JUDGMENT Dunedin, J.

1. The facts out of which this case arises are very clearly and succinctly stated by Mr. Justice <NAME> in his judgment of the 6th April, 1909, which is part of the necessary history of the judgment actually before their Lordships. He says:-

The history of this case is in brief as follows : In 1903His Highness <NAME> of Faridkot brought a suit under Section 283 Civil Procedure Code (1882) against <NAME> and <NAME>, decree-holders, Mr. <NAME>, judgment debtor and two others, for a declaration that certain property, attached under <NAME> <NAME>'s, decree; was plaintiffs-property and so not liable. Great delay took place and an application for transfer of the case was made to <ORG>; but a new District Judge having been ordered to Ferozepur, transfer became unnecessary. Again plaintiff applied for transfer of the case and dgain the petition, was rejected and the case was taken up thereafter on the 21st April, 1904. In. the course of the hearing on the 16th July, 1904, an application was made to <ORG> to revise an order of the District Judge, directing a party to produce certain books. I need not go into details concerning this. Suffice it to say that the petition remained in <ORG> till the 1st January, 1908, wheat Mr. <NAME>, pleader for plaintiff, withdrew it and that in the meantime certain casualties had occurred among the parties. In February 1906 <NAME> died and was succeeded by the present Chief. On the 9th May, 1906, the latter applied in <ORG> for substitution of his own name and this was ordered on the 19th May, 1906. <NAME>, defendant 2, had also died on the 15th April, 1906 and plaintiff said he heard of this (plaintiff is a minor) on the 8th November of the same year. Application for substitution of his five sons was made on the 13th December, 1907, and, the file still being in <ORG>, on the 11th January, 1908, the prayer was granted. These orders of the l!)th May, 1906 and the 11th January, 1908, were apparently both ex parte.

The papers went back from <ORG> to District Judge on the 18th March, 1908 and then an application was made to District Judge on the 16th March, 1908 by <NAME>, defendant 1 and <NAME>, one of the sons of Joti Mal, praying for an order of abatement on the grounds that in none of the following cases had representatives of deceased parties been put on the record within time, viz.:-

1. Vice Raja <NAME>, died February 1906;

2. Vice Joti Mal, died April 1906; and

3. Vice Mr. <NAME>, died about December 1906.

The new District Judge, Captain <NAME>, without enquiry and without notice to plaintiff, the present Chief and obviously without looking at <ORG> orders of the 19th May, 1906 and 11th January, 1908, summarily there and then ordered abatement and gave applicants costs out of the deceased <NAME>'s estates. The order was passed under both Section 306 and Section 368, Civil Procedure Code (1882), all three grounds set forth in the petition being accepted as sound.

Upon a petition by the present Chief, Captain <NAME>'s successor, on the 8th April, 1908 reconsidered the ex parte order of the 16th March, 1908 and set aside the order of abatement in so far as it depended upon the matter of the decease of the late <NAME>. This was an order under Section 371, Civil Procedure Code and was within the power of the District Judge. Then, on the 24th April, the District Judge, took up the other two demises and set aside the abatement order also in respect of them. On both occasions it was urged before the District Judge that Section 371 did not authorise the reconsideration by him of an order under Section 368, Civil Procedure Code, but he overruled the objection.

2. Having thus set forth the facts, the learned Judge expressed his opinion that though Section 371 authorised the setting aside of the abatement in so far as it depended on a failure to substitute a new plaintiff under Section 366, it did not do so, in so far as the abatement order depended on a failure to substitute a new defendant under Section 368. Accordingly, holding the District Judge <NAME>'s order to review to be ultra vires, he quashed that order and restored the ex parte order of the District Judge <NAME> which abated the suit.

3. It follows from what Mr. Justice <NAME> had said, that in his opinion the proper course for the plaintiff who, by an ex parte order in <ORG>, had had his suit brought to an end, was to appeal to <ORG> against that order. This the plaintiff did. But on. presenting his appeal he was met by the objection that it was time-barred. The case depended before the same Judge, Mr. Justice <NAME>. He upheld the objection. The case was then set down for review by <ORG>. In that Court Mr. Justice <NAME> sat as sole Judge. He, after a careful reconsideration, not unnaturally repeated his former judgment, but gave leave to appeal to His Majesty in Council.

4. The sole question directly raised is whether the time which was spent in getting the District Judge <NAME>'s judgment which was afterwards decided to be wrong and in getting it set aside, falls to be deducted in calculating the time during which appeal was possible. This depends on Section 5 of the Indian Limitation Act, which is in these terms :-

Any appeal or application for a review of judgment... may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the <ORG> that he had some sufficient cause for not preferring the appeal or making the application within such period.

5. It is right, also, to quote Section 14 of the same Act, which is as follows:-

In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in <ORG> or in <ORG>, against the defendant, shall be excluded, when the proceeding is founded upon the same cause of action and is prosecuted in good faith in a <ORG> which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

6. This, it will be observed, does not in terms apply, as it deals with suits and not with appeals, but its relevance will be seen by the judgments afterwards quoted.

7. The learned Judge, Mr. Justice <NAME>, in his first deliverance on this matter, cited the case of <CITATION> (1888) I. I. R. 10 All. 587. That case laid down the broad proposition that a mistake in law never could be the foundation for an application for the indulgence which may be granted under Section 5 . If that were sound there would be an end of the case. Upon the assumption that review was not the proper remedy for an abatement granted in respect of Section 368 (which as-sumption the plaintiff by acquiescing in Mr. Justice <NAME>'s judgment of the 6th April, 1009, must be held to concede), the proceeding by way of review instead of by appeal was a mistake in law. But the learned Judge's attention does not seem to have been called to the fact that the case cited was really reversed by the decision of <CITATION> (1897) I.L.R. 19 All. 348, F. B., where a full Bench held that a mistake in law may be the foundation for the relief craved. The case on its facts is not directly in point here, for it was concerned with a suit and not with an appeal: i.e., was directly under Section 14 ; and further, the mistake made was clearly within the words "a <ORG> which from defect of jurisdiction is unable to entertain it." In the second judgment the learned Judge carefully reconsidered the authorities. The case of <NAME> v. <NAME> (1888) P. R. No. 183 of 1888 had been specially pressed upon his attention; a <ORG> decision of his own <ORG> which, if applicable, he was bound to, follow. He refused to consider it applicable, because, in his opinion, it laid down no general rule and each case he considered depended on its own facts.

8. Their Lordships find it impossible to agree with the view that the case of <NAME> v. <NAME>, laid down no general rule. The case was first taken in <ORG>, when <NAME>, the point being raised, said " This class of cases is constantly cropping up and some definite rule should be laid down." Following this view, when with another Judge he took up the case in <ORG>, he referred the matter to <ORG>. The case was heard before <ORG> and <NAME> delivered the judgment. It will be enough to cite two passages from that judgment. After setting forth the terms of Section 5 of the Limitation Act, he says:-

All that the section requires in express terms, as a condition for the exercise of the discretionary power of admission of an appeal presented after time is 'sufficient cause for not presenting the appeal within the prescribed period.' If such cause is shown, the <ORG> may in its discretion, which is of course a judicial and not an arbitrary discretion, admit the appeal. We think the true guide for a <ORG> in the exercise of this discretion, is whether the appellant has acted with reasonable diligence in prosecuting his appeal and we think, further, that he ought ordinarily to be deemed to have acted with reasonable diligence, when the whole period between the date of the decree appealed against and the date of presenting the appeal, does not, after excluding the time spent in prosecuting with due diligence a proper application for review of judgment, exceed the period prescribed by law for presenting the appeal.

9. And again-

We also agree with <ORG> in the case reported in I.L.R. 5 All. 691, (<NAME> v. <NAME>) that the circumstances contemplated iu Section 14 of the Limitation Act should ordinarily constitute a sufficient cause within the meaning of Section 5 .

10. These citations seem to show that there is a general rule expressed and that the case was only sent to a Full Bench in order that some general rule should be laid down.

11. The learned Judge says that each case depends on its own circumstances. This is true. But <NAME> seems to treat this truisnv as if it was destructive of the idea that there can be a general rule. There is no inconsistency in the position. There may be a general rule as to the exercise of discretion, but each case must, nevertheless, be examined as to its own circumstances to see whether they make it fall within or wit<NAME>ut the terms of the general rule.

12. It would doubtless be within the power of this Board to hold that the general rule so laid down was wrong. But here it must be noticed that though as authority binding on Mr. Justice <NAME> it rests on the Punjab case, the authority for it is really much wider. The case of In re Brojender Coomar Roy Chowdry (1867) 7 W.R. 529, F. B. was also a Full Bench case, sent to <ORG> in order to obtain a general rule and it is well summarised in the head note which runs :-

If a party presents an application for review of judgment within the ordinary period limited for appealing, the time occupied by the <ORG> in disposing of such application will not be reckoned among the number of days limited for appealing, but will be added thereto; and a memorandum of appeal presented within such extended period will be received as... within time.

13. And in delivering judgment <NAME>, <NAME>, mentioned that they were upholding the ruling of fourteen Judges in 1865 and that the practice upheld had been the practice of Madras since 1860. Their Lordships were also informed that the same rule had been followed in Bombay. In Allahabad the same result is reached by combining the case reported in-Balwant Singh v. <NAME> (1883) I.L.R. 5 All. 591 with the case of <CITATION> (1897) I.L.R. 19 All. 348, F. B.

14. Now if the matter were entirely open, inasmuch as a mere mistake in law is not per se sufficient reason for asking the <ORG> to exercise its discretion under Section 5 (instances of which are given in some of the cases cited by the learned Judge), there would be a good deal to be said in argument in favour of making the rule universal and upholding in its entirety the ruling given in the case of <CITATION> above cited. But the matter is not open. To interfere with a rule, which after all is only a rule of procedure, which has been laid down as a general rule by Full Benches in all the <ORG>s of India and acted on for many years, would cause great inconvenience and their Lordships do not propose so to interfere.

15. It was strenuously urged by the learned counsel for the respondents that inasmuch as the power in Section 5 is admittedly a discretionary power, this <ORG> ought not to interfere with the discretion exercised by Mr. Justice <NAME> and he cited cases of which <NAME> v. <NAME>  A.C. 173 may be taken as a type. In reality, however, that case is against him. For it laid down that discretion there as here must be a judicial and not an arbitrary discretion. Now if the Judge who purports to exercise the discretion does so under the view that there is no general rule, when in fact there is one, if he. has, to use an expression often used in another class of cases, misdirected himself as to the law to be applied to the case, he cannot exercise a judicial discretion and <ORG>-in this case this <ORG>-must either remit the case or exercise the discretion themselves. In a case like <NAME> v. <NAME> there would necessarily be a remit. Here it is otherwise, for the general rule applies and it only remains to see whether the proceedings in the review were reasonably prosecuted and in good faith. That they were so their Lordships have no doubt. The District Judge <NAME> made the order for abatement on the 16th March, 1908. The plaintiff applied on the 20th March to set it aside and it was set aside by the District Judge <NAME> on the, 24th April, 1908. Mr. Justice <NAME> speaks of the plaintiff "persisting " in prosecuting review after the defendants had taken the point that appeal and not review was the proper remedy. But the defendants were held by the District Judge <NAME> to be wrong and their Lordships think that the plaintiff cannot be held in any fair sense to have "persisted" in his attitude till Mr. Justice <NAME>'s first judgment of the 6th April, 1909. Accepting that judgment, he appealed on the 21st April, 1909. The question of what he did in the fifteen days is neither here nor there. For accepting the general rule as stated above, the period for appealing being ninety days, the dates stand thus: the District Judge-<NAME>'s order was made on the 16th March, 1908. That order was set aside on the 8th April, 1908. Thus only twenty-three days out of the ninety had expired. That left forty-seven days. And after the proceedings for review terminated only fifteen days were consumed before the appeal was presented.

16. Though it is not in the appellant's mouth to say that Mr. Justice <NAME>'s first judgment, settling that review was incompetent, is wrong, he having acquiesced therein, still as the matter has been mooted and discussed, their Lordships think it better to say that in their view the District Judge <NAME>'s judgment on this point was right and that of Mr. Justice <NAME> wrong. The point seems to their Lordships very clear. Section 365 provides for the substitution of a new plaintift when the plaintiff has died, upon the application of the representative of the deceased plaintiff. Section 366 deals with the state of circumstances when no such application is made within a certain time. The defendant may either (1) have the suit abated; or (2) get an order putting up a new plaintiff. Section 368 deals in a similar manner with the case of the death of a defendant. Thus it will be noticed that abatement is a penalty which is only imposed on a failure of the plaintiff.

17. Then comes Section 371 . This primarily deals with what abatement involves : " No fresh suit shall be brought on the same cause of action." It is obvious that it is only a plaintiff that is hurt by this. Nothing could be better for a defendant. It is also obvious that an abatement is equally hurtful to the plaintiff whether granted in respect of a failure under Section 366 or Section 368 . When Section 371 goes on to say under what conditions the plaintiff can get rid of the abatement, it would be expected that it would deal With abatement however procured. And the opening words make it clear that it is so; "When a suit abates or is dismissed under this chapter". This chapter includes Section 368 just as much as Section 366 . The learned Judge seems to think that an argument can be founded on the fact that in the appeal Section 588 , an appeal is given against orders pronounced under Section 368 and the second paragraph of Section 366 , but none against those under the first paragraph of Section 366 . The reason is apparent. Section 371 which gave review was sufficient as to abatement so far as the plaintiff was concerned; but being a plaintiff's section only, it was unavailable to a defendant and as already pointed out, a defendant as such never would want to complain of abatement. But in paragraph 2 of Section 366 and in parts of Section 368 , there are other matters than abatement. Under Section 366 paragraph 2 a defendant might bring about the introduction of a wrong plaintiff against the will of the right one; under Section 368 a plaintiff might introduce a wrong defendant. To the persons so aggrieved there is given appeal.

18. Though they think that Mr. Justice <NAME>'s judgment on this point is erroneous, there is one remark which he makes in his opinion with which their, Lordships agree and which they wish to approve and emphasise. He points out how the whole mischief has arisen from the fact that the District Judge <NAME>'s order abating the suit was pronounced ex parte without giving the opposite party the opportunity of appearing. An order abating the suit, looking to the terms of Section 371 already quoted, may be said to be really tantamount to a judgment in favour of the defendant. To pronounce such a judgment ex parte, when no notice has been given to the opposite side to appear and contest the order, is much the same as to decide a suit against a defendant who has not been cited to appear. The practice, if it is a practice, is quite indefensible.

19. Their Lordships think it better to say further, that if the defendant had been present, it is clear that no order of abatement ought to have been pronounced. The plaintiff as repre-. sentative of the original plaintiff and the defendants, representatives of <ORG>, had been introduced in <ORG>, No doubt that was only done in the course of an interlocutory application as to the production of books. But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages and the prayer, which seems to-have been made ob major em cautelam, by the plaintiff, in his application to the District Judge <NAME>, under Section 365 , was superfluous and of no effect. <NAME>, the judgment-debtor, was only formally called and the non-presence of his representatives would afford no ground for the abatement of the suit.

20. Their Lordships will therefore humbly advise His Majesty to allow this appeal and to remit to <ORG> to allow the appeal and to set aside the order of the District Judge <NAME> and to remit to the District Judge to proceed with the hearing of the case on the merits. The respondents will pay the appellant the costs of this appeal and in the <ORG> below the costs so far as the proceedings were directed to setting aside the order of Judge <NAME>. The general costs of the suit will abide the result on the merits.


JUDGMENT SINHA J. - The facts in these appeals are briefly as follows : By an arpannamah (deed of dedication) dated the 17th Baisakh, 1303 B. S. (the 28th April, 1896), <NAME> and <NAME>, respectively, the widow and the son of the late <NAME>, for selves and as executrix and executor to the estate of the late <NAME>, created a debutter endowment in respect of their family dwelling should at 12, Shibkristo Daw Lane, Jorasanko, Calcutta, in which the ancestral family deity Sri Sri <NAME> was installed and other immovable properties including debalaya (temple) on the banks of the Ganges at village Barrackpur, now known as Barrackpore, in which the deities, <NAME> and <NAME>, and six images of Shiva had been enshrined. The said debutter is collectively derived as "Shib Krishna Debutter" and the estate is known as <ORG>. The present shebait of the said deities, in terms of the said arpannamah, is <NAME>. For the assessment years 1952-53 to 1956-57, the Income-tax Officer, District II(I), Calcutta, assessed the income arising out of the said debutter properties, in the hands of the said <NAME>, as shebait. The said assessments were challenged before the appellate authorities and ultimately, before <ORG>, Calcutta. By the decisions of the said <ORG> dated 23rd September, 1960, the appeals were partially successful, inasmuch as it was held that, so far as income under the head "property" was concerned, it could not be assessed in the hands of the shebait under section 9 of the Income-tax Act, 1922 (hereinafter referred to as the "said Act"), inasmuch as the shebaits were not the owners of the debutter properties. On or about the 15th March, 1961, five joint notices were issued on the two deities, Sri Sri <NAME> and <NAME>, represented by their shebait Sri <NAME>, under section 34 of the said Act, stating that the Income-tax Officer, District II(I), Calcutta, had reason to believe that the income of the said deities assessable to Income-tax had escaped assessment and they were, therefore, required to file a return for the said years under section 34 of the said Act. To these notices the deities, through their shebait, Sri <NAME>, took objection. One of the points taken in the letter of objection was that the said Act did not contemplate assessment of the income of a deity and, during the relevant years, the deities were excluded from the operation of the said Act and, therefore, the notices were without jurisdiction and void. As the revenue did not desist, applications were made by the said two duties represented by their shebait, Sri <NAME>, under article 226 of the Constitution, paying for a writ in the nature of mandamus restraining the respondent from giving effect to the said notices and that the said notices be quashed by a writ in the nature of certiorari and for such other order or order as to the court may seem fit and proper. Rules were issued in these applications and the five applications were heard by <NAME> who, by him judgment and order dated 13th September, 1962, dismissed the said application and discharged the rules, but made no order as to costs. These appeals are directed against the said orders. Dr. <NAME> has formulated has case as follow : The charging section in the said Act is section 3 and it runs as follows :

"Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of even firm and other association of persons or the partners of the firm or the members of the association individually."

It will be observed that this section does not speak of a Hindu deity or, indeed, of any juristic person. A Hindu deity can only come within the heading - "individual". The question is whether, prior to the amendment in the said Act in 1961, it could be said that a deity might be included within that expression. It is conceded by Dr. <NAME> that in the Act of 1961, every artificial juridical person, including a Hindu deity, has been expressly made assessable to Income-tax. This has been effected by altering the definition of the word "person" in section 2(31) of the Income-tax Act, and also by changing the language of section 4(1) . He however, argues that prior to 1961, Hindu deities were not all assessable to Income-tax. In order to consider this point. Dr. <NAME> invited us to consider the history of the Income-tax Act s commencing from Act XXXII of 1860 and to observe how they dealt with the question of private religious trusts. He has drawn our attention to the following enactments :

Act XXXII of 1860 Section 133 granted power to the local government to exempt any property movable or immovable solely employed or dedicated to religious or charitable public purposes from being chargeable under the Act.

Act XII of 1871 Section 4 provided that nothing in the Act applied to any movable or immovable property solely employed for religious or charitable public purposes.

Act II of 1886.

Section 5(1) provided that nothing in section 4 shall render liable to the tax, any income derived from property solely employed for religious or public charitable purposes.

Act VII of 1918 Section 3(2) provided that the Act shall not apply to the following classes of income :

"(i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes and in the case of property so held in part only for such purposes, the income applied, or finally set apart for application thereto.

(ii) Any income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes. In this sub-section charitable purpose includes relief of the poor, education, medical relief and the advancement of any other object of general public utility."

Act XI of 1922 Section 4(3)(i) and (ii) provided exactly the same as section 3(2)(i) and (ii) of Act VII of 1918.

Amending Act VII of 1939 This important Amending Act introduced relevant amendments in the said Act. After amendment, section 4(3) stood thus :

"Any income profits or gains falling within the following classes shall not be included in the total income of the person receiving them."

The followed clauses (i), (ia) and (ii). Clauses (i) and (ii) were the same as in the original Act of 1922. Clause (ia) provided for income derived from business carried on on behalf of a religious or charitable institution. At the end of the sub-section it was laid down as follows :

"In this sub-section charitable purpose includes relief of the poor education, medical relief and the advancement of the any other object of general public utility, but nothing contained in clause (i), clause (ia) or clause (ii) shall operate to exempt from the provision of this Act that part of the income of a private religious trust which does not enure for the benefit of the public."

In May, 1950, a Bench decision of this court in <CITATION> held that the withdrawal of exemption applied only when the dedication was through a trust in the English form. It was further held that section 40 had no application to the case of a shebait. In other words, it was held that income arising from property held by the trustees in trust for a deity, e.g. in a trust in the English form, is exempt from tax even if the dedication is to a private family deity which does not enure for the benefit of the public. This decision was superseded by the Income-tax (Amendment) Act . 1953, with effect from 1st April, 1952, which amended the last paragraph of the sub-section and excluded from exemption not only income from property held under trust but also income from property held under "other legal obligation" for private religious purposes thus including private religious trusts like debutters. The relevant part of sub-section (3) of section 4 , after the amendment, stood as follow :

"4. (3) Any income, profits or gains falling within the following classes shall not be included in the total income of the person receiving them :

(i) Subject to the provisions of clause (c) of sub- section 16 , any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, in so far as such income is applied or accumulated for application to such religious or charitable purposes as relate to anything done with the taxable territories, and in the case of the property so held in part only for such purposes, the income applied or finally set apart for application thereto.

In this sub-section, charitable purpose includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but nothing contained in clause (i) or clause (ii) shall operate to exempt from the provisions of this Act part of the income from property held under a trust or other legal obligation for private religious purpose which does not enure for the benefit of the public."

Chapter V of the said Act deals with liability in such cases. Section 41 of the said Act deals, inter alia, with the liabilities of trustees. The relevant part of sub-section (1) runs as follows :

41. (1) In the case of income, profits or gains chargeable under this Act which the courts of wards, the Administrator-General, the official trustees or any receiver or manager (including any person whatever his designations who in fact manages property on behalf of another) appointed by or under any order of a court, or any trustee or trustees appointed under a trust declared by a duly executed instruments in writing whether testamentary or otherwise (including the trustee or trustee under any wakf deed which is valid under the Mussalman Wakf Validating Act , 1913) are entitled to receive on behalf of any person, the tax shall be levied upon and recoverable from such court of wars, Administrator-General, official trustees, receiver or manager or trustee or trustees, in the like manner and to the same amount as it would be leviable upon and recoverable from the person on whose behalf such income, profit, or gains are receivable, and all the provisions of this Act, shall apply accordingly :

Provided that where any such income, profits or gains or any part thereof are not specifically receivable on behalf of any one person, or where the individual shares of the persons on whose behalf they are receivable are indeterminate or unknown, the tax shall be levied and recoverable at the maximum rate, but, where such persons have no other personal income chargeable under this Act and none of them is an artificial juridical person, as if such income, profits or gains or such part thereof were the total income of an association of persons :

Provided further that when part only of the income profits and gains of a trust is chargeable under this Act, that proportion only of the income, profits and gains receivable by a beneficiary from the trust which the part so chargeable bears to the whole income, profits and gains of the trust shall be deemed to have been derived from that part."

From the above history, Dr. <NAME> was invited us to come to the following conclusion : He asks us to observe that right up to the Amending Act of 1939, private religious trusts were wholly immune from taxation. It was the Amending Act of 1939 that took away the exemption unless the income enured for the benefit of the public. This, however, was interpreted by <ORG> to mean that the exemption was taken away it the trust was in the English form and not when it was in the form of an endowment to the deity but not in the English form. According to him, the position was only altered by the Act of 1961, when all juridical persons were included in the net of taxation. He next argues that section 41 also does not apply in such cases. This part of the argument will have to be considered presently. According to Dr. <NAME>, a Hindu deity in order to be chargeable to Income-tax, would have to come within the definition of "individual" in section 3 . The word "individual" is not defined in the said Act and, according to him, the expression cannot include juristic person like a Hindu deity, because if it did, we have to come to this painful conclusion that the said Act intended to make Hindu deities chargeable, but has not provided a machinery for its realisation. In other words, Dr. <NAME> has tried to establish that, prior to the Act of 1961, there was no machinery contained in the said Act for assessing a Hindu deity and, therefore, it could be safely concluded that the legislature did not intend to make Hindu deities chargeable to Income-tax. The way that he has developed his argument is as follow : Dr. <NAME> refers to the rules made under the provisions of section 59 of the said Act. Under section 59 of the said Act, <ORG> was given the power, subject to the control of <ORG>, to make rules for carrying out the purposes of the said Act. Such rules have been promulgated and are known as the "Indian Income-tax Rules, 1922." Under rule 19, the return of total income and total world income required under sub-section (1) or sub-section (2) of section 22 shall be in Form A or B annexed to the said Rules. Dr. <NAME> points out that elaborate forms have been prescribed but there are no columns therein appropriate to a Hindu deity. These forms have to be signed and there is a note appended to the prescribed form which says that a return, in the case of an individual, must be signed by the individual himself. Dr. <NAME> argues that the consequences of analogous rules in the Bengal Agricultural Income-tax Act, 1944, were considered by <ORG> in <CITATION> . The facts in that case were as follow : In response to a notice issued under section 24(2) of the Bengal Agricultural Income-tax Act, 1944, which corresponds to section 22(2) of the said Act, the assessee submitted return showing his total agricultural income for the assessment year 1944-45 to be Rs. 335. This return was dated the 3rd April, 1945, the just below the declaration appeared a vernacular signature of the assessee. The Agricultural Income-tax Officer fixed the assessment case on 6th May, 1945. On that date, the assessee filed a petition stating that the return which he had submitted under the advice of the headmaster of a school was not a proper return and he wanted to file a fresh return. The Agricultural Income-tax Officer allowed time for one day, and the assessee was directed to submit a fresh return and to produce account books and other necessary papers on that date. If he failed to comply with the order, it was stated that an assessment would be made under section 25(5) which corresponds to section 22(3) of the said Act. On the 7th May, 1945, the assessee did not appear personally but his son, <NAME>, filed a return signed in the vernacular as follows :

"Sri Keshab Chandra Mandal Ba : Sri Jugal Chandra Mandal."

There was no cross-mark of the assessee. The Agricultural Income-tax Officer held that these two returns differed violently and, as the latter one had not been signed by the assessee, he was going to rely on neither of the returns and made an assessment under section 25(5) . The case eventually went up to <ORG> and the relevant point decided was as to whether the latter return could be said to be a proper one. <ORG> had decided, relying on the decision of <NAME> v. Justices of <NAME> that unless the statute makes a personal signature indispensable, the provision as to signature would be satisfied by a person signing by the hand of an agent. <ORG> observed that insistence on personal signature of an individual would create an anomaly, in that while an assessee who is an individual will have to sign personally, the persons authorised to sign for the other categories of assessees, namely, Hindu undivided family, a company, the Ruler of an Indian State, a firm or any other association will not be compellable to sign personally. <ORG> took the view that, to avoid such a patent anomaly, which would inevitable result if the interpretation proposed by the department were to be accepted, the court should follow the common law rule maintained above, and accept the signature made through an agent. This view was not accepted by <ORG>. <NAME> (as he then was) pointed out that the form of return, which is an analogous form prescribed under the said Act, contained a note which states that the declaration must be signed in the case of an individual by the individual himself. The learned judge said as follows :

"....there are many indications in the Bengal Agricultural Income-tax Act, 1944, and the rules made thereunder evidencing an intention to exclude the common law rule in the matter of the signature of the assessee, appellant or applicant on the return, appeal or application.... It is quite true that when signature by an agent is permissible, the writing of the name of the principal by the agent is regarded as the signature of the principal himself. But this result only follows when it is permissible for the agent to sign the name of the principal. If, on a construction of a statute, signature by an agent is not found permissible, then the writing of the name of the principal by the agent, however, clearly he may have been authorised by the principal, cannot possibly be regarded as the signature of the principal for the purposes of that statute. If a statute requires personal signature of a person, which includes a mark, the signature or the mark must be that of the man himself. There must be physical contact between that person and the signature or the mark put on the document."

The result was that the appeal was allowed and it was held that the return had not been validly made. Dr. <NAME> argues that if a human being cannot sign through the hand of another, even if it be the hands of his own son, then how can a deity sign the return form, since a juridical person cannot sigh at al ? It would be ridiculous to expect a Hindu deity to sigh the appropriate return personally. Dr. <NAME> argues that this shows that it was never intended by the legislature to make a Hindu deity chargeable under section 3 . Next, Dr. <NAME> was faced with the provisions of section 41 . If the shebait could be assessed under that section in respect of income of a Hindu deity, then he conceded that there was an indirect machinery provided by the Act for the assessment of Hindu deitys income, and the application of section 3 could not be wholly excluded. He was, therefore, constrained to argue that a shebait of a deity did not come within the scope of section 41 of the said Act. The contention of Dr. <NAME> may, therefore, be summarised as follow : Firstly, he argues that a Hindu deity was never intended to be made chargeable under section 3 of the said Act. A Hindu deity does not come within the meaning of the word "individual". Further, this intention of the legislature is clear from the fact that private religious trusts were always exempted from the operation of the said Act and it was only in 1939 that this exemption was taken away, only in the case of a trust in the English form. Next it is argued that this intention is also clear from the fact that no machinery was provided in the said Act for the realisation of any tax from Hindu deities either directly or indirectly. In aid of this argument, it is pointed out that the prescribed form under the Rules, which under section 59(5) of the said Act has the effect "as if enacted" in the said Act, requires that the assessee must sign the return form personally, but, in the nature of things, a Hindu deity could never do so. As a corollary to this argument, Dr. <NAME> has contended that section 41 does not apply to shebaits, as otherwise it could be said that there was an indirect machinery for making a Hindu deity chargeable for income-tax. I shall, first, of all, deal with the last point, namely, whether section 41 applies in the case of a shebait. The learned standing counsel has first of all referred me to a decision of <NAME> in <CITATION> . The learned judge held that a trust whereby property vests in A for the benefit of B, notwithstanding its origin in the English law of trusts, is a part of the system of Hindu law as administered in India. Although section 1 of the Trusts Act does not apply to religious or charitable trusts, it does not follow that such trusts do not now exist independetly of the statute or did not exist prior thereto. A religious endowment not made in the English form of trusts is a gift to the idol. The point, however, was specifically dealt with by <ORG> of this court presided over by <NAME> in an unreported judgment, <CITATION> .), Shebaits of Sri <NAME> (I. T. Reference No. 50 of 1961, judgment dated 3rd, 4th, and 5th April, 1963). This was a reference by the Commissioner of Income-tax, Calcutta, under section 66(1) of the Income-tax Act and the question referred was as follows :

"Whether, on the facts and in the circumstances of the case, the assessments on the deities through the shebaits under the provisions of section 41 of the Indian Income-tax Act were in accordance with law ?"

Briefly speaking, the point to be considered was as to whether under section 41(1) , the word "trustee" or "trustees" included a shebait in the case of the Hindu private religious endowment. Incidentally, a point came to be decided, namely, whether a Hindu deity would come under the definition of the word "individual" in section 3 of the said Act. Both these points were answered in the affirmative by <NAME> In other words, he held that the words "trustee" or "trustees" in section 41 of the said Act would include the case of a shebait of a Hindu deity, in the case of a private religious endowment. Also, a Hindu deity was an "individual" under section 3 of the said Act. <NAME> agreed with the decision of <NAME> on the first point but differed on the second, although in the result both of them answered the question posed before them in the affirmative. On behalf of the assessee, reliance was placed on three decisions, namely, (1) <CITATION> , (2) <CITATION> and (3) <CITATION> . <NAME> rightly pointed out that all that these three decisions established was that a shebait was not a trustee in the English sense of the term or within the meaning of the Indian Trusts Act . They did not, however, establish that a shebait of a Hindu deity was not a trustees in the large sense of the word. On the other hand, it was laid down that, although a shebait was not a trustee in the technical sense of the word as used in the English law or the Indian Trusts Act , the obligation and duties of a shebait are analogous to those of a trustee. The provisions of section 41(1) of the said Act, which has been set out above, uses the word "trustee" or "trustees" but these terms had nowhere been defined in the said Act. The only retractions is that in order to come under the mischief of section 41(1) , the "trustee" or "trustees" must be appointed under a trust declared by a duly executed instrument in writing, whether testamentary or otherwise. It is significant that "trustee" or "trustees" under a <ORG> deed which is valid under the Mussalman <ORG> Validating Act ., 1913, is expressly included. There is, therefore, not reason to exclude shebaits under a deed of endowment. That the word "trustee" issued in the larger sense in the said Act is clear from the <ORG> decision in <ORG> v. <NAME>. The <ORG> approved of the observations of Viscount <NAME> in <NAME> v. <NAME> where the basis of chargeability under the Income-tax Act came to be enumerated as follows :

"...... that the person charged with tax is neither the trustee nor the beneficiary as such, but the person in actual receipt and control of the income which is it sought to reach. The object of the Acts is to secure for the <ORG> a proportion of the profits chargeable, and this end is attained (speaking generally) by the simple and effective expedient of taxing the profits where they are found."

In the <ORG> decision, In re Trustees of the Tribune Sir <NAME> said as follows :

"It is to be observed moreover that under the Income-tax Act the test of general public utility is applicable not only to trust in the English sense but is to be applied to property held under trusts or other legal obligation - a phrase which would include Moslem Wakfs and Hindu endowments."

The learned standing counsel his rightly pointed out that the provisions of section 41(1) contain internal evidence of the fact that it was also intended to apply to juridical persons. For example, in the proviso which deals with the rate of Income-tax to be levied, the words used are - "where such persons have no other personal income chargeable under this Act and none of them is an artificial juridical person....." A Hindu deity is such a juridical person as has been laid down in <CITATION> where Lord <NAME> said as follows :

"A Hindu idol, is according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by courts of law, juristic entity. It has a juridical status with the power of suing and being sued."

Also, the fact that Mussalman Wakfs are included shows that Hindu religious trusts are not intended to be excluded. That the expression "trust" can be applied to Hindu endowments has been explained by Mr. Justice <NAME> in his Tagore Law Lecture : "The Hindu law of Religious and Charitable Trusts". After explaining the origin and meaning of the word "trust" in the English law, the learned author says as follows :

"You will see that the trust in its origin was a highly artificial thing which had its foundation upon a dual system of law and a dual system of property which came into existence in England under peculiar political and historical conditions. You could not possibly except to find a trust in this form in the Hindu system. But the existence of dual ownership is not an essential ingredient in the conception of trust and if you take trust in its broad and general sense as signifying a fiduciary relation under which a person in possession of or having control over any property is bound to use that property for the benefit of certain persons, or specified objects, obviously there are trusts in Hindu law. A shebait in charge of a temple, or a mahant having control over a religious institution, would be a trustee in this general sense."

The learned author has subsequently elaborated this point at page 161 as follows :

"In the conception of debutter, therefore, two essential ideas are involved; in the first place, the property which is dedicated to the deity vests in an ideal sense in the deity itself as a juristic person. In the second place, the ideal personality of the idol is in the nature of things linked up with the natural personality of the shebait, manager of dharma kartha, who as persons entrusted with the custody and worship of the idol are obliged and empowered to do what may be required for the service of the idol and for the benefit and preservation of its property. The title of the debutter property is in the idol and not in the shebait who is not and cannot be a trustee in the sense in which it is used in English Law. The shebait is however a trustees in the general and ordinary sense of the term, and as I have said in the first lecture, the distinction between legal and equitable ownership is a highly artificial distinction which had its origin in England owing to purely historical reasons and such distinction is not essential to the juridical conception of trust. The shebait holds the debutter property for carrying into effect the pious purposes that are symbolised in the deity, and he is bound to carry out the directions given by the founder, in relation to the worship of the idol and management of its property."

It is clear from these observations that it is not inappropriate to use the word "trustee" in connection with a shebait of a Hindu deity under a private religious endowment, although it is used in the larger sense. It is in the larger sense that the word "trustee" has been used in section 41(1) of the said Act and, therefore, includes a shebait of a Hindu deity. This conclusion is really decisive in this case, because Dr. <NAME> has conceded that if the word "trustee" in section 41(1) includes a shebait, then it must be held that the said Act provides a machinery for realising Income-tax from a Hindu deity, although it is done indirectly by assessing income in the hands of the shebait and not directly. Since I have held that section 41(1) does apply in the case of a shebait, the foundation of Dr. <NAME>s argument vanishes. However, I will also deal with the general argument that, under section 3 itself the word "individual" should not include a Hindu deity who is a juristic person. Upon this point, I agree with view expressed by <NAME> in the unreported judgment referred to above, but, with respect, differ from the view of <NAME> The word "individual" does not necessarily refer to a human being. This has been made clear by <ORG> in the case of <CITATION> . The learned judge in the court below has also relied upon this case. In that case. <NAME> pointed out as follows :

"........ the word individual has not been defined in the Act and there is authority for the proposition that the word individual does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word individual includes a corporation created by a statute, e.g., a university or a bar council, or the trustees of a baronetcy trust incorporated by a Baronecty Act. It would also include a minor or a person of unsound mind."

Because the expression "individual" in section 3 cannot be equated with a human being, that makes the <ORG> decision, <CITATION> , so strongly relied on by Dr. <NAME> of no application in this case. Where a human belong is concerned, undoubtedly the return must be signed by the assessee himself. That does not, however, mean that an individual other than a human being would also have to follow that process. Indeed, it is impossible to conceive of a corporation or a bar councils signing the return with its own hands. What then is the position in the case of a deit ? It is true that, under the provisions of the said Act, a human being has to sign the return with his own hands. If, however, we include persons other than a human being within the expression "individual" in section 3 , it must follow that if the signing must be done by the assessee, then, the nature of assessee cannot be ignored and must be related to the manner of signing. It is, therefore, relevant to find out the nature of a deity under the Hindu law and investigate as to how it does hold property and receive its income. A Hindu deity is a juridical concept and the pious idea that it embodies is given the status of a legal person and is deemed capable in law of holding property in the same way as a natural person. "The idol, deity or religious object" observed <NAME> and <NAME> in their Digest of Hindu Law, "is looked upon as a kind of human entity." It is a sacred entity and ideal personality possessing proprietary rights. <ORG> has pointed out, on more occasions than one, that it is only in an ideal sense that property can be said to belong to an idol, and the possession and management of it must in the nature of things be entrusted to some human being acting as shebait or manage : <NAME> v. <NAME>. The legal principle has thus been summed up in a pronouncement of <ORG> in <CITATION> , at page 250, where Lord <NAME> says as follows :

"A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by courts of law, a juristic entity. It has juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities; for, this doctrine, thus simply stated, is firmly established."

In the same case, <ORG> quoted the observations of Sir <NAME> in <CITATION> , by saying :

"It is sufficient to state that the deity is, in short, conceived as living being and is treated in the same way as the master of the house would be treated by his humble servant. The daily routine of life is gone through with minute accurac : the vivified image is regaled with the necessaries and luxuries of life in due succession, even to the changing of clothes, the offering of cooked and uncooked food, and the retirement to rest."

This aspect of it has been well brought out in a Bench decision of this court in <CITATION> . It has been stated there as follows :

"..... The efficient subject of the rights ascribed to an idol must ultimately be some human beings. It must be they who enjoy such rights and, if law protects such rights, it is because of the existence of such ultimate human concern. The idol, as the juridical persons, only affords the technical means of developing the juristic relations between those ultimately interested in the endowed property and the strangers. The so-called interest of the idol is merely an ideal interest very different from the interest which an infant has in his property. The introduction of the idol and its recognition as juristic person are more a matter for procedure and the procedure in India recognises the idol as having a locus standi in judicio."

It is clear, therefore, that a Hindu idol is a juristic entity who is given the status of a human being capable of having property, but, in fact, it is not a human being and can only act through the shebait who "speaks for him on earth". It is the shebait who holds the property, realises the income and looks after the estate of the deity and does all acts in connection therewith which a human being should have been expected to perform. Therefore, if such a person has to sign a return, it is obvious that the signature cannot be that of the deity itself, but that of the shebait. In such cases, the close analogy of a human being signing a form of return should not be imported. Where the shebait signs a form, it is not as if an agent of the deity has signed it. The hand of the shebait is the hand of the deity. The concept of a Hindu deity is such that it must be taken that the signature of the shebait is the signature of the deity itself. Looking from this angle of view, I do not think that the <ORG> decision cited above militates against the proposition that a Hindu deity cannot (ca ?) be called an "individual", within the meaning of section 3 of the said Act.

I will now refer back to the various arguments put forward by Dr. <NAME>, His first argument was that the word "individual" in section 3 does not include a Hindu deity. The first part of his argument is that the word "individual" refers to a human being and a juristic person is not included. For the reasons given above, I am unable to agree with this proposition. There is no reason to confine the word "individual" to human beings and it may well include a juristic person. The second part of his argument on this point was that consideration of the history of the Income-tax Act s would show that it was never the intention of the framers of the Act to bring a private religious trust within the ambit of section 3 . All that he has been able to show is that under section 4 of the said Act, a private religious trust was exempted from taxation up to 1939 and till 31st March, 1952, the exemption was taken away only in the case of endowments in the form of an English trust. Endowments in other forms were still exempted. This was however rectified by the amending Act of 1953. In my opinion, this fails to show that a Hindu deity was never intended to be included within the ambit of section of 3 of the said Act. Section 3 is the primary charging section, and section 4 contains certain exemptions. It may be that the net result of the statutory provisions up to 1939, or up to 31st March, 1952, was as stated by Dr. <NAME>, so far as private religious trusts are concerned. That, however, does not necessarily lead to the conclusion that it has intended always to exclude Hindu deities from the operation of section 3 of the said Act. If it was so, then there was no necessity of making any provision exempting such income. It is not that there were no restrictions. It was always necessary to consider whether a trust was public or private, or whether the whole of the income was utilised for the benefit of the public or only part of it. In 1939, an amendment was made to the effect that the income of a private religious trust, in order to come within the exemption, must enure for the benefit of the public. This, however, was held by <ORG> to be restricted to trusts in the English form. Even so, this shows that Hindu deities were not wholly intended to be put outside the scope of chargeability under section 3 . This controversy was, however, set at rest by the Amending Act of 1953, after which, even in the case of private religious trusts not in the English form, the exemption could not be claimed, unless the income enured wholly for the benefit of the public. This confirms that it was intended to make a Hindu deity chargeable under section 3 , although it may be that from time to time certain exemptions, were granted and /or taken away. The next argument of Dr. <NAME> is that a Hindu deity should not be held to be chargeable, because there was no machinery for the purpose of realisation of the tax. He himself a conceded that if we hold that under section 41 the word "trustees" includes a shebait, them his argument fails, because the said Act would contain an directed machinery for the realisation of the tax. We have held above that the word "trustee" in section 41 does include a shebait. Therefore, this argument fails. At the present moment, only notice has been given under section 34 . Doubtless, after hearing the parties, the revenue will decide as to in what exact form the reopening of assessment will be made. It may be that the revenue will proceed under section 3 against the deity or under section 41 against the shebait. That matter cannot be prejudged here. But, quite apart from section 41 , we do not think that the principle laid down in the case of <CITATION> applies to the facts of this case.

For the reasons given above, we think that it is competent for a shebait to sign a form of the return on behalf of the deity. Such signature should be taken to be the signature of the deity who can hold property and receive income but who cannot be equated with an ordinary human being. In expressly including a juristic person within the net of taxation and in adopting the form of return the 1961 Act has done nothing new, but has made clear what was always the law.

The result is that these appeals fail and should be dismissed with costs. Certified for two counsel.

The interim order is vacated but the operation of this order will be stayed for a period of two months from date and the security will also continue.

<NAME> - I agree.

Appeals dismissed.


JUDGMENT <NAME>, J.

1. In these appeals by special leave this Court is called upon to consider the true effect as well as validity of some of the provisions of the Madras Entertainments Tax (Amendment) Act, 1966 (Madras Act XX of 1966) (to be hereinafter referred to as the Act). For the purpose of pronouncing on the questions of law arising for decision, it is sufficient to refer to the facts of the case in Civil Appeal No. 2462 of 1969 as has been done by <ORG>.

2. The 1st respondent in Civil Appeal No. 2462 of 1969, is the Managing Partner of the cinema theatre known as "the K.M.S. Theatre" at Mettupalayam in Coimbatore District. On November 7, 1965, <ORG>, made surprise inspection of the theatre and found the booking clerk actually selling unauthorised tickets with a forged seal "<ORG>". The officer seized the forged seal and other connected materials alongwith the bogus tickets. Thereafter he served on the respondents notices calling upon them to show cause why the price of the tickets issued which had escaped assessment should not be brought to tax under the Madras Entertainments Tax Act, 1939 and further to levy surcharge on the payments for admission under the Madras Local Authorities Finance Act, 1961. The respondents' objection was duly considered and rejected. Thereafter the assessing authority levied entertainment tax and surcharge on the price of the tickets which according to him had escaped assessment. The respondents moved <ORG> under Article 226 of the Constitution to quash the assessment.

3. The question as to the power of the assessing authority to re-assess the receipts that had escaped assessment under the Madras Entertainments Tax Act, 1939 had come up for consideration before <ORG> in W.P.No. 513 of 1963 (Mad.) <NAME> v. <ORG>. Therein <ORG> held that there was no power to re-assess under that Act. Thereafter the State legislature enacted the Act. The Act among other provisions contains Section 7, a provision relating to validation of assessment and collection of certain taxes. That section reads:

Notwithstanding anything contained in this Act or in the principal Act or in any judgment, decree or order of any Court no assessment or re-assessment or collection of any tax due on any payment for admission to any entertainment or any cinematograph exhibition which has escaped assessment to tax, or which has been assessed at a rate lower than the rate at which it is assessable, under Section 4 or 4-A of the principal Act, made at any time after the date of the commencement of the principal Act and before the date of the publication of this Act in <ORG> shall be deemed to be invalid or ever to have been invalid on the ground only that such assessment or re-assessment or collection was not in accordance with law and such tax assessed or reassessed or collected or purporting to have been assessed or reassessed or collected, shall, for all purposes, be deemed to be and to have been always validly assessed or reassessed or collected; and accordingly -

(a) all acts, proceedings or things done or taken by <ORG> or by any officer of <ORG> or by any other authority in connection with the assessment or reassessment or collection of such tax, shall, for all purposes be deemed to be, and to have always been done or taken in accordance with law;

(b) no suit or other proceeding shall be maintained or continued in any court against the State Government or any person or authority whatsoever for the refund of any tax so paid; and

(c) no Court shall enforce any decree or order directing the refund of any tax so paid.

4. The re-assessments with which we are concerned in these cases were made prior to the coming into force of the Act. Therefore all that we have to see is whether those re-assessments are validly protected by Section 7. <ORG> allowed the writ petitions and quash ed the reassessments on the ground that the power to re-assess under Section 7(B) introduced by the Act is incomplete and not exercisable in the absence of prescription as to limitation contemplated by the section and hence Section 7 of the Act fails to validate the assessments in question. We do not propose to go into that question as in our opinion Section 7 of the Act is invalid in so far as it attempts to validate invalid assessments without removing the basis of its invalidity.

5. We have earlier seen that <ORG> had held that the provisions of the Madras Entertainments Tax Act, 1939 do not provide for reassessment. That decision has not been appealed against nor the correctness of that decision challenged before under Section 7 of the Act does not change the law retrospectively. All that it provides is that notwithstanding anything contained in the Act or in the principal Act or in any judgment, decree or order of any <ORG>, no assessment or re-assessment or collection of any tax due on any payment for admission to any entertainment or any cinematograph exhibition which has escaped assessment to tax, or which has been assessed at a rate lower than the rate at which it is assessable under Section 4 or 4-A of the principal Act made at any time after the date of the commencement of the principal Act and before the date of the publication of this Act in the <ORG> shall be deemed to be invalid or ever to have been invalid on the ground only that such assessment or re-assessment or collection was not in accordance with law and such tax assessed or re-assessed or collected or purporting to have been assessed or reassessed or collected shall for all purposes be deemed to be to have always been validly assessed or re-assessed or collected. The effect of this provision is to overrule the decision of <ORG> and not to change the law retrospectively. What the provision says is that notwithstanding any judgment of the court, the reassessment invalidly made must be deemed to be valid. The legislature has no power to enact such a provision. A question similar to the one before us came up for consideration before this <ORG> in <CITATION> . . Dealing with that question this is what this <ORG> observed:

6. This is a strange provision. Prima facie that provision appears to command the <ORG> to refuse to refund the amount illegally collected despite the orders of this <ORG> and the High <ORG>. The <ORG> of Gujarat was not well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the <ORG>. The legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the <ORG> to disobey or disregard the decision given by courts. The limits of the power of legislatures to interfere with the directions issued by courts were considered by several decisions of this <ORG>. <CITATION> . our present Chief Justice speaking for the Constitution Bench of the <ORG> observed:

Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a <ORG> holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometime this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law.

6-A. In <NAME> v. State of West Bengal, Criminal Appeal No. 75 of 1969 D/- 10-9-1969 (<ORG>) Mitter J. speaking for the <ORG> stated the legal position in these words:

The argument of counsel for the appellant was that although it was open to the State legislature by an Act and the Governor by an Ordinance to amend the West Bengal Criminal Law Amendment (Special <ORG>s) Act, 1949, it was incompetent for either of them to validate an order of transfer which had already been quashed by the issue of a writ of certiorari by <ORG> and the order of transfer being virtually dead, could not be resuscitated by the Governor or the <ORG> and the validating measures could not touch any adjudication by the <ORG>.

It appears to us that <ORG> took the correct view and <ORG> had clearly gone wrong in its appreciation of the scope and effect of the Validating Act and Ordinance. A legislature of a State is competent to pass any measure which is within the legislative competence under the Constitution of India. Of course, this is subject to the provisions of Part III of the Constitution. Laws can be enacted either by the Ordinance making power of a Governor or the <ORG> of a State in respect of the topics covered by the entries in the appropriate List in the Seventh Schedule to the Constitution. Subject to the above limitations laws can be prospective as also retrospective in operation. A court of law can pronounce upon the validity of any law and declare the same to be null and void if it was beyond the legislative competence of the legislature or if it infringed the rights enshrined in Part III of the Constitution. Needless to add it can strike down or declare invalid any act or direction of a State Government which is not authorised by law. The position of a <ORG> is however different. It cannot declare any decision of a court of law to be void or of no effect.

6. Again <NAME> (one of us in <CITATION> . and <CITATION> ., speaking for <ORG> explained the legal position in these words:

The relevant words which purported to validate the imposition, assessment and collection of cess on coal may be recalled: they are "cesses imposed, assessed or collected by the <ORG> in pursuance of the notification/notices specified in the Schedule shall, for all purposes, be deemed to be, and to have always been validly imposed, assessed or collected as if the enactment under which they were so issued stood amended at all material times so as to empower the <ORG> to issue the said notification/notices. Thereby the enactments i.e. Act 4 of 1920 and the Rules, framed under the Act pursuant to which the notifications and notices were issued, must be deemed to have been amended by the Act. But the Act does not set out the amendments intended to be made in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a fiction it deems the Act of 1920 and the rules framed thereunder to have been amended without disclosing the text or even the nature of the amendments.

Proceeding further, it was observed:

On the words used in the Act, it is plain that the legislature attempted to overrule or set aside the decision of this <ORG>. That in our judgment, is not open to the <ORG> to do under our Constitutional scheme. It is open to the <ORG> within certain limits to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the <ORG> to say that a judgment of a court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the <ORG>.

We are clearly of the opinion that Sub-section (3) of Section 152A introduced by the Ordinance is repugnant to our Constitution.

7. The present case falls within the rule laid down by that decision. Hence it is clear that the impugned assessment cannot be sustained. In this view of the matter it is not necessary to go to the other contentions arising in the case.

8. In the result these appeals fail and they are dismissed with costs.