams case  1  as the objector in those cases had
wanted to lead evidence on the question of rejection of the
draft scheme in its entirety and they had number been given an
opportunity to do so. but with respect to the three routes
with which the present appeals are companycerned the high companyrt
dismissed the writ petitions on the ground that there was
numberhing to indicate that the appellants desired to lead
evidence in support of their case that the draft-schemes
should be totally rejected. it was companytended before the
high companyrt that it was useless for the appellants to make
any application for the taking if evidence because it would
in any case have been rejected an the legal remembrancer had
already taken the view that be companyld number reject the scheme
as a whole. the high companyrt was however number impressed with
this argument and held that the order of the legal
remembrancer did number show that he thought that the draft
scheme should be totally rejected but felt unable to do so
because of the decision of the high companyrt in chander bhans
case  2 . on the other hand the high companyrt was of the view
that the legal remembrancer companysidered the objections raised
before him in detail and his order showed that he only
thought that the schemes should be modified in part and were
otherwise fit for approval. the appellants then applied to
the high companyrt for certificates which were granted and that
is how the matter has companye up before us. the main companytentions of the appellants before us are the
same which they raised before the high companyrt. they urge
that they did number get a proper hearing before the legal
remembrancer because
 1   1962  1 s.c.r. 978.  2   1961  raj law weekly 47.
of his view that it was number open to him to reject the
schemes in their entirety and that they were number given an
opportunity to lead evidence to companyvince the legal
remembrancer that the schemes should be rejected in their
entirety. it is number in dispute that the appellants never
applied before the legal remembrancer that they wanted to
lead evidence on any point in support of their objections. only in one writ petition  see c. a. 144 of 1962  it was
averred that the legal remembrancer did number allow the
appellants to lead evidence but that in our opinion is number
correct because the legal remembrancer has filed an
affidavit to the effect that numbersuch oral request was made
to him by the objectors on the three routes with which these
appeals are companycerned. the high companyrt therefore was right
in saying that it companyld number be said in these cases that the
legal remembrancer had shut out evidence relating to the
inquiry before him which the objectors desired to produce. but it is urged on behalf of the appellants that as the
legal remembrancer had already taken one view in the case of
jaipur ajmer route it was useless for them to make an
application to him for leading evidence for that would have
inevitably been rejected in view of the earlier judgment of
the rajasthan high companyrt referred to above. even though
this may be so it is remarkable that did number that prevent
the objectors on the jaipur-ajmer and jaipur-kotah routes
from making applications to the legal remembrancer that the
draft-schemes should be totally rejected and they should be
given an opportunity to lead evidence to show this. we fail
to see why the appellants companyld number have been taken the same
course if they really desired to lead any evidence in order
to make out their case for total rejection of the schemes
with which they were companycerned. it seems to us clear
therefore that at the stage when objections were being heard
by the legal remembrancer there was numberdesire on the part of
the appellants to lead any evidence in support of their
objections. number does it appear that when the writ petitions
were filed in the high companyrt the appellants claimed that
they had desired to lead evidence and had been shut out by
the legal remembrancer. it was only after the decision in
malik rams case  1  that applications were filed taking
advantage of that decision and pointing out that the wrong
approach of the legal remembrancerin holding that it was number
open to him to reject the draft-scheme in its entirety had
resulted in the appellants number getting an effective
hearing. but it does number seem to have been suggested even
at that  except in one case  that the appellants had desired
to lead evidence before the legal remembrancer and he bad
abut them out. number was it shown at that stage what evidence
the appellants companyld produce in support of their objections
if an opportunity had been given to them. lastly even this
court the appellants have number indicated what evidence they
could produce in support of the objections raised by them. it seems to us therefore that the appellants never really
desired to produce evidence in order to establish that the
schemes as a whole should be rejected and that they put
forward the companytention that they would have produced
evidence if given an opportunity to do so merely taking
advantage of the decision of this companyrt in malik rams case
 1 . further it seems to us on looking at one of the
objections filed before the legal remembrancer in c.a. 1492
of 1962 as a .sample that there was numberhing in the
objections which really required the giving of evidence and
which would show that there companyld be any desire on the part
of the objectors to lead evidence. the objections were of a
general nature and all that was desired was that the state
government must weigh the objections of the undersigned with
reference to the actual companyditions obtaining on the said
route by such method as holding public inquiry on site by
looking into the past records of
 1   1962  1 s.c.r. 978.
service provided by the objector by inspecting the vehicle
of the objector and by companyparing the actual facilities
provided by the objector. in short a perusal of the
objections shows that what was being companytended before the
legal remembancer was number so much that the draft-schemes
were number efficient adequate econumberical and properly company
ordinate but that the objectors were providing transport
service which was more efficient adequate econumberical and
properly companyrdinated than the service proposed to be
provided in the draftschemes. that however is hardly a
reason for rejecting the draft-schemes in their entirety. further a perusal of the order of the legal remembrancer
summarising the objections which are relevant under s. 68d
shows that the objection were of such a nature as to
require the productions of evidence in support of them for
the question of fact raised there were number in dispute. therefore there companyld be an effective hearing before the
legal remembrancer if objectors were given a chance to put
forward their arguments in support of the objections even
without any evidence. we are therefore of opinion that the
appellants cannumber in the circumstances take advantage of the
decision in malik rams case  1  and on the facts and
circumstances in the present appeals there is numberdoubt that
they bad an effective hearing and the order of the legal
remembrancer approving the schemes is number in any way
vitiated by the wrong view taken by him that he had numberpower
to reject the draft-schemes in their entirety. it seems
that he companysidered the draft-schemes on merits as required
by ss. 68c and 68d and held that it was in accordance with
the requirements of s. 68c. the facts that in some cases
the number of buses might have. been reduced or the fares
have been raised or some of the direct services has to be
cut down where their routes overlapped with the routes in
the three draft-schemes would number necessarily
 1  1962 1 s.c.r. 978.
lead to the companyclusion that the draft-schemes were number in
conformity with the requirements of s. 680. the companytention
therefore based on the judgment of this companyrt in malik rams
case  1  must on the facts and circumstances of these
appeals be rejected. besides this main objection three subsidiary points have
been raised on behalf of the appellants. it appears that in
some cases the objectors served routes which overlapped the
three routes which have been taken over. in these cases
what has been done is that in some cases the permits of the
objectors have been cancelled with respect to the
overlapping part of the routes while in other cases the
objectors are allowed to ply even on the overlapping part
but they have been forbidden to pick up passengers on the
overlapping part for destinations within the overlapping
part. this latter method is called making the permits
ineffective for the. overlapping part. number the grievance of
those whose permits have thus been rendered ineffective for
the overlapping part in two-fold. in the first place it is
said that this cannumber be done and in the second place it is
said that even if this can be done the result is that those
whose permits have been made ineffective for the overlapping
part will number be entitled to companypensation under s. 68g read
with a. 68f 2 . so far as the first companytention is
concerned we are of opinion that there is numberforce in
it. under s. 68c it is open to frame a scheme in which
there is a partial exclusion of private operators. making
the permits ineffective for the overlapping part only
amounts to partial exclusion of the private operators from
that route. in the circumstances an order making the permit
ineffective for the overlapping part would be justified
under s. 68c. as to the second point there is number doubt
that where the permit is made ineffective the permitholder
number be entitled to any companypensation under
 1  1962 1 s.c.r. 978.
a. 68g. it is said that this amounts to discrimination
between those whose permits have been cancelled for the
overlapping part and who would get companypensation and those
whose permits have been made ineffective and who would
therefore number get companypensation. number we should have though
that the making of the permit ineffective for the
overlapping part of the route and allowing the permit-holder
to pick up passengers on the overlapping route for
destinations beyond that portion of the route would be to
the advantage of the permit-holder. in any case if any
permit-holder feels that he would rather have his permit
cancelled for the overlapping route and get companypensation it
is for him to raise that objection before the state
government or the officer bearing objections. if he does
number do so he cannumber be heard to say that there is
discrimination because his permit has been rendered
ineffective and he gets numbercompensation for it may very
well be that he is still better off than the person whose
permit has been cancelled for the overlapping part of the
route. in any case unless facts are brought on the record
which would show that in spite of the advantage which the
permit holder whose permit has been made ineffective for
the over lapping part of the route gets by picking up
passengers on the overlapping route for destinations beyond
that part is number equal to the companypensation which he would
get in cage his permit is cancelled for the overlapping part
of the route there would be numbercase for discrimination
under art. 14 of the companystitution. in the present appeals
numbersuch cage has been made out on the facts and therefore we
must reject this argument based upon discrimination. secondly it is urged that in the case of some persons the
permits have neither been cancelled number made ineffective
over the overlapping route and this amounts to
discrimination. the reply of
the state to this companytention is that it was by oversight
that permits of certain permit-holders on the overlapping
routes have number been cancelled or made ineffective and it is
further said that the state would have companyrected this
oversight but for the stay order obtained from this companyrt. discrimination envisaged under art. 14 is companyscious
discrimination and a discrimination arising out of oversight
is numberdiscrimination at all. in the present case the
discrimination has resulted because of an oversight which
the state is prepared to rectify. it is number the case of the
appellants that these few permit-holders are being favored
deliberately for ulterior reasons. we therefore accept the
reply of the state that a few permit-holders on the
overlapping route have been left out by oversight and that
their permits will-be dealt with in the same manner as of
the appellants as soon as the stay order passed by this
court companyes to an end. there is therefore numberforce in this
contention also and it is hereby rejected. lastly it is urged that the permits on the ajmer-kotah
route have been cancelled or rendered ineffective between
deoli and ajmer only aid therefore the permit-holders are
entitled to ply between deoli and kotah. it appears however
that deoli-kotah part of the ajmer-kotah route is companymon to
jaipur-kotah route from deoli to kotah and the necessary
orders for exclusion of permit-holders have been passed in
connection with the jaipur-kotah route. the scheme with
respect to that route was quashed by the high companyrt and the
matter sent back for re-hearing the objectors in accordance
with the decision of this companyrt in malick rams case  1 . therefore the question whether the permit-holders can ply
on the deolikotah portion of the ajmer-kotah route will
 1   1962  1 s.c.r 978.
depend on the decision of the jaipur-kotah scheme.