JUDGMENT <NAME>, J.

1. Lady <NAME> by a trust deed dated 5th March, 1968, created the assessee-trust, called <ORG> and settled upon trust shares of certain companies of the face value of Rs. 9,27,800. The net income of the trust fund after providing for expenses of collection and other outgoing for the period up to March 31, 1983, was to be made over by way of gift or donation to another trust called <ORG> (hereinafter referred to as <ORG>), so that the latter trust should utilise the net income in its hands for all or any one or more of the charitable purposes mentioned in the trust deed dated 29th March, 1963, under which <ORG> was created.

2. It is not necessary to refer in detail to the charitable purposes for which <ORG> was created because it has been disputed that the purposes referred to in the trust deed dated 29th March, 1963, viz., relief of the poor, advancement and propagation and learning, giving medical relief and the advancement of any other object general public utility were charitable purposes. THe trust deed of 29the March, 1963, also referred to certain other charitable purposes such as erecting or helping in the erection of building or otherwise providing housing accommodation to or for the benefit of the poor, making available to the poor including the lower middle class persons the benefit of sanatorium or health home or a home for rest and recreation at any place in India, giving scholarships or loans to students for prosecuting their studies and giving monetary aid or other help for relief from natural calamities like famine, floods, cyclone, tempest, earthquake or otherwise. The trust deed on 5th March, 1968, by which the assessee-trust was created reproduced in detail the relevant clauses 4,5 and 6 of the trust deed dated 29th March, 1963.

3. We are concerned in this reference with the assessment years 1969-70 and 1970-71 for the period 5th March, 1968, to 31st March, 1969. The assessee-trust derived dividend income of Rs. 32,867 out of which income to the extent of Rs. 25,000 was made over as donation to <ORG> for utilisation for the purpose of relief to the poor, education, medical relief and advancement of any other object of general public utility in terms of the trust deed dated 5th March, 1968. Similarly, for the year ended march 31, 1970, out of the dividend income of Rs. 50,885 and interest income, income to the extent of Rs. 50,000 was made over as donation to <ORG> also for utilisation for charitable purposes as aforesaid.

4. The assessee-trust made a claim under s. 237 of the I. T. Act, 1961 (hereinafter referred to as "the Act"), for the two assessment years in question for a refund of the tax paid at source in regard to the dividends on the ground that the income of the trust was exempt under s. 11 of the I. T. Act, being income derived from the property held under trust wholly for charitable purposes. This claim was, however, rejected by the <ORG> holding that the income of the trust was not exempt under s. 11 of the Act on the ground that, (1) the settlor had not settled upon trust the corpus of the trust but had settled upon trust only the income arising from that trust fund so that the trust fund was not held on trust for charitable purposes, and (2) that the object of the trust should itself be charitable an the trust fund should be self-operative whereas the object of the assessee-trust was only to give a donation to another trust. In appeal by the assessee-trust, the finding of the <ORG> on the first ground was set aside and the <ORG> held that the corpus of the trust consisting of the shares of certain companies were settled upon the trust.

5. This part of the finding is not under challenge. However, so far as the second ground on which the <ORG> rejected the claim of the assessee trust was concerned, the <ORG> held that the assessee-trust should have itself utilised the income for charitable purposes and not through the medium of another trust. The <ORG> took the view that the donation of income made by the assessee-trust to <ORG> did not amount to an application of income charitable purposes and, therefore, the trust was not entitled to the exemption under s. 11 of the Act.

6. The assessee-trust challenged this view of the <ORG> before the <ORG>. The <ORG> found that the objects of <ORG> admittedly constituted charitable purposes as contemplated under s. 2(15) and under s. 11 of the Act and that the present was a case of a trust within a trust holding that the trust deed dated March 5,1968, created twin trusts, viz., one requiring the trustees of <ORG> to pay the income from the trust fund to <ORG> and the second requiring the trustees of <ORG> to spend the income on charitable purposes for the period up to January 31, 1983. The <ORG> took the view that for the period March 5, 1968, to March 31, 1983, the trust fund was settled upon trust for charitable purposes to be carried out through the medium of <ORG>.

7. We are not in this reference concerned with the part of the deed of trust which creates from February 1, 1983 of the trust of which the beneficiaries would be the settlor's grandsons. Having found that in view of the directions contained in the trust deed dated 5th March, 1968, requiring the assessee-trust to make over the income of the trust fund to <ORG> for spending on charity and to the latter trust to utilise such income for all or any one or more of the charitable purposes, the <ORG> found that the property of the assessee-trust could be said to be held wholly for charitable purposes and the exemption under s. 11 of the Act would be applicable to the assessee-trust. The <ORG>, therefore, directed the <ORG> to apply his mind to the problem for working out the extent of the exemption under s. 11 which would depend upon how much of such amount was actually applied to charitable purposes through the medium of <ORG> or accumulated for an application to such purpose. In so far as the nature of assessment was concerned, the <ORG> took the view that the trustees of the assessee-trust were representatives assesses in terms of s. 160(1)(iv) of the Act, as the income was received by the trustees on behalf of or for the benefit of <ORG> had the provisions of s. 161(1) would come into play. The <ORG>, therefore, held that the tax, if any, would be leviable upon the assessee in the like manner and to the same extent as it would be leviable upon <ORG>, the income of which would be exempt from tax under s. 11 to the extent contemplated in s. 11 of the Act.

8. Arising out of this order of the <ORG> the following two questions have been referred under s. 256(1) of the I. T. Act, at the instance of the revenue :

"(1) Whether on the facts and in the circumstances of the case, the income derived by the assessee from property held under trust can be said to be applied wholly for charitable purposes as contemplated under section 11(1)(a) of the Income-tax Act, 1961 ?

(2) Whether, on the facts and in the circumstances of the case, the provisions of section 16(1) of the Income-tax Act, 1961 would become applicable ?"

9. We may point out that it was not in dispute before us that so far as question No. 1 is concerned it arose out of the controversy with regard to the applicability of the provisions of s. 11(1)(a) of the Act and the controversy really was whether the income derived by the assessee form the property held under trust can be said to be applied wholly for charitable purposes as contemplated under s. 11(1)(a) of the Act. The word "applied" appears to have been omitted from the question through oversight while framing it.

10. We shall deal with question No. 1 at the outset. The relevant visions of s. 11(1)(a) which were in force, at the material time, read as follows :

"11. (1) Subject to the provisions of section 60 to 63 the following income shall not be included in the total income of the previous year of the person in receipt of the income -

(a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; and where any such income is accumulated for application to such purposes in India, to the extent to which the income so accumulated is not in excess of twenty-five percent. of the income from the property of Rs. 10,000, whichever is higher."

Now, as already pointed out, it has not been disputed throughout the proceedings that <ORG> is a trust for charitable purposes. By cl. 4 of the trust deed dated 5th March, 1968, it was provided that "the trustees shall ..... for the period ending on 31st January, 1983, pay, transfer and hand over as and by way of gift or donation the balance of such interest dividends and income of the trust fund (hereinafter called the net income of the trust fund') to the trustees of the said deed of trust created by the settlor bearing date the 29th day of March, 1963 and known by the name of <ORG> to the intent that the trustees of the said <ORG> shall pay or utilise the net income of the trust fund hereby settled and so gifted or donated to them as aforesaid for all or any one or more of the charitable purposes mentioned in the said deed of trust known by the name of the <ORG>...... and to the further intent that such net income of the trust fund so gifted or donated as aforesaid shall be applied or accumulated for application to such charitable purposes as relate to anything done or to be done within India without reference to caste or creed in the manner mentioned in the said deed of trust known by the name of <ORG>....."

11. The recitals of the trust deed 5th March, 1968, thus made it obligatory on the trustees of the assessee-trust to hand over the net income of the trust fund to the trustees of <ORG>. There as a further direction in the trust deed dated 5th March, 1968, that the trustees of <ORG> shall utilise the net income of the trust so gifted or donated to the trustees for all or any one or more of the charitable purposes mentioned in the deed of trust of 29th March, 1963.

12. The learned counsel appearing on behalf of the revenue has contended before us that in order to claim the exemption under s. 11 of the Act, it was not enough for the trustees of the assessee-trust to have the income applied for charitable purposes through the medium of <ORG> and that s. 11 of the Act contemplated that the income in respect of which exemption is sought must be applied directly by the trustees concerned to charitable purposes. The learned counsel wanted to emphasize that s. 11(1)(a) refers to "such income is applied to such purposes in India". He has contended that the application of the income to the trust must be by the trustees themselves and not through the medium of any other agency. It was not disputed that the agency was an institution of a charitable nature. Now, there can be no dispute that cl. (a) of s. 11(1) provides that the income derived from property held under trust wholly for charitable or religious purposes is not to be included in the total income of the assessee to the extent to which such income is applied for such charitable or religious purposes in India. The latter part of cl. (a) deals with the income derived from property held under trust wholly for charitable or religious purposes but which is not applied to such purposes but is accumulated for application and in such a case only the part of the accumulated income which is not in excess to twenty-five percent. of the income from property or Rs. 10,000 whichever is higher is to be excluded for the purpose of s. 11(1) from the total income of the assessee for the relevant previous year. We are really not concerned in this reference with the provisions relating to an accumulation and we need not, therefore, refer to the provisions of sub-s (2) of s. 11 .

13. The real question which requires to be decided is whether it is possible to read the provisions of the first part of cl. (a) of s. 11(1) as requiring that, in order to avail of the benefit of s. 11(1)(a) the trustees who hold a property under trust wholly for charitable or religious purposes, must themselves conduct directly a charitable or religious activity or whether it is permissible for the trustees to donate that income to another trust which is established for a charitable or religious purpose and which applies its income from whatever sources received, for charitable or religious purposes. There is nothing in law to prevent a settlor from creating a trust wholly for charitable or religious purposes and directing that the income of the property settled upon the trust should be handed over to another institution whose income is utilised wholly for charitable or religious purposes. It is no doubt true that, in a given case, the trustees may themselves carry out a charitable or religious activity, but it may not be possible in a given case for the trustees for various reasons to themselves carry out the charitable or religious activities. One of the reasons may be that the property settled upon trust may not be so extensive as to yield income, which would be sufficient to undertake a charitable activity. That will not, however, frustrate the intention of the settlor and if the intention of the settlor is that the property must be held in trust only for charitable or religious purposes for passing on the income of the property held under the trust to another trust, which carries on a charitable or religious activity, the income could not cease to be applied to the charitable or religious purposes under s. 11(1)(a) . It appears to us that there is intrinsic evidence in the Act itself which indicates the permissibility of the trustees of the trust for a charitable or religious purpose passing on the income of the trust to another trust which is conducting a charitable or religious activity. It is instructive to refer to the provisions of s. 12 of the Act as it stood prior to April 1, 1973. Section 12 runs as follows :

"12. Income of trusts or institutions from voluntary contributions. -

(1) Any income of a trust for charitable or religious purposes or of a charitable or religious institution derived from voluntary contributions and applicable solely to charitable or religious purposes shall not be included in the total income of the trustees or the institution, as the case may be.

(2) Notwithstanding anything contained in sub-section (1), where any such contributions as are referred to in sub-section (1) are made to a trust or a charitable or religious institution by a trust or a charitable or religious institition to which the provisions of section 11 apply, such contributions shall, in the hands of the trust or institution receiving the contributions, be deemed to be income derived from property for the purposes of that section and the provisions of that section shall apply accordingly."

14. Under sub-s (1) any income of a trust for charitable or religious purposes or of a charitable or religious institution derived from voluntary contributions is not to be included in the total income of the trustees or the institution as the case may be, if the income is applicable solely to charitable or religious purposes. Sub-section (2) contemplates that when voluntary contributions are made to a trust for charitable or religious purposes, the income of which is applicable solely to charitable or religious purposes, and such contributions are made by a trust or a charitable or religious institutions to which the provisions of s. 11 apply, and sub-s. (2) further provides that the provisions of s. 11 of the Act shall apply accordingly to such a trust or institution receiving voluntary contributions. The effect of sub-s. (2) of s. 12 , therefore, is that when a trust the income of which is derived from property held under trust wholly for charitable or religious purposes, makes a voluntary contributions to another trust or a charitable or religious institution to which the provisionws of s. 11 apply then while directing that such voluntary contribution should be treated as income from property for the purpose of s. 11 in the hands of the trust or a charitable or religious institution which receives voluntary contributions the trust or religious or charitable institutions will be entitled to take the benefit of s. 11 , if it satisfies the requirements of s. 11 . There is thus a clear indication in s. 12 of the Act that the trust to which s. 11 applies can make a voluntary contribution to another to which also s. 11 is made applicable subject, of course to the satisfaction of the conditions in s. 11 . It does not, therefore, appear to us that it was contemplated that the applicability of s. 11 of the Act should be restricted only to a trust which itself carries on a charitable or religious activity in respect of the income derived from the property held under trust wholly for charitable or religious purposes. The provisions of s. 11 can, in our view be equally availed of by a trust or the trustees who pass on the income to the trust to another trust or institution for charitable or religious purposes. It appears to us that the question whether the trust which gives the voluntary donation to another trust for charitable purposes, can avail of the provisions of s. 11 , does not seem to depend on whether under the provisions contemplated be s. 12(2) the donee-trust applies that income for charitable or religious purposes. This does not, however mean that even if in a given case it is found that through the medium of donation to the charitable institution funds are being diverted to non-charitable purposes, the donor-trust will still be entitled to claim the benefits of s. 11 of the Act.

15. It may be mentioned that <NAME> on behalf of the assessee has contended that for the purposes of the present case, it was enough to show that the assessee-trust had handed over the funds to <ORG> and it may not be necessary for the purpose of the present case itself to consider the question as to whether the funds given by way of donation of <ORG> by the assessee has been actually applied for charitable purposes, because, according to the learned counsel, the <ORG> had already given its direction in para. 11 of the appeal that as the exemption under s. 11 would depend upon how much of such income of the trust was actually applied to the charitable purposes through the medium of <ORG> or accumulated for such purposes, and the <ORG> was directed to apply his mind to this aspect while giving effect to the decisions of the <ORG>. It is no doubt trust that so far as the present case is concerned, the <ORG> had been directed to ascertain as to how much of the income given by way of donation to <ORG> had been applied through the medium of that trust to charitable purposes or accumulated for application to such purposes. But apart from the present case, it appears to us that for the purposes of s. 11 of the Act, it would be enough for the donor-trust to show that the donation of the income of the donor trust had been handed over to the donee-trust which is itself created for charitable purposes, but, as already pointed out, a rider will have to be added to this that it may be necessary in a given case to ascertain whether the funds are deliberately being diverted to non-charitable purpose through the medium of the donee-trust.

16. Our attention has been invited to a decision in IRC v. Helen Slater Charitable Trust Ltd. [1980] 1 AII ER 785; [1980] 3 WLR 157 (Ch D), where a similar question viz., whether it is permissible for a trust for charitable purposes to apply its income to charitable purposes through the medium of the other trust was concerned. In that case, a trust and a foundation were each incorporated as a company limited by guarantee. Both companies were registered charities and had been set up to work in tandem, the trust's main function being to raise funds for the foundation. In the year 1973 to 1975, out of its income and gains the trust made large donations to the foundation which, except for a small sum, were added by the foundation to its own capital. In respect of the income given by way of donation the trust claimed an exemption from tax under s. 360 (1) of the Income and Corporation Taxes Act, 1970, and s. 35 (1) of the Finance Act , 1965 on the ground that the income was paid to another charitable body, viz., " the foundation", though the foundation had not itself distributed the said amount by the end year in which the payments were received. The claim for exemption was rejected by <ORG> but in appeal the Commissioners of the Special Purposes of the Income Tax Acts, accepted as a general proposition, that it was a proper application of a charity's income to make donations for the furtherance of another charity's work and it would be highly inconvenient, if in order to satisfy the requirements of s. 360 , to donor charity had to follow its donation into the accountsof the recipient charity and produce evidence as to its application by that body. It was held by the commissioners that the mere fact of a donation to another charity will normally satisfy the requirements of the section. The commissioners referred to a modification that may be necessary to this general proposition in certain peculiar facts. This aspect was considered by the Commissioners in the following words : "A general proposition of that kind may, no doubt, need to be modified in relation to particular facts. Circumstances could, we think, arise in which it would be proper to look beyond the immediate disposition of a charity income, as, for example, where income was knowingly channeled through as associated charitable company under common control to a non-charitable object. We doubt whether in such a case, the donor could reply on the separation of identity between the two bodies to establish a claim to exemption under section 60 ."

17. The Commissioners further ordered that the case before them had to be decided on the basis that the trust's donations to the foundation will be used for the general furtherance of the foundation's authorised charitable objects and on that basis held that the sums in dispute were applied by the trust for charitable purposes only.

18. A case was stated for the opinion of the court at the instance of the <ORG> and the question of law for the opinion of the court was, whether, on the facts stated in the case, the commissioner's decision was erroneous in point of law. <NAME>, who heard reference, referred to the meaning of the word "applied" given by Lord <NAME> in Williams v. <NAME> [1900] AC 563 at 567 (PC) in which Lord <NAME> had observed that "the word `applied' does not import a power of selection : it simply means `devoted to' or `employed for the special purpose of'". The learned judge then went on to observe as follows in the context of the question whether money has been "applied for charitable purposes" for the purposes of s. 360 (1) of the Income and Corporation Taxes Act, 1970, and s. 35 (1) of the Finance Act , 1965 (pp. 164, 165 of  3 WLR) :

"In the light of authorities such as these, it becomes obvious that, in particular cases difficult borderline questions may arise as to whether money has been `applied for charitable purposes' within the meaning of the two subsections. Three points were, I think, more or less common ground in argument, though not perhaps covered by formal concessions on both sides. First, moneys which a charity has expended either on its proper running expenses or on exclusively charitable relief work `in the field', to use the Commissioners' phrase, must be ordinarily regarded as having been applied for charitable purposes. Secondly, one of the purposes of the phrase, `so far as the same are applied for charitable purposes,' as appearing in the two subsections,must be exclude from the relief thereby given any income which, though being that of a charity and applicable for charitable purposes, has in fact been applied for non-charitable purposes. The court of Appeal decision in <ORG> v. <ORG> [1967] 2 All ER 893; [1967]Ch 993 (CA) is one example where certain income did not qualify for the exemption because it had been applied for demonstrably non-charitable purposes. Thirdly, however, it is unlikely that the sole purpose of the legislature in including the relevant phrase in the two sub-sections was that to which I have last referred. Counsel submitted on behalf of the <ORG>, and counsel for the trust, I think, accepted, that the legislature, in using the affirmative phrase `so far as applied', etc., must have intended to impose an affirmative requirement that the income should have been dealt with in some way or the other. It was, I think, common ground that merely to receive income and do nothing with it would not amount to an `application' thereof."

the learned judge referred to the accepted position on behalf of the Crown that (p 166 of [1980] 3 WLR) :

"If one charitable corporation, acting intra vires, transfers money applicable for charitable purposes to another corporation established exclusively for charitable purposes, whose management is as a matter of fact entirely separate and distinct from that of the transferor corporation the transfer will by itself amount to an `application 'of such money within the meaning of the two sub-sections, except in the case where the transferor hsa knowledge that the recipient intends to misapply it; " and that the subject to this exception "the transfer will entitle the transferor to claim relief under the two subsections without having to show what use the recipient charity has made of the money". We may at this stage briefly reproduce the relevant part of s. 360 (1) of the 1970 Act (U. K.) and s. 35 (1) of the Finance Act , 1965 (U. K.) which fell for consideration before Slade J. Section 360 (1) (c) of 1970 Act so far as material provided as follows (p. 160);

"The following exemptions shall be granted on a claim in that behalf to the <ORG>... (c) exemption-(i)from tax under schedule C in respect of any interest, annuities, dividends or shares of annuities, (ii) from tax under schedule D in respect of any yearly interest or other annual payments and (iii) from tax under Schedule F in respect of any distribution, where the income in question forms part of the income of a charity, or is, according to rules or regulations established by Act of Parliament, character, decree, deed of trust or will, applicable to charitable purposes only, and so far as it is applied to charitable purposes only...."

19. Section 35 (1) of the Finance Act , 1965, provides (p. 160) :

"Subject to subsection (2) of this section a gain shall not be a chargeable gain if it accrues to a charity and is applicable and applied for charitable purposes."

20. On a construction of the above two provisions, the learned judge laid down the following proposition as being correct in law (p. 166) :

"Any charitable corporation which acting intra vires, makes an outright transfer of money applicable for charitable purposes to any other corporation established exclusively for charitable purposes, in such manner as to pass to the transferee full title to the money, must be said, by the transfer itself, to have `applied' such money for `charitable purposes', within the meaning of the two subsections, unless the transferor knows or ought to know that the money will be misapplied by the transferee. In such circumstances, and subject to the last mentioned exception, the transferor corporation is in my judgment entitled to claim exemption under the two subsections, without having to show how the money has been dealt with by the transferee."

21. So far as the provisions of s. 11 of the Act which was in force at the material time is concerned, we do not think that the legal positions is in any way different. As already pointed out when a trust which holds property for charitable or religious purposes hands over a donation to another trust which is also a trust made for the application of its funds for charitable or religious purposes there can hardly be any doubt that it would amount to an application of income for charitable or religious purposes by the donor trust. As already pointed out it would be permissible for a trust either to directly apply the income for charitable purposes or to a charitable work in the field as put by <ORG>, or the same funds or income could be utilised through the medium of another charitable institution which applies its funds or income to charitable purposes. The <ORG> is, in our view, right in holding that the assessee was entitled to relief under s. 11(1)(a) of the I. T. Act, but the propriety of the direction given by the <ORG> need not be dealt with in this reference.

22. However, it has been argued as contemplated by <NAME> that the trustees would be representative assesses as contemplated by s. 161(1)(iv) and, therefore, in view of the provisions of s. 161(1) the tax could be levied and recovered from the trustees "in like manner and to the same extent as it would be leviable and recoverable" from <ORG>, because according to the learned counsel, the income is recovered by the trustees of the assessee-trust for and on behalf of <ORG>, because the amount has to be donated to <ORG> for charitable purposes. The contention before us was that it has already been ascertained that the amounts given by way of donation to <ORG> have been applied to charitable purposes by <ORG> and, therefore, <ORG> would itself be entitled to the exemption under s. 11 of the Act and consequently no income would be assessable to tax in the hands of the assessee-trust. It is, however, not possible to discuss this controversy at this stage of the reference finally though it cannot be disputed that the assessee-trust was receiving income for the benefit of <ORG> and consequently the provisions of s. 161(1) would be attracted for the purposes of determining whether the assessee is liable to be assessed to any tax on the income by way of donation to <ORG>.

23. In the view which we have taken, the question referred have to be answered as follows :

24. Question No 1. - In the affirmative and in favour of the assessee.

25. Question No 2. In the affirmative and in favour of the assessee.

26. The assessee to get the costs of this reference.


JUDGMENT <NAME>, Kt., C.J.

1. This suit was commenced in <ORG> at Bombay, and is brought by the plaintiffs, who are the landlords, against defendant No. 1, who is the tenant, to eject him from 31-D Matarpakhdi, Mazgaon, Bombay, held by him under a monthly tenancy at a rent of Rs. 125 per month. The tenancy is alleged to have been terminated by notice dated April 29, 1943. The defence of defendant No, 1 is to plead the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, which I will refer to as "the 1944 Act", and to rely on the fact that before this Act came into operation the plaintiffs had applied to the Controller for a certificate under the Bombay Rent Restriction Order, 1942, (which I will refer to as "the 1942 Order"), which was refused. Such refusal, it is said, is binding upon the plaintiffs under Section 15 of the 1944 Act.

2. In reply the plaintiffs allege that Part II of the 1944 Act is ultra vires and void for the reasons to which I will presently refer.

3. It is obvious that the challenge to the validity of Part II of the 1944 Act raises a question of public importance, since if Part II of the Act be invalid, all premises to which it is intended to apply would in effect never have been controlled at all owing to the; invalidity of the 1942 Order. In these circumstances, the Advocate General for Bombay was added as a party to the suit, which was in effect transferred at his request to <ORG> and has been heard by this bench. No question is raised by any one as to the regularity or propriety of this procedure.

4. As I have already said, the notice to determine the tenancy was given on April 29, 1943, and an application was subsequently made to the Controller under the 1942 Order for a certificate which, if granted, would have had the effect of avoiding the restriction placed on the recovery of possession by the 1942 Order then supposed to be valid. This application was refused, and the plaintiffs then went on appeal to the Collector under Section 12 of the 1942 Order. Again they were unsuccessful. On April 6, 1944, a full bench of this Court held Sections 8, 9 and 12 of the 1942 Order invalid, and accordingly the plaintiffs commenced this suit on April 12, 1944. On May 12, 1944, the 1944 Act was promulgated by the Governor, part of the preamble to the Act being as follows:

AND WHEREAS the Governor of Bombay has assumed to himself under the Proclamation dated the 4th November 1939, issued by him under Section 93 of the Government of India Act, 1935, all powers vested by or under the said Art in <ORG>;

NOW, THEREFORE, in exercise of the said powers, the Governor of Bombay is pleased to make the following Act :.

The relevant sections of the 1944 Act are Sections 9 and 14. Section 9 is as follows:

(1) The landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, rent to the full extent allowable by this Part and performs the other conditions of the tenancy:

Provided that nothing in this section shall apply where the landlord has obtained a certificate from the Controller certifying that the tenant has committed any act contrary to the provisions of Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct: which is a nuisance or an annoyance to any adjoining or neighbouring occupiers or that the rent charged to a sub-tenant is in excess of the standard rent, or that the premises are reasonably and bona fide required by the landlord either for his own occupation or for the occupation of any person for whose benefit the premises are held or for any other cause which may be deemed satisfactory by the Controller.

(2) Where an order for the recovery of possession has been made in favour of a landlord on or after the 6th day of April 1944 but not executed before the date of publication of this Act, the Court by which the order was made may, if it is of the opinion that the order would not have been made if this Part had been in operation at the date of the making of the order, rescind or vary the order in such manner as the Court may think fit for the purpose of giving effect to this Part.

Section 14 is:

(1) Any person aggrieved by an order passed by the Controller, under the provisions of this Part (including an order granting a certificate under the proviso to Sub-section (1) of Section 9 ) may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the Collector.

(2) The Collector shall then call for the record of the Controller and after examining the record and after making such further inquiry as he thinks fit, either personally or through the Controller, shall decide the appeal.

(3) The decision of the Collector, and subject only to such decision, the order of the Controller shall, for the purposes of this Part, be final; and no Civil Court shall have jurisdiction to settle, decide or deal with any question) which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.

5. The Governor's competency to exercise the Provincial legislative function arises by virtue of the powers conferred on him by Section 93 of the Government of India Act, 1935, which I will refer to as "the Constitution Act ", and a Proclamation made by him on November 4, 1939. Section 93 , so far as material, is as follows:

(1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the government of the Province cannot be carried on in accordance with the provisions of this Act, he may by Proclamation

(a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion;

(b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority ;

and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority:

Provided that nothing in this sub-section shall authorise the Governor <NAME> assume to himself any of the powers vested in or exercisable by <ORG>, or to suspend, either in whole or in part, the operation of any provision of this Act relating to <ORG>." Sub-section (2) deals with revocation, and Sub-section (3) contains certain consequential provisions.

Sub-section (4) is as follows:

If the Governor, by a Proclamation under this section, assumes to himself any power of <ORG> to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature, and then come the following words which are important:

and any reference in this Act to Provincial Act s, Provincial Laws, or Acts or laws of <ORG> shall be construed as including a reference to such a law.

i.e. a law made by the Governor.

The Proclamation of November 4, 1939, commences with the following preamble:

WHEREAS the Governor of the Province of Bombay is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Governments of India Act, 1935 (hereinafter referred to as 'the Act'):

And the operative part of the Proclamation is this:

Now, therefore, in the exercise of the powers conferred by Section 93 of the Act and with the concurrence of the Governor General, the Governor by this Proclamation

(a) declares that all his functions under the Act shall be exercised by him in his discretion ;

(b) assumes to himself all powers vested by or under the Act in <ORG> and all powers vested in either Chamber of the Legislature but not so as to affect any power exercisable by His Majesty with respect to Bills reserved for his consideration or the disallowance of Acts ; and he hereby makes the following incidental or consequential provisions which appear to him to be necessary or desirable for giving effect to the objects of this Proclamation, namely Then there follow clauses suspending the operation of certain ministerial sections of the Constitution Act and certain sections referential to legislative machinery of <ORG>.

6. Mr. <NAME> in his very full and exhaustive argument has attacked the validity of the 1944 Act on four grounds:

(1) That the Governor legislating under Section 93 of the Constitution Act has not power to legislate retrospectively at all;

(2) That <ORG> itself cannot legislate retrospectively in the concurrent field, and it is said that the law we are concerned with is in the concurrent field;

(3) That Sections 9 and 14 of the 1944 Act are void, because they interfere with the powers and jurisdiction of <ORG> contrary to the proviso to Section 93 of the Constitution Act; and (4) That <ORG> has not power to interfere with the powers and jurisdiction of <ORG>.

7. With regard to the first ground, there is no question as to the retrospective operation of the 1944 Act. Section 2 and Schedules A and B and Sub- section 9(2) , which deals with the period from April 6, to May 12, 1944, make this retroactive operation abundantly clear. So far as the retroactive operation of the exercise of legislative powers is concerned, there is no difference between the position of the Governor General under Section 72 in the Ninth Schedule to the Constitution Act and the position; of a Provincial Governor under Section 93 . Indeed the contrary has not been contended. The position in this respect of the Governor General is covered by authority which is binding upon us. In the case of Emperor v. <NAME> (1943) 46 Bom. L.R. 50 F.B., which is a decision of a full bench of <ORG>, the validity of Ordinance XIV of 1943 promulgated by the Governor General under Section 72 in the Ninth Schedule was challenged, and the Chief Justice, Sir <NAME>, said this (p. 52):

It is argued, in the first instance, that that Ordinance was beyond the powers of the Governor General under Section 72 of the Ninth Schedule to the Government of India Act. But there is really no substance in that point. Under that section the Governor General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by <ORG>. That is the material part of the section, and the limitation of six months has been removed by the St. 3 and 4 Geo. VI. c. 33.

It is said that the Governor General cannot pass a retrospective ordinance. But as this Ordinance is to have the like force of law as an Act passed by the Indian legislature, and it has not been disputed that the Indian legislature can pass a retrospective Act, there seems to be no force in that contention.

Nor is there any force in the contention that the Governor General cannot amend an existing Act of the Indian legislature. The same reasoning applies to that. The Indian legislature can amend an Act, and, therefore, the Governor General can under Section 72 . This Court very recently upheld a retrospective Ordinance made by the Governor General in <CITATION> ..

8. The second ground is that <ORG> itself cannot legislate retrospectively in the concurrent field, i.e. in respect of the subject-matters enumerated in list III in the seventh schedule of the Constitution Act , and it is suggested that the 1944 Act deals with the subject-matters enumerated under item 4 "Civil Procedure", item 8 "Transfer of property", item 10 "Contracts" and item 15 "Jurisdiction and powers of all Courts". But even if this was so, the answer in this case is that the Governor General has given his assent to the 1944 Act; and Mr. <NAME> concedes that if there was any repugnancy, it is cured by such assent : (See Section 107(2) ). There is also authority for this in the judgment of Mr. Justice <NAME> in <NAME> v. <NAME> (1939) 3 Fed. L.J. 1 5. Mr. <NAME>, however, says that notwithstanding this there is a distinction in the case of a law which as here is to have retrospective effect. In my opinion, there is no substance in this point. The Governor General has given his assent to the 1944 Act, which is retrospective on the face of it.

9. It is the third ground which really forms Mr. <NAME>'s main assault upon the validity of the 1944 Act. Clearly the proviso to Section 9 of that Act deals with matters which are within the jurisdiction of <ORG> to determine, such as whether the tenant has committed an act contrary to the provisions of Section 108 of the Transfer of Property Act, 1882, or has been guilty of conduct which is a nuisance or an annoyance to any adjoining or neighbouring occupiers. The granting of a certificate with regard to these matters is placed in the hands of an executive officer, a Controller, with an appeal to another executive officer, namely the Collector. Further, by Section 14 it is expressly provided that <ORG> shall have jurisdiction to settle, decide or deal with any question which is by or under this Part required to be settled, decided or dealt with by the Controller and Collector.

Mr. <NAME> points to the proviso to Section 93 of the Constitution Act relating to <ORG>, and he then invites attention to Section 223 of that Act, which is as follows:

Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate <ORG> enacted by virtue of powers conferred on that <ORG> by this Act, the jurisdiction of, and the law administered in, any existing <ORG>, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Fart III of this Act.

10. Two things should be observed : In the first place, there is nothing in the Proclamation itself by which the Governor has assumed to himself any power of <ORG> or suspended, either in whole or in part, the operation of the Constitution Act so far as it relates to High Courts. In the second place, it is provided by Sub- section 93(4) that any reference in this Act to Provincial Act s, Provincial laws or Acts or laws of <ORG> shall be construed as including a reference to such a law, i.e. a law made by a Governor. Under Section 93 such a law is to have the same force and effect as a law enacted by <ORG>. The question is : does the proviso refer to the powers with which the Governor may invest himself under the Proclamation, or does it cut down or restrict what he may do if he invests himself as he has done with the same plenary 'powers as <ORG>? In my opinion, it must be the former. If it were the latter, he could not change the law at all, since he would be suspending the operation of the law as administered in <ORG> as it stood immediately before he assumed the powers under the Proclamation. Be it observed that Section 223 itself is made "subject to the provisions of any Act of the appropriate <ORG>", and the Governor is the appropriate <ORG>. <ORG> is a Provincial authority within the meaning of Section 93 ; and, in my judgment, the effect of the proviso is to prevent the Governor from assuming or suspending the powers and jurisdiction of <ORG> by any Proclamation under Section 93 , but does not extend to alteration of the law by or under the assumed legislative powers which are within the competency of <ORG>, once the Governor has assumed those powers. In my opinion, this is clear when Section 93 is analysed. It provides that in the event therein mentioned the Governor may, by Proclamation, assume to himself all or any of the powers vested in, or exercised by, any Provincial body or authority. As I have already said, <ORG> is such an authority. Then there follows an incidental particularization of some of the things the Proclamation may contain, including provisions for suspending in whole or in part the operation of any provisions of the Act relating to any Provincial authority. Then follows the proviso. In my opinion, the assumption and the suspension mentioned in the proviso are referential to the assumption mentioned in Sub- section 93(1)(b) and the suspension mentioned in the particularization of the subject-matters which the Proclamation may contain. In the result this attack on the validity of the 1944 Act also fails.

11. That brings us to the fourth ground, which is, whether <ORG> could have passed the 1944 Act. The only argument addressed to us on this point is founded on Clause 44 of the Letters Patent, which declares that all the provisions of the Letters Patent, and it is Clause 12 which gives <ORG> jurisdiction, are subject to the legislative powers of the Governor General as therein mentioned. There is nothing1 in this point, since by the conjoint effect of Section 293 of the Constitution Act and Sections 2 and 7 of the Government of India (Adaptation of Indian Laws) Order of 1937 the reference to the Governor General in Clause 44 of the Letters Patent refers to all other competent authorities.

12. It must follow that as a result this action must be dismissed.

Kania, J.

13. These proceedings were started by the plaintiff landlord in August 1941 under the Presidency Small Causes Courts Act to eject his tenant on whom the notice to quit was duly served on April 29, 1941. The relevant provisions of the Government of India Act, the Proclamation issued by the Governor of Bombay under Section 93 , and Bombay Act VII of 1944 enacted by the Governor, have been set out in the judgment of the learned Chief Justice. The only point urged before us is whether Bombay Act VII of 1944 is ultra vires. If the contention fails, these proceedings must be dismissed.

14. The argument that Bombay Act VIII of 1944 is ultra vires is based on four contentions. They are set out in the judgment of the learned Chief Justice. The first contention is that the Governor has no authority to make retrospective legislation and his powers are not co-extensive with those of <ORG>. For this counsel relied on the words of the proviso to Section 93 of the Government of India Act, which was contended to limit the Governor's powers, It was argued that in King-Emperor v. <NAME> [1944] F.C.R. 1 <ORG> expressed the view that an Ordinance, issued by the Governor-General in exercise of his powers under Section 72 of the Government of India Act, cannot be made retrospective. It was contended that the powers of the Governor acting under Section 93 had the same limitations, and therefore the Governor had no power to make retrospective laws. This argument is unsound because <ORG> did not decide that point in <NAME> case. The Court only discussed the various aspects of the powers of the Governor General acting under Section 72 and at p. 15 stated:

As the general question framed by <ORG> cannot be satisfactorily answered without further discussion of the above and other similar aspects of the problem, we refrain from expressing any final opinion upon it, as no such decision is necessary for the disposal of "these cases.

The argument advanced before <ORG> was in respect of Sections 2 and 3 of Ordinance XIV of 1943. <ORG> thus declined to express any definite opinion in respect of Section 2 , while in respect of Section 3 it decided that the same was valid. On the other hand our <ORG> in <CITATION> expressed the opinion that in construing emergency legislation it is not necessary to express words or necessary intent to make the same of retrospective effect, unlike the normal rule of construction applicable to Acts passed in normal times. A full bench of this Court in Emperor v. <NAME> (1943) 46 Bom. L.R. 50 F.B. held that the Governor General's powers to make retrospective Ordinance was valid and relied on the previous decision of this Court in <CITATION> (supra). In order to consider whether the Governor has such power or not the relevant question is what is the position of the Governor on the issue of a proclamation under Section 93 . If his powers are the same as of <ORG>, he has the power to pass laws having retrospective effect. This cannot be disputed because <ORG>, within the orbit of its legislative sphere, has plenary powers, and all legislatures having plenary powers are held to have power to make laws with retrospective effect within the scope of its authority. This contention will therefore depend on the decision of the third contention urged on behalf of the landlord.

15. The second contention is that <ORG> cannot legislate retrospectively on matters falling in the concurrent list. It was not disputed that in respect of the exclusive list II, found in the seventh schedule of the Constitution Act , <ORG> had authority to pass a law having retrospective effect. The contention was that in respect of the concurrent list <ORG> had not unconditional and absolute plenary powers because <ORG> had also authority to pass laws on the same matters. I apprehend that the two questions are mixed up in advancing this argument. The first question is whether the Act passed by the appropriate authority in respect of a concurrent list is valid or not. The second question is whether, it being valid, there can remain any objection to its validity on the ground that it has been given retrospective effect. The question of validity of the Act must depend on the true construction of Section 100 and Section 107(2) of the Government of India Act. In <NAME> v. <ORG> <ORG> had occasion to distinguish the spheres of the separate lists and the concurrent list found in the seventh schedule to the Constitution Act . It observed (p. 57):

On a very strict interpretation of Section 100 , it would necessarily follow that from all matters in list II which are exclusively assigned to <ORG>, all portions which fall in list I or list III must be excluded. Similarly, from all matters falling in list III, all portions which fall in list I must be excluded. The section would then mean that <ORG> has full and exclusive power to legislate with respect to matters in list I, and has also power to legislate with respect to matters in list III. A <ORG> has exclusive power to legislate with respect to list II 'minus matters falling in list I or list III, has concurrent power to legislate with respect to matters in list III, 'minus matters falling in list I'. In its fullest scope Section 100 would then mean that if it happens that there is any subject in list II which also falls in list I or list III it must be taken as cut out from lislt II. On this strict interpretation there would be no question of any real overlapping at all. If a subject falls exclusively in list II and no other list, then the power of <ORG> is supreme. But if it does also fall within list I, then it must be deemed as if it is not included in list II at all. Similarly, if it also falls in list III, it must be deemed to have been excluded from list II. The dominant position of <ORG> with regard to matters in list I and list III is thus established. But the rigour of the literal interpretation is relaxed by the use of the words 'with respect to' which as already pointed out only signify 'pith and substance,' and do not forbid a mere incidental encroachment. But, even if such an accidental encroachment may be ordinarily permissible, the field may not be clear. There may be competency and yet repugnancy also. The question is how to prevent a clash, if the trespass is on a field already occupied by <ORG>.

Under Section 107(2) it is clear that in respect of an item found in the concurrent list if an Act of <ORG> exists and <ORG> passes an Act, the same has to receive the consent of the Governor General. The effect of such consent is also provided for in the same section. The effect is that in the Province the Provincial Act is supreme. It is further provided that this need not prevent <ORG> from further passing an Act, if it was so minded, but its authority to pass such Act is circumscribed by the previous consent of the Governor-General being obtained to introduce any Bill for that purpose. Therefore, once it is found that the sanction of the Governor-General under Section 107(2) in respect of a Provincial Act has been obtained, there can remain no question of repugnancy. In the Province, the Provincial Act has the overriding force. Once that stage is reached, I do not see how the question of the Act being ultra vires, because it gives retrospective effect, remains. The Governor-General having given consent to the Provincial Act , <ORG> is given power to pass that law and it is valid. If so, the same is within the powers of <ORG>. <ORG>, having plenary powers, is entitled to enact a law having retrospective effect, and I do not see any difference in the position of an Act passed in respect of an item mentioned in the concurrent list, which has obtained the consent of the Governor-General, and an Act passed in respect of a matter in the exclusive list, after both are held valid. This argument must therefore fail.

16. The third contention was subdivided under four heads. It was first contended that the power of the Governor to interfere with the jurisdiction of <ORG> was expressly excluded by the proviso to Section 93(1) of the Government of India Act of 1935. A similar provision, with regard to the Governor-General containing a similar proviso, is found in Section 45 , when the machinery of <ORG> breaks down. The bearing of the two sections on the scheme of the Constitution Act has therefore to be considered together. The argument is put thus : By the proviso it is enacted that nothing in the sub-section shall authorise the Governor to suspend, either in whole or in part, the operation of any provision of this (Constitution) Act that relates to <ORG>. It was argued that Section 223 of the Constitution Act maintained the jurisdiction of <ORG> as it existed till then. By that section the proper authority was given power to interfere with that jurisdiction. Therefore, Section 223 was a provision of the Constitution Act relating to <ORG>, and the operation of that section covered the exercise of jurisdiction of the existing <ORG>s. The proviso to Sections 9 and 14 of the Act VII of 1944, during the existence of that Act, prevented <ORG> from exercising its jurisdiction in respect of Section 108 of the Transfer of Property Act and administering that law in <ORG> and thus suspended the operation of Section 223 of the Constitution Act. The Bombay Act therefore clearly infringed the words of the proviso and was invalid. In order to appreciate the force of this argument, it is necessary to scrutinise the scheme of Section 93 . The section provides for the assumption by the Governor of a province of the government, when a situation had arisen under which the government could not be carried on in accordance with the provisions of the Constitution Act . The first part of the sub-section provides that in such circumstances and with that object the Governor may by a proclamation (a) declare that its function shall be exercised by him in his discretion, and (b) assume to himself all or any of the powers vested in or exercisable by any provincial body or authority-Clause (b) only is relevant for the present discussion. The Governor, therefore, by a proclamation can assume to himself all the powers of any provincial body or authority. Inasmuch as <ORG> of a province exercises jurisdiction and has powers exercisable within the province, it is a provincial authority. If the section stopped there, it could be contended that when issuing the proclamation the Governor could state that he would assume the functions of <ORG>. The first part of the proviso prevents that possibility. The second part of the sub-section proceeds to state that any such proclamation may contain incidental and consequential provisions, as may be necessary to the objects of the proclamation, including provisions for suspending the operation of any provision of this Act relating to any provincial body or authority. (I have omitted the words which are not material for the present discussion). Therefore, in the proclamation the Governor is given further power to make incidental and consequential provisions which are to attain the objects of the proclamation. Such provisions may include the suspension of the operation of certain provision of the Constitution Act which relate to a provincial body of authority. The second part of the proviso follows the exact words of the last part of the sub-section. The result, therefore, is that if the words in the second part of the proviso did not exist, although the Governor may not assume powers under Clause (b), in including incidental and consequential provisions in the proclamation he may suspend the operation of any section relating to <ORG>. The second part of the proviso prevents him from doing so. That appears to be the plain scheme of Sub-section (1) read with the proviso.

17. The question to be determined is whether the Governor when acting under Section 93 has infringed the words of this proviso. He has not assumed any of the powers of <ORG>. He has not suspended the operation of any provision relating to it. The answer, therefore, to the argument advanced on behalf of the landlord is clearly in the negative. The approach to Section 223 , contained in the argument advanced on behalf of the plaintiffs, is erroneous because in passing Act VII of 1944 the Governor has not suspended the operation of any provision relating to <ORG>, but in fact he is acting under Section 223 . By the proclamation he has assumed all the legislative functions which are vested in <ORG>. The result is that after the proclamation he becomes <ORG>, and for the purpose of passing laws in respect of any items mentioned in list II or list III he is the proper legislative authority within the meaning of Section 223 . The contention that the Bombay Act trespasses on or curtails the jurisdiction of <ORG> is confusing the issue. The only question before the Court is whether the Governor in assuming the powers which he is entitled to under Section 93 has suspended the operation of Section 223 . The answer clearly is in the negative, because, firstly, he has not so stated in the proclamation, and, secondly, he has not suspended but is acting under Section 223 . It may be argued that this construction renders the proviso quite ineffectual. In my opinion, that is not correct. Under Section 223 the alteration in the jurisdiction of and the law administered in any existing <ORG>, can be effected by a provision or any Order-in-Council made under the Constitution Act , or any Act of the appropriate <ORG>. The last would include an Act of the Central <ORG>. Item 15 in list III in the seventh schedule gives authority to the Central <ORG> to pass laws in respect of jurisdiction and powers of all <ORG>, which would include a <ORG>. If the Governor, acting under Section 93 , proclaimed that a portion of Section 223 was suspended, while he himself retained, the power to act in the capacity of a Provincial <ORG> to pass laws in respect of the matters included in list II and list III to the extent the field was not already occupied by any Central Act , he would deprive the authority entitled to issue an Order-in-Council and the Central <ORG> from passing any Act which would affect the jurisdiction of or the law administered in the Provincial <ORG>. It is clear that the proviso is framed to prevent the Governor from creating that situation. In my opinion, this construction of Section 93 and Section 223 is perfectly logical and according to the scheme of the Government of India Act. Therefore, the contention that the proviso prevents the Governor from enacting Bombay Act VII of 1944 is unsound.

18. The second branch of the argument under this heading was that the powers are limited to the purposes mentioned in Section 93 , and in this connection counsel referred to Sections 88 and 89 of the Constitution Act. It was urged that in these sections the powers of the Governor are limited to the purposes mentioned therein. This argument is unsound, because the powers under each section are controlled by what is mentioned in the particular section. It is true that in the present case the powers to be assumed by the Governor are for the purposes mentioned in Section 93 . But it is irrelevant to consider whether; the passing of Bombay Act VII of 1944 is for the purpose of Section 93 . The two questions are quite independent. For the purpose of Section 93 the only question is whether the Governor has assumed the necessary powers required to achieve the objects mentioned therein. It has nothing to do with the question whether the exercise of the legislative functions, which are vested in him on the assumption of powers under Section 93 , is for the purpose of Section 93 .

19. The third part of this argument was that the 'law passed by the Governor' is not an Act of the <ORG>, and, therefore, the words of Section 223 are not complied' with. It is described as the law. In this connection counsel relied on the interpretation clause Section 311(6) and Section 311(2) , which defined the Provincial Act and the Provincial Law. This contention overlooks the express words of Section 93(4) . The concluding words of that sub-section clearly show that wherever there is a reference to Provincial Act in the Constitution Act , the same is to include the Governor's law passed under Section 93 . Reference to Section 311(6) is not useful because the general interpretation clause need not necessarily repeat what had already been provided by the <ORG> in Section 93(4) . This argument therefore has no substance.

20.The last argument advanced under this heading was the same as the fourth contention advanced in a different form. The contention was that Clause 44 of the Letters Patent can be altered only by <ORG> and not by <ORG>, and therefore much less by the Governor acting under Section 93 . This contention overlooks the provision made in the Government of India (Adaptation of Indian Laws) Order, 1937. Section 293 of the Constitution Act is wide enough to cover the Letters Patent, as a law, according to the last sub-clause of that section. Under Section 2(2) of the Adaptation of Laws Order, 1937, 'Indian law' includes every law which is covered by Section 293 of the Constitution Act. Under Section 7 of the Adaptation of Laws Order "proper authority" is the authority entitled to legislate on the subject in question. Reading all these together, it is clear that the proper authority to legislate in respect of the matter in question is <ORG>. As the powers of <ORG>, by virtue of the Proclamation issued under Section 93 , are now vested in the Governor, the proper <ORG> is the Governor. This contention therefore must also fail.

21. I therefore agree that the proceedings adopted by the plaintiffs must fail and should be dismissed.

22. Per Curiam. Certificate, under Section 205 of the <ORG> of India Act, to issue. With regard to costs, this matter is admittedly within <ORG> jurisdiction. It was transferred to <ORG> on the application of <ORG> as raising a question of public importance. It is true that the litigating parties did not object; but the result has been that considerably more costs have been incurred, whilst <ORG> have got a decision upon this matter of public importance. In the exercise of our discretion we think that the fair and proper order to make in these circumstances with regard to the first defendant's costs is, first, to quantify them at Rs. 1,000 (one thousand) including all previous orders for costs, and then to direct that half that sum should be paid by the plaintiffs and half by the second defendant. Defendant No. 2 will bear his own costs.


PETITIONER: MESSRS. DWARKA PRASAD LAXMI NARAIN Vs. RESPONDENT: THE STATE OF UTTAR PRADESH AND TWO OTHERS. DATE OF JUDGMENT: 11/01/1954 BENCH: <NAME>, B.K. BENCH: <NAME>, B.K. <NAME>, B. MAHAJAN, <NAME> (CJ) BOSE, VIVIAN HASAN, GHULAM CITATION: 1954 AIR 224 1954 SCR 803 CITATOR INFO : RF 1954 SC 465 (8) RF 1956 SC 479 (19) R 1956 SC 559 (4) F 1956 SC 676 (51) E 1957 SC 397 (16) RF 1957 SC 896 (12) F 1958 SC 538 (12) R 1958 SC 578 (168) E&D 1960 SC 475 (9,11,13) F 1961 SC 705 (15) R 1961 SC1602 (12) RF 1964 SC 370 (6) D 1971 SC 474 (6) R 1974 SC 366 (61,94) D 1974 SC 651 (17) R 1978 SC 771 (14) RF 1978 SC1457 (63) RF 1981 SC1829 (95) RF 1988 SC1089 (11) ACT: Constitution of India, Arts. 19(1) (g), 19 (6)--Clause 4(3) of the Uttar Pradesh Coal Control Order, 1953, whether ultra vires the Constitution. HEADNOTE: A law or order which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities must be held to be unreasonable. Under cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, the licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. Such provisions cannot be held to be reasonable: Held, therefore that the provision of cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, must be held to be void as 104 804 imposing an unreasonable restriction upon the freedom of trade and business guaranteed under art. 19 (1) (g) of the Constitution and not coming within the protection afforded by cl. (6) of the article. <NAME> v. <NAME> (118 U.S. 356 at 373) referred to. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 326 of 1953. Original Petition under article 32 of the Constitution of India.

<NAME> (<NAME>, with him) for the petitioners.

<NAME> for the respondents.

1954. January 11. The Judgment of the Court was delivered by <NAME> is an application presented by the petitioners under article 32 of the Constitution, complaining of infraction of their fundamental rights guaranteed under article 14 and clauses (f) and (g) of article 19 (1) of the Constitution and praying for enforcement of the same by issue of writs in the nature of mandamus.

To appreciate the contentions that have been raised on behalf of the petitioners, it would be necessary to give a short narrative of the material facts. The petitioners are a firm of traders who had, prior to the cancellation of their licenee, been carrying on the business of retail sellers of coal at a coal depot held by them in the town of Kanpur. It is said that the District Magistrate of Kanpur as well as the District Supply Officer, who figure respectively as respondents Nos. 2 and 3 in the petition, had been for a considerable time past issuing directives from time to time upon the petitioners as well as other coal depot holders of the town, imposing restrictions of various kinds upon the sale of coal, soft coke, etc. It is stated that prior to the 14th of February, 1953, the prices that were fixed by the District Officers left the coal dealers a margin of 20 per cent profit upon the sale of soft coke and 15 per cent profit on the sales of hard coke and steam coal, such profits being allowed on the landed costs of the goods up to the depot. The landed costs comprised several items and besides ex-colliery price, the middleman's commission and the railway freight, there were incidental expenses of various kinds including labour duty, loading and unloading charges, cartage and stacking expenses. After making a total of these cost elements, an allowance was given for shortage of weight at the rate of 5 rods and odd seers per ton in the case of soft coke and 3 rods and odd seers in the case of hard coke and steam coal, and it was on the basis of the net weight thus arrived at that the price was calculated. On the 14th of February, 1953, the District Supply Officer issued a directive reducing the selling prices of coke, coal, etc., much below the existing rates. This reduction was effected in a three-fold manner. In the first place, the allowance for shortage of weight was made much less than before; secondly a sum of Rs. 4-12-0 only was allowed for all the incidental expenses, and thirdly, the margin of profit was cut down to 10 per cent. On the 22nd of May, 1953, a representative petition was filed by seven colliery depot holders of Kanpur including the present petitioners challenging the validity of the executive order, dated the 14th of February, 1953, mentioned above inter alia on the ground that it infringed the fundamental rights of the petitioners under articles 14 and 19 of the Constitution. There was an application for ad interim stay in connection with this petition which came up for hearing before the learned Vacation Judge of this court on the Ist of July, 1953. On that day an undertaking was given by the State of Uttar Pradesh to the effect that they would withdraw the order of the 14th February, 1953, and apparently the consideration that weighed with the State in giving this undertaking was that it was a purely executive order without any legislative sanction behind it. The order of the 14th February was in fact withdrawn, but on the 10th of July, 1953, the State of Uttar Pradesh promulgated by a notification an order intituled "The Uttar Pradesh Coal Control Order, 1953" purporting to act in exercise of the powers conferred upon it by_section 3(2) of the Essential Supplies Act, 1946, read with the notified order of <ORG> issued under section 4 of the Act. As the constitutionality of this Coal Control Order is the main object of attack by the petitioners in the present proceeding, it would be convenient to set out the material provisions of the order in respect of which the controversy between the parties primarily centers:

"THE UTTAR PRADESH COAL CONTROL ORDER, 1953.

2. In this Order unless there is anything repugnant in the subject or context .

(a) "Coal" includes coke but does not include cinder and ashes.

(c) "<ORG>" means the District Magistrate of the District or any other officer authorised by him to perform his functions under this Order and includes the District Supply Officer of the district.

(d) "Licensee" means a person holding a licence under the provisions of this Order in Form 'A' or in Form 'B'.

3. (1) No person shall stock, sell, store for sale or utilise coal for burning bricks or shall otherwise dispose of coal in this State except under a licence in Form 'A' or 'B' granted under this Order or in accordance with the provisions of this Order.

(2) Nothing contained in sub-clause (1)--

(a) Shall in so far as it relates to taking out a licence for stocking or storing coal for their own consumption, apply to the stocks held by persons or undertakings obtaining coal on permits of the District Magistrate or the State Coal Controller for their own consumption.

(b) Shall apply to any person or class of persons' exempted from any provision of the above sub-clause by <ORG>, to the extent of their exemption.

4. (1) Every application for licence under this Order shall be made in the form given in Schedule I appended to this Order.

<NAME>

(2) A licence granted under this Order shall be in Form 'A' or Form 'B' appended to this Order and the holder of a licence granted under this Order shall comply with any directions that may be issued to him by <ORG> in regard to the purchase, sale, storage or distribution of coal.

(3) <ORG> may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any terms thereof granted by him under the Order for reasons to be recorded. Provided that every power which is under this Order exercisable by <ORG> shall also be exercisable by the State Coal Controller or any person authorised by him in this behalf.

7. The State Coal Controller may by written order likewise require any person holding stock of coal to sell the whole or any part of the stock to such person or class of persons and on such terms and prices as may be determined in accordance with the provisions of clause (8).

8. (1) No licensee in Form 'B' and no person acting on his behalf shall sell, agree to sell or offer for sale, coal at a price exceeding the price to be declared by <ORG> in accordance with the formula given in Schedule III.

(2) A licensee in Form 'A' or any other person holding stock of coal or any other person acting for or on behalf of such licensees or person transferring or disposing of such stocks to any person in accordance with clause 6 or clause 7 shall not charge for the coal a price exceeding the landed cost,- plus incidental and handling charges, plus an amount not exceeding 10 per cent of the landed cost as may be determined by <ORG> or the State Coal Controller.

Explanations:--(1) Landed cost means the excolliery price of the coal plus the L.D.C.C. and Bihar. Sales tax plus middleman's commission actually paid and railway freight.

<NAME>

(2) Incidental and handling charges mean the cost of unloading from wagons, transporting to stacking site, unloading at the stacking site, plus godown rent, plus choukidari charges, if any, not exceeding Rs. 8-8-0 per ton as may be determined by <ORG> or <ORG> according to local conditions.

11. The District Magistrate shall within a week of the commencement of this Order prepare and publish in a local paper a list of persons carrying on the business of sale of coal in his district and upon the publication of the list, the persons included therein will be deemed for purposes of this Order to be licensee until three months next following the publication of the list in Form A or B as may be specified.

12. If any person contravenes any of the provisions of this Order, or the conditions of licenee granted thereunder, he shall be punishable under section 7 of the Essential Supplies (Temporary Powers) Act, 1946, with imprisonment for a term which may extend to three'years or with fine or with both and without prejudice to any other punishment to which he may be liable ........ " ' Schedule III referred to in the Order is as follows:

SCHEDULE III.

(Formula for declaration of prices of soft coke/hard coke/steam coal).

1. Ex-colliery Price Actuals. 2. L.D.C.C. and Bihar Sales tax Actuals. 3. Middleman's commission Actually Raid subject to the maximum laid down under clause 6 of the Government of India Colliery Order 4. Railway freight Actuals. 5. Incidental and handling chargers including Maximum of Rs. 8-8-0 per per ton as may be determ- ined by the licensing

(i) Unloading from wagons. Licensing Authority according to local condition

(ii) Transport upto premises provided that at places 0of stacking which are extra oridenarily

(iii) Unloading and stacking distant form the railway at the premises or depot. way head a higher rate may be allowed by <ORG>.

(iv) Godown rent and chaukidari charges, if any

(v) Weighing charges, if any.

6. Local taxes Octroi, etc. Actuals.

7. Shortage Not exceeding 31/2 maunds per ton in the case of soft coke and 2-1/2 maunds in the case of hard coke and steam coal as may be determined by <ORG>.

8. Profit At 10 per cent on total items 1 to 6 above except item No.5 It is said that on the 16th of July, 1953, the respondent No. 2 issued a declaration whereby he fixed the retail rates for the sale of soft coke, coal, etc. at precisely the same figures as they stood in the directive issued on the 14th of February, 1953. The result, according to the petitioners, was that the selling prices were reduced so much that it was not possible for the coal traders to carry on their business at all. In accordance with the provision of clause 11 of the Control Order set out above, the petitioners' name appeared in the list of B licence holders and they did apply for a licence in the proper form as required by clause (4). The licence, it is said, was prepared, though not actually delivered over to the petitioners. By a letter dated the 3rd of October, 1953, the Area Rationing Officer, Kanpur, accused the petitioners of committing a number of irregularities in connection with the carrying on of the coal depot. The charges mainly were that there were two other depots held and financed by the petitioners themselves in the names of different persons and that the petitioners had entered into agreements for sale of coal at more than the fixed rates. The petitioners submitted an explanation which was not considered to be satisfactory and by an order dated the 13th of October, 1953, the District Supply Officer, Kanpur, cancelled the petitioners'licence. In the present petition the petitioners have challenged the validity of the Coal Control Order of the 10th of July, 1953, the declaration of prices made on the 16th of July following and also the order cancelling the petitioners' licence on the 13th of October, 1953. 15--95 S. C. I./59 The constitutional validity of the Uttar Pradesh Coal Control Order has been assailed before us substantially on the ground that its provisions vest an unfettered and unguided discretion in the licensing authority or <ORG> in the matter of granting or revoking licenses, in fixing prices of coal and imposing conditions upon the traders; and these arbitrary powers cannot only be exercised by the officers themselves but may be delegated at their option to any person they like. It is argued that these provisions imposing as they do unreasonable restrictions upon the right of the petitioners to carry on their' trade and business conflict with their fundamental rights under article 19 (1)(g) of the Constitution and are hence void. With regard to the order dated the 16th of July, 1953, by which the prices of coke, coal, etc. were fixed, it is pointed out that it was not only made in exercise of the arbitrary power Conferred upon the licensing authority by the Coal Control Order, but the prices, as fixed, are palpably discriminatory as would appear from comparing them with the prices fixed under the very same Control Order in other places within the State of Uttar Pradesh like Allahabad, Lucknow and Aligarh. The order of the 13th OCtober, 1953, cancelling the petitioners' licenee is challenged on the ground that the charges made against the ,petitioners were vague and indefinite and that the order was made with the ulterior object of driving the petitioners out of the coal business altogether. It is said further that as a result of the cancellation order, the petitioners have been made incapable of disposing of the stocks already in their possession, though at the same time the holding of such,stock after the cancellation of their licence has become an offence under the Coal Control Order.

It is not disputed before us that coal is an essential commodity under the Essential Supplies (Temporary , Powers) Act of 1946, and by virtue of the delegation powers by <ORG> to <ORG> under section 4 of the Act, <ORG> was competent to make provisions, by notified order, for regulating the supply and distribution of coal in such a way as they considered proper with a view to secure the objects as specified in section 3 of the Act. All that is necessary is that these provisions should not infringe the fundamental rights of the citizens guaranteed under Part III of the Constitution and if they impose restrictions upon the carrying on of trade or business, they must be reasonable restrictions imposed in the interests of the general public as laid down in article 19 (6) of the Constitution. Nobody can dispute that for ensuring equitable distribution of commodities considered essential to the community and their availability at fair prices, it is quite a reasonable thing to regulate sale of these commodities through licensed vendors to whom quotas are allotted in specified quantities and who are not permitted to sell them beyond the prices that are fixed by the controlling authorities. The power of granting or withholding licences or of fixing the prices of the goods would necessarily have to be vested in certain public officers or bodies and they would certainly have to be left with some amount of discretion in these matters. So far no exception can be taken; but the mischief arises when the power conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left entirely to the discretion of particular persons to do anything they like without any check or control by any higher authority. A law or order, which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. As has been held, by this court in <NAME> v. The State of Madhya Pradesh(1), the phrase "reasonable restriction,' connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under (1)  S. C.R. 759.

article 19 (1) (g) and the social control permitted by clause (6) of article 19 , it must be held to be wanting in reasonableness. It is in the light of these principles that we would proceed to examine the provisions of this control Order, the validity of Which has been impugned before us on behalf of the petitioners.

The provision contained in clause 3(1) of the Order that "no person shall stock, sell, store for sale or otherwise utilise or dispose of coal except under a licence granted under this Order" is quite unexceptional as a general provision; in fact, that is the primary object which the control Order is intended to serve. There are two exceptions engrafted upon this general rule: the first is laid down in sub-clause (2) (a) and to that no objection has been or can be taken. The Second exception, which is embodied in subclause (2)(b)has been objected to by the learned counsel' appearing for the petitioners. This exception provides that nothing in clause 3 (1) shall apply to any person or class of persons exempted from any provision of the above sub-clause by the State Coal Controller, to the extent of such exemption. It will be seen that the Control Order nowhere indicates what the grounds for exemption are, nor have any rules been framed on this point. An unrestricted power has been given to the State Controller to make exemptions, and even if he acts arbitrarily or from improper motives, there is no check over it and no way of obtaining redress. Clause 3 (2) (b) of the Cntrol Order seems to us, therefore, prima facie to be unreasonable. We agree, however, with Mr. <NAME> that this portion of the Control Order, even though bad, is severable from the rest and we are not really concerned with the validity or otherwise of this provision in the present case as no action taken under it is the subject matter of any complaint before us.

The more formidable objection has been taken on behalf of the petitioners against clause 4 (3) of the Control Order which relates to the granting and refusing of licences. The licensing authority has been given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licenee under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable. No rules have been framed and no directions given on these matters to regulate or guide the discretion of the licensing officer. Practically the Order commits to the unrestrained will of a single 'individual the power to grant, withhold or cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Mr. <NAME> contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does. This safeguard, in our opinion, is hardly effective; for there is no higher authority prescribed in the Order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons, therefore, which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person. It was pointed out and with perfect propriety by Mr. Justice <NAME> in the well-known American case of <NAME> v. Hopkins(1), that the action or non-action of officers placed in such position may proceed from emmity or prejudice, from .... partisan zeal or animosity, from favouritism and Other improper influences and motives which are easy of concealment and difficult to be detected and exposed and consequently 'the injustice capable of being wrought under'cover of such unrestricted power becomes apparent to every man, without the necessity of detailed investigation. In our opinion, the provision of clause 4(3) of the Uttar Pradesh Coal control Order must be must be held to void as imposing an unreasonable restriction upon the freedom (1) 118 U. S. 356 at 373.

<NAME>

of trade and business_guaranteed under article 19(1)

(g)of the Constitution and not coming within the protection afforded by clause (6) of the article.

As this provision forms an integral part of the entire structure of the Uttar Pradesh Coal Control Order, the order cannot operate properly unless the provision of clause 4 (3) is brought in conformity with the constitutional requirements indicated above. The licenee of the petitioners having been cancelled in pursuance with the above clause of the Control Order, the cancellation itself should be held to be ineffective and is not necessary for us to enquire further whether or not the grounds upon which the licensing authority purported to act were vague or idefinite or could constitute proper grounds for cancellation.

The two other clauses of the Control Order to which exception has been taken on behalf of the petitioners are clauses (7) and (8). Clause (7) empowers the State Coal Controller to direct, by written order, any person holding stock of coal to sell the whole or any part of the stock to such person or class of persons and on such terms and prices as may be determined in accordance with the provision of clause (8). Clause 8 (1) provides that no licensee in Form 'B' shall sell or agree to sell coal at a price exceeding the price to be declared by the licensing authority in accordance with the formula given in Schedule III. With regard to both these clauses, the contention of the petitioners' counsel, in substance, is that the formula for determining the price, as laid down in Schedule III, is per se unreasonable as it is made dependent on the exercise of an unfettered and uncontrolled discretion by the licensing authority. An unfair determination of the price by the licensing authority, it is argued, would be totally destructive of the business of the coal traders and the grievance of the petitioners is that that is exactly what has been done by the declaration of prices made on the 16th of July, 1953.

We have examined the formula given in Schedule Iii to the Control Order with some care and on the materials that have been actually placed before us, we are not in a position to say that the formula is unreasonable. 'The prices, as said already, are calculated on the basis of the landed costs of coke and coal up to the depot, 'to which a profit of 10 per cent is added. The landed costs comprise seven items in all which are enumerated' in Schedule III. With regard to items 1, 2, 3, 4 and 6 of the Schedule the actual costs are taken into, account and to that no objection can possibly be taken. The entire dispute is with regard to incidental charges specified in item 5 and the allowance or shortage which forms item 7. So far as incidental charges are concerned, the Schedule allows a maximum of Rs. 8-8-0 per ton to be determined by the licensing authority according to local conditions. The rates undoubtedly vary according to local conditions and some amount of discretion must have to be left in such cases to the local authorities. The discretion given to the licensing authority in fixing these rates is, however, not an unlimited discretion, but has got to be exercised with reference to the condition prevalent in the locality with which the local officers, must be presumed to be familiar. The grievance of the petitioners is that in the declaration of 16th of July, 1953, the licensing authority allowed incidental charges only at the rate of Rs. 4-12-0 per ton and that is grossly unfair. It is pointed out that at Lucknow, Aligarh, Allahabad and other places much higher rates were allowed, 'though the local conditions of these places are almost identical; and there has been consequently a discrimination in this respect which makes the declaration void altogether. The statements that have been made by the petitioners in this connection are not supported by any affidavit of any person who is familiar with the local conditions in the other places and on the materials that we have got here we are unable to say that the rates fixed by the licensing authority of Kanpur are really discriminatory. It is certainly not open to us to substitute our own determination in tile matter of fixing the prices for that of the licensing authority and provided we are satisfied that the discretion that has been vested in a public officer is not an uncontrolled discretion and no unfair discrimination has resulted from the exercise of it, we cannot possibly strike down as illegal any order or declaration made by such officer.

The same reasons apply, in our opinion, to the seventh item of Schedule III which relates to allowances for shortage of weight. Here also the Control Order specifies a maximum and the determination of the allowance in particular cases has been left to the discretion of the licensing authority. We are not satisfied from the materials placed before us that this provision is unfair or discriminatory. The formula allows a profit of loper cent upon the cost items with the exception of item No. 5 which relates to incidental charges. We do not know why this item has been omitted and Mr. <NAME>, appearing for the respondents, could not suggest any possible reason for it. But even then, the result of this omission would only be to lower the margin of profit a little below 10 per cent and nothing more. If the other traders in the locality are willing to carry on business in coal with that amount of profit, as is stated on the affidavits of the respondents, such fixation of profit would undoubtedly be in the interests of the public and cannot be held to be unreasonable. The counsel for the petitioners is not right in his contention that the Control Order has only fixed the maximum profit at 10 per cent and has left it to the discretion of the licensing authority to reduce it in any way he likes. Schedule III fixes the profit at 10 per cent upon the landed costs with the exception of item No. 5 and as this is not the maximum, it would have to be allowed in all cases and under clause 8 (1), the 'B' licensees are to sell their stocks of coal according to the prices fixed under Schedule III. Clause 8 (2) indeed is not very clearly worded, but we think that all that it provides is to impose a disability upon all holders of coal stocks to charge prices exceeding the landed costs and a profit upon the same not above 10 per cent as may be determined by the licensing authority. The determination spoken of here must be in accordance with what is laid down in Schedule III and that, as has been said above, does specify a fixed rate and not a maximum and does' not allow the licensing authority to make any reduction he: likes. On the whole we are of the opinion that clauses (7 is and (8) of the Control Order do not impose unreasonable restrictions upon the freedom of trade enjoyed by the petitioners and consequently the declaration. of the 16th of July, 1953, cannot I;e held to be invalid. The result is that, in our opinion, clause 4 (3) of the Control Order as well as the cancellation of the petitioners licence should be held to be invalid and -a writ in the nature of mandamus would issue against the respondents opposite parties preventing them from enforcing the cancellation order. The rest of the prayers of the petitioners are disallowed. We make no order as to costs.

Petition partly allowed.

Agent for the petitioners: <NAME>.

Agent for the respondents: <NAME>.