original jurisdiction writ petition number 63 of 1977.  under article 32 of the companystitution of india . petitioner-in-person. kuldeep singh additional solicitor general b.b. ahuja ms. a. subhashini ms. j. wad and c.v. subba rao for
the respondents. the judgment of the companyrt was delivered by
venkataramiah j. shri baburao alias p.b. samant the
petitioner herein who has argued this case in person with
great clarity and precision has raised the following
contentions in this petition. the proclamation of emergency issued on 3.12.1971
by the president of india was either ultra vires the
constitution or had ceased to be in operation on 4.2.1972.

the proclamation of emergency dated 25.6.1975
issued by the president of india on 26.6.1975 was either
ultra vires the companystitution or had ceased to be in
operation on 26.8.1975

the house of the people  extension of duration
act 1976  number 30 of 1976  is ultra vires the companystitution
and

the finance act 1976  66 of 1976  is ultra vires
the companystitution. although the petitioner had also challenged section 13
of the companystitution  42nd amendment  act 1976 and clause
 c  of section 3 of the companystitution  24th amendment  act
1971 in the petition he did number press these two companytentions
at the hearing of the petition
the petitioner was an assessee under the income-tax act
and wealth tax act during the assessment year 1976-77 and
was liable to pay income-tax and wealth tax in accordance
with the rates prescribed by the finance act 1976 which was
passed by the lok sabha during its extended period which was
extended under the provisions of the house of the people
 extension of duration  act 1976  act 30 of 1976  after
the expiry of five years from the date appointed for its
first meeting. the companytention of the petitioner is that the
duration of the house of the people companyld have been validly
extended only when a proclamation of emergency was in force
under the proviso to clause  2  of article 83 of the
constitution and since the two proclamations of emergency
dated 3rd december 1971 and 25th june 1975 were either
ultra vires the companystitution or had ceased to be in
operation by the time the house of the people  extension of
duration  act 1976  act 30 of 1976  was passed by
parliament the house of the people  extension of duration
act 1976  act 30 of 1976  had numbereffect and companysequently
all acts passed by the house of the people during the
extended period including the finance act 1976 were ultra
vires the companystitution. he further submitted that even
though the said proclamations had been validly issued the
proclamation of emergency dated 3rd december 1971 had
ceased to be in operation on 3rd february 1972 and the
proclamation of emergency dated 25th june 1975 which was
issued on 26th june 1975 had ceased to be in operation by
26th august 1975 because the resolutions passed by the two
houses of parliament approving the said proclamations of
emergency as required by clause  2  of article 352 of the
constitution as it stood during the relevant time had number
been published in the official gazette of the government of
india. the petition is opposed by the union of india. the
union of india has companytended that the two proclamations of
emergency had been duly issued by the president and approved
by the resolutions of two houses of parliament as required
by law and that actually the proclamation of emergency of
3rd december 1971 had been revoked by the vice-president
acting as the president by the proclamation
dated 27th march 1977 and the proclamation of emergency
dated june 25th 1975 had been revoked by him by the
proclamation dated 21st march 1977. in the month of
february 1976 when the house of the people  extension of
duration  act 1976  act 30 of 1976  was passed by
parliament both the proclamations of emergency were in force
and therefore parliament was entitled to extend the period
of the house of the people for a period number exceeding one
year at a time. the finance act 1976 passed during the
period so extended had been therefore validly passed. it
was further pleaded by the union of india that the
publication of the resolutions was number necessary and that in
any event since they had been published in the lok sabha
debates and the rajya sabha debates which were published
under the authority of the speaker of the house of the
people and the chairman of the rajya sabha respectively the
proclamations of emergency remained in force until they were
duly revoked. article 352 of the companystitution as it stood at the
relevant time read as follows
352  1  if the president is satisfied that a
grave emergency exists whereby the security of
india or of any part of the territory thereof is
threatened whether by war or external aggression
or internal disturbance he may by proclamation
make a declaration to that effect. a proclamation issued under clause  1 -
 a  may be revoked by a subsequent proclamation
 b  shall be laid before each house of parliament
 c  shall cease to operate at the expiration of
two months unless before the expiration of that
period it has been approved by resolution of both
houses of parliament
provided that if any such proclamation is
issued at a time when the house of the people has
been dissolved or the dissolution of the house of
the people takes place during the period of two
months referred to in sub-clause  c  and if a
resolution approving the proclamation has been
passed by the companyncil of states but numberresolution
with respect to such proclamation has been passed
by the house of the people before the expiration
of that period the
proclamation shall cease to operate at the
expiration of a thirty days from the date on which
the house of the people first sits after its
reconstitution unless before the expiration of the
said period of thirty days a resolution approving
the proclamation has been also passed by the house
of people. a proclamation of emergency declaring
that the security of india or of any part of the
territory thereof is threatened by war or by
external aggression or by internal disturbance may
be made before the actual occurrence of war or of
any such aggression or disturbance if the
president is satisfied that there is imminent
danger thereof. clause  1  of article 352 of the companystitution provided
that if the president was satisfied that a grave emergency
existed whereby the security of india or of any part of the
territory thereof was threatened whether by war or external
aggression or internal disturbance he might by proclamation
make a declaration to that effect. the proclamation issued
under clause  1  of article 352 of the companystitution companyld be
revoked by a subsequent proclamation. it was required to be
laid before each house of parliament and that the
proclamation would cease to operate at the expiration of two
months unless before the expiration of that period it was
approved by resolutions of both houses of parliament. on december 3 1971 when india was attacked by
pakistan the president issued a proclamation under clause
 1  of article 352 as he was satisfied that the security of
india had been threatened by external aggression. the said
proclamation was published in the official gazette on the
same date. it reads thus
ministry of home affairs
notification
new delhi 3rd december 1971 g

s.r. 1789 the following proclamation of
emergency by the president of india dated 3rd
december 1971 is published for general
information. proclamation of emergency
in exercise of powers companyferred by clause  1
of article 352 of the companystitution i v.v. giri
president of india by this proclamation declare
that a grave emergency exists whereby the security
of india is threatened by external aggression. new delhi
3rd december 1971
sd -

v. giri
president
the said proclamation was laid before both the houses
of parliament on the 4th december 1971. in the lok sabha a
resolution was moved by the prime minister which read as
follows
i beg to move
that the house approves the proclamation of
emergency issued under article 352 of the
constitution by the president on the 3rd december
1971.
mr speaker resolution moved
that the house approves the proclamation of
emergency issued under article 352 of the
constitution by the president on the 3rd december
1971.  see lok sabha debates dated december 4
1971 companyumn 4 . after some discussion in the house the resolution was
carried unanimously and it was adopted.  see lok sabha
debates dated december 4 1971 companyumn 37 . similarly a
resolution was adopted by the rajya sabha approving the said
proclamation of emergency.  see rajya sabha debates dated
december 4 1971 companyumn 46 . the said resolutions of the
houses of parliament were numberdoubt number published in the
official gazette. the above proclamation of emergency was
revoked by the vice-president acting as president on the
27th march 1977 by a proclamation which read thus
minstry of home affairs
notification
new delhi the 27th march 1977

s.r. 132  e -the following proclamation made by
the vice-president acting as president of india is
published for general information
proclamation
in exercise of the powers companyferred by sub-
clause  a  of clause  2  of article 352 of the
constitution i basappa danappa jatti vice-
president acting as president of india hereby
revoke the proclamation of emergency issued under
clause  1  of that article on the 3rd of december. 1971 and published with the numberification of the
government of india in the ministry of home
affairs number g.s.r. 1789 dated the 3rd december
1971.
new delhi
the 27th march 1977
sd -

d.jatti
vice-president acting as president
the above proclamation was published in the official
gazette extraordinary dated the 27th march 1977. on the
25th day of june 1975 the president of india issued a
proclamation of emergency as he was satisfied that the
security of india was threatened by internal disturbance. that proclamation was published under a numberification dated
26th june 1975 in the official gazette. it read thus
ministry of home affairs
notification
new delhi the 26th june 1975

s.r. 353  b
the following proclamation of emergency by
the president of india dated the 25th june 1975
is published for general information
proclamation of emergency
in exercise of the powers companyferred by clause
 1  of article 352 of the companystitution i
fakkhruddin ali ahmed president of india by this
proclamation declare that a grave emergency exists
whereby the security of india is threatened by
internal disturbance. new delhi
the 26th june 1975 f.a. ahmed
president
number.11/16013/1/75-sp d-11

l. khurana secy. a resolution was moved in the lok sabha on july 21
1975 seeking the approval of the lok sabha to the
proclamation of emergency dated the 25th june 1975 and also
the order of the president dated 29th june 1975 made in
exercise of the powers companyferred by sub-clause  b  of clause
 4  of article 352 of the companystitution  as it stood then  as
applying to the state of jammu and kashmir. the proclamation
of emergency was also laid on the table of the lok sabha. that resolution was adopted by the lok sabha on july 23
1975.  see lok sabha debates dated july 23 1975 companyumn
427 . a resolution was moved seeking the approval of the
said proclamation of emergency on 21st july 1975 in the
rajya sabha and it was adopted by the rajya sabha on 22nd
july 1975.  see rajya sabha debates dated july 22 1975
column 124 . the resolution of the lok sabha and the
resolution of the rajya sabha approving the proclamation
dated 25th june 1975 were number published in the official
gazette. the vice-president acting as president revoked the
proclamation of emergency dated 25th june. 1975 by anumberher
proclamation dated 21st march 1977 which reads thus
ministry of home affairs
notification
xxxxxxxxxx

s.r. 117/e-the following proclamation made
by the
vice-president acting as president of india is
published for a general information
proclamation
in exercise of the powers companyferred by sub-
clause  a  of clause  2  of article 352 of the
constitution i basappa danappa jatti vice-
president acting as president of india hereby
revoke the proclamation of emergency issued under
clause  1  of that article on the 25th june 1975
and published with the numberification of the govt. of india in the ministry of home affairs number gsr
353 b  dated the 26th june 1975.

d.jatti
vice-president acting as president
new delhi
the 21st march 1977.
article 83 2  of the companystitution during the relevant
time that is before the 42nd amendment act of 1976 read as
follows
83.  1

the house of the people unless sooner
dissolved shall companytinue for five years from the
date appointed for its first meeting and numberlonger
and the expiration of the said period of five
years shall operate as a dissolution of the house
provided that the said period may while a
proclamation of emergency is in operation be
extended by parliament by law for a period number
exceeding one year at a time and number extending in
any case beyond a period of six months after the
proclamation has ceased to operate. as the period of five years from the date appointed for
its first meeting of the then existing house of the people
was about to companye to a close parliament enacted the house of
the people  extension of duration  act 1976  act 30 of
1976  which received the assent of the president on the 16th
february 1976. section 2 of that act read thus

extension of duration of the present
house of the people. the period of five years
 being the period for which the house of the
people may under clause  2  of article 83 of the
constitution companytinue from the date appointed for
its first meeting  in relation to the present
house of the people shall while the proclamation
of emergency issued on the 3rd day of december
1971 and on the 25th day of june 1975 are both in
operation be extended for a period of one year
provided that if both or either of the said
proclamations cease or ceases to operate before
the expiration of the said period of one year. the finance act 1976 was passed by the lok sabha after
its period was extended as stated above and by the rajya
sabha in the early part of the year 1976 and it received the
assent of the president on the 27th may 1976. aggrieved by
the levy of the rates of income tax and of wealth tax as
provided by the finance act 1976 the petitioner has filed
this writ petition. two important questions which arise for companysideration
in this case are  i  whether the two proclamations of
emergency were validly issued or number? and  ii  whether each
of the said proclamations had ceased to be in force at the
expiration of two months from the date on which each of them
was issued as the resolutions of the houses of parliament
approving each of them had number been published in the
official gazette. in waman rao ors. etc. etc. v. union of
india ors.19812 s.c.r.1 the validity of the 40th and
the 42nd companystitutional amendments had been questioned on
similar grounds. this companyrt while it left open the question
whether the issuance of the proclamations of emergency
raised a justiciable issue on the basis of the material
placed before it came to the companyclusion that they had been
duly issued. chandrachud cj observed in the companyrse of his
judgment in waman raos case  supra  at page 45 thus
thus in the first place we are number
disposed to decide the question as to whether the
issuance of a proclamation of emergency raises a
justiciable issue. secondly assuming it does it
is number possible in the present state of record to
answer that issue one way or the other. and
lastly whether there was justification for
continuing the state of emergency after the
cessation of hostilities with
pakistan is a matter on which we find ourselves
ill-equipped. companying to the two acts of 1976 by which the
life of the lok sabha was extended section 2 of
the first of these acts 30 of 1976 which was
passed on february 16 1976 provided that the
period of five years in relation to the then house
of the people shall be extended for a period of
one year while the proclamation of emergency
issued on the 3rd day of december 1971 and on the
25th day of june 1975 are both in operation. the second act of extension companytinues to companytain
the same provision. it is companytended by the
petitioners that the proclamation of december 3
1971 should have been revoked long before february
16 1976 and that the proclamation of june 25
1975 was wholly uncalled for and was mala fide. since the pre-condition on which the life of the
parliament was extended is number satisfied the act
it is companytended is ineffective to extend the life
of the parliament. we find it difficult to accept
this companytention. both the proclamations of
emergency were in fact in operation on february
16 1976 when the first act was passed as also on
numberember 24 1976 when the second act 109 of
1976 was passed. it is number possible for us to
accept the submission of the petitioners that for
the various reasons assigned by them the first
proclamation must be deemed number to be in existence
and that the second proclamation must be held to
have been issued mala fide and therefore number-est. the evidence produced before us is insufficient
for recording a decision on either of these
matters. it must follow that the two acts by which
the duration of the lok sabha was extended are
valid and lawful. the 40th and the 42nd
constitutional amendments cannumber therefore be
struck down on the ground that they were passed by
a lok sabha which was number lawfully in existence. the petitioner however companytended before us that the
above decision had been rendered on insufficient material
and that if it was open to any person to place before this
court sufficient material the companyrt should reconsider the
question of the validity of the proclamations of emergency. assuming that it is possible for this companyrt to reopen the
case the petitioner has number been able to place before this
court any new material on the basis of which it is possible
for us to
conclude that the proclamations had been issued by the
president without applying his mind or mala fide. we are
therefore bound by the decision of this companyrt in waman
raos case  supra  upholding the validity of the two
proclamations of emergency. the only other question which
requires to be companysidered is whether on account of the
number-publication in the official gazette of the resolutions
of the two houses of parliament approving the two
proclamations of emergency the proclamations came to an end
on the expiry of the period of two months from the date of
issue thereof. the fact that the two proclamations had been approved
by the resolutions passed by both the houses of parliament
as set out earlier in the companyrse of this judgment is number
disputed by the petitioner. what the petitioner however
contended before the companyrt was that the resolutions which
were almost legislative in character and which had the
effect of companyverting the federal state into almost an
unitary state by companyferring large powers on the central
executive and parliament as provided in article 353 and in
some other provisions of the companystitution should have been
given wide publicity so that people who were affected
thereby companyld if they did number feel satisfied about the need
for companytinuing the state of emergency either protest or make
appropriate representation. the petitioner urged that the
democratic nature of the companystitution which had been
highlighted in its preamble required that wide publicity
should be given to the resolutions of the two houses of
parliament approving any proclamation of emergency and that
the only means available for giving such publicity was the
publication of resolutions in the official gazette in which
the proclamations of emergency had been published. in
support of his argument the petitioner relied upon several
proclamations issued in india right from the days of queen
victoria on many important occasions which had been widely
published in the official gazette and by other means. he
also drew our attention to the proclamations issued
elsewhere which had been given similar publicity through the
official gazettes of those companyntries. the petitioners
argument in a nut shell was that the resolutions passed by
parliament which had the effect of companytinuing the duration
of emergency being of the same character as proclamations
themselves should have been published in the official
gazette and in the absence of such publication the
proclamations of emergency should be deemed to have become
ineffective on the expiry of the period of two months from
the issue thereof. article 352 of the companystitution does number prescribe that
a proclamation of emergency should be published in the
official gazette. the
proclamation of emergency is defined in article 366 18
thus
366.  18  proclamation of emergency means
a proclamation issued under clause  1  of article
352.
article 366 19  of the companystitution defines a public
numberification thus b
366.  19  public numberification means a
numberification in the gazette of india or as the
case may be the official gazette of a state. wherever the companystitution expressly requires a certain
numberification should be published in the official gazette it
has stated that the said numberification shall be published in
the form of a public numberification. by way of an
illustration reference may be made to article 364 1  of the
constitution which reads thus
364.  1  numberwithstanding anything in this
constitution the president may by public
numberification direct that as from such date as may
be specified in the numberification-
 a  any law made by parliament or by the
legislature of a state shall number apply to any
major port or aerodrome or shall apply
thereto subject to such exceptions or
modifications as may be specified in the
numberification or
 b  any existing law shall cease to have
effect in any major port or aerodrome except
as respects things done or omitted to be done
before the said date or shall in its
application to such port or aerodrome have
effect subject to such exceptions or
modifications as may be specified in the
numberification  -
thus it is seen that any public numberification issued
under article 364 1  of the companystitution has to be published
in the official gazette as provided by article 366 19  of
the companystitution. a proclamation of emergency being a very
important event affecting public life has also to be
published in any manner knumbern to the modern world and the
publication in the official gazette is one such mode. we are
of the view that if the companystitution requires that a
particular mode of publica-
tion is necessary then such mode must be followed but if
there is numbermode of publication prescribed by the
constitution then it must be companysidered that the
constitution has left the method of publication to the
authority issuing the proclamation in order to make it knumbern
to the members of the public. in the instant case the
proclamations of emergency have been published in the
official gazette. the petitioner companytended that even though
it was number expressly provided that the resolutions passed by
both the houses of parliament should be published in the
official gazette they should have been published for the
very same reason which companypelled the government to publish
the proclamations in the official gazette. in the
constitution and in the rules of procedure of the houses of
parliament and of the stale legislatures there are several
provisions which provide for resolutions being passed by the
houses of parliament or the houses of state legislatures. they are among others  i  article 123 2  a -disapproval of
an ordinance  ii  article 169-abolition or creation of a
legislative companyncil  iii  article 213 2  a -disapproval of
an ordinance  iv  article 249-resolution of the companyncil of
states empowering parliament to legislate with respect to
any matter in a state list in national interest  v  article
252-resolutions of the house or houses of state legislatures
of two or more states to enable parliament to legislate on a
state subject or adoption of a law made under article 252 by
a state legislature which had number requested parliament to
make it before it was passed by the parliament  vi  article
312-resolution passed by the companyncil of states creating a
new all-india service  vii  article 315 2 -resolutions of
house or houses of state legislature of two or more states
to enable parliament to provide a companymon public service
commission to such states  viii  article 320 5 -amendment
or repeal of regulations made by the president or the
governumber under the proviso to article 320 3   ix  original
article 352 2  c  and the present article 352 4 -approval of
proclamations of emergency by the houses of parliament  x
article 356 3 -approval of proclamation made under article
356 1 .  xi  article 360 2 -approval of the proclamation of
financial emergency by the houses of parliament  xii
proviso to article 368-resolutions to be passed by the state
legislatures approving the companystitutional amendments
approved by parliament  xiii  article 371a 1  a -power of
nagaland legislative assembly to adopt an act of parliament
in respect of certain matters  xiv  articles 61 67 b  90
94 101 4  124 4  148 1  190 4  and 217 1  b -relate to
removal of high companystitutional dignitaries from office  xv
article 3-state legislature expressing its views on the
alteration of its boundaries of the state
concerned  xvi  rule number 234 to 239 of the lok sabha rules
of a procedure and companyduct of business-relating to
modification of subordinate legislation and  xvii  privilege
motions before the houses of parliament and the state
legislatures relating to punishment for companytempt or removal
from membership on account of highly unbecoming companyduct of
members. in all these cases any resolution passed by the
concerned legislative body has far-reaching companysequences. they are number required to be published on the official
gazette even though in some cases they are published say
where a central law is adopted under article 252 or a member
is removed on the ground of privilege etc they would number
be treated as ineffective merely because they are number
published in the official gazette. they are all however
published in the reports of the houses of parliament and of
the houses of the state legislature within a reasonable
time. the petitioner relied on the decision of this companyrt in
harla v. the state of rajasthan 1952 s.c.r. 110 in
support of his companytention. in that case the facts were
these. the companyncil of ministers appointed by the crown
representative for the government and administration of the
jaipur state passed a resolution in 1923 purporting to enact
a law called the jaipur opium act but that law was neither
promulgated or published in the gazette number made knumbern to
the public. the jaipur laws act 1923 which was also passed
by the companyncil and which came into force on the ist
numberember 1924 provided by section 3 b  that the law to be
administered by the companyrt of the jaipur state shall be
 b all the regulations number in force within the
said territories and the enactments and regulations that may
hereafter be passed from time to time by the state and
published in official gazette. in 1938 the jaipur opium act
was amended by adding a clause to the effect that it shall
come into force from the ist of september 1924. this companyrt
held that the mere passing of the resolution of the companyncil
without further publication or promulgation of the law was
number sufficient to make the law operative and the jaipur
opium act was number therefore a valid law. it further held
that the said act was number saved by section 3 b  of the
jaipur laws act 1923 as it was number a valid law in force on
the ist numberember 1924 and the mere addition of a clause in
1938 that it came into force from 1924 was of numberuse. in
state of punjab v. sat pal dang ors. 1969 1 s.c.r. 478
one of the questions which arose for companysideration was
whether the decision of the governumber proroguing the
legislative assembly was required to be companymunicated to each
and every member of the legislature before it companyld become
effective. this companyrt held that article 174 2  of the
constitution which enabled the governumber to prorogue the
legislature did number indicate the manner
in which the governumber was to make such orders knumbern and that
he companyld follow the well-established practice that such
orders were ordinarily made knumbern by a public numberification
which meant numbermore than that they were numberified in the
official gazette of the state. there was such a numberification
on the 11th march 1968 and the prorogation must be held to
have taken effect from the date of publication. it was number
necessary that the order should reach each and every member
individually before it companyld become effective. in so far as
the governumber was companycerned it was open to him to publish a
numberification issued by him under article 174 2  of the
constitution in the official gazette of the state and such
publication was companysidered to be sufficient. but the real
question in this case is whether the resolutions passed by
both the houses of parliament approving the two
proclamations of emergency had also to be published in the
official gazette. we shall assume that the resolutions of
both the houses of parliament approving a proclamation of
emergency should be given due publicity. we have already
shown above that in the lok sabha debates and in the rajya
sabha debates the proceedings relating to the resolutions in
question had been published in the usual companyrse. rule 379 of
the rules of procedure and companyduct of business in lok sabha
provides for the publication of the full report of the
proceedings of the lok sabha. it reads thus

the secretary shall cause to be
prepared a full report of the proceedings of the
house at each of its sittings and shall as soon
as practicable publish it in such form and manner
as the speaker may from time to time direct. rule 382 1  of the said rules provides for the printing
and publication of parliamentary papers. it reads thus
382.  1  the speaker may authorise printing
publication distribution or sale of any paper
document or report in companynection with the business
of the house or any paper document or report laid
on the table or presented to the house or a
committee thereof. a paper document or report printed
published distributed or sold in pursuance of
sub-rule  1  shall be deemed to have been printed
published distributed or sold under the authority
of the house within the meaning of clause  2  of
article 105 of the companystitution. similarly in the rules of procedure and companyduct of
business of
the companyncil of states  rajya sabha  rule 260 provides thus

preparation and publication of
proceedings of companyncil.-the secretary-general
shall cause to be prepared a full report of the
proceedings of the companyncil at each of its meetings
and shall as soon as practicable publish it in
such form and manner as the chairman may from
time to time direct. the rules of procedure of the both the houses of
parliament are made under article 118 1  of the companystitution
which reads thus
118.  1  each house of parliament may make
rules for regulating subject to the provisions of
this companystitution its procedure and the companyduct
of its business. until rules are made under clause  1
the rules of procedure and standing orders in
force immediately before the companymencement of this
constitution with respect to the legislature of
the dominion of india shall have effect in
relation to parliament subject to such
modifications and adaptations as may be made
therein by the chairman of the companyncil of states
or the speaker of the house of the people as the
case may be
section 57 of the indian evidence act 1872 requires
the companyrt to take judicial numberice of the facts stated
therein. clause  4  of section 57 of the indian evidence
act 1872 reads thus

the companyrt shall take judicial numberice of
the fol lowing facts

the companyrse of proceeding of parliament of the
united kingdom of the companystituent assembly of
india of parliament and of the legislatures
established under any laws for the time being in
force in a province or in the state. section 56 of the indian evidence act 1872 provides
that

numberfact of which the companyrt will take
judicial numberice need be proved. section 74 of the indian evidence act 1872 refers to
the docu-
ments which are companysidered to be public documents. sub-clause  iii  of clause  1  of section 74 reads thus
74 the following documents are public
documents
 1  documents forming the acts or records of the
acts- i    ii    iii  of public
officers legislative judicial and executive of
any part of india or of the companymonwealth or of a
foreign companyntry. section 78 of the indian evidence act 1872 lays down
the mode of proof of certain public documents. the relevant
part of it reads thus

the following public documents may be
proved as follows
 1

the proceedings of the legislatures-
by the journals of these bodies respectively
or by published acts or abstracts or by companyies
purporting to be printed by order of the
government companycerned. the lok sabha debates and the rajya sabha debates are
the journals or the reports of the two houses of parliament
which are printed and published by them. the companyrt has to
take judicial numberice of the proceedings of both the houses
of parliament and is expected to treat the proceedings of
the two houses of parliament as proved on the production of
the companyies of the journals or the reports companytaining
proceedings of the two houses of parliament which are
published by them. in niharendu dutt majumdar v. the king emperor 1942

c.r.38 the federal companyrt of india was called upon to
decide a question almost similar to the question which has
arisen before us in this case. the facts of that case were
these. section 102 of the government of india act 1935
authorised the governumber-general to issue a proclamation of
emergency the relevant part of which read as follows
102.  1  numberwithstanding anything in the
preceding
sections of this chapter the federal legislature
shall if the governumber-general has in his
discretion declared by proclamation  in this act
referred to as a proclamation of emergency  that
a grave emergency exists whereby the security of
india is threatened whether by war or internal
disturbance have power to make laws for a
province or any part thereof with respect to any
of the matters enumerated in the provincial
legislative list or to make laws whether or number
for a province or any part thereof with respect
to any matter number enumerated in any of the lists
in the seventh schedule to this act.  2

a proclamation of emergency
 a  may be revoked by a subsequent proclamation
 b  shall be companymunicated forthwith to the
secretary of state and shall be laid by him before
each house of parliament
 c  shall cease to operate at the expiration of
six months unless before the expiration of that
period it has been approved by resolutions of both
houses of parliament. the governumber-general had issued a proclamation in
exercise of his powers under section 102 2  of the
government of india act 1935 declaring that a grave
emergency existed whereby the security of india was
threatened by war on september 3 1939 on receipt of
information from his majestys government in the united
kingdom that a state of war existed between his majesty and
germany and on september 29 1939 the defence of india act
1939 was enacted. the appellant in that case was companyvicted
by the additional chief presidency magistrate at calcutta on
the 21st july 1941 of offences under sub-paragraphs  e
and  k  of paragraph  6  of rule 34 of the defence of india
rules and was sentenced to be detained till the rising of
the companyrt and to pay a fine of rs.500 and in default to
undergo six months rigorous imprisonment. the companyviction
and sentence were upheld on appeal by the high companyrt and
the appellant had preferred the above said appeal before the
federal companyrt against the judgment of the high companyrt of
calcutta. on appeal although the appellant was
acquitted on the ground that the facts established in the
case did number make out the offences for which he had been
punished the federal companyrt negatived the companytention of the
appellant that the proclamation of emergency issued under
section 102 of the government of india act 1935 had ceased
to be in force at the expiration of six months as there was
numberproof of the fact that the said proclamation of emergency
had been approved by the resolutions of both the houses of
the british parliament as required by clause  c  of section
102 of the government of india act 1935. before the high
court the relevant volumes of the parliamentary debates
which companytained the official reports of the debates in the
houses of the british parliament had been produced and
accepted by the high companyrt as proof that the british
parliament had passed the necessary resolutions. but the
appellant companytended that that proof was number adequate and
that only companyies of the official journals of the two houses
had to be produced. the advocate-general of bengal companytended
that the companyrt was number entitled and indeed ought to take
judicial numberice of the fact that the resolutions were passed
and that in any event the volumes of the parliamentary
debates were all that was necessary in the way of legal
proof. gwyer c.j. while rejecting the above companytention of
the appellant observed at pages 45-47 thus e
in our opinion the volumes of the official
parliamentary debates afforded adequate legal
proof of the passing of the two resolutions by the
houses of parliament. section 78 of the indian
evidence act sets our certain categories of public
documents and the manner in which they may be
proved. the first four categories  as amended by
the adaptation of indian laws order 1937  are
these  1  act orders or numberifications of the
central government in any of its departments or
of any provincial government or any department of
any provincial government  2  proceedings of
the legislatures which may be proved by the
journals of those bodies respectively or by
published acts or abstracts or by companyies
purporting to be printed by orders or regulations
issued by her majesty or by the privy companyncil or
by any department of her majestys government

proclamations orders or regulations issued by
her majesty of by the privy companyncil or by any
department of her majestys government  4  the
acts of the executive or the proceedings of the
legislature of a foreign companyntry which may be
proved by journals published by their authority
or companymonly received in that companyntry as such and
in certain other ways number here mate-
rial. in our opinion the proceedings of parliament
fall under either the second or fourth of the
categories set out above. it may be said that the
reference in the second category to proceedings of
the legislatures following immediately upon the
first category which is companyfined to acts orders
or numberifications of governments in british india
is to be taken as a reference to the legislatures
of british india only. we find it difficult
however to beliece that s. 78 excludes any
reference whatsoever to the proceedings of
parliament especially when the executive acts of
the government of the united kingdom are given a
category to themselves and we should find
ourselves companypelled if we adopted that
construction to hold that proceedings in
parliament fell into the fourth category that is
to say the proceedings of the legislatures of a
foreign companyntry but it would perhaps be even
more difficult to suppose that parliament can have
been so described by the indian legislature in
1872. the explanation may be that the
legislatures to which the second category refers
are intended to include all the legislatures which
have the power to make laws for british india or
for any part thereof but we have numberdoubt that
the present case must fall within either the one
category or the other   we have
ascertained by inquiry from the legislative
department of the government of india that the
official reports of the companyncil of state and of
the legislative assembly which follow very closely
the form and manner of presentation of the
official parliamentary debates in england are the
only record of the proceedings of the two houses
numberother record similar to that of the journals of
the two houses of parliament in england being
made. the proceedings of the indian legislature
could clearly be proved by tendering in evidence
copies of these official reports and we can see
numberreason why the proceedings of parliament cannumber
be proved by an exactly similar english
publication issued with a similar authority. having regard to the view which we take on
this point we need number companysider the other
contention urged by the advocate-general of bengal
that the passing of the two resolutions by
parliament was a matter of which the companyrts were
entitled to take judicial numberice. we have quoted in extenso the relevant part of the
judgment in niharendu dutt majumdars case  supra  with
which we respectfully agree since we are companycerned in this
case with a similar question. we do number also find much substance in the submission
of the petitioner that the publication in the lok sabha
debates and in the rajya sabha debates had been made after
about two months and therefore until the resolutions were
published they were ineffective. what is essential is that
the resolutions approving the proclamation of emergency
should be passed within the period of two months. a little
delay in publishing the proceedings would number affect the
validity of the resolutions. let us take the case of an act
of parliament. under section 5 of the general clauses act
1897 where any central act is number expressed to companye into
operation on a particular day then it shall companye into
operation on the day on which it receives the assent of the
president and unless the companytrary is expressed a central act
shall be companystrued as companying into operation immediately on
the expiration of the day preceding its companymencement. even
if there is some delay in the publication of the central act
in the official gazette its operation does number get
suspended until such publication unless the companytrary is
expressed in the statute itself. while on the face of it as
observed by sir c.k. allen in his law and orders  2nd edn.  at page 132 it would seem reasonable that legislation of
any kind should number be binding until it has some how been
made knumbern to the public that is number the rule of law and
if it were the automatic companyency of a statute which has
received the royal assent would be seriously and most
inconveniently impaired. the reasoning was that statutes at
least received publicity of parliamentary debate and that
therefore they were or should be knumbern. but this was number
true of delegated legislation which did number necessarily
receive any publicity in parliament or in any other way. that is the reason for the insistence of the publication of
subordinate legislation in the official gazette before it
can be brought into force. in so far as the acts and
resolutions passed by the houses of parliament and the state
legislatures are companycerned the very process of passing the
law or the resolutions in the houses of parliament or the
state legislatures gives them ample publicity. the reports
of the proceedings of parliament and the state legislatures
are widely circulated. the newspapers radio and television
are also the other modern means which give publicity to all
acts and resolutions of parliament and the legislatures of
the states. in ancient days the kings soldiers and
annumberncers had to go round the realm to give publicity to
the royal proclamations. the present day world is different
from the ancient world. the publication in the parliamentary
debates though after
some short delay is adequate publication of the resolutions
of parliament as there is numberrule which requires that the
resolutions should be published in the official gazette. hence mere number-publication of the resolutions approving the
proclamations of emergency in the official gazette did number
make them ineffective. we are satisfied that the resolutions of the lok sabha
and rajya sabha approving the two resolutions have been duly
published in the official reports of the two houses of
parliament. this ought to meet the companytention of the
petitioner that any public act or resolution which affects
public life should be given due publicity. we also hold that
the production of the lok sabha debates and of the rajya
sabha debates companytaining the proceedings of the two houses
of parliament relating to the period between the time when
the resolutions were moved in each of the two houses of
parliament and the time when the resolutions were duly
adopted amounts to proof of the said resolutions. the companyrt
is required to take judicial numberice of the said proceedings
under section 57 of the indian evidence act 1872. we are
therefore of the view that the two proclamations of
emergency were kept in force by virtue of the resolutions
passed by the houses of parliament until they were duly
revoked by the two proclamations which were issued by the
vice-president acting as president of india in the year
1977. since the two proclamations of emergency were in force
when the house of the people  extension of duration  act
1976  act 30 of 1976  was passed its validity cannumber be
questioned.


original jurisdiction petition number 91 of 1956.
petition under art. 32 of the companystitution of india for
enforcement of fundamental rights. p. sinha shaukat hussain e. udayarathnam and s. s.
shukla for the petitioners. s. bindra r. h. dhebar and t. m. sen for the
respondents number. 1 to 4. 1961. march 22. the judgment of the companyrt was delivered by
sarkar j.-one abdul hai died about 1943. he left certain
immovable properties. he had three wives and children by
each. one of his wives predeceased him. on his death the
wives and children surviving him succeeded to these
properties in certain shares. one of the surviving wives and
a daughter died subsequently. it appears that the remaining wife of abdul hai and his six
children by her went to pakistan but the time when they did
so does number appear. it is number however disputed that they
had become evacuees and their shares in the properties companyld
be properly declared evacuee property. a numberice under s. 7
of the administration of evacuee property act 1950 was in
fact issued for the purpose of declaring these persons
evacuees and their shares in the properties evacuee
property. proceedings were taken pursuant to the numberice and
on august 14 1952 an order was made declaring the migrants
evacuees and a 4/7th share in certain properties evacuee
property as belonging to them. thereafter other proceedings
were taken under evacuee interest  separation  act 1951
and an order was made on march 23 1954 under s. 11 of this
act vesting the entirety of the properties referred to in
the order of august 14 1952 in the custodian of evacuee
properties bhopal. this petition under art. 32 of the companystitution challenges
the validity of the orders of august 14 1952 and march 23
1954 as violating the petitioners fundamental right to
hold property to wit their shares in the properties
covered by the orders. it is presented by the surviving
children of abdul hai by his two deceased wives excepting
abdul aziz. abdul aziz however has been made a respondent
to the petition but is number opposing it. it is number in
dispute that the petitioners and abdul aziz never became
evacuees and are entitled to undivided shares in the
properties declared to have vested in the custodian in their
entirety. the petition is opposed by the other respondents
namely the government of india and various officers
concerned with the acts and it will be companyvenient to
describe them alone as the respondents. the first question raised is as to the validity of the order
dated august 14 1952 made under the act of 1950. it is
said that the order is a nullity as the numberice under s. 7 of
this act on which it was based was bad for the reason that
it was issued to abdul aziz who was admittedly number an
evacuee. it seems to us that it is unnecessary to decide
this question for it is number a matter with which the
petitioners are in any way companycerned. the proceedings under
that act did number purport to affect their interest in the
properties and they cannumber therefore challenge the order
made under it. further as we have earlier said it is number
in dispute that the shares of the surviving wife of abdul
hai and her children in the properties companyld properly be
declared evacuee property under the act since they had
migrated to pakistan. the order of august 14 1952 only
declared what purported to be their shares to be evacuee
property. by such a declaration numberright of the petitioners
is affected. the second question raised companycerns the order of march 23
1954 made under the act of 1951. this order vests the
entirety of certain properties left by abdul hai including
the petitioners shares in them as evacuee property and
therefore clearly affects the petitioners. we think that
the petitioners grievance against this order is of
substance and the order as it stands cannumber be sustained. this order was made under s. 11 of the act of 1951. this
act was passed to make special provisions for the
separation of the interests of evacuees from those of other
persons in property in which such other persons are also
interested see the preamble to the act. it creates an
officer called the companypetent officer for effecting such
separation. the disputed order was made by such an officer. section 2 d  defines companyposite property which so far as
is material is in these terms
s. 2 d . companyposite property means any
property which or any property in which an
interest has been declared to be evacuee
property or has vested in the custodian under
the administration of evacuee property act
1950  xxxi of 1950  and-

in which the interest of the evacuee
consists of an undivided share in the property
held by him as a companysharer or partner of any
other person number being an. evacuee or

in which the interest of the evacuee is
subject to mortgage in any form in favour of
a person number being an evacuee or

in which the interest of a person number
being an evacuee is subject to mortgage in
any form in favour of an evacuee or
section 2 b  defines a claim as follows
s. 2 b  claim means the assertion by any
per-person number being in evacuee of any
right title or interest in any property-

as a companysharer or partner of an evacuee
in the property or

as a mortagagee of the interest of an
evacuee in the property or

as a mortgagor having mortgaged the
property or any interest therein in favour of
an evacuee
section 6 authorises a companypetent. officer to issue for
the purpose of determining or separating the evacuee
interest in a companyposite property numberices requiring persons
claiming interest in any companyposite property to submit their
claims to him. section 7 deals with the procedure the form
and the time of making the claims. section 8 lays down that
on receipt of a the companypetent officer shall make an
enquiries in the manner provided and pass an order
determining the interest of the evacuee and the claimant in
the property. it also provides that the order shall
contain among others the following particulars
 1  in any case where the evacuee and the claimant ire company
sharers or partners their respective shares in the property
and the money value of such shares
 2  in any case where the claim is made by a mortgagor the
amount due to the evacuee and  3  in any case where the
claim is made by a mortgage the amount due under the claim
in accordance with the provisions of section 9.
sub-section  2  of s. 8 is in these terms
s. 8 2  where the custodian under the
administration of evacuee property act 1950
 xxxi of 1950  has determined that the
property in question or any interest therein
is evacuee property the decision of the
custodian shall be binding on the companypetent
officer
provided that numberhing companytained in this sub-
section shall debar the companypetent officer from
determining the mortgage debt in respect of
such property or any interest therein or from
separating the interest of the evacuee from
that of the claimant under section 10.
claims by mortgagees over evacuee properties are dealt with
by s. 9. section 10 gives the companypetent officer power to
separate the interests of the evacuee from those of the
claimant. it provides that the companypetent officer in
particular may- a  in the case of any claim of a company
sharer

direct the custodian to pay to the
claimant the amount of money assessed in
respect of his share in the companyposite property
or deposit the same in a civil companyrt having
jurisdiction over such property and deliver
possession of the property to the custodian
and the claimant may withdraw the amount in
deposit in the civil companyrt or

transfer the property to the claimant on
payment by him of the amount of money assessed
in respect of the share of the evacuee in the
property or

sell the property and distribute the
sale proceeds thereof between the custodian
and the claimant in proportion to the share of
the evacuee and of the claimant in the
property or  iv  partition the propert
according to shares of the evacuee and the
claimant and deliver possession of the shares
allotted to the evacuee and the claimant to
the custodian and the claimant respec-
tively
then companyes s. 11 which in certain circumstances vests the
entire property in a custodian. it was under this section
that the order number being companysidered
was passed and it will be companyvenient to set it out later. it is said on behalf of the respondents that numberices under
s. 6 of the act of 1951 both general and special. the
latter addressed to the petitioners asking for submission
of claims in respect of the properties had been issued but
numberclaim was submitted by any one. the learned companynsel for
the respondents produced a companyy of one of such numberices which
was in the form set out below
subject-105.10 acres agricultural land and one house in
village junapari tahsil berosia  4/7 share of abdul aleem
etc. evacuees
to
shri abdul aziz and his two brothers village junapani
 tahasil berosia . form c
whereas information has been received that you have an
interest in the companyposite property described in the schedule
hereto annexed. and whereas the evacuee interest in the said property is to
be separated from other interests. i number hereby call upon you to submit your claim to me in
the prescribed form within sixty days from the date of this
numberice. abdul aleem mentioned in this numberice is one of the children
of abdul rai who had evacuated to pakistan. the order that was passed by the companypetent officer under s.
11 of the act of 1951 on march 23 1954 recited that
numberices inviting claims were issued but numberclaims had been
submitted and then companycluded so it is proved that no
claim is filed deliberately though the individual numberice has
been served by post under a postal certificate. the whole
composite property listed by custodian shall vest free of
encumbrances and liabilities in the custodian bhopal u s 11
of the evacuee interest  separation  act 1951.
it is the validity of this order that is questioned by the
petitioners. they admit that they filed numberclaims but they
deny that any numberice was served on them
and also otherwise challenge its validity. we do number think
it necessary to go into the question of the validity of the
numberice for it seems to us that even if there was valid
numberice the order challenged cannumber be upheld. the question is was the order justified by s. ii of the act
of 1951? that section so far as relevant reads thus
s. 11 1 .-where in respect of any property
numberice under section 6 is issued but numberclaim
is filed or found to exist or where any claim
in respect of such property is found to exist
and the companypetent officer separates the
evacuee interest therein under section 10 the
whole property or as the case may be the
evacuee interest in the property thus sepa-
rated shall vest in the custodian free from
all encumbrances and liabilities and any
payment transfer or partition made or
effected under section 10 in satisfaction of
any claim in respect of the property shall be
a full and valid discharge of all claims in
respect of the property. the respondents companytend that the numberice mentioned in the
section having been issued and numberclaim pursuant thereto
having been filed the whole property had to vest in the
custodian and therefore the order of the companypetent officer
was valid. this companytention seems to us to proceed- on a
misreading of the section. numberices under s. 6 are issued
for the purpose of determining or separating the evacuee
interest in a companyposite property. the object of the numberice
can therefore be one or other of two things namely for
determining the evacuee interest or for separating the
evacuee interest in a companyposite property. these are two
entirely different things and are so treated in the act as
will appear from the definition of companyposite property and
ss. 8 9 and 10. the question of determining the evacuee
interest arises when the interest is either a mortgagors or
mortgagees interest in property or an undivided share in
property the extent of which is number knumbern. the
determination is then made as provided in cls.  b   c  and
 d  of s. 8 1  ascertaining the quantum of the interest as
mortgagor
mortgagee or companysharer as the case may be. a question as
to separation of interest can arise of companyrse only when
that interest is knumbern. this is done under s. 10 of the
act. a case of separation may arise for example when
the evacuee is found to have a definite undivided share in
property. number an evacuee may be found to have a definite undivided
share as a result of enquiry under s. 8 of the act of 1951
or under the order made by the custodian under a. 7 of the
act of 1950. in the present case the custodian had held
under s. 7 of the act of 1950 that the evacuees were only
entitled to 4/7th share in certain properties. this will
appear from the numberice under s. 6 of the act of 1951 which
we have earlier set out. section 8 2  says that the
declaration by the custodian under the act of 1950 that any
interest in property is evacuee property shall be binding on
the companypetent officer but this shall number prevent him from
separating under s. 10 the interest of the evacuee from
that of the claimant. in the present case the numberice was
expressly for the purpose of separation. we have to read s. 11 of the act of 1951 in the light of the
preceding sections. we have also in doing so to remember
that the object of the act of 1951 is number to vest in the
custodian property which was number evacuee property but to
vest in him only the evacuee interest in property after
determining or separating as the case may be that interest
from the interests of other persons in the manner laid down. it has further to be remembered that it has been held by
this companyrt that numberproperty vests in the custodian unless
proceedings under s. 7 of the act of 1950 had been taken
ebrahim aboobaker v. tek chand dolwani  1 . section 11
therefore cannumber vest in the custodian any property which
was number evacuee property it cannumber have the effect of
making the entire property vest in the custodian as evacuee
property where the order under s. 7 of the act of 1956 held
that a certain share in it only was evacuee property. it
would follow that when s. 11 makes the whole property vest
in the custodian in the absence of a claim
 1  1953 s.c.r. 691.
having been filed or such claim having been filed but found
to be unsustainable it deals with a case where the claim is
as mortgagor or mortgagee or to an undivided share in a
property where the order under s. 7 of the act of 1950 has
declared the whole property to be evacuee property. if it
were number to be so read then it would enable property
admittedly number belonging to an evacuee to vest in the
custodian. such companyld number have been the intention of the
act and would be against the decision of this companyrt earlier
referred to. the section therefore does number warrant the
order of march 23 1954 which purported to vest the entire
properties in the custodian though the order under b. 7 of
the act of 1950 found only a four seventh share therein to
be evacuee property.


civil appellate jurisdiction civil appeal number 144 of 1956.
appeal by special leave from the judgment and order dated
the 9th july 1955 of the former madhya bharat high companyrt
in civil misc. case number 27 of 1954.

a. khan and ratanaparkhi for the appellant. n. bindra and r. h. dhebar for the respondent. 1957. october 30. the following judgment of the companyrt was
delivered by
imam j.-this is an appeal by special leave against the order
of the madhya bharat high companyrt dated july 9 1955
rejecting an application filed by the appellant under art. 226 of the companystitution. according to the appellant his father habibullah died more
than twenty years ago leaving behind the appellant and his
brother bashirullah as his sole heirs. habibullah on his
death left immovable properties in the city of indore. bashirullah who was unmarried went mad in 1942 and died in
1950 without any issue. on his death the appellant became
the sole owner of all the properties left by his father
habibullah. on september 21 1954 the respondent purported
to serve on the appellant a numberice tinder s. 7 of the
administration of evacuee property act 1950  xxxi of 1950
hereinafter referred to as the act. this numberice was number
served on him and was never pasted on the property
concerned. service of the numberice was according to the
appellant number proper and therefore illegal. the appellant desiring to knumber on what material the numberice
under s. 7 of the act was issued against him applied on
october 1 1954 for companyies of the record and the evidence
in the possession of the respondent on the basis of which he
formed the opinion that bashirullah at his death had left
behind a son iqbal and a wife kamrunnissa who had migrated
to pakistan in companysequence of which the estate inherited by
them from bashirullah became evacuee property. the
application was rejected by the respondent. the appellant filed a petition under art. 226 of the
constitution in the madhya bharat high companyrt which was
dismissed by that companyrt. the high companyrt was of the opinion
that two questions fell to be decided in the proceedings
before it- i  was the numberice dated september 21 1954
issued by the respondent under s. 7 of the act illegal and
 2  was the refusal of the respondent to supply to the
appellant companyies of the record and the evidence in
possession of the respondent prior to the issue of numberice
under s. 7 of the act unlawful? both these questions were
decided against the appellant. the numberice dated september 21 1954 was issued under s. 7
of the act in accordance with the rules framed under s. 56
of the act. under s. 7 of the act the numberice has to be
given to persons interested in the prescribed manner. rule
6 of the rules framed under the act requires the numberice to
be in form i to be served on persons interested in the
property proposed to be declared evacuee property. we have
compared the numberice issued in the present case with form i
of the rules and can find numberdifference between them in
essential particulars. it was said that the numberice in the
present case does number state the grounds upon which the
property companycerned was proposed to be declared evacuee
property and iqbal and kamrunnissa evacuees. this
contention is without foundation because the numberice in
question definitely states under the heading grounds that
iqbal and kamrunnissa migrated to pakistan after march 1
1947 on account of the creation of the dominions. the
numberice specifies with sufficient clarity the particulars of
the property proposed to be declared evacuee property. there was numberreliable material to prove the assertion of the
appellant that the numberice was number properly served. we are
accordingly of the opinion that the numberice in question has
number been proved to be illegal on account of companytravention of
any of the provisions of the act or the rules made
thereunder. it was next companytended that there was numbermaterial before the
respondent to justify his issuing the numberice and therefore
the numberice was issued without
jurisdiction. section 7 of the act provides that where the
custodian is of the opinion that any property is an evacuee
property within the meaning of the act he may after causing
numberice thereof to be given in the prescribed manner to the
persons interested and after holding such enquiry in the
matter as the circumstances of the case permitted pass an
order declaring any such property to be evacuee property. it is for the custodian to form his opinion on such
material as was before him and on such information which
he possessed. the numberice which he issued was in form i of
the rules framed under the act and it stated clearly that
there was credible information in possession of the
respondent that lqbal and kamrunnissa were evacuees and that
the property specified in the numberice was evacuee property. it was for the respondent to decide . whether on the
information in his possession he should issue a numberice
under s. 7 of the act. it is number for this companyrt or any
other companyrt to determine whether the information in
possession of the respondent was adequate to justify the
issuing of the numberice. the companytention on behalf of the
appellant in this respect cannumber be supported on any valid
ground. it was next companytended on behalf of the appellant that when
bona fides of the respondent bad been challenged in the high
court that companyrt should have sent for the record and seen
for itself as to whether there was any justification for the
issue of the numberice under s. 7 of the act. in our opinion
this companytention cannumber prevail as there is numbermaterial on
the record to justify the accusation that the respondent
acted with malafides in issuing the numberice. the respondent
was free to believe or number to believe the information in his
possession. the mere issue of a numberice would number make the
persons named therein evacuees or the property mentioned
therein evacuee property. that stage companyld only be reached
after the numberice had been issued and after the holding of
such enquiry as the circumstances of the case permitted
when an order declaring the property to be evacuee property
could be made in respect of a person who was an evacuee as
defined in
the act. in our opinion it was unnecessary for the high
court to have called for the record and to have examined it
for itself in order to ascertain whether the respondent was
justified in issuing the numberice. we have number to companysider whether the application for companyies
filed by the appellant was improperly rejected. on his
behalf it was companytended that the application for companyies
should have been allowed as s. 7 of the act companytemplates
only one proceeding from the companymencement to the end
including the stage prior to the issue of numberice regarding
the declaration of any property as evacuee property and that
that proceeding is a judicial proceeding. since the appel-
lant was a party to the proceedings under s. 7 of the act
he was entitled to have companyies of the record including the
evidence which companystituted the proceedings. reliance was
placed on s. 49 of the act which states that all records
prepared or registers maintained under the act shall be
deemed to be public documents within the meaning of the
indian evidence act and shall be presumed to be genuine
until the companytrary is proved. reference was also made to s.
45 of the act which states that for the purpose of holding
an enquiry under the act the custodian shall have the same
powers as are vested in a civil companyrt under the companye of
civil procedure when trying a suit in respect of the
following matters
 a  enforcing the attendance of any person and examining
him on oath
 b  companypelling the discovery and production of documents
 c  any prescribed matter
and the enquiry by the custodian shall be deemed to be a
judicial proceeding within the meaning of ss. 193 and 228 of
the indian penal companye and the custodian shall be deemed to
be a companyrt within the meaning of ss. 480 and 482 of the companye
of criminal procedure. there can be little doubt that the
custodian while holding an enquiry under s. 7 of the act is
acting in a judicial capacity and that by virtue of rule 35
of the rules any party to the enquiry would be entitled to
copies of any application
objection petition affidavit or statement made by a party
or a witness and any other document. he would also be
entitled to companyies of the final original order passed by the
custodian or an order passed in appeal revision or review. the position however is quite different with respect to
the material in possession of the custodian on which he
formed his opinion and on which he issued numberice under s. 7
because at that stage he was number holding an enquiry and was
therefore number acting in a judicial capacity. it is a
misconception of the entire scheme of the act to suppose
that an enquiry under s. 7 of the act and the issuing of a
numberice previous to the holding of that enquiry is a single
proceeding. when issuing a numberice under s. 7 the custodian
merely has some credible information which in his opinion
justifies him in issuing it and thereafter to enquire into
the matter before making a declaration that the property is
evacuee property. that information may after the enquiry
has been companycluded turn out to be entirely insufficient for
making the required declaration. in our opinion there are
two stages in the process whereby any property can be
declared to be evacuee property under the act. one is the
issuing of the numberice to persons interested and the other an
enquiry under s. 7 of the act. the proceedings companymence
after the issue of a numberice and number previous to it. at the
second stage a party to the proceedings would be entitled
to companyies of the record and the evidence from the stage of
the issuing of the numberice until the companyclusion of the
enquiry but number previous to the issue of the numberice. in our
opinion the appellant would have been well advised to have
responded to the numberice issued to him and assisted the
respondent in holding the enquiry.


civil appellate jurisdiction civil appeal number 1718 of
1969.
appeal by special leave from the judgment and order dated
february 20 1967 of the allahabad high companyrt in misc. case
number 561 of 1963.
bhagirath das h. k. puri s. k. hirajee and s. k. dhingra
for the appellant. mitra b. d. sharma and r. n. sachthey for the
respondent. the judgment of the companyrt was delivered by
khanna j. this appeal by special leave is directed against
the judgment of allahabad high companyrt whereby that companyrt
answered the following two questions in a reference made to
it under section 66 2  of the indian income tax act 1922
 hereinafter referred to as the act

whether there was material for the
finding that the shares in question were
purchased by the assessee with a view to
acquire the managing agency and the companytrol of
the companypany or the shares companystituted his
stock-in-trade ? even if the shares in question did number
constitute the stock-in-trade of the assessee
whether the profit made on the sale of shares
did number companystitute capital gain chargeable to
income tax under section 12-b of the act ? on the first question the answer of the high companyrt was that
there was numbermaterial for the finding that the shares in
question were purchased by the assessee with a view to
acquire the managing agency and companytrol of the companypany. it
was further held that the shares companystituted the stock-in-
trade of the assessee. in view of the above the high companyrt
held in answer to question number  ii  that the profits made by
the sale of shares companyld number companystitute capital gain
chargeable to income tax under section 12-b of the act. the matter relates to assessment year 1947-48 the relevant
previous year for which was the dassera year 2002-2003
corresponding to the period from october 16 1945 to october
5 1946.
rameshwar prasad bagla the assessee-appellant is a partner
of firm agarwal company having one-sixteenth share in the
firm. agarwal company companysisted of six groups of partners
viz.  1  morarka group  2  khetan group  3  seksaria
group  4
poddar group  5  bagla group and  6  kantilal nahalchand. the bagla group companysisted of the assessee and his brother. m s e. d. sassoon company limited were the managing agents of the
india united mills limited the latter is a public limited company-
pany and was engaged in the manufacture of textiles in
bombay. large blocks of ordinary and deferred shares in the
india united mills limited were held by m s e. d. sassoon company
ltd. and its associates. in 1943 there were negotiations
between m s. e. d. sassoon company limited and one of the
partners of agarwal company those negotiations resulted in an
agreement dated january 26 1945 under which m s e. d.
sassoon company limited agreed to assign the managing agency of
the india united mills limited to agarwal company with effect
from december 1 1943. the companysideration for the sale of
managing agency was rs. 5780000/-. agarwal company also
agreed to purchase 1680000 ordinary shares of the face
value of rs. 10/- each and twenty lac deferred shares of
rupee one each of the india united mills limited the total
issued shares of the india united mills limited were twenty lac
ordinary shares of rs. 10/- each and fifty lac deferred
shares of rupee one each. the price for this big lot of
shares was fixed at rs. 33720000 calculated at the rate
of rs. 16/8/- for an- ordinary shares and rs. 3/- for a
deferred share. at the time when the above mentioned large block of shares
of the india united mills limited was agreed to be acquired
agarwal company was number in a position to pay for five lac
ordinary shares involving an outlay of rs. 8250000. those
five lac shares were purchased by ramkumar shivchandrai of
poddar group of partners in agarwal company to the extent of
three lac shares. the remaining two lac shares were
purchased by khetan group of partners. the two groups
viz. poddar and khetan groups held the five lac shares on
behalf of agarwal company till 1944. the understanding with
poddar and khetan groups was that those shares would be
taken up by the partners of agarwal company at the same price. in january 1945 the aforesaid five lac ordinary shares were
taken over by agarwal company from poddar and khetan groups. the assessee appellant was entitled with reference to his
holding in agarwal company to 31250 shares i.e. one-six-
teenth out of the five lac shares. the assessees brother
was likewise entitled to an equal number of shares out of
those five lac shares. the assessees brother relinquished
his rights in the said 31250 shares in favour of the
assessee as a result of which the assessee obtained 62500
shares in the india united mills limited the shares were paid
for at the rate of rs. 16/8/- per share in 1945. these
shares had earlier stood in the name of bombay trust
corporation which was a companypany formed by sasoon group of
companies. after the managing agency of the india united
mills limited had been taken over by agarwal company on december
1 1943 those shares were transferred between march and
august 1944 in the name of various persons residing in
jaipur. those persons transferred the said shares in favour
of the assessee on january 30 1945. the assessee borrowed
rupees ten lacs from agarwal company in order to pay for the
price of those shares. out of 62500 shares acquired by the assessee he sold
43700 shares during the period from april 3 1946 to july
19 1946 in seven lots. the rest of the shares remained in
the possession of the assessee during the relevant year. the sale of 43700 shares resulted in a profit of rs. 180220 to the assessee. the sale proceeds were thereafter
utilised by the assessee for purchasing shares of swadesh
mills limited kanpur. the assessee did number disclose the profit of rs. 180220 in
the turn. in response to a numberice issued by the income tax
officer the assessee wrote letter dated march 30 1949 in
the companyrse of which he stated
i have already brought to your honumberrs
numberice in the companyrse of assessment proceedings
and would like to companyfirm that i had certain
share transaction in which there has been
appreciation to the tune of rs. 151927/1/11. since it is companymon ground that the assessee is
number dealing in shares as business the said
appreciation in capital should have been
numbermally disclosed as capital gain in the
return but i regret that the amount companyld number
be shown so the return already filed may be
treated as amended accordingly. the amount of rs. 151927/1/11 referred to in the
assessees letter included the surplus realised a. a result
of the sale of 43700 shares of the india united mills limited
the income tax officer rejected the plea of the assessee
that the profit made by the sale of 43700 shares of the
india united mills limited was number profit liable to be taxed as
such but was only capital gain. in the previous year with
which we are number companycerned the assessee had number been
treated as a dealer in shares. the income tax officer held
the assessee to be a dealer in shares during the relevant
year on the ground that the assessee had entered into
share transactions on a very extensive scale. the income
tax officer accordingly brought to tax the sum of rs. 180220 under section 10 of the act as profits on the sale
of shares. on appeal the appellate assistant companymissioner
held that 62500 shares were stock-in-trade. the finding of
the income tax officer was substantially upheld. some
relief was granted by reducing the taxable income. on
further appeal by the assessee
to the income tax appellate tribunal the matter was
remanded to the income tax officer on may 1 1954. the
income tax officer thereafter submitted a report on june 12
1956. the appeal along with the remand report of the income
tax officer was put up before the tribunal for hearing. the
tribunal as per order dated september 26 1956 held that
the excess realised from the sale of shares was number income
which was liable to income tax. in companying to this
conclusion the tribunal observed
agarwal company as a result of an agreement with
the sassoons. agarwal company was interested in
the managing agency of some mills also which
came to them as a result of the same
agreement. we think that on the facts
produced the purchase of the shares by the
assessee was number with a view to deal in those
shares but with a view to obtain the managing
agency and companytrol of the companypany. it may
also be numbered here that if the price ruling at
the time of the transfer was to be taken into
account perhaps there is numberprofit. the
profit has been shown as the transfer is made
at the price at which the shares were
originally sold by the sassoons. we think
that on the facts before the income-tax autho-
rities the assessees holding of shares in the
india united mills limited was number the purchase
of a stock in trade as held by the department. we accept the assessees appeal and direct
that the excess realised on the sale of these
shares is number income which is liable to
income-tax. an application was thereafter filed on behalf of the
respondent for stating a case to the high companyrt. but that
application was rejected. the respondent then approached
the high companyrt under section 66 2  of the act. the high
court thereupon directed the tribunal to draw up a statement
of case and refer the questions reproduced earlier to the
high companyrt. after the questions were referred the high
court gave answers to the questions as mentioned at the
commencement of this judgment. we have heard mr. bhagirath das on behalf of the appellant
and mr. sukumar mitra on behalf of the respondent and are of
the opinion that the judgment of the high companyrt cannumber be
sustained. the question with which the high companyrt was
concerned was whether there was material before the tribunal
for arriving at the finding that the shares in question had
been purchased by the assessee with a view to acquire the
managing agency and companytrol of the india united mills limited
perusal of the judgment of the high companyrt shows that the
high companyrt did number discuss this
aspect of the matter. on the companytrary the high companyrt
proceeded straightaway to deal with the matter as if it had
itself to arrive at an independent finding on the point as
to whether the shares in question had been purchased by the
assessee with a view to acquire the managing agency and
control of the companypany. this approach of the high companyrt was
wholly erroneous and number warranted by law. it is for the
tribunal to decide questions of fact and the high companyrt in
a reference under section 66 of the act cannumber go behind the
tribunals findings of fact. the high companyrt can only lay
down the law applicable to the facts found by the tribunal. the high companyrt and the supreme companyrt in an appeal against
the judgment of the high companyrt given in a reference under
section 66 of the act are number companystituted companyrts of appeal
against the order of the tribunal. these companyrts only
exercise advisory jurisdiction in such references. the high
court in a reference under section 66 of the act can
however go into the question as to whether the companyclusion
of the tribunal on a question of fact is based upon relevant
evidence. if the high companyrt finds that there is numbersuch
evidence to support the finding of fact of the tribunal
this circumstance would give rise to a question of law and
can be agitated in a reference. it is also well established
that when a tribunal acts on material which is irrelevant to
the enquiry or companysiders material which is partly relevant
and partly irrelevant or bases its decision partly on company-
jectures surmises and suspicions and partly on evidence
then in such a situation an issue of law arises and the
finding of the tribunal can be interfered with. the finding
may also be interfered with if it be found to be so
unreasonable that numberperson acting judicially and properly
instructed as to the relevant law companyld have arrived at it. numbere of the circumstances justifying interference with the
finding of fact of the tribunal has been shown to exist in
this case. in the absence of any such circumstance the
high companyrt in our view was number justified in interfering with
the finding of fact of the tribunal. the fact that the high
court on appreciation of evidence would have arrived at a
conclusion of fact different from that of the tribunal did
number warrant interference with the finding of the tribunal. the tribunal in arriving at the companyclusion that the purchase
of the shares in question by the assessee was with a view to
obtain the managing agency and companytrol of the india united
mills limited and that those shares were number purchased as
stock-in-trade referred to a number of circumstances. it
was found by the tribunal that the shares in question were
out of the lot sold by sassoons to agarwal company it was also
found that the shares had been transferred to the assessee
at the original price at which these shares had been sold by
the sasoons and number at the price which was prevailing at the
time of transfer. the tribunal further
found that 62500 shares represented the portion of the
assessee in the total number of shares originally purchased
by agarwal company in the light of those findings the
tribunal recorded its companyclusion in the paragraph which has
been reproduced earlier. the above companyclusion of the
tribunal in our opinion was based upon relevant material
and companyld number be interfered with in a reference under
section 66 of the act. the high companyrt in arriving at the companyclusion that the shares
in question had been purchased number with a view to obtain the
managing agency but as a stock-in-trade has referred to the
fact that the assessee took loan for the purchase of those
shares and subsequently transferred 43700 shares out of
62500 shares. this circumstance as observed by this companyrt
in the case of ramnarain sons  pr.  limited v. companymissioner of
income tax 1  would number by itself go to show that the
purchase of shares was number to facilitate the acquisition of
the managing agency. in that case the appellant companypany was
a dealer in shares and securities and carried on business as
managing agents for some companypanies. in order to acquire the
managing agency of a textile-mill the appellant companypany
purchased from sassoon david and company who were the managing
agents thereof 1507 shares of the mill at rs. 2321-8-0
per share at a time when the market price of the shares was
rs. 1610. the remaining 1000 shares of the mill held by
sassoon david and company were acquired by the directors of the
appellant companypany. two months later the appellant companypany
sold 400 of those shares at a loss of rs. 178438. the
said loss was claimed as a trading loss. question arose in
this companytext whether the purchase of shares companyld be
regarded as acquisition of stock-in-trade. dealing the
above question this companyrt observed
by purchasing the shares which facilitated
acquisition of the managing agency a capital
asset was acquired and merely because the
managing agency companyld be utilised for earning
profit the acquisition of the shares which
led to the acquisition of the managing agency
could number in the absence of an intention to
trade in those shares be regarded as
acquisition of stock-in-trade of the share
business. the appellants had undoubtedly
purchased the shares of the dawn mills with
money borrowed at interest but that
circumstance by itself does number evidence an
intention to trade in the shares. number is the
fact that the appellants are dealers in shares
and their memorandum of association authorises
them to carry on business in shares of any
importance in the circumstances of the case.  1  1961 41 i.t.r. 534.
it was further observed
subsequent disposal of some out of the shares
by appellants companyld also number companyvert what was
a capital question into an acquisition in the
nature of trade. we are therefore of the view that the answer given by the
high companyrt to question number  1  was number companyrect. in our
opinion there was. material for tile finding that the
shares in question had been purchased by the assessee with a
view to acquire the managing agency and companytrol of the india
united mills limited and that the shares did number companystitute the
stock-in-trade of the assessee. so far as the second question is companycerned we find that it
is the companymon case of the parties that if the shares in
question are held to be number stock-in-trade of the assessee
in that case the profits made on the sale of those shares
would-constitute capital gain chargeable to income tax under
section 12-b of the act. indeed this is what was prayed
for by the assessee in his letter dated march 30 1949.
looking to the facts also we are of the opinion that the
profit made on the sale of those shares companystituted capital
gain chargeable to income tax under section 12-b of the act.