PETITIONER: COMMISSIONER OF INCOME TAX, <NAME> Vs. RESPONDENT: M:. CHANDRA SEKHAR DATE OF JUDGMENT04/12/1984 BENCH: <NAME>, R.S. BENCH: <NAME>, R.S. TULZAPURKAR, V.D. CITATION: 1985 AIR 114 1985 SCR (2) 215 1985 SCC (1) 283 1984 SCALE (2)973 CITATOR INFO : R 1991 SC 966 (2) ACT: <ORG> Act , 1961. Section 139(1) read with proviso- In a case where <ORG> officer levies interest on income tax return filed after the date prescribed by sub-s.(l) of s.l39 whether a valid presumption can be raised that <ORG> Officer extended time for filing voluntary return under the proviso to Sub. s.(l) of s.l39. Section 271(1)(a) -Scope of-Whether penalty can be levied on income tax return filed after the dare prescribed by s.139(1) but on which <ORG> officer has levied interest under cl.(iii) of the proviso. Held No. The rime allowed by <ORG> officer under proviso to Sub- s.(l) of s. 139 for filing return falls within the expression "the time allowed" in cl.(a) of Sub.s.(l) of s.27I. Sub-s.(l) of s.139 of the <ORG> Act , 1961 prescribes the period within which a voluntary income tax return must be filed. When an assessee cannot file a return within the prescribed period, the proviso to Sub-s.(1) of s.l39 entitles the assessee to make an application for extension of time in the prescribed manner and the form stating the reasons on which the extension of time is sought. On such an application being made, the <ORG> officer is empowered to extend the period for filing the income tax return subject to payment of interest on the amount of tax payable. HEADNOTE: The respondent assessee filed voluntary income tax returns for some assessment years after the date prescribed by Sub-s.(l)of.139 of the <ORG> Act , 1961. The <ORG> officer treated the assessee as being in default and imposed penalties under cl. (a) of Sub-s.(1) of s.271 of the Act. In appeal before the Appellate Assistant Commissioner of <ORG> the assessee contended that since interest had been levied under cl.(iii) of the Proviso to Sub-s. (1) of s.l39, no question arose of imposing a penalty. The Appellate Assistant Commissioner rejected the contention. In second appeal <ORG> held that as the <ORG> officer had levied interest upto the date of the filing of the returns, it must be presumed that the <ORG> officer had extended the time for filing the returns after satisfying himself that it was a case for extension of time. <ORG> allowed the appeals and canceled the penalties. On a reference being made. <ORG> held that <ORG> was justified in relying upon the presumption. Hence these appeals by the <ORG>. The <ORG> contended that there was 216 no material to warrant the finding that an application had made by the assessee A for extension of time and that upon such application the <ORG> officer extended the time. The <ORG> urged that the imposition of interest does not warrant the assumption that an application for extension of time was made by the assessee and allowed by the <ORG> officer. Dismissing the appeals, ^ HELD: It cannot be disputed that the <ORG> officer could extend the date for furnishing the return in respect of each assessment year. It was open to him to do so under the statute, and he was entitled to charge interest only on the basis that the extended period fell beyond September 30 or December 31, as the case may be. In the ordinary course of things, the <ORG> officer could have extended the date only upon being satisfied that there a was good reason for doing so, and that would have been on grounds pleaded by the assessee. We consider that in the circumstances of this case a presumption could validly be raised that all that was done. No attempt was made by the <ORG> to show that the <ORG> officer acted arbitrarily and contrary to the procedure envisaged by the statute. <ORG> considered the matter carefully and found circumstances on the record in favour of raising the presumption. <ORG> approved of the approach adopted by <ORG> and did not find it contrary to law. We do not see any reason to differ from the opinion expressed by <ORG>. [221E- <CITATION> , [1974; 93 I.T.R. 563, <CITATION> officer, <ORG>, Bangalore and others,  99 I.T.R. 32, <CITATION> .,  99 I.T.R. 41, Commissioner of <ORG>, Orissa v Gangaram Chopolia, 103 I.T.R. 613, <CITATION> ,  113 1.T.R. 830 and <CITATION> .,  77 I.T.R. 518. not applicable. Penalty under cl (a) of Sub-s (1) of s.271 of the <ORG> Act is attracted if the <ORG> officer is satisfied that the assessee as, without reasonable cause, failed to furnish the returns "within the time allowed'., The time allowed for furnishing a voluntary return is the time specified in Sub-s.(l) of s.139. The proviso so that sub-section empowers the <ORG> officer to extend the date for furnishing the return. When the <ORG> officer extends the date, he does so in the exercise of authority conferred by the statute, and the additional time available to the assessee consequent upon such extension is, for all relevant purposes, of the same character and as effective as the statutory period specially enacted by <ORG>. For the purpose of furnishing a return it constitutes an integral part of the time allowed for furnishing a return. Therefore, where the <ORG> officer extends the date, then all the time upto that date is the time allowed for furnishing the return. The additional period consequent upon such extension falls within the expression "the time allowed" in cl.(a) of Sub-s.(l) of s.271. That being so, the conclusion must follow that the penalty provision does not come into play at all. [223C-G] 217 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1299 A to 1303 of 1973 From the Judgment and order dated the 3rd February, 1972 of <ORG> in case referred No. 61 of 1970 <NAME>, <NAME> and Miss. <NAME> for the Appellant.

<NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME>, J. These appeals by special leave are directed(. against the judgment of <ORG> disposing of a reference under Sub-s. (1) of s. 256 of the Income-tax Act, 1961 on the following questions of law:

1. Whether on the facts and in the circumstances of the case, <ORG> was justified in concluding that the charging of interest indicated that the Income-tax officer was satisfied that there was sufficient cause for delay in filing the return of income ?

2. Whether on the facts and in the circumstances of the case, the <ORG> was justified in cancelling the penalties levied under section 271 (1) (a) ? The respondent assessee is a partner in the firm, <ORG>. He filed voluntary returns for the assessment years 1959-60, 1960-61, 1961-62 and 1962-63, all on August 2, 1963. The return for the assessment year 1963- 64 was filed on August 2, 1964. On account of the delay in filing the returns the <ORG> officer treated the assessee as being in default and imposed penalties under cl. (2) of Sub-s. (1) of s. 271 of the Act. In appeal before the Appellate Assistant Commissioner of <ORG> the assessee contended that as the returns had been furnished before the end of four years from the end of the relevant assessment years, that is to say, the period prescribed by Sub-s. (4) of s. 139 of the Act, he was not liable to any penalty. It was also pointed out by the assessee that interest had been levied under clause (iii) of the proviso to Sub-s. (1) of s. 139 and, therefore, no question arose of imposing a penalty. Both contentions were rejected by the Appellate Assistant Commissioner. In second appeal before the A income Tax Appellate <ORG> the assessee raised substantially the same contentions. The Appellate <ORG> took the view that in cases falling under Sub-s. (1), Sub-s. (2) and Sub-s. (4) of s. 139 the <ORG> officer was empowered to grant time for filing a return. and on such time being granted the assessee would be liable to pay interest. It pointed out that the assessee had in fact given his reasons for the delay in filing the returns 'both for the purpose of levy of interest under cl. (1) of s. 139 and also the levy of penalty under cl. (a) of Sub-s. (1) of s. 271 ". It held that as the <ORG> officer had levied interest upto the date of the filing of the returns it must be presumed that the <ORG> officer had extended the time for filing the returns after satisfying himself that it was a case for extension of time. The presumption was founded in the principle that an officer entrusted with a judicial or quasi judicial duty must be presumed to have discharged his duties in a proper and bona fide manner. The appellate <ORG> allowed the appeals and cancelled the penalties.

At the instance of the Commissioner of Income Tax, <ORG> made a reference to <ORG> of Andhra Pradesh. <ORG> held that <ORG> was justified in relying upon the presumption that official acts had been regularly performed, and that therefore it must be presumed that the Income Tax officer had extended the time upon grounds made out by the assessee, because otherwise the Income Tax officer could not have charged interest. Holding that no penalty was livable in the circumstances, <ORG> answered the reference in favour of the assessee.

To appreciate the true scope of the questions referred, it is necessary to understand the scheme enacted in s. 139 of the Income tax Act, 1961. Broadly, the scheme envisages a voluntary return by the assessee under Sub-s. (1) of s. 139 , a return consequent upon a notice by the Income Tax officer under Sub-s. (2) of s. 139 and a return in the circumstances mentioned in Sub-s. (4) of s. 139 . We are not concerned where with a return under Sub-s. (3) of s. 139 disclosing a loss nor are we concerned with a revised return under Sub-s. (S) of s. 139 . In the case of a voluntary return, Sub-s. (1) of s. 139 prescribes the period within which such returns must be filed. Where no return can be filed within the prescribed period, the assessee is entitled to apply to the Income Tax officer for extending the date for furnishing the return. The lncome Tax officer is empowered to extend the date in his discretion. In a case covered by cl. (i) of the proviso to Sub-s. (1) of s. 139 the period may be extended upto September 30 of the assessment year without charging any interest, and in a case covered by cl. (ii) of the proviso the period may be extended upto December 31 of the assessment year similarly without charging any interest. But where the period is extended beyond the dates mentioned in clauses (i) and (ii), then under cl. (iii), the assessee is liable to pay interest from october 1 or January I, as the case may be, of the assessment year to the date of the furnishing of the return on the amount of tax payable on the total income reduced by the advance tax paid and any tax deducted at source. Similarly, in the case of a return furnished under Sub-s. (2) of s. 139 the Income Tax officer has power to extend the date for furnishing the return subject to payment of interest in the circumstances set forth in relation to voluntary returns under Sub-s. (1) of s. 139. Where, however, the assessee does not furnish a return within the time allowed to him under Sub-s. (1) or Sub-s. (2) of s. 139 then before any assessment is made he may, under Sub-s (4) of s. 139 , furnish a return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates, and in that event the provisions of Sub-cl.

(iii) of the proviso to Sub-s. (1) of s. 139 relating to payment of interest would apply to the case. Sub- s. (8) of s. 139 was inserted by the Finance Act , 1963 with effect from April 28, 1963. It declared that notwithstanding anything contained in cl. (iii) of the proviso to Sub-s. (1) of s. 139 , it was open to the Income Tax officer, in certain prescribed cases and circumstances, to reduce or waive the interest payable by any person under any provision of s.

139. It may be noted that the language of Sub-s. (8) of s. 139 suffered material change with effect from April 1, 1971.

Now, it will be apparent that delay in filing a return of income results in the postponement of payment of tax by the assessee resulting in the State being deprived of a corresponding amount of revenue for the period of the delay. It seems that in order to compensate for the loss so occasioned <ORG> enacted the provision for payment of interest. It is apparent also from the language of cl. (iii) of the proviso that interest becomes payable only upon the <ORG> officer acting on an application made by the assessee for the purpose and extending the date for furnishing the return. At the relevant time the proviso to Sub-s. (1) of s. 139 read:-

Provided that on an application made in the prescribed manner, the Income Tax officer may, in his discretion, extend the date for furnishing the return-

(i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest;

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

(iii) up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be payable from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return- -

(a) in the case of a registered firm or an unregistered firm which has been assessed under cl.

(b) of s. 183 , on the amount of tax which/would have been payable if the firm had been assessed as an unregistered firm, and

(b) in any other case, on the amount of tax payable on the total income, reduced by the advance tax, if any paid or by any tax deducted at source, as the case may be,"

It is only where the Income Tax officer extends the time for furnishing the return beyond September 30 or December 31, as the case may be, that interest becomes payable.

Now the contention on behalf of the <ORG> is that there is no material to warrant the finding that an application had been made by the assessee for extension of time and that upon such application the <ORG> officer extended the time. It is urged that the imposition of interest does not warrant the assumption that an application for extension of time was made by the assessee and allowed by the <ORG> officer. The proviso to Sub-s. (1) of s. 139 requires the assessee to make an application for extension of time in the prescribed manner, and the prescribed form of the application set forth is Form No. 6 pursuant to rule 13 of the <ORG> Rules, which requires the assessee to state the reasons on which the extension of time is sought. All this, learned counsel contends, contemplates that the <ORG> officer should apply his mind to relevant material before him before deciding, in his discretion, whether the time should be extended. Learned counsel, however, has not been able to satisfy us why the presumption raised by <ORG>, and endorsed by <ORG>, should not prevail. It cannot be disputed that the <ORG> officer could extend the date for furnishing the return in respect of each assessment year. It was open to him to do so under the statute, and he was entitled to charge interest only on the basis that the extended period fell beyond September 30 or December 31, as the case may be. In the ordinary course of things, the <ORG> officer could have extended the date only upon being satisfied that there was good reason for doing so, and that would have been on grounds pleaded by the assessee. We consider that in the circumstances of this case a presumption could validly be raised that all that was done. No attempt was made by the <ORG> to show that the <ORG> officer acted arbitrarily and contrary to the procedure envisaged by the statute. <ORG> considered the matter carefully and found circumstances on the record in favour of raising the presumption. <ORG> approved of the approach adopted by <ORG>] and did not find it contrary to law. We do not see any reason to differ from the opinion expressed by <ORG>.

In the instant case, the extension was a matter falling within Sub-s. (1) of s. 139 , and the returns furnished by the assessee must be attributed to that provision. They were not returns furnished within the contemplation of Sub-s. (4) of s. 139 . Therefore, the decision of <ORG> in <CITATION> ,(l) of the Karnataka High court in <CITATION> officer, Central Circle-l, Bangalore and others,(a) of <ORG> in <CITATION> .,(3) of <ORG> in <CITATION> ,(4) and of <ORG> in <CITATION> (') cannot be invoked in the instant case. They are cases dealing with a return filed in the circumstances mentioned in Sub-s. (4) of s. 139 .

our attention has also been drawn to the decision of this Court in <CITATION> was a case where the returns were filed under Sub-s. 3 of s. 22 of the Indian Income Tax Act, 1922. They were not returns furnished within the time allowed by or under Sub-s. (1) or Sub-s. (2) of s. 22 of that Act. Accordingly, that case also need not be considered.

In the result, we uphold the answer returned by <ORG> to the first question raised in the reference.

The second question raises the point whether <ORG> was justified in cancelling the penalties levied under cl. (a) of Sub-s. (1) of s. 271 . That provision reads:-

"271 (1) If the Income Tax officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person-

(a) has without reasonable cause failed to furnish the return of total income which he was required to furnish under Sub-s. (1) of s. 139 or by notice given under Sub-s. (2) of s. 139 or 9. 148 or has without reasonable cause failed to furnish it within the time (1) [l974] 93 I.T.R. 563.

(2) [1975] 99 I.T.R. 32.

(3) [1975] 99 I.T.R. 41.

(4) [1976] 103 I.T.R. 613.

(5) [1978] 113 I.T.R. 830.

(6) [1970] 77 I.T.R. 518 allowed and ni the manner required by Sub-s. (1) of s. 139 or by such notice, as the case may be, or A b) ....

(c) ...

...................................................._ he may direct that such person shall pay by way of penalty,-

(i) ..................................................._

(ii) ...................................................

(iii)......... -...... -....... -...... -.......-.....

It is clear that penalty is attracted if the <ORG> officer is satisfied that assessee has, without reasonable cause, failed to furnish the returns "within the time allowed". The time allowed for furnishing a voluntary return is the time specified in Sub-s. (1) of s. 139 . We have seen that the proviso to that sub-section empowers the <ORG> officer to extend the date for furnishing the return. It was open to <ORG> to specify by express enactment the date by which a return must be filed, and also confer power on the <ORG> officer to extend the date for doing so. When the <ORG> officer extends the date, he does so in the exercise of authority conferred by the statute, and the additional time available to the assessee consequent upon such extension is, for all relevant purposes, of the same character and as effective as the statutory period specifically enacted by <ORG>. For the purpose of furnishing a return it constitutes an integral part of the time allowed for furnishing a return. Therefore, where the <ORG> Officer extends the date, then all the time upto that date is the time allowed for furnishing the return. The additional period consequent upon such extension falls within the expression "the time allowed" in cl. (a) of Sub- s. Of s. 271 . That being so, the conclusion must follow that the penalty provision does not come into play at all.

In our opinion, <ORG> was right in answering the second question also in favour of the assessee.

We express our agreement with the opinion of <ORG> a on both the questions referred to it. Accordingly, these appeals fail and are dismissed with costs.

<ORG> dismissed.


CASE NO.: Appeal (civil) 3527 of 1998 PETITIONER: GOVERNMENT OF WEST BENGAL RESPONDENT: <NAME> AND ORS. DATE OF JUDGMENT: 18/11/2003 BENCH: V.N. KHARE CJ & S.B. SINHA & DR. AR. LAKSHMANAN JUDGMENT:

JUDGMENT 2003 Supp(5) SCR 656 The Judgment of the Court was delivered by <NAME>, J. Applicability of the doctrine of 'equal pay for equal work' is the question involved in this appeal which arises out of a judgment and order dated 3rd December, 1997 passed by a Division Bench of <ORG> in FMAT No. 1505/1996.

FACTUAL BACKGROUND;

In <ORG> of the state of west Bengal inter alia there existed two posts-operator-cum-Mechanic and Sub-Assistant Engineer. <ORG> of the State of west Bengal in its report dated 31.12.1969 recommended the following pay-scales relating thereto.

Posts Pay scale recommended Operator-cum-Mechanic Rs. 200-250 Sub-Assistant Engineer Rs. 305-600

It is not in dispute that by reason of statutory rules the minimum qualification required for recruitment for the said two posts were laid down as under:

"operator-cum-Mechanic

(a) Pass in School Final Examination or its equivalent;

(b) Pass in Certificate course in the trade of internal compustion engine from <ORG> or <ORG> recognized by the Government. Sub- Assistant Engineer

(b) Pass in Diploma Course in Engineering from any Government Polytechnic"

The Government of West Bengal framed The west Bengal Service (Revision of Pay & Allowances) Rules, 1970 (hereinafter referred to as the 'ROPA Rules') whereby whereunder the pay scale for the post of operator-cum-Mechanic was initially prescribed as Rs. 180-350 which was subsequently revised to Rs. 230-425 with effect from 1st April, 1970. The pay-scale for the post of Sub-Assistant Engineer, however, was prescribed at Rs. 300-600 with higher initial start at Rs. 330 with effect from the same date. By a notification No. 10303 F dated 19th November, 1974 in modification of ROPA Rules, 1970 it was laid down:

"IV (i) Sub-Assistant Engineers having Engineering Degree shall have an initial start n the existing scale of Rs. 300/- Rs. 600/- at the stage of Rs. 360 p.m. They will also get the benefit of age relaxation for direct recruitment either through <ORG> or for ad-hoc appointments.

(ii) All Test Relief overseers and other Diploma holder Engineers will henceforth be termed as Sub-Asstt. Engineers."

The Sub-Assistant Engineers, it is not disputed, are directly recruited through <ORG> commission whereas no such procedure is laid down for appointment in the post of operator-Cum-Mechanic. It is not in dispute that some persons in the category of employees of operator-cum-Mechanic who were possessing Diploma in Engineering claimed entitlement to the nomenclature of the Sub-Assistant Engineer and the scale of pay prescribed therefor by filing two writ petitions in Calcutta High Court. The matters eventually came up to this court. A plea was taken in the said writ petitions by the appellants herein that the diploma holder engineers working as Operators-Cum-Mechanic in <ORG> were not entitled to the said designation. The said plea was negatived by this court in its judgment titled <CITATION> in  Suppl. 1 SCC 138 holding:

"15. It has been contended for the appellants that by construing the notification as including operators-cum-Mechanics in the lower time scale as Sub-Assistant-Engineer and giving them a higher scale, there would be a division amongst the Operators-cum-Mechanics in the matter of their pay scale and such an anomaly would not have been contemplated by the rule makers. There is no force in this contention. It is well settled that difference in pay of employees belonging to the same cadre post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution. The post of Sub- Assistant Engineer is a direct recruitment post. It appears that <ORG> assumed that the post of Sub-Assistant Engineers were ultimately a promotional post for the operators-cum-Mechanics through intermediary promotions in intermediary grades. This in incorrect. Under the Rules, the post of Sub-Assistant Engineer is not at all a promotional post for any categories of employees in the <ORG>, on the contrary, it is a direct recruitment post. It is not contested that 17 other employees similarly placed as the respondents herein were given the benefits of the said amended notifications and were conferred both status of Sub-Assistant Engineers and also the pay scale thereof for the reason that they were also diploma holder Engineers though they were not in the pay scale of Rs. 300-600. This is a concurrent finding that these respondents have been discriminated and the <ORG> Government had acted arbitrarily without any rational basis by conferring benefits of the notification to 17 other employees in other departments while denying the said benefits to the said respondents in <ORG>.

[Emphasis Supplied] Another group of Operators-cum-Mechanic who did not possess diploma in engineering and were mere graduates or holding School Final Examination filed a writ petition which was marked as matter No. 2564 of 1988 (Nemai Chand Ghosh and <ORG>. v. State of West Bengal and <ORG>.,) claiming the higher pay-scale of Rs. 300 Rs. 600 with higher initial start at Rs. 330 relying on the doctrine of equal pay for equal work. The said writ petition was dismissed and appeal preferred thereagainst by the writ petitioners therein admittedly is still pending for hearing before <ORG> of <ORG>.

A similar writ petition being C.R. No. 9167 (W)/1990 (<NAME> and <ORG>. v. State of West Bengal and <ORG>.) was, however, allowed by a judgment and order dated 25th August, 1989 despite the fact that the writ petitioners therein were not holders of diploma in engineering. The said judgment is said to have been passed ex-parte and without noticing the earlier judgment in <NAME> (supra).

As allegedly the said judgment was not implemented, an application for contempt of court was filed by the writ petitioners when the court's attention was drawn to the judgment of the earlier writ petition and its pendency before <ORG>, the learned single judge modified his order dated 25.8.1989 by an order dated 1st October, 1991 directing the <ORG> to pay all benefits in terms of the earlier order dated 25.8.1989 with a rider that in the event the writ petitioners in the appeal preferred against the judgment delivered in <NAME> (supra) fails, the <ORG> would be entitled to recover the amount by such easy instalments as would be decided by the authorities concerned. With the aforementioned directions, rule issued in the contempt proceeding was disposed of.

The respondents therein thereafter filed a writ petition which was marked as C.R. No. 8728 (W) of 1991 ( <CITATION> .). Following the judgment dated 25.8.1989 passed in the case of <NAME> (supra) the said writ petition was allowed. The <ORG> preferred an appeal thereagainst and by reason of the impugned judgment the said appeal was dismissed holding that as no appeal had been preferred against the order dated 25.8.1989 the same attained finality and, thus, the respondents herein became entitled to grant of similar relief holding:

"When the Dip oma Holder Operator-cum-Mechanics got the above benefits, those who were regularly appointed as Operator-cum-Mechanics four d that in their category of service those who were having Diploma in Engineering, were placed in higher scale of pay. They moved this Court for equal pay for equal work which, as the courts have held, is one of the facets of the right of equality before law and equal protection of law as enshrined under Article 14 of the Constitution of India. Since such Operator-cum-Mechanics who were not having Diploma or Degree in Engineering and who were otherwise qualified to be appointed as operator-cum-Mechanics, got the relief as aforementioned, the persons who were in the same category and were left-out moved the court and the Learned Single Judge has granted them the same relief as others pursuant to the order of the court in C.R. No. 9167 (W) of 1980.

There is some attempt made before us that the order passed by the Ld. Single Judge in the contempt petition is enough for the appellants herein to revert the petitioners C.R. No.l967(W)/1980. This, however, in our opinion, will not be possible unless the judgment in the said case is reversed. In the absence of any appeal, the said judgment has become final. A view contrary to the view in CR 9167(W)/ 1980, in the instant proceeding, shall place the petitioners in the instant proceeding at disadvantage as a class apart from others similarity/similarly situated who were/are petitioners in C.R. 9167(W)/ 1980."

SUBMISSIONS:

Mr. <NAME>, learned senior counsel appearing on behalf of the appellant, inter alia would contend that <ORG> committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that the order passed in the case of <NAME> (supra) could not be treated as a precedent as the said judgment was subject to the order passed in the first writ petition filed by <NAME>.

The learned counsel would submit that, in any event, non-filing of an appeal could not be a ground to pass the same order without considering the merit of the matter.

Mr. <NAME>, the learned senior counsel appearing on behalf of the respondents, on the other hand, would submit that as indisputably the earlier judgment passed by a learned Single Judge of <ORG> was acted upon by the appellant they cannot be permitted now to turn round and contend that similar scale of pay would not be granted. It was submitted that whereas in CR 9167 (W)/1980 there were 56 writ petitioners, only 10 employees are involved in the present case and as such they being graduates in science should be given the same relief as the minimum qualification laid down for holding the post of Operator-cum-Mechanic is merely matriculate. Having been better qualified, Mr. <NAME> would urge, there is absolutely no reason as to why the respondent should not be treated as a separate class keeping in view of the fact that they have been performing the same duties as are being performed by the Sub-Assistant Engineers. The cases of the respondents, Mr. <NAME> would contend, being peculiar in nature this court in exercise of its equity jurisdiction may grant appropriate relief confining the same to the respondents on the ground that they are graduates and declining the same to the matriculates holding the posts of Operator-cum-Mechanic.

The learned counsel would submit that in any event, having regard to the fact that the respondents herein had approached <ORG> in 1992, even on the ground of delay, similar relief can be denied to those who are only matriculates.

EQUAL PAY FOR EQUAL WORK:

Article 14 read with Article 39 (d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.

<CITATION> ., AIR (1974) SC 1, this Court held:

"Educational qualifications have been recognized by this <ORG> as a safe criterion for determining the validity of classification."

The Post of Operator-cum-Mechanic and Sub-Assistant Engineers are technical posts. As noticed hereinbefore, whereas for the posts of Operator-cum- Mechanic the qualification of school final examination and a certificate obtained from <ORG> would be sufficient; for the posts of Sub-Assistant Engineer the person must have a diploma from a polytechnic apart from being a matriculate.

It is also not in dispute that such qualification was prescribed as far back as in the year 1971 and the respondents herein were appointed thereafter.

The <ORG>, in exercise of its power of judicial review cannot hold that matriculates with a certificate from ITIs or simply graduates in science would be entitled to hold the posts of Sub-Assistant Engineers. It is for the executive to lay down the qualification required for holding a post and not for the courts. In <NAME> (supra) the issue which fell for determination by this <ORG> was as to whether those Operators-cum-Mechanic who were diploma holders, having regard to the aforementioned notification dated 19th November, 1974 were entitled to be designated as Sub-Assistant Engineers. This <ORG> noticed that the post of Sub-Assistant Engineer is direct recruitment post and not a promotional post and, thus, they are entitled to be designated as Sub-Assistant Engineers, particularly, when such a status had been conferred upon 17 persons similarly situated. This <ORG> granted relief to <NAME> (supra) only on the ground that they had been discriminated against.

Question of violation of Article 14 of the Constitution of India on the part of the <ORG> would arise only if the persons are similarly placed. Equality clause contained in Article 14 , in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia. Doctrine of equal pay for equal work, therefore, is not attracted in the instant case.

There is nothing on record to show that the duties and functions of two categories of employment are at par, and, thus, parity in pay-scales is not permissible.

The very fact that from the very beginning two different pay scales were being maintained is itself suggestive of the fact that the duties and functions are also different. In fact it is not disputed that the two post of Sub-Assistant Engineer is a higher post.

<CITATION> ., (2003) 8 SCALE 613 this Court held:

"In view of the fact that the nature of duties of the staff in the two categories has been found to be not at part, parity in pay scales may not be possible.

<CITATION> (2003) 4 SC 104 this Court noticed:

"It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing to the regularly recruited Junior Assistants. It cannot be disputed that there was neither necessary averments in the writ petition nor any material was placed before <ORG> so as to consider the application of principle of 'equal pay for equal work'."

This Court further noticed:

"......In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in the absence of such material it was not possible to grant relief to the respondent.

Before giving such direction, <ORG> also did not keep in mind as to what would be its implications and impact on the other employees working in the appellant-University. From the averments made in the writ petition extracted above, it is clear that no details were given and no material was placed before <ORG> for comparison in order to apply the principle of 'equal pay for equal work'. The Court in <CITATION> .,  11 SCC 77 observed that the principle of 'equal pay for equal work' is not always easy to apply. There are inherent difficulties in comparing and evaluating work done by different persons in different organizations or even in the same the organization.

13. Yet, in mother decision in <CITATION> .,  4 SCC 556, a Bench of three learned Judges of this court, while dealing with the same principle, in para 16 has expressed that:-

"...It is well settled that equal pay must depend upon the nature of work done It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference..."

In a case of this nature, the courts are required to determine the issue having regard to larger public interest. It is one thing to say that in a given case <ORG> or this <ORG> may not exercise an equitable jurisdiction under Article 226 or Article 136 of the Constitution of India, but it is another thing to say that the courts shall grant a relief to a party only on the ground that a contention which is otherwise valid would not be raised on the ground that the same was not done in an earlier proceedings.

In the instant case, the appellant has explained under what circumstances the order of the learned Single Judge of <ORG> had to be obeyed. If rule of law is to be followed, judicial discipline demands that the court follows its earlier binding precedent. <ORG> itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned Single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.

Furthermore, in the order dated 1st October, 1991, the learned Judge categorically directed that the same would be subject to any order that may be passed in the appeal which is pending before <ORG> from the judgment and order dated 20th January, 1989 passed in <NAME> (supra). The said order, therefore, did not attain finality.

In the aforementioned situation, <ORG> of <ORG> manifestly erred in refusing to consider the contentions of the appellant on their own merit, particularly, when the question as regard difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment of this Court in <NAME> (supra). If the judgment of <NAME> (supra) is to be followed a finding of fact was required to be arrived at that they are similarly situated to the case of <NAME> (supra) which in turn would mean that they are also holders of diploma in engineering. They admittedly being not, the contention of the appellant could not be rejected. Non- filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. ( <CITATION> ,  4 SCC 683).

<CITATION> .,  3 SCC 493, wherein this court noticed <NAME> (supra) holding:

"<NAME>, the learned counsel for the appellant contended that though an appeal against the earlier order of <ORG> has not been filed, since larger public interest is involved in the interpretation given by <ORG> following its earlier judgment, the matter requires consideration by this court. We find force in this contention. In the similar circumstances, this court in <CITATION> ,  4 SCC 683 : (1995) AIR SCW 3116 and in <CITATION> ,  Suppl. SCC 138:  AIR SCW 704, had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law the court is entitled to go into the question.

EQUITABLE CONSIDERATION;

The respondents are merely graduates in science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in engineering. If any relief is granted by this court to the respondents on the aforementioned ground the same will be in contravention of the statutory rules. It is trite that this court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision.

In Common Cause. <CITATION> .,  6 SCC 667, this Court held:

"Even under Article 142 of the Constitution, such a direction cannot be issued. While passing an order under Article 142 of the Constitution, this court cannot ignore the substantive provision of law much less the constitutional rights available to a person. (See: <ORG> v <ORG>,  4 SCC 409, AIR (1998) SC 1895).

<CITATION> .,  6 SCC 213 this Court observed:

"............The Court further observed that though the powers conferred on the court by Article 142 are curative in nature, they cannot be construed as powers which authorize the court to ignore the substantive rights of a litigant. The court further observed that this power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of this court.

Further in <CITATION> ,  8 SCC 158 this Court opined:

This court has ample jurisdiction to pass orders under Article 142(1) of the constitution which may be necessary for doing complete justice in any case or matter. But even in exercising this power, it is more than doubtful that an order can be passed contrary to law.

The respondents furthermore even are not entitled to any relief on the ground of gross delay and latches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached <ORG> in 1992. In between 1976 and 1992 not only two writ petitions had been decided. But one way or the other, even the matter had been considered by this <ORG> in <NAME> (supra). The plea of delay, which Mr. <NAME> states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this <ORG> although they are ventilating their grievances before appropriate courts of law no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.

For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. This appeal is allowed. No costs.


<NAME>, J.

1. The facts of this case are not subject of dispute. The zemindari of Kurupam is an impartible estate in the Vizianagaram District being one of the zemindaris mentioned in the schedule to the Impartible Estates Act. The assessee is a brother of the last zemindar of Kurupam (being the second son of his predecessor) and uncle of the present zemindar who is a minor under <ORG>. By an award in 1920, he was given an annual maintenance of Rs. 6,000 by his elder brother; and this award was made the subject of a decree. The question now referred to us is:

Whether the sum of Rs. 6,000 received as maintenance by the petitioner as the brother of the late <NAME> of <NAME> entitled under the law to receive maintenance out of the ancestral impartible estate of <NAME> is a sum received by him as a member of Hindu undivided family within the meaning of Clause (1) Section 14 of the Act.

2. The identical question has been the subject of a decision by a Bench of <ORG> See In the matter of the Income Tax Reference of <NAME> of V(sic)nagram, 140 I. C. 306--[Ed.] in connection with another zemindar in the same District, viz., Vizianagaram and as we substantially agree with the conclusion arrived at by the learned Judges of <ORG> it is not necessary to deal with the matter very elaborately. It will be enough to indicate the salient points. The nature of an impartible estate has been the subject of consideration in a series of decisions by <ORG>. <CITATION> 60 Ind Cas 531 : 43 A 228 : (sic)9 A L J 3(sic)7 : 33 C L J 388 : 40 M L J 3(sic)7 : (1921) M W N 3(sic)0 : 25 C W N 564 : 2 P I T 357 : 23 Bom. L R 604 : 3 U P L R P O 35 : 29 M L T 358 : 48 I A 195 (P C) Lord <NAME> considers these decisions and groups them in chronological order. The 1st group extending from 1865 to 1885 need not be referred to now. In that year the decision in <NAME> v. <NAME> 10 A 272 : 15 I A 51 : 5 Sar. 139 : 12 Ind. Jur. 213 (P. C.) was passed by <ORG> and it was held that an impartible zemindari is alienable at the pleasure of the holder of the zemindari. This was followed and applied in the case of a zemindari from the <ORG>, viz., Sri <NAME> v. <ORG> 22 M 383 : 26 I A 83 : 1 Bom. L R 277 : 3 C W N 415 : 7 Sar. 48 : 9 M L J 1 Sup. (P. C.) where it was held that, the holder of an impartible estate can devise the whole of the estate or a portion of it be will. In spite of these decisions there are other decisions passed alongside of these holding that the impartible estate still continues joint family property. It is enough to refer to one of such decisions, viz., <CITATION> 20 M 256. There Lord <NAME> observed:

Even if impartible it may still be part of the common family property and descendable as such.... The real question, therefore is whether it has ceased to be part of the joint family property of the family of the first zemindar.

3. These observations of Lord Davey were relied on with approval by Lord Dunedin in <CITATION> 60 Ind Cas 531 : 43 A 228 : (sic)9 A L J 3(sic)7 : 33 C L J 388 : 40 M L J 3(sic)7 : (1921) M W N 3(sic)0 : 25 C W N 564 : 2 P I T 357 : 23 Bom. L R 604 : 3 U P L R P O 35 : 29 M L T 358 : 48 I A 195 (P C). The next decision to which we may refer is another decision of Lord Dunedin in <CITATION> 47 Ind. Cas. 354 : 41 M 778 : 35 M L J 392 : 24 M L T 276 : 16 A L J 833 : 28 C L J 428 : 5 P L W 267 20 Bom. L R 1056 : 23 C W N 173 : (1918) M W N 922 : 45 I A 148 (P C), known as Second Pittapur case. At p. 784 Page of 41 M.--[Ed.] we have got the following observations:

It follows that the right to maintenance, so far as founded on or inseparable from the right of co-parcenery, begins where co-parcenery begins and ceases where co-parcenery ceases.

4. The learned Advocate for the Commissioner of Income-tax relies on this sentence and argues that, as there is no co-parcenery, therefore, there is no undivided family. The inference does not follow. Though persons may have co-parcenery rights in joint family property they may still be members of undivided family, for instance, the female members of an undivided family and disqualified heirs such as persons who are blind, deaf, dumb and soon. However, at p. 785 page of 41 M.--[Ed.], Lord <NAME> observes;

Just as the impartiality is the creature of custom, so custom may and does affirm a right to maintenance in certain members of the family.

5. Lower down he says:

In the matter in hand their Lordships do not doubt that the right of sons to maintenance in an impartible zemindari has been so often recognised that it would not be necessary to prove the custom in each case....

6. For example, in the case of <CITATION> 21 M 147 : 2 Bom. L R 945 : 5 C W N 74 : 27 I A 51 : 10 M L J 294 : 7 Sar. P O J 761 (P C) the judgment says:

As to the <NAME> estate, the <ORG> held that it was impartible and the consequence is that the plaintiffs as the younger brother of the <NAME> retain such right and interest in respect of maintenance as belong to the junior members of a <ORG> or other impartible estate descindible to a single heir.

7. These questions show that in the view of Lord <NAME> the right to maintenance which the son of a zemindar still possesses is not the creature of custom but it is an incident to the ordinary joint family property which was left untouched by custom, dispute its encroachment on the incidents. The next quotation from <NAME> v. <NAME> 5 C 256, viz., We can And no invariable or certain custom that any below the first generation from the late raj can claim maintenance as of right

8. shows that beyond the 1st generation there is the possibility that custom has made some encroachment. Therefore it was held by their Lordships that in each case the custom must be proved. The decision in <CITATION> 108 Ind. Cas. 354 : 51 M 189 : A I R 1928 P C 68 : 27 L W 497 : 5 C W N 41 : 54 M L J 504 : 47 C L 488 : 9 P. L. T. 347 : 26 A L J 642, 30 Bom. L. R. 802 : (192) M M W N 252 : 32 C W N 983 ( <CITATION> 138 Ind. Cas. 861 : 59 C 1399 : Ind. Rull. (1932) P C 263 : 63 M L J 196 : 9 C W N 691 : A I R 1932 P C 216 : 36 C W N 1046 : 56 C L J 92 : 36 L W 266 : (1932) M W N 923 : (1932) A L J 919 : 13 P L T 659 : 34 Bom. L R 1(sic)67 (P C), do not carry the matter further. The result is, that we must find that there is a joint family property. It has been argued that the income from which the maintenance is paid belongs solely to the zemindar but we have nothing to do with this. The question in the case is not whether the income belongs to the zemindar or whether it belongs to the joint family of which the assessee is a member but whether the assessee received his payment as a member of the undivided Hindu family. The question must, therefore, be answered in the affirmative. This is substantially the same as the answer given by <ORG>. The assessee will have Rs. 250, costs from the Income-tax Commissioner and the deposit of Rs. 100 will be returned to him.

Beasley, C. J.

9. I agree.

<NAME>, J.

10. I agree.


JUDGMENT <NAME>, J.

1. This appeal was heard ex parte and allowed by me on 16th April 1937. But, on an application for the setting aside of the ex parte decision being made that decision was set aside and the appeal was restored to its original number and is for disposal before me today. After hearing the learned Counsel for the parties, I have come to the conclusion that my ex parte decision was erroneous and that this appeal must fail. The facts that give rise to the questions of law that have to be decided in the present appeal are undisputed and are as follows : A decree for costs was passed in favour of the appellant decree-holders by <ORG> on 16th July 1928 and within three years of that date, viz. on 14th July 1931, the decree-holders filed an application in that Court under Section 39, Civil P.C. The application was on a form prescribed by Order 21, Rule 11, Civil P.C., and the prayer contained in the application was as follows:

The property of the plaintiff-judgment-debtor lies within the jurisdiction of <ORG> in District Gorakhpur. A certificate may therefore be drawn up for sale of the property of the judgment-debtor by auction.

2. This prayer was contained in col. 10 of the application in which column an entry is to be made as to the "mode in which the assistance of the <ORG> is required." On the application being filed, the <ORG> forthwith directed that a certificate of trans. for of the decree be prepared and be sent to the <ORG> concerned. After the preparation of the certificate the case was again put before the <ORG> with a note that the certificate had been prepared and the <ORG> then ordered that the certificate be sent to the "<ORG> concerned." The certificate was then sent to the <ORG> of the <ORG> of Bansgaon. It is admitted that no proceedings in execution were taken by the <ORG> of Bansgaon and the decree remained wholly unsatisfied. A fresh application to execute the decree was made by the decree-holders on 20th July 1934 and this application was successfully opposed by the judgment-debtor in the <ORG> below on the ground that the application was barred by limitation. The question that I have to decide is whether the application dated 20th July 1934 was or was not within time. It is clear that the application dated 20th July 1934 was within three years of 27th July 1931 the date on which the Subordinate Judge of Azamgarh disposed of the application dated 14th July and ordered the certificate about the transfer of the decree to be sent to "the <ORG> concerned." The application dated 20th July 1934 was therefore within time if the application dated 14th July 1931 amounted to a step-in-aid of execution and was an application in accordance with law.

3. The decision in <NAME> v. <NAME> (1913) 35 All. 389 puts it, beyond doubt that an application made to the <ORG> that passed the decree to transfer the same for execution to another <ORG> is a step-in-aid of execution. The question however remains whether the application dated 14th July 1931 was an application in accordance with law. In <NAME> v. <NAME> (1890) 12 All. 64 it was hold that the expression "applying in accordance with law" means applying to the <ORG> to do something in execution which by law that <ORG> is competent to do. It was further observed in that case that the expression does not, moan applying to the <ORG> to do something -which, cither to the decree-holder's direct knowledge in fact, or from his presumed knowledge of the law, he must have known the <ORG> was incompetent to do.

4. This case was followed in <NAME> v. <NAME> (1905) 27 All. 619. The same interpretation was put on the phrase by <ORG> in <NAME> v. <NAME> (1922) 9 A.I.R. Pat. 188. In <NAME> v. <NAME> (1926) 13 A.I.R. Cal. 1077 it was held that the expression "in accordance with law" in Article 182(5) of Schedule 1, Limitation Act , should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. It was further held in that case that if the application was such as to make it impossible for the <ORG> to issue execution upon it the application cannot be deemed to be in accordance with law.

5. It follows from the authorities mentioned above that the application or step-in-aid of execution of the nature referred to in Article 182(5 ), Limitation Act , can be only in accordance with law if the application is made or the step-in-aid of execution is taken in a <ORG> of competent jurisdiction and if the prayer that is made by the decree-holder is one which the <ORG> can lawfully grant. In the case before me, I find that the prayer contained in col. 10 of the application dated 14th July 1931 was one which the learned Subordinate Judge of <NAME> was not competent to grant. The prayer has been quoted above and the only possible interpretation that can be put on the same is that the decree-holders prayed that the decree be transferred for execution to the <ORG> of the <ORG> of Bansgaon. The <ORG> of Bansgaon was however not competent to try the suit in which the decree under execution was passed. I am informed that the suit in the Subordinate Judge's <ORG> that culminated in the decree under execution was valued at Rs. 5000 and it has been conceded in argument that the <ORG> of Bansgaon was not invested with the pecuniary jurisdiction to try suits of the value of Rs. 5000. He therefore had not the jurisdiction to execute the decree in question : vide <CITATION> (1889) 16 Cal. 465 and <NAME> v. <NAME> (1922) 9 A.I.R. Pat. 188. It follows that the prayer contained in the application dated 14th July 1931 was one which could not be granted by the Subordinate Judge of <NAME>.

6. But it is contended by the learned Counsel for the appellants that the last two cases just mentioned were wrongly decided and it is maintained that it is open to the <ORG> which passed a decree to send it for execution to another <ORG> irrespective of the limits of the pecuniary jurisdiction of the <ORG> to which the decree is transferred and in support of this contention reliance is placed on the decisions in <CITATION> (1884) 7 Mad. 397 and <CITATION> (1894) 17 Mad. 309. It was held in these cases that Section 223 , Civil P.C. 1882, gives jurisdiction to a Munsif's <ORG> to execute a decree in a suit beyond its jurisdiction which has been transferred to it for execution by a District <ORG>.

7. Section 223 of the Code of 1882 corresponds to Sections 38 , 39 , 41 and to certain other Sections of the Code of 1908. In the present case I am concerned with only that portion of Section 223 of the Code of 1882 that has been re-enacted in Section 39 of the Code of 1908. Section 39(1) prescribes the circumstances in which the <ORG> passing the decree may, on the application of the decree-holder, send the same for execution to another <ORG>. Clause (2) of Section 39 , Civil P.C., empowers the <ORG> of its own motion to send the decree for execution to any Subordinate <ORG> "of competent jurisdiction." A comparison of Section 39 of the present Code with the relevant portion of Section 223 of the former Code shows that Section 39 has reproduced the relevant portion of Section 223 verbatim except in one respect. In the former Code, it was provided that "the <ORG> which passed a decree may of its own motion send it for execution to any <ORG> subordinate thereto." But in Clause (2) of Section 39 the words "of competent jurisdiction" have been added. This addition must have boon deliberate and intentional and was presumably with a view to set at rest the conflict between the Calcutta and the Madras High <ORG>s on the point. The addition of the words of competent jurisdiction in Clause (2) of Section 39 unmistakably points in the conclusion that the <ORG> intended to lay down that it is not open to any and every <ORG> to execute a decree irrespective of its pecuniary jurisdiction and that the competence of a <ORG> to execute a particular decree must be determined by reference to its competence to try a suit of similar valuation in which the decree under the Section was passed. Accordingly the Madras cases can no longer be deemed to be laying down the correct law and I must hold that the <ORG> of Bansgaon had no jurisdiction to execute the decree held by the appellants.

8. Great reliance was placed by the learned Counsel for the appellants on the decision in <CITATION> (1937) 24 A.I.R. All. 397. It was held in that case that if an application under Section 39 , Civil P.C., gives sufficient particulars of the decree sought to be transferred the application cannot be considered to be otherwise than one in accordance with law. On the basis of this decision it was argued that as the application dated 14th July 1931 indicated with precision the decree which was sought to be transferred that application must be deemed to be an application in accordance with law. I find it impossible to accede to this contention. <CITATION> (1937) 24 A.I.R. All. 397 the particulars of the decree were correctly mentioned in the application filed by the decree-holder. There was however slight error in the name of one of the parties and it was held that that error did not make the application otherwise than one in accordance with law. In the case before me the facts are essentially different. The prayer contained in the application under Section 39 , Civil P.C., was to transfer the decree for execution to a Court that had no jurisdiction to execute the same. The learned Subordinate Judge of Azamgarh had therefore no jurisdiction to grant the prayer contained in the application. The application was not therefore in accordance with law and cannot give a fresh start to the period of limitation. For the reasons given above I hold that the decision appealed against is perfectly correct and dismiss this appeal with costs.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND ANR. DATE OF JUDGMENT21/08/1972 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. GROVER, A.N. <NAME>, D.G. CITATION: 1973 AIR 38 1973 SCR (1) 886 1972 SCC (2) 594 CITATOR INFO : R 1992 SC 96 (14) ACT: Representation of the People Act , s. 123 (2) and (4)-Expression of opinion that candidate not qualified- If amounts to undue influence under s. 123 (2) or corrupt practice under s. 123 (4). Election to <ORG> from Graduates' constituency-If non-political. Constitution of India, 1950, Art. 171(3) (a) (b) and (c)- If Candidate should be member of electoral college. Practice-Imposition of penal Costs. HEADNOTE: In 1967, the first respondent and S contested for election for a seat in the Madras <ORG> from the City Graduates' constituency, which fell vacant. S was declared elected and his election was challenged by the first respondent on the grounds, inter alia, that, (a) in an elec- tion from graduates' constituencies political parties were not competent. to sponsor candidates, and S, having been sponsored by <ORG>, was not qualified to, be a candidate; and (b) that S was guilty of corrupt practices under s. 123(5) of the Representation of the People Act, 195 1. <ORG> set aside the election of S on the second ground. On the first ground, while holding that there was no cvidence that S was sponsored by a political party, <ORG> observed that election to the <ORG> from the Graduates' constituency was a non-party election and that political parties should not nominate any candidate for that election. This Court, in appeal, confirmed the finding' of <ORG> that S was guilty of corrupt practices, but did not at all touch on the observations of <ORG>. In 1970, the first and second respondents contested for election to the <ORG> from the same constituency, which was a two member constituency, and they were both declared elected. The first respondent objected to the candidature of the second respondent before the Returning Officer, on the grounds, (1) that <ORG> had decided in the earlier election petition against S, that the constituency was a non-political one and that the second respondent, having been sponsored by <ORG>, any votes given to him would amount to throwing away the votes; and (2) that the second respondent was not a, graduate and hence, was not qualified to be a candidate at the election, The Returning Officer rejected the objections, but the first respondent continued the propaganda against the second respondent by publishing leaf. lets as well as appeals in newspapers. After the two respondents had been declared elected, the appellant, an elector in the constituency, filed an election petition, challenging the election of the first respondent on the ground that by his propaganda he was guilty of corrupt practices under s.123(2) and (4). <ORG>, dismissed the petition with penal costs. In appeal to this Court. 887 HELD: (1) A debate whether a candidate was qualified to stand or whether a political party was competent to nominate candidates for a particular constituency cannot be undue influence within the meaning of s. 123(2) . [891G-H] (a) The first respondent placed his point of view before the electorate and sought support for it from the judgment of <ORG> and the second respondent. relied upon a press note issued by <ORG>. Candidates in elections are not only entitled to raise political issues but can also raise social, economic and legal issues. [892A- B] (b) The first respondent did not make any attack. on the character of the second respondent. The mere fact that his contention was untenable did not convert it into undue influence. [89-2B, H] S. K. Singh v. <NAME>,  2 S.C.R. 197, referred to. (2) The first respondent was not guilty of any corrupt practice under 123(4). [891G] (a) His propaganda that the second respondent was not qualified to be a candidate was only an opinion expressed by him. He did not make any statement of fact and an opinion on a question of law could not be considered to be a statement of fact., The fact that the Returning Officer held that the second respondent was qualified to be a candidate did not preclude the first respondent from debating the issue before the electorate. [891D-G] (b) It could not be said that the opinion was neither bona fide nogroundless as the contention was accepted as correct by <ORG> in an election petition filed against second respondent, though that decision was reversed by this Court. [891E] (c) Also, the first respondent's propaganda that <ORG> had held in the election petition against S, that the graduates' constituency was a nonpolitical constituency could not, be said to be a false statement, because, <ORG>, in fact, said so. [891F- <CITATION> ,  2 S.C.R. 766, referred to. (3) This conclusion of <ORG>, that the graduates' constituency was a non-political one, however, was wrong. [894H] In the form prescribed for nominating candidates for Legislative Assemblies there is a clolumn requiring the candidate to mention whether he belonged to a political party, and if so, to which party. The electors to <ORG> are by and large illiterate and to facilitate the freedom of voting the symbol system had been introduced. The symbols are of two type,, reserved and free. it was necessary for he <ORG> to know whether a candidate was a nominee of a political party, because, reserved 'symbols are allotted to candidates spon- sored by recognised political parties. The symbol system is unnecessary in the elections to the <ORG>, because, the electors are generally educated. Therefore, the absence of such a column in the form prescribed for nominating candidates to the <ORG> does not lead to the inference that election to the <ORG> from the Graduates' constituency is non-political. [894 F-H; 895 A-C] (4) Article 171(3)(d) of the Constitution says that members of the <ORG> should elect, as nearly as may be, 1/3 members of the <ORG> from amongst persons who are not members of the <ORG>; but no 888 such stipulation is made in the other clauses of the Article. But from that it could not be concluded that when elections are held under clauses (a),(b) and (c) of Art. 171(3 ), the person to be elected must be one who is a member of the electoral college in question. The candidate may either be a member of the electoral college or even an, outsider. If a person possesses all the qualifications prescribed in the Constitution as well as in the Representation of the People Act s and has not incurred any of the disqualifications mentioned therein he is qualified to be a ,candidate. [894D-F] G. Narayanaswami v. G. Pannerselvam and <NAME>. Civil Appeal No. 189 of 1971 decided on April 12, 1972, followed. (5) In the circumstances of this case here was no justification for imposing penal costs. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 586 of 1971. Appeal under section 116-A of the Representation of the People Act, 1951 from the Judgment and order dated December 15, 1970 of <ORG> in Election Petition No. 2 of 1970.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for respondent No. 1. <NAME> and <NAME>, for respondent No. 2. The Judgment of the Court was delivered by <NAME>, J. This is an election petitioner's appeal under s. 116-A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act). It relates to the election to <ORG> from the Madras City Graduates' constituency. The election was held on April 11, 1970. Seven candidates contested in that election. The election was according to the principles of proportional representation by means of single transferable vote. The Madras City Graduates' constituency was a two member constituency. The 1st respondent, <NAME> was declared elected in the first count itself. The second respondent <NAME> was declared elected in the second count. The election of <NAME> was challenged by the appellant <NAME> who is an elector in the constituency in question on the ground that <NAME> was guilty of corrupt practices mentioned in sub-ss. (2) and (4) of S. 123 of the Act. <ORG> came to the conclusion that the petitioner has failed to make out his case and consequently dismissed the election petition. Hence this appeal.

The charges levelled against <NAME> are : (1) that he (<NAME>) falsely carried on propaganda to the effect that <ORG> of Madras had decided in an earlier election petition between him and <NAME> that the constituency in question is a non-political and <NAME> having been sponsored by <ORG> any votes given to him will amount to "throwing away" of the votes and (2) that <NAME> being a non-graduate was not qualified to be a candidate at the election. It may be noted at this stage that <NAME> did object to the candidature of <NAME> before the Returning Officer on the two grounds mentioned earlier. The Returning Officer rejected those objections holding that there was no material before him to show that <NAME> had been sponsored by the Swatantra party and further that in his view a non-graduate is not disqualified from seeking election from a graduate constituency. Even after the Returning Officer rejected the contentions of <NAME>, he admittedly carried on the propaganda referred to earlier by publishing leaflets as well as appeals in the Newspapers. Section 123 enumerates what are corrupt practices for the purposes of the Act. Sub-s. (2) of that section to the extent material for our present purpose reads "Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right." (The proviso is not relevant for our present purpose.) Sub-s. (4) thereof says :

"The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election." Before examining the points in issue, it is necessary to set out a few more facts.

In 1967 a seat in the Madras City <ORG> constituency fell vacant. For that seat election was held on August 21, 1967. In that election <NAME> was one of the contestants. One of the other contestants was <NAME>. <NAME> was declared elected having secured the highest number of votes. Thereafter <NAME> challenged the validity of the election of <NAME> on various grounds. One of the grounds taken by <NAME> was that in an election from graduates constituencies political parties were not competent to sponsor candidates, <NAME> having been sponsored by the Swatantra party, was not qualified to be a candidate. Yet another ground taken was that <NAME> was guilty of corrupt practices coming within sub-s. (5) of s. 123 of the Act. <ORG> set aside the election of <NAME> on the ground that he was guilty of corrupt practices mentioned in sub-s. (5) of s. 123 . Dealing with the question whether <NAME> was qualified to be a candidate at the election or not it observed that there, is no satisfactory evidence before it to come to a conclusion that <NAME> had been sponsored by a political party. But proceeding further it observed :

"It is quite well known that the election to <ORG> from the Madras District Graduates' Constituency is a non- party election. No party symbols are assigned to the candidates. The political parties cannot also nominate any candidate for this election."

Aggrieved by the decision of <ORG>, <NAME> took up the matter in appeal to this Court. This Court affirmed the finding of <ORG> that <NAME> was guilty of the corrupt practices mentioned in sub-s. (5) of s. 123 of the Act. Evidently this Court was not invited to consider the correctness of the observations of the learned trial judge that "election to <ORG> from the Madras District Graduates' Constituency is, a non-party election". The judgment of this Court did not touch that point.

After the decision in <NAME>'s case, <NAME> persisted in carrying on propaganda that <ORG> had held that the election to <ORG> from the Madras District Graduates' Constituency is a non-party election and no political party can sponsor a candidate in that election. He also carried on the propaganda that <NAME>'s candidature had been sponsored by the Swatantra party and therefore according to him, he was not qualified to be a candidate. Having set out these facts we will first consider whether <NAME> was guilty of a corrupt practice coming within sub-s. (4) of s. 123 . The charge under this head is based on two grounds viz. that he had falsely carried on propaganda that <ORG> had ruled that the constituency in question was a non-political constituency and further that he had carried on a false propaganda' that <NAME> was not qualified to be a candidate. The ingredients of the corrupt practice mentioned in S. 123(4) as set out by this Court in <CITATION> .(1) are :

1. The publication by a candidate or his, election agent or any other person with the consent of the candidate or his election agent of any statement of fact.

2. Which statement is false and which was believed by the candidate to be false or at any rate was not believed by him to be true;

3. The said statement relates to the personal character or conduct of a candidate or in relation to his candidature or withdrawal and

4. The same being a statement reasonably calculated to prejudice the prospects of that candidate's election.

Taking up first the propaganda of <NAME> that <NAME> was not qualified to be a candidate, it was only an opinion expressed by <NAME>. He made no statement of fact. An, opinion, much less an opinion on a question of law cannot be considered as a statement of fact. Further his opinion cannot be, said to be either not bona fide or groundless as the Same was accepted as correct by <ORG> in the election petition filed against <NAME> though that decision was reversed by this Court in <CITATION> . (2).

The fact that the Returning Officer had held that <NAME> was qualified to be a candidate did not preclude <NAME> from debating that issue before the electorate. <NAME>'s propaganda that <ORG> has held that the graduates' constituency is a non-political constituency cannot be said to be false statement. <ORG> advertently or inadvertently said so though it was wrong in saying so as we shall presently see. Hence the charge under s. 123 (4) fails.

Now turning our attention to the allegation of undue influence, we fail to see how a debate whether a candidate was qualified to stand or whether a political party is competent to nominate candidates for a particular constituency can be undue inifluencve with in the meaning of S. 123(2). Both candidates have placed their point of view before the electorate. <NAME> sought support from <ORG> Judgment and <NAME> relied on the Press Note issued by <ORG> that political parties (1) [1969]2 S.C.R. 766. (2) Civil Appeal No. 189 of 1971 decided on April 12, 1972.

are not precluded from sponsoring candidates in the graduates' constituencies. Candidates in elections are not only entitled to raise political issues, they can also raise social, economic and legal issues. The fact that a contention is untenable does not convert it into an undue influence. We do seek to limit the scope of the expression "undue influence" in s. 123(2) . As observed by this Court in <NAME> v. <NAME>) :

"The freedom of election is twofold; (i) freedom in the exercise of judgment. Every voter should be free to exercise his own judgment, in selecting the candidate he believes to be best fitted to represent the constituency; (2) Freedom to go and have the means of going to the poll to give his vote without fear or intimidation."

In that decision this Court observed after taking into consideration s. 171 (G) of I.P.C.

"It is clear that in pursuit of purity of elections the legislature frowned upon attempts to assail such purity by means of false statements relating to the personal character and conduct of a candidate and made such acts punishable thereunder. But the fact that making of such a false statement is a distinct offence under Section 1 7 1 G does not and cannot mean that; it cannot take the graver form of undue influence punishable under section 171F . The false statement may be of such virulent, vulgar or scurrilous character that it would either deter or tend to deter voters from supporting that candidate whom they would have supported in the free exercise of their electoral right but for their being affected or attempted to be affected by the maker or the publisher of such a statement. Therefore it is the degree of gravity of the allegation which will be the determining factor in deciding whether,it falls under Section 171C or Section 171G . If the allegation though false and relating to a candidate's personal character or conduct, made with the intent to affect the result of an election, does not amount to interference or attempt at such interference, the offence would be the lesser one. If, on the other hand, it amounts to interference or an attempt to interfere, it would be the graver offence under See. 171-F, read with Section 171C ."

Herein it may be noted that <NAME> did not make any attack on the character of <NAME>. His contention was that the election to the constituency in question was non-political and that <NAME> was not qualified to be candidate, he (1) [1971] 2 S.C.R. 197.

being not a graduate. <NAME> was entitled to place these points of view before the electorate and even tell them that if <NAME> is elected he may challenge his election. It was for <NAME> or his supporters to counter the arguments advanced on behalf of <NAME>. For the reasons mentioned above we agree with <ORG> that the appellant has failed to establish the charges levelled by him.

At the same time we think it necessary to observe that the conclusion of <ORG> in <NAME> case that the Graduates' constituency is a non-party constituency is an erroneous conclusion. There is no reference to political parties either in our Constitution or in the Act. The political parties come into the picture indirectly though they have an important place in our political set up. Our Constitution and the Act refer to candidates as such and not to the parties to which they belong. Art. 173 of the Constitution prescribes the qualifications of the person to be chosen to fill a seat in the legislature of a State. They are (1) He must be a citizen of India.

(2) He must make and subscribe before some person authorised in that behalf by <ORG> an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. (3) In the case of a seat in <ORG> he must not be less than 25 years of age and in the case of <ORG> he must not be less than 30 years of age and (4) He must possess such other qualifications as may be prescribed in that behalf by or under any law made by parliament. Then we come to the provisions of the Act. Section 5 of the Act prescribes the qualifications for membership of <ORG>. In the case of a general constituency, the only qualification prescribed is that he must be an elector for any assembly constituency in that State. Section 6 prescribes the qualifications for membership of <ORG>. That Section reads (1) A person shall not be qualified to be chosen to fill a seat in <ORG> to be filled by election unless he is an elector for any <ORG> constituency in that State.

(2) A person shall not be qualified to be chosen to fill a seat in <ORG> to be filled by nomination by the Governor unless he is ordinarily resident in the State."

The Representation of the People Act , 1950 prescribes quali- fications for being enrolled as an elector. Sections 8 to 10A of the Act set out the grounds which disqualify a person from being a candidate. If a person possesses all the qualifications prescribed in the Constitution as well as in the Act and has not incurred any of the disqualifications mentioned therein then he is qualified to be a candidate. It may look anomalous that a non-graduate should be a candidate in a Graduates' constituency. But if a candidate possesses the qualifications prescribed and has not incurred any of the disqualifications mentioned in the Constitution or in the Act other consideration becomes irrelevant. That is the ratio of the of this Court in <NAME>'s case (supra).

It was urged on behalf of <NAME> that Art. 171 (3) (d) of the Constitution specifically says that the members of the <ORG> should elect as nearly as may be 1/3rd members of <ORG> from amongst persons who are not members of the <ORG>. But no such stipulation is made in the other clauses of that Art. Therefore we should conclude that when elections are held under cls. (a), (b) and (c) of sub- art. (3) of Art, 171, the person to be elected must be one who is a member of the electoral college in question. We see no logic in this reasoning. The relevant provisions do not say so. From the language of those provisions, it is clear that the candidate may either be a member of the electoral college in question or even an outsider. This question is no more res integra. It is concluded by the decision of this <ORG> in <NAME>'s case (supra). Dealing with the question that the election to the Graduates' constituency is non-political, our attention was invited on behalf of <NAME> to certain rules framed under the Act as well as forms prescribed. In the form prescribed for nominating candidates for legislative assemblies, there is a column requiring the candidate to mention whether he belongs to a political party, it so, which party, whereas there is no such column in the form prescribed for nominating candidates to the legislative council. From this we are asked to infer that the election to the legislative council is non-political. In our opinion this is an erroneous contention. The electors to the legislative assembly are by and large illiterate. Hence to facilitate the freedom of voting, the symbol system had been introduced. There are two types of symbols viz. reserved symbols and free symbols. Reserved symbols are allotted only to candidates sponsored by recognised political parties. Free symbols are given to others. In order to allot the reserved symbols, it is necessary for <ORG> to know whether a particular candidate is the nominee of any political party. Symbol system is unnecessary in the elections to <ORG> because the electors therein are by and large educated. They can exercise their franchise without the assistance of the symbols. We can see no legal objection for any political party sponsoring can- didates to the seats in <ORG>s. One other question remains to be decided. The learned trial judge has imposed penal costs of Rs. 500/- on the appellant; that in addition to the ordinary costs. It was contended before us that the learned judge had no competence to impose penal costs. We do not think it necessary to decide that question. From the facts and circumstances of this case, we do not think that there was any justification to impose penal costs. We accordingly set aside the order imposing penal costs. In other respects this appeal fails and the same is dismissed with costs.

<ORG> dismissed.


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT01/12/1987 BENCH: <NAME>, <NAME> (J) BENCH: <NAME>, <NAME> (J) RANGNATHAN, S. CITATION: 1988 AIR 485 1988 SCR (2) 107 1988 SCC (1) 366 JT 1987 (4) 589 1987 SCALE (2)1249 ACT: Constitution of India, 1950: Articles 14, 32 and 226- petition challenging Constitutional validity of certain provisions of a Statute-Must be in the context of certain facts and not in abstract or vacuum-Legislative wisdom of a legislation-Whether a ground for challenging validity of the Act passed by one <ORG> in comparison with similar Acts passed by other <ORG>s. East Punjab Urban Rent Restriction Act, 1949: Section Whether constitutionally valid-Rent prevalent in 1938 Basis for determination o f fair rent-Whether unreasonable. HEADNOTE: % The appellant filed a writ petition in <ORG> questioning the vires of s. 4 of the East Punjab Urban Rent Restriction Act, 1949. He did not, however, mention the particulars of the premises of which he claimed to be the owner, and in respect of which he was making a grievance. <ORG> dismissed the writ petition in limine. Hence the appeal. It was submitted on behalf of the appellant that s. 4 of the Act was ultra vires the Constitution and violative of Art. 14 , and would be an interference with the fundamental right guaranteed under Art. 19(1)(g) and was unreasonable, and unjust inasmuch as it provided that rent prevalent in 1938 should be taken as the basis for the determination of higher rent and that pegging the rent prevalent in 1938 as the basic rent, was inequitable and unjust in the background of the tremendous rise in prices, and that the provisions of fixation of rent in other <ORG>s were different and were more fair and just and reasonable in comparison. Dismissing the appeal, this Court, ^ HELD: 1.1 A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vacuum. [109E]i 108 In the instant case, the essential facts necessary to examine the validity of the Act are lacking. On this ground the petition was rightly rejected and this Court is not inclined to interfere with the order of <ORG> on this ground alone. [109E-F] 2.1 Article 14 does not authorise the striking down of a law of one <ORG> on the ground that in contrast with a law of another <ORG> on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the <ORG> or of the <ORG> dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different, Art. 14 can have no application. [113C-D] 2.2 Each legislature in the several <ORG>s has provided the method of determination of fair rent on the basis of legal conditions, as judged to be, by each such legislature. The legislative wisdom of such legislation is not a ground on which the validity of the Act can be challenged. [113B] 2.3 It must be the function of the legislature of each <ORG> to follow the methods considered to be suited for that <ORG>, that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by comparison. What may be The problem in Madras may not be the problem in Punjab. [113H; 114A] The Act in question was passed in 1949 and it pegged the rent prevalent in the similar houses in 1938 and as such is not unreasonable per se. The rises started tremendously after the end of the Second World War after the partition of the country. It cannot, therefore, be said that per se there is unreasonableness in fixing the prices in 1938 level. [114A-B] One of the objects of the Act was to restrict the increase in rent. With that object, the Act as provided certain provisions as to fixation of the fair rent. Therefore, having regard to the specific preamble of the Act there is nothing unreasonable in the Scheme contemplated under s. 4 of the Act. [114B- <CITATION> ,  4 S.C.C. 238 and <CITATION> , A.I.R. 1974 S.C. 818- 2 S.C.R. 629, referred to. 109 JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1637 of 1987.

From the Judgement and order dated 3.3.1986 of <ORG> in Civil Writ Petition No. 1055 of 1986.

<NAME> and Mrs. <NAME> for the Appellant. <NAME> for the Respondent.

The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against the judgment and order of <ORG> dated the 3rd March, 1986 dismissing the Writ Petition in limine under Articles 226 and 227 of the Constitution of India filed by the appellant before <ORG>. The appellant states that he is the owner of certain premises in Punjab. It must, however, be mentioned that the petition is lacking in particulars as to what premises the appellant owned and in respect of which premises the appellant is making the grievances. On this ground it is not possible to decide the question of vires canvassed before <ORG> and repeated before us. A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vacuum. The essential facts necessary to examine the validity of the Act are lacking in this appeal. On this ground the petition was rightly rejected and we are not inclined to interfere with the order of <ORG> on this ground alone. Be that as it may as the question of vires of Section 4 of the East Punjab Urban Rent Restriction Act, 1949, hereinafter called 'the Act', was challenged before <ORG> and canvassed before us. It is just as well that we did with that connection.

<NAME>, learned counsel for the appellant submitted that Section 4 of the said Act is ultra vires the Constitution and unreasonable inasmuch as the section provides that rent prevalent in 1938 the basis for the determination of fair rent if unreasonable and unjust. He urged that pegging the rent prevalent in 1938 the basic rent was inequitable and unjust in the background of the tremendous rise in prices. But it has to be borne in mind that certain increases have been provided for in section 4 from the rent prevalent in 1938. In must, however, be remembered that the Act was passed as the preamble of the said Act which states, inter alia, "to restrict the increase of rent". One of the objects of the Act was to restrict the increase in rent. With that object the Act has provided certain provisions as to fixation of the fair rent. Section 4 of the Act which is under challenge may be conveniently set out as under:

"Section 4 "Determination of fair rent: (1) The Controller shall on application by the tenant or landlord of a building or rented land fix the fair rent for such building or rented land after holding such enquiry as the Controller thinks fit. (2) In determining the fair rent under this section, the Controller shall first fix a basic rent taking into consideration:-

(a) The prevailing rates of rent in the locality for the same or similar accommodation in similar circumstances during the twelve months prior to 1st January, 1939; and

(b) the rental value of such building or rented land if entered in property tax assessment register of the municipal, town or notified area committee, cantonment board, as the case may be relating to the period mentioned in clause (a); Provided that, not with standing anything contained in sub sections (3), (4) and (5) the fair rent for any building in the Urban area of Simla shall not exceed the basic rent. (3) In fixing the fair rent of a residential building the Controller may allow, if the basic rent:-

(a) does not exceed Rs.25 per mensem an increase not exceeding 81« per cent on basic rent;

(b) exceed Rs.25 per mensem, an increase but does not exceed RS.50 per mensem, an increase not exceeding 12-1/2 per cent on such basic rent;

(c) exceeds RS.50 per mensem an increase not exceeding 25 per cent on such basic rent;

(ii) in the case of building, constructed on or after the Ist January, 1939-

(a) does not exceed Rs.25 per mensem, an increase not exceeding 25 per cent on such basic rent;

(b) exceeds Rs.25 but does not exceed Rs.50 per mensem, an increase not exceeding 37-1/2 per cent on such basic rent;

(c) exceed Rs.50 per mensem, an increase not exceeding 50 per cent on such basic rent; (4) in fixing the fair rent of a scheduled building the controller may allow, if the basic rent-

(i) in the case of a building in existence before the Ist January, 1939-

(ii) does not exceed Rs.25 per mensem, an increase not exceeding 13-1/2 per cent on such basic rent;

(b) exceeds Rs.25 but does not exceed Rs.50 per mensem, an increase not exceeding 17« per cent on such basic rent;

(c) exceed Rs.50 per mensem, an increase not exceeding 303 percent on such basic rent;

(ii) in the case of a building constructing on or after the Ist January, 1939

(a) does not exceed Rs.25 per mensem an increase not exceeding 30 percent on such basic rent;

(b) exceeds Rs.25 but does not exceed Rs.50 per mensem, an increase not exceeding 42« per cent on such basic rent;

(c)exceeds Rs.50 per mensem, an increase not exceeding 55 per cent on such basic rent;

(5) In fixing fair rent of a non-residential building or rented land the controller may allow, if the basic rent,

(i) in the case of building in existence before the Ist January, 1939 or in the case of rented land;

(a) does not exceed Rs.50 per mensem, an increase not exceeding 371/2 per cent on such basic rent;

(b) exceeds Rs.50 per mensem, an increase not exceeding SO per cent on such basic rent;

(ii) in case of building constructed after the Ist January 1939:-

(a) does not exceed Rs.50 per mensem, an increase not exceeding 50 per cent on such basic rent;

(b) exceeds Rs. 50 per mensem, an increase not exceeding 100 per cent on such basic rent; (6) Nothing in this section shall be deemed to entitle the Controller to fix the rent of a building or rented land at an amount less than the rent payable for such building or rented land under a subsisting lease entered into before the first day of the January 1939."

It was contended that Section 4 of the Act provides the manner for determining the fair rent. But while laying down the procedure for determining the fair rent it has laid down that the Rent Controller, while determining the fair rent under this section shall take into consideration the prevalent rates of rent in the locality for the same or similar accommodation in similar circumstances during 12 months prior to Ist January, 1939. In other words, he has first to determine the rent prevalent in the locality in the year 1938 and then fix the rent accordingly. This it is submitted, was unreasonable and as such arbitrary and violative of Article 14 and would be an interference with the fundamental right guaranteed under Article 19(1)(g) of the Constitution. There has been according to the appellant, a tremendous rise in prices and as such in pegging the rent at the rate of Act of 1938 in an Act of 1949 was unreasonable. He drew our attention to the relevant provisions of the Rent Act in Assam, Tripura and Haryana where the provisions of fixation of rent according to him were different and were more fair and just and reasonable in comparison and submitted that this provision of the Act in question was unfair and unjust.

We are unable to accept this contention because each legislature in the several States has provided the method of determination of fair rent on the basis of legal conditions, as judged to be, by each such legislature. It is well- settled that the legislative wisdom of such legislation is not a ground for which the validity of the Act can be challenged .

Article 14 does not authorise the striking down of a law of one <ORG> on the ground that in contrast with a law of another <ORG> on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the <ORG> or of the <ORG> dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different, Article 14 can have no application.

See in this connection the decision of this Court in <CITATION> ,  4 S.C.C. 238.

<NAME>, learned counsel drew our attention, we must have hasten to add to the different statutes in different States on this aspect. We cannot say that there was any better provision in those statutes, there were undoubtedly different provisions and those different provisions were judged by the legislatures of those State to be suited to the needs of those States. It is not necessary for us to examine in details those very provisions.

<NAME>, learned counsel also drew out attention to the observations of this Court in the case of <CITATION> , A.I.R. 1974 S.C. 818-1197412 S.C.R. 629. He drew out attention how fair rent should be fixed by relying on the certain observations of <NAME>, J. as the Chief Justice then was at Page No. 825 of the A.I.R. In the facts and in the context of this case it is not necessary to refer to these observations. These were made entirely in a different context. It must be the function of the legislature of each State to follow the methods considered to be suited for that State, that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by compari-

son. What may be the problem in Madras may not be the problem inPunjab. It must however, be borne in mind that the Act in question was passed in 1949 and it pegged the rent prevalent in the similar houses in 1938 and as such is not unreasonable per se. The rises stated tremendously after the end of the Second World War after the partition of the country. In that view of the matter, we can not say that per se there is unreasonableness in fixing the prices in 1938 level. Having regard to the specific preamble of the Act we find nothing unreasonable in the Scheme contemplated under Section 4 of the present Act.

In the aforesaid view of the matter, the challenge to Section 4 on the grounds advanced before us must fail and it is accordingly rejected. The appeal, therefore, fails and is dismissed. There will be no order as to costs.

N.P.V. Appeal dismissed.